would ask that five minutes of my time be reserved for about ok with respect to this morning's discussion i thought i would ask of the court if there's particular issues they want to address first or just have me one of the one that concerns me and i ask this question and whether hopefully will remind you that you're an officer of the court is this mess with the mitigating circumstance that your office i'm sure it wasn't you tried to get stipulated to then in closing argument basically walks back the stipulation and i don't know what the judge had for breakfast this morning but then there's this kind of crowley's own like exchange with the juror foreman sitting in the box not deliberating and then we go ahead thank you or i i'll try to keep a straight face or try to make the argument both run good luck with the first ok you're on it looking at the record and i think obviously the court has done that and looking at the dialogue and the back and forth between the judge and the jury foreman while they were actually examining the verdict slip i think it's very critical to look at the verdict slip as it was originally delivered to the court first of all is that the case why should we look at it before as we live it to the court because that's not with the jury was told there was polled on the form with this new mitigating factors the checked the reason we should look at it before any before they were polled is because as the court has already noted the judge you don't not sure what he had for breakfast that morning because of how he wound up interrogating the jury for person in open court so i think it's very important that we look at the jury slip as it was handed before any discussion took place and what we have is a jury that checked off death not a life sentence and then went down and not did not list as they should have that they were balancing death aggravating factors versus mitigating fact room which had a significant problem which called the judge's attention to anything out there that help you with that well that was just the beginning of my my point your honor is this that if you take the verdict slip as it was delivered and then you realize that the the jury did in fact make a mistake in other words they mistake of a mission they did not check the the second part i think it's to be whatever they did not check that box indicating they were going to balance mitigating did not check one at all the first time that the first time and but what they did do was the we wrote down a mitigating factor and they wrote down aggravating factors so it's clear that they considered the lack of prior record as a mitigating factor then they also had aggravating factors just as a fact and then crossed it out when the judge said well if you're going to find death here i need you to check one of these boxes and then they in fact checked box to the balancing a box and then the judge again i think it was more a problem with the judge than the jury and and he then had them think it is a system when i gets here since the jury happened it seems fairly clear to me so i'm rather astounded to hear you argue that the jury found mitigating circumstance  reason that the jury found a mitigating circumstance and i don't know where that comes from other than they initially wrote in no prior and then cross that out and worst offense they wrote him and that would be and i guess that's my understand the course feelings and certainly not disagreeing with and in that respect but here's here's my argument that is your position that the jury found a mitigating and didn't they which from it's coming from something that we deal with in everyday lives on your tax returns last month if you had gains and you had losses you and you wrote down and at the end of the day at the end of your sheet you put down zero for your gains but if you go back through your itemized line items you may have gains in particular areas which are offset by your losses they so say they balance they said they if what you say is right they found a mitigating circumstance the for at least one aggravating circumstance and no mitigating circumstance that's what they check they are why would they balance if they didn't well they did balance they wrote they wrote in under the mitigating circumstances they wrote in one crossed out they crossed it out after when did they cross and they crossed it out after the judge said listen you've checked to death you have not checked any of the two boxes but you have filled in the part that indicates balancing so the foreman then checked the part that said we balanced and then the judge upon further instruction they wound up crossing out and that's the part that i don't get i mean if they list offense so they come in come back and the judge says ok so you find for death and say but folks you got to do a check in b and they go to be two and they put a check what caused them to a race that check and to a race offense and then say that there was no mitigating circumstance when everybody had stipulated that there was a mitigating circumstance and i guess my final my final response would be that upon questioning of the judge the same way upon questioning of uncle sam on your tax return did you have any gains in two thousand and eleven you might have had four thousand dollars worth of gains so yes you had gains but you had five thousand dollars worth of losses your final answer  have no gains your final answer is that your final answer was there were no mitigating circumstances and they checked they checked the box that says that and that has been until the blue brief in plate because i think that this is in a sense is the source of a lot of the confusion there is a difference is there not but tween the fact the stipulated fact that he has no prior offense and finding that that fact was a mitigating circumstance yes the charge itself which came in over no objection talked about the distinction between aggravating and mitigating circumstances and their swords that quote in terms of deserving the death penalty either those things that make a first degree case either more terrible or less terrible a mitigating circumstances anything about the defendant of a crime in which fairness and mercy should be taken into account in