their emotionally charged opinion now that we have the boston case we finally have all parties in this matter agreeing that this is an open and obvious constitutional error in this and so i stand before you today saying that we ask you you make an argument for structural error and you also cite to footnote nine in brac for more about an automatic reversal for the food their i i believe your honor there have been some additional cases i know that the state fights to be like the docket in the hooper case and say that that is not that those cases are against us in the sense that they have  footnote nine does not apply in the situation however i would say that those are easily distinguishable if you look at for instance the docket case that was involving a single prosecutor's misconduct in that matter it had nothing to do with the victim recommendations and for sentencing relief or sentencing here and so while here we are dealing with a systemic problem like i said bruce is something that has been crystal clear for close to council i mean this court has has consistently recognized that there is issue and the footnote nine possibility has been here before there could have could have been presented before even before bossy and so my question is whether this is a fresh issue for this panel or whether there's a history here that thing that seems to preclude the panel at that point from granting some sort of relief akin to structural error is it said previous to that statement that i just cited it said that what the option not for close by precedent circumstances that were carried for four but however there was significant information that he delivered in his confession that simply there is no evidence or even allegations that he carried for it seems to me you're making  going to be cured for a why wouldn't that come in to the director well it was because the jury assessed to make a determination of whether or not this this evidence was substantial and injurious i mean that's of the mitigation phase i think in the medication medication case we have first and foremost that this is a significantly mentally ill individual and fact it's something that the state's own expert at trial did not  did not contest any of the defense experts are diagnoses in this case that is something that you nana mostly the state and the defense agree that this is a significantly mentally ill man we also have the fact that the jury specifically misconduct or illegal activity whatsoever and we also have you know the state has argued that this is a conscientious jury and i would submit that that is true we have a jury that looked to all the evidence and still found a continuing  relevant to this case and so i would certainly assert that you know the mental illness that we have in this case the lack of continuing threat in this matter certainly would be i would also say that part of the direct analysis part of the brain and here needs to be reviewed and the sense that this is probably at least with respect to something certainly not with respect to guilt but this was a fairly close case we have a jury that sent out a note specifically requesting additional information about life without parole even after receiving information from the court on that they still don't make an automatic decision we also like the dog we were just one student from each of the parents  victims that testified that if you look to jog and what the victims actually said in that case as well they're very concise they do not go on and on it may have been a drumbeat in the sense that there were additional victims but the victims in case were very concise in their statements i would say is like and exactly to the victims in this case they did not go on and plead and have this merciful you know dialogue with the court instead it is one sentence say as well and i would also argue that so it's not just a matter of how long the sentences were that these victims gave but it's the fact that the prosecutors wanted to have these recommendations given to the jury i mean the the prosecutor in this case was given a warning by the trial court saying this is not look favorably upon you risk reversal and they decided to proceed ahead with that regardless and i  mean we have two individual are we have two parents here but you can't get more sympathetic well then two parents of the ten year olds let me let me test it here is you is your exchange  illustrates your work very brief comments from the mother of father but it was really more than that as i understand it that the district judge said i want to see in writing the questions and i want to see in writing the answers i don't want anybody deviating from the script which is pretty unusual i don't want to hear any emotion i don't want any crying and asked it i've maybe misremembering but i think the judge even sitting there with the script the prosecutors reading from the script to the mother and father reading their one sentence line and with no emotion presumably you don't have the video of it that was with the instruction was and so you have then that yes on its face victim impact evidence is terribly powerful but it's certainly mitigated in this and then you have on the other side the defendant's c n us to cutting a ten year old girl neck trying to decapitate her at some point trying to have sex with her whether she was conscious or dead already or  not and in and so it's hard to see well if if this is is prejudicial it's hard to imagine because of this these two lines of the mother and father reading from a script it's hard to imagine that you were beneath situation in which we would any court would find that a victim impact evidence a recommendation of the death penalty would ever be considered harm here and i would assert that this has taken care of that that that to specifically says that this type of information does nothing other than inflame the passions and prejudice of the jury and use the physically reference how graphic and how terrible this case is and no one's here to say otherwise but because of that it makes the victims in this case the parent even that much more point and and we have you know law here that is specifically you know the footnote nine saying that you know in brecht at least the holding does not foreclose the possibility that there would be that really different from the position that this court has taken on over the years and there's been this is there's been this conflict between this court and the o c cia and the supreme court has coming on the previous panel decisions to try something like that i think that there's a potential for some tension there your honor but i also think that if this is a case that does weigh in favor of structurally then even if the court has previously not found it to be such and yes and i'm just not seeing why this case is different from from other cases where that didn't happen again i was just there is that because of how graphic this case in fact the state has agreed to all the diagnoses for all intents and purposes