good morning my name is michael fish out of time with the federal public defender's office in las vegas and i'm representing mr secrecies the appellant here now please the court i think this is a case that presents what i think is a fairly simple question a federal civil procedure that arises in a context that's quite eccentric and a little complicated in the details but fundamentally i think  and therefore that dismissal has to be treated as essentially one that occurred as a result of summary judgment the rule in london and i think it's a period if unless i'm mistaken here trying to win this on a ground that's going to help you win another case now i would much prefer to stay with this case and let the other case take care of itself because the basis on wh so since the previous panel the citizens did not have a grasp of the inadequacy or it's outside the mandate and therefore there is no law of the case problem with respect to that there are various other numbers here's a here's a hint you're going to win on this point let's move on open and then there's fertile ground to plow ok i got you know one of the instruction on itself may or may not be ok but even if it's ok you know opens the door to a very damaging argument by the prosecutor is wrong that's true although i think whether or not the instruction had been given the same argument would have been made i think the point is you know what i think the point yes or no i think the point is that although that instruction is f murder he was ultimately released and he committed another so this is not someone who is twenty two and hannah has a variety of problems who commits one act although certainly  very terrible financed in jury he had two chances and ended up killing i think for this case instead of your for second trial one of the things the prosecutor doesn't closing argument is to emphasize the aggravating briefing in that matter supreme court that was the lever it's on now the question is if we go back and this is something where it is a and this let me start and i think the circles back around to one of the issues that was presented in the exhaust an issue in the district court initially and ultimately in this board was is a is an attack on all of the aggregate says and the four aggravators that the jury was required to weigh were very important and therefore and so we don't have to agree with the district courts here the result or line of reasoning but the district court's line of reasoning in finding it harmless relied not just on the nature of the crime but specifically on the four aggravators yes your honor but i think this is this is this may be a slightly circular argument but the fact is that the arguments are the talk to anybody about ok i got four factors all of them weigh against him against whatever mitigating factors you might find the argument changes and the emotional impact upon most people changes when you say well if there's only one aggravating factor and that is supposed to weigh against the mitigating factors and the aggravating factor is that this murder was committed committed in order to avoid detection that changes i mean if you're a defense lawyer you'd love to be able to say there's only one aggravat whole the district court's judgment all by itself to the extent that consideration of anything other than that argument is required then we have to consider all of the arguments with respect to the there is a very cursory reference to the invalidity of the aggravators and it's followed up by twenty six forty of the excerpts of record that's enough for this court to take a quick look which is all thought it would be less likely that they would actually have acted on when you when you have somebody testifying this defendant is an intro bull sociopath i think and that is the testimony that was a listed by the prosecutor i think in information do we know that seaquest lawyer had i read the report the doctor girl prepared which doesn't say incurable sociopath isn't that as i read that report as if i'm she caressed lawyer i don't particularly want to put him on prosecutor in this case was called to testify that putting somebody on the scene without thoroughly preference was in a factor and i think that's a large reason why the state mr gore fan that is there any more was in fact in fact  and that's that's a situation where it's essentially turning over all of the defense case to the prosecutor in in the state proceedings it's about this myth that this is the problem with the lack of adequate preparation both in terms of investigating the litigation and investigating and discussing  reed i think i did i think judge really was actually right i think and and i think looking at the perspective of what happened was right when he was right when he said that when this court said at the top of procedural  now you're turning around saying that he should have done it all and i'm saying that where we were at that point i'm saying that i was wrong in my argument then but and that judge really was trying to get the litigation back on track and that mr linds thirty four eight one zero as a procedural the fault well i understand this court sitting in bonn decided that it was not properly and consistently applied  reconsideration after the court ruled and then he did it in a sort of any one of two sentence very cursory way that i quoted in my brief so he didn't know the earth claim to be procedurally the fall that reverses carriers as you have an opportunity to show cause and prejudice or a fundamental miscarriage of justice overcome the procedural people and that never occurs to procedural default is not properly what happened in this case and and and so while this court has given i can't wait weaning i i was i respectfully disagree with respect to what happened i think judge reed was the one and the key in all this was that was getting everything right were trying to get the litigation moving in the proper direction he put it point out the direction wanted to go and mr secret decided not to fall that direction and it would have taken very little on that point is whether it's harmless i think the i can't try to i'm not going to stand up here and sold anybody's intelligence and defend the prosecutor's comments on your i don't understand that what i'm asking is it preferred not nevada does not have a mandatory pro provision for people that are serving life sentences so it was certainly at the very best of best possible reason incapable of reading very ill advised  but there are certain types of cases where basically if the prosecutor had stood up and said ladies and gentlemen of the jury you heard the you heard the evidence and finding  and i think my response would be that prosecutors have this very sad have it but for those of us with a lot of over proving their cases they think you're yes i thought i probably i have a right here but frank spending the foundries and make sure that i put everything on just even though i ninety nine percent or ninety eight percent sure the jury's going to come back and find and give a sentence of death based on the horrible nature of this crime  and and any reasonable juror who's not legally educated at a fairly sophisticated level about nevada criminal law cases parole and i think  and it was otherwise quite identical to this in the sense that it was a very similar instruction a very similar argument and for the same reason found that it was in properly and they found precious despite the fact that this guy was a two time murder so given that how can we not my presence here i think i think there are i think part because of one of the facts of the case i think it has to do in you know without regard to whether what's proper are not proper for a greater years that the prosecutor was allowed to rely on at that point and we now have three of those four aggravators on i guess i want to ask you but my instinct is that though i'm not quite clear that three out of those four  permissible aggravators the first two are felony murder and they're gone under mcconnell and we've just been told in november there's last year that that's retroactive so they're they're not permissible and the depravity of mind part of that aggravator  this is a long way to ask almost a perceived will question as we evaluate the harmlessness of the argument do we have a value it's a harmless notion of the argument as if the jury had only one i did my position up but if i think it matters do you have an answer i think i think if you did i guess by my response would be that even if you asking you is as we're doing our legal analysis as to whether or not it was harmless or not do we consider it as if only one aggravator was properly in front of the jury and being considered by the jury or do we say the i'm not sure my understanding of a brecht analysis is that we're supposed to put ourselves back the shoes of the jury that was there and one ten include you know and mine included maybe you know whatever mistakes might there may have been with regard to himself of the thought it was helpful to prosecute  i think you can with one rationale that i can think of would be that the the prosecution gets to go first and by putting the defense expert dr drill in this case you and whether he made it on recently sufficient information and then he goes on for several pages of his opinion explaining why and his estimation that that that standard actually was math and why he disagreed with