deciding punishment the jury here speaking only for myself i did not find the fact that the defendant had no prior record to rise to that level ok i understand what you're saying yes but then i don't know if i agree wit wrongly now they found i'm more what i guess my argument is they found it as a mitigating circumstance and upon the judge's instruction is when they finally checked one that was the the words first offense are there correct and the judge says but wait a minute you got a check you said if you got a check box one or two now out backtrack what he should have said was you need the check box to about correct yes absolutely correct so they they then go and check box to what i don't even i do not understand from the transcript what caused them then to say ok let's just cross out first offense as a mitigating circumstance and therefore cross out that we're going to way and then go to box one which is that there are aggravating circumstances and no mitigating circumstances what what because he had checked death so he needed to have no longer any mitigating factors despite the fact that the sheet said you should be balancing this is akin to the jury of the foreman we have a jury of one here well i believe that the it would have  court and the the judge in this case told them that they should consider all mitigating evidence when they must once they money should consider it once the mitigating factor has been established by violence of the evidence then they should consider it list of mitigating circumstances offered cannot limit your deliberations as you are free to consider any aspect of the crime with character defendant as mitigating in your sole discretion so clearly the course says yes we are not you you need to consider you're not in any way being precluded from considering but you also the courts have said in addition to considering you have to give effect to or be able to give a fact and it doesn't look as if there's an instruction on being able to give effect to the mitigating circumstances that they consider or the facts they consider as possible mitigating circumstances and i guess i would first say i am not i would say that there is true things as you must not be precluded from considering then you must be able to give effect to and and the response would be when the verdict slip is the liver to the judge at the outset they have filled out the part of the verdict slip that asked them to list mitigating circumstances and they have therefore considered and they have given effect to the lack of a prior or lack of private records centrally by the rolling never happened excuse me the palling of the jury never happened or we should just ignore it no i believe the i know the polling of the jury happened at the oregon is  by that time the jury foreman believed he now had a zero in his column because he crossed out as i don't think that's what the argument is i think give effect to is how you define give effect to to doesn't mean you must accept it and up and find that there was indeed a mitigating circumstance as a matter of law it just means well you know what ok i and i mean i would answer that they have given effect to it by virtue by virtue of the fact of listing it as a mitigating circumstance hundreds not one juror found where they they balanced is our position that you want to call it saying i think you have it all they gave it a zero the question is can they give it a zero that's really a should know that they didn't they didn't give the lack of prior record a zero they gave the totality of the like they gave the lack of that they they gave a lack of you when you look at the verdict sheet here and it says in b to the following mitigating circumstances are submitted to the jury and must be proven by the defendant says by a preponderance of the evidence and then goes down a list as one underneath that the defendant has no significant history of prior criminal convictions that right well maybe we maybe we need to i don't know doesn't make sense why i can't i can't stand here and say that have verdict slip was clear and without the ability for with this kind of enduring uncertainty about whether or not the procedure that got the person to the point where the needle is going is an arm we're not their procedure was constitutional or should we just forget all that and say well they could have right maybe they got the right not when it looks at the record i think looking at the record and various thousands and death cases where there's a concern about doubts about the jury hamley of an instruction the you've got to resolve that in favor of the accused that's why i use the metaphor of the needle in one i have nothing to respond to that other than what i've already i've already argued well you know i go into this argument fully believing based on everything i've seen so far so actually since  balance i mean the jury said on polo they accepted performance reasons and and the form and reason said there wasn't one so but but now are again it's they found it on position now today yes or no that the jury found a mitigating circumstance yes or no after they balanced now they found none that's correct they said they said we find no mitigating after they balanced the the two or three failures vs the worse for you because they didn't balance they said they didn't bounce they check one so now that's a turn the other one first their balancing act yes or no did they find mitigated having checked one which said they found no mitigating circumstance is it your position today that they did indeed find a mitigating circumstance as was written on a verdict slip yes when it was balanced out no ok thank you  looking at the supreme court jurisprudence that the test is that the sentence or may not be precluded from considering any mitigating evidence that that one part of it so far that's part of it yeah ok and then the second part is the jury cannot be heard the sentence in this case cannot be precluded from being able to give effect to mitigating evidence so it has to you can't say you can't do something by way of an instruction that takes away from the jury its ability to give effect to mitigating evidence that's true and also the make of a b if the if the instructions are ambiguous if the