that this is something that it did have much more than effect on the on the jury members and even if the statements were given in and non emotional manner i had trouble believing that that as a human as an individual that a jury would not be persuaded by the parents just lost tragically a ten year old daughter to this so whether it be for structural error whether it be for harmless error we deserve relief in this matter if we look at the doj case again we've had some discussion this morning about it but it's not necessarily the drumbeat of the number of victims that this is a recommendation but the court state of oklahoma state court the press of it in that court was that there was nothing wrong with it now our court has said over and over that's incorrect not be allowed in and warn the prosecutor not to press forward with it and even though it might not technical prosecutorial misconduct allegation in this case the fact is that over thirty years now the prosecutors in oklahoma have been able to rely on the oklahoma quarter of criminal appeals to flaunt its nose at supreme court already and this course authority for that matter and the matter that if your boss see that you know this is this is the academic maybe it's not oklahoma court of criminal field has told you you're wrong and yet i would hope that the court is going to change a pattern of behavior i would hope that the oklahoma prosecutors are going to change your pattern behavior that they've been able to rely on  surping federal law now for decades and so i would argue again that this certainly is one of those rare circumstances contemplated by certain nine in brecht that is a political here as far as structural error but i would also argue that regardless if it's under a harmless error standard even under god we still are deserving of relief we have you know that some of the issues that the court looked to and odds were you know they mention circumstantial evidence they mark mention the drumbeat of the victims that are recommending the sentence in this case however it was a fairly the parents and thought that he was guilty and we have a client here specifically shot down the continuing threat we have a sole aggravator we have a client to has not had any sort of criminal history whatsoever we have a client who has significantly mentally ill we have to the most sympathetic victims that you can possibly think of asking for death in this matter and so again i would argue that whether it be structural or whether it be a brecht analysis that we are deserving of relief in this matter i would like to reserve the remainder of the time for  and i guess i should start where counsel left off and just jump right into the victim impact if you will you tell us what we have to do to get home court of criminal appeals to get here to supreme do not determine what if we overrule our cases or not we do and the death sentence our death recommendations are not allowed and so at this point in time it's not an issue anymore i mean i'm i can't say for sure that we won't have one time at the pipes before bazzi but i honestly don't i don't know that we will i think i think the issue has been solved has been solved by the united states supreme court which is exactly what error has to be a defect that's affecting the framework within which the trial proceedings rather than simply an error in the trial process itself and in this particular case it is seems of the truly the request for structural error is based on the fact that the court of criminal appeals for years allowed the testimony and it does there's no supreme court law out there that says that would be a reason for structural error in this type of  in that it would be appropriate to revisit footnote mind and say we're just not we're not going to go down the brecht whanging road this is just happened happened happen the supreme court has now come in and very clearly said that it's wrong and so why why doesn't that in another itself revive  potential footnote nine approach in this court just based on the systemic nature as you know i didn't say that i did say systemic that i but but now the supreme court in the land has said that the o c ca has been permitting eighth amendment violations time and time again why isn't that enough to put the footnote nine analysis back on the table troubling and i take it that in the at the state keeps pressing on even here even now in your argument when when you've got a clear booth violation supreme court would say so and y it's no different than the supreme court holding that the admission of a coerced confession can be subject to harmless error review so i don't i understand that it's a it's a problem that's been frustrating for this court but i don't know that that is a reason that we would subject a trial erik to a structural error analysis it's it it doesn't seem consistent with supreme court well at all absolutely correct and there's no doubt the state of oklahoma has allowed this type of effort and so i'm not i'm not defending that here and if i'm coming across that way i'm not trying to come across that way what i'm saying what i am arguing s i think that the court that this court factors that were listed in dod which the district court correctly applied are but which is what should be talked about and these two statements they were questioning answer format it was thought were quite a bit more than that i have a few of them here but they were they had statements as well they didn't just give it wasn't just question answer format and it was one was that the s indication and if you will when you look at his mitigation case it doesn't even compare to the case in aggravation and i understand it's a one aggravating circumstance case but it's such a his first rule and the evidence in that of that aggravator was up stan it was probably times ten of anything we ever see in state court for this particular aggravator there was no way around  terminology the reason i say that is just it was just an overwhelming amount of aggravation in this case and when you're looking at the quantity and the nature of these recommendations they were very small very u was very strict with this case the there's no question of guilt it was a circumstantial case in thought in this particular case is not we have a confession a very graphic compression your i do not think it is the only relevancy that they have talked about for his testimony is that it would refute any notion that dr ricci is may have determination whether she was alive or dead on cross examination defense counsel was very successful in getting her to testify that the car is when unconsciousness occurred she cannot tell you she does not know when the victim became had of conscience as well suffering that was done within the first twenty minutes before any of the things that happened to her or that after she was smothered any of that stuff doesn't you can  have led the jury to say that this was not as especially heinous atrocious and cruel murder however there are different gradations