instructions are not conveying clearly to the jury then you have to look at whether there's an unreasonable a reasonable likelihood that the instructions you know impaired the sentencing process and the argument that we made that they weren't clear the argument is being made that they didn't require the jury to find as a mitigating circumstance the mitigating circumstance and he certainly didn't preclude him from being able to give effect to whatever that is and the problem that i run into is that there is then in the one thousand nine hundred eight case of  court says yes these are the two principles you can't be clued into considering and you can't preclude him in any way from being able to give effect to but then it goes on and says but we have never but we have never gone further and held that the state must affirmatively structure in a particular way the manner in which the juries consider mitigating evidence and indeed our decision suggests that complete jury discretion constitutionally permissible and then it goes in quotes among other cases supreme court case by the name stevens which rejects the argument that a scheme permitting the jury to exercise unbridled discretion in determining whether to impose a death penalty after this found the death penalty eligible is unconstitutional and so it sounds like the jury can do with that what ever it wants to do it can this computer thing as this is it could consider that mitigating circumstance to be part of the balancing or it could say i know what they stipulated to but we don't find it to be a mitigating circumstance and in that context federal courts don't enter case ok let me answer that question first and then there's some other things i need to get back to but it's not to be canon case because pennsylvania structure is so radically different from virginia structure virginia  let me explain let me explain a minute in virginia you have aggravating factors established and then it's up to the jury to consider anything they want they don't have to find things they don't have to find specific mitigating factors pennsylvania as this court recognized in abu jamal pennsylvania structures that very differently where in order to actually give effect to the mitigation in order to balance it in order to weigh it you first have to find a specific mitigating factor and that's why this case is so different from buchanan as wife actually difference from the virginia code and it may be helpful  correct your honor but it and it and that is a difference as well but the difference is in the way the jury is instructed because in virginia or in ohio where we had smith versus species act the jury is free to to consider any of the evidence to the extent it gives that any mitigating waste that's that's they've got to in any men but i'm not going to say that as you canon there the prosecutor started conceding in telling the jury there are mitigating factors here there was never a situation in buchanan with a jury was put in a position of being led to believe both by the judge in his charge and by the prosecutor argument that there because buchanan seems to say that once they are able and you haven't precluded them it's their discretion we stay out of it otherwise if we get into it the flip of that is we start in light of the great case from the one nine hundred sevent we start telling them how to decide and we we give them complete discretion and we've done it for the last cent since the seventy's and we're not going to change even if it goes the other way right but  when tony amps and margaret gregg was a different case because they were being in effect precluded arguably precluded from from being able to consider so you know they're able to consider anything they want if it helps but if it hurts they're also able to consider right right but but but simply to me simply being able to consider it isn't enough that there has to be the ability  requires no no it no the if you look at every case from from longer through three penry if you look at mccoy it's not just consideration it's giving a fact at the stage of the ultimate sentencing that's directly out of mccoy so you have to be able in the weighing process to give effect and the only way that you get to weighing a mitigating factor in pennsylvania is if you first find  by a preponderance of the evidence and it's this highly structured system which is which is critical here because you know we have we have a lot of problems with the jury to getting to that point number fact he had no prior of that that's true but with this particular mitigating factor there's no difference between the fact and the minute getting factor with most other ones under under pennsylvania law under pennsylvania law and that's what we have to go by because pennsylvania has to carry out it cannot carry out its law in an arbitrary and capricious fashion and you know the penciling of decision  s no we're not reviewing a decision of state law but the way the state structures its statute is critical to whether it's carrying out the statute and consistent with the eighth amendment the let me ask you we've been dealing with theory here and what the principles are and that the supreme court in fourteen years ago said that the manner in which juries exercise or discretion we stay we stay out of but practically speaking here it looks when you read what happened in the verdict slip and what was said in court whether it was weighing or whether it was aggravating and no mitigating the words whether they discounted the no offense as not being a mitigating circumstance this jury was going to find for death just as they did when they walked into the court room checking that box and not checking the analysis that they used to get to that box i don't think that you can make that assumption first of all as the district court said we can't get into the doesn't equal a mitigating circumstance of their for the first box but does it really make a difference if they're going to check it either way well we don't but it's much they're going to check a box either way and they never feared from from that well they were they were at an impasse at one point and we don't know how the answer to that question and that would be neat and then the problem well i agree with all of that but but i also want to say i think you know this kind of error goes directly to the heart of the way in process because what the mitigating circumstance and that checked the box under two so it indicated that they weighed and then based on the colloquy they decided somehow i'm not quite sure how that that mitigating circumstance didn't exist and therefore they were going to go under one but it looks like the argument that your opponent could make is it doesn't make any difference whichever way it was they decided it was going to be here and and i don't think that you can that you can clearly arrive at that without speculating about what the jury did when it was no no we know is that is that they that they they checked the verdict slip and said no mitigating factors and they said and the jury foreman said we didn't find any mitigating factors and everybody said we didn't find any mitigating factors in the pennsylvania supreme court said that the jury found no mitigating factors so they couldn't way well except let's go back to that portion of the instruction that i read earlier the one that defines mitigating circumstance the one that is no one's taken exception to in all these many years that the jury had to find to make it a missing mitigating circumstance deserving of the death penalty things that were make it more terrible know they had to look at here this and mercy you know in your closing argument the defense's closing argument you dug this out of the house for the record you said that there were three hundred fifty eight pieces of circumstantial evidence hundred and fifty eight pieces one of the things that astounds me is that the government the commonwealth is that really surprising given the parable terrible case this well i mean mitigating circumstance no prior offe i guess i didn't lecture and i don't mean to but but you know this was a terrible case and and and juries have to weigh the factors even if it's a terrible case and this jury didn't weigh the factors don't they know they they want to magically impose death so what if they think they didn't weigh the factors when they wrote more because or because they can't they can't weigh a factor if they don't find that that's that's what it looks like israel they were on what and then crossed it out but under buchanan it looks like they have the basically the supreme court saying that when it comes to their discretion it's hands off but this is not didn't believe that the mitigating factor was proved by a preponderance of the evidence the no rational fact finder could do that because the fact that he had no prior convictions was proved to one hundred percent one hundred percent he has no prior convictions and so pennsylvania law says if that's a question our question i don't think any of us are disputing that but the question is does that mean as a matter of law there's a no mitigating circumstance that's been proven here as a matter of federal law at bottom it does no no rational fact finder can say that if you've got a one hundred percent proven could look at this so he's got no prior record but given this i don't care i'm not going to give it any way they could say that but my concern is that they were told that they couldn't find the charge is not and i think this case i heard of it in terms of the beginning from this does not mean you must accept them as mitigating circumstances you show only do that if one or more of the determines that mitigating circumstances have been proven that proponents of the evidence seems to me that's the problem  they could have concluded that yes as a mitigating circumstance were not going to give one iota of weight given what happened here but lisa then they're into a wing process that we can't interfere with if however they didn't do that they simply said well there is no mitigating circumstances the prosecutor argued in closing argument despite stipulation then it does seem to me that there is a problem under the eighth amendment because you may well have as you said earlier an arbitra though they were polled they make clear that no one juror did exactly and so no one juror engaged in the weighing process and we don't well again there are two ways away one weighing it enough to number one that the instructions didn't give them sufficient guidance to make this reliable because they were not told what a stipulation means and they weren't told that that this fact established at a as a matter of law and number two number two if if you assume that they knew what was going on here that they that they knew that the that the stipulation prove the fact and they still refused to find the fact that and then that in itself is arbitrary and capricious the let me just because i don't really know i know what the supreme court of pennsylvania did when this case was remanded back to the map two thousand and five they found that resume was not retroactive exactly and wasn't since this was the case that really set the standard the other way before it was reversed by  you have any idea why they went that route it's it's puzzling to me i think that just a sailor who was in the middle said made some comments and one of his comments was you know from from the beginning the defense was was arguing this case as an alibi case and was acknowledging that there was that there was a ton of evidence that mr cope and have for was involved to some extent but that  as the as the prosecutor argued on the court instructed the jury if if they didn't find that mr cope and half or was there and pull the trigger they couldn't convict him of first degree murder as now by not only based upon my client's comings and goings from his mouth but he's your wife the people in the store that maybe that my best shot here that i can argue this is a reasonable doubt about whether he was there at the time what's wrong with that well that that that is the defense but given that defense if that's your defense then a reasonable lawyer would look into this lingering death here because if the lingering  true it destroys the alibi essentially because that's that's the commonwealth's argument that he shot her around to and she died later on well so so you you need to look at that before you decide how to pursue the defense