of the socially incident drugs heinous atrocious cruel and if the jury believed that dr yacoob was leaving the door open that not only was this is it the fact that dr adams would have under quickly said that would not have happened dr jacobo is wrong in the sense of saying it's possible it was not possible she was not conscious this these attorneys were trying to save kevin underwood life and second stage proceedings so the focus on their second stage if you look at it is mr underwood told you everything needed to stay prayed a bunch of stuff in here to be prejudicial they didn't need to parade all this in here in front of you he told you what he did you don't need to even go beyond that that was one of their mitigating circumstances is that he gave a full full can folks in session as to what he did he cooperated with law enforcement so you have a big part of the second state's case is relying on his cooperation with police and that he was truthful in his confession and the risk of putting dr adams on since counsel bringing out in cross examination that she couldn't determine when she became unconscious and then kevin underwood confession so you don't have any inconsistency if you bring in dr adams you having consisten well i don't think it's evidence that the defense just messed up i mean they knew he was available for second stage for stevens if they wanted to call in for a second stage proceedings to the supreme court as has said it is perfectly fine to use cross examination as a tool rather than to to call a competing expert and that is exactly what mr hare did in this case when he cross examined this doctor got to the state had to prove beyond a reasonable doubt hun suffering and of course when it came out during cross it are during direct examination that she was unsure when you know when she was rendered unconscious or not then that of course defense of the defense counsel is going to get up there and ask questions she does not want to leave that hanging for the jury that she was there that she was alive as a matter of fact dr yet to the testimony indicated that you know w and i think she did that because he wanted the jury again to focus on what the defendant said the defendant said the last time she quit breathing i made sure she wouldn't breathe again because i put the duct tape over her nose and her mouth you know you have evidence of a victim who fought she fought hard if she was still alive or conscious when these other actors happen to her there's going to be more evidence of her fighting in her or her fighting him and he doesn't say any of that in his open the opportunity for the prosecutor as a prosecutor actually did just say and with says you can says well he didn't tell you everything he didn't tell you what what the evidence says here i mean if dr adams wouldn't then present and then that would have to field that argument with the prosecution he said he didn't have sexual intercourse later but yet and dr gets you says i can't tell if there was anything that ration i don't know dr adams said to that degree of medical certainty there was an iteration so that that would be another i mean if he is called to testify that is what a prosecutor and especially this prosecutor is going to look at that difference and that's not i that's honest tiger when she was alive there would be a mess and then a blood everywhere well seems cleaned up these pictures were taken two days later so if that is the reason then that reason is that supported by the evidence and he's relied on another thing a whole so that aggravator was still going to be there and it would have taken away from the mitigation and that the mitigation is all the defense lawyers have in this case they had relying on  you know we presume strategy and in this particular case the record support strategy there just what we have before us that's what you subject dr adams to on cross examination and what you have to lose by detracting from your mitigation was big in this case and so i work i'm also finding that this was reasonable trial strategy is reasonable  you know when august agreed as i just got it wrong here and i would like to just because your honor talked a little bit about it the prosecutor's comments with regards to the  shaving in this particular instance there is part of his confession he says twenty after a childer he drug or into the bedroom any drug or in between the death and the end and you have medical testimony that she did in he not tell you he didn't tell you that he shaved with that blue razor right there and then he starts talking about the evidence that supports that and you're right he did say the medical examiner noticed luke's taher there and it wouldn't medical exam or it was the investigator said yes that was a minor misstatement types of details those are the type of fact that would need to be uncovered an evidentiary hearing we know that there that mr underwood acknowledged having some sexual contact with her yes there was no penetration according to his testimony but to have some sort of injuries doesn't necessarily mean that we've had full penetration here and i know these details at the ends would justify there was badgering that tional trauma but that's very different than saying that he had fully penetrated her and that he had that that that there was a strategy here and even if it were strategy i would argue it simply unreasonable in fact the state and lower court has argued all along that trial counsel did not call dr adams because  it's allowing the jury to make a determination of the weight of that heinous atrocious and cruel evidence and you have someone that has testified leaving open the door that a ten year old was alive and even possibly conscious when these horrific acts happen that certainly is going to go to the waste and so what what shock possible trial strategy would there be to prevent that from coming in especially when you have a report that yes dr adam assert it must be a reasonable strategy and we don't have that here and us from the evidence you're hearing in the district court yes your honor the only other thing i would say is going back to the previous issues that we've had a i just said one question in terms of going back on whether there was a reasonable trial strategy you know a lot of very skilled trial lawyers have to take the approach that what you want to do here so work ok what they will that the winning side is going to define the issues that the jury talks about the liberation and you have be a medication change case it's clear that he was guilty and thus to this and so the prosecution made sure that the jury would have these details in their mind when they went back for sentencing all the evidence i think your honor that you refer with us i mean this is not something that you can just turn a blind eye to and especially when you have left open the possibility that a ten year old is alive or even pa possibly conscious that must mean now down i see on  submitted and counsel or excuse and this court will stand in recess