at all and why so you know what about that until trial and trial study you know about oh i say i don't think i don't think that's i don't think that's accurate there's nothing there's nothing to show that he was i think the easy way on this issue needs to prejudice the testimony of the defendant of the detective cope and have her was telling the other inmates have to shoot someone in the head and not to doa so that the victim doesn't die right away i mean can you know weary i don't see why i don't see that that testimony from the detective as as overcoming what what dr wecht testified to which is you know number one what happened to the woman's brain would have killed her within a minute or two and number two there's no congestion in her lungs there's no bleeding it's because the testimony from dr gottman was not that the is is is damaged and that the ponds is destroyed and with the ponds destroyed you're not going to linger that's i mean that's his testimony very very emphatically stated plus that if she had big scheme i agree that that is overwhelming i do not agree that the evidence that he was ever seen and saw an actor here got his fingerprints on the music got the oil from the highway that was recently or zero on his tires  it's a good argument but it only works if the if the lingering death eeriest correct and that's why counsel had a duty to investigate it well that linger even if cam was right at the time of death she could have lingered into that well there's no there's no objection from the defense that this is some new theory that we never heard about before well this should have been when the testimony came out but that's beside the point but again given the  kind of amazing to me because the prosecutor argued a closing this lingering that this is extremely important extremely important to our case you like and what do you have a defense attorney like what he had there and he didn't want to open the door you know that could have happened including going back and really doing a number on his own client now that that's totally speculation there's nowhere that there's no knowing it's a finding by the state supreme court that this was a strategical decision is that entitled to a presumption of no that's not what the that's not what the state supreme court found there they said that counsel can never be in effect if for failing to consult an expert to revolt to rebut the commonwealth's case and that's a that's a bright line rule that's just contrary to stric twelve of the of the pennsylvania supreme court's opinion talks about trial counsel is never going to be in a factor for failing to consult an experts rebut the commonwealth's case let's assume that's wrong let's just get t isn't it really just harmless error even if it's wrong you know no i there's same thing no prejudice i mean that's strickland you have to yeah you unreasonably in connection with you doing a professional job and it must prejudice the your client and mr koven however was prejudiced here because if the jury heard testimony from a respected expert like dr whacked that was going through that was going to be how to balance the three hundred  fifty eight others it's not going to it's not going to say that mr copeland half or is totally innocent is going to create reasonable doubt as you know has to say the result of the trial would have been different yes then it would have been different because i just wanted to i just ask you question me mr lowery pointed out that there is a significant difference between the statutes even though they look the same there's a one word differen says that you must include them you shall include them as so how can you ignore a mitigating circumstance and obviously that's basically what was it reserved oh says you can't ignore it it's impossible that's true so what what how do you list those that distinguish you can from this case i believe in this case they again i'm repeating myself i understand that they did not ignore the judge said they were to give they must give weight they must consider the mitigating factors they consider the mitigating factors as and saying it requires they did and of course i extend it further to say they gave it weight they did a mathematical problem can now to zero and i understand that it's the panel is doesn't appreciate my math but that's that's our have not seen anything and indicate it was harmless error or you wave would you would we have to consider that a wave of any such argument now i'd have to concede that object to the testimony of dr and it's spelled german but it's her mon dr hermanns testimony coming in as to lingering death in the courts correct that that was something that was brought up not in his report so here's what the defense attorney did like all the defense attorneys on cross examination of dr home on in the reproduced record he got from him is a is it a possibility that death was not immediate it's a possibility is it a possibility that death was immediate he said it's a possibility so as the court noted that the defense attorney did what he the best he could he got in he established reasonable doubt that that that the murder occurred the death occurred between midnight and two am on that saturday which is when his client had an alibi theoretically and so he did that was extremely effective and if you look at the other authorities extremely effective i mean effective cross examination getting in and getting out as we say in a courtroom you don't want to belabor the point but just to note that he did in fact object initially to the court overruled objection and then he went on and made his points and again  second part aside from deficient are on the prejudiced pronto as the courts noted i have a list of of everything the twenty two point plan in the crepe paper perfectly matching and so on keep in mind that none of those pieces of circumstantial evidence are affected in any way by the lingering death theory whether it's in or out they stand alone so each one of those pieces of evidence which point to the defendant's  glazed bullets with a blue tent on the flesh which was on his pants that's pretty good evidence as to he was either standing next to the man who pulled the trigger if you want to believe that he was somehow