talk about the right presented defense claim this morning which means i want to talk about the exclusion of dr smith's expert psychiatric opinion that james because of acute cocaine intoxication could not sustain a form the specific intent to kill the mens rea are required to sustain m but only independently goes to ben's correct what i hope to talk about for the next twenty eight minutes have little or nothing to do with the miranda issue if you feel differently will i change my mind this is defense claim first it said dr smith's opinion was wrongly excluded under oklahoma law two it recognized that exclusion violated mr coddington's constitutional rights but third the air applying chapman versus california was harmless beyond reasonable doubt now my first and primary pass is to persuade you you do that i'm going to lash myself odysseus like to the semantic mast of the o c c decision that is its wor that the excluded evidence was not just material it was certainly material and given that i can distill my right to present defense claim as an unreasonable application of chapman in one sentence the exclusion of material evidence can never be harmless fair repeatedly twelve to fourteen term are talking about the comparing it to the exclusion of evidence that we had here to the exclusion of opinion testimony that we had in this case in that case it was exclusion i mean that the government any case law that would compare the the two is i guess what i'm saying i don't recall that you did that in your reply no and in my twenty eight j letter i'm not that there was the total of dr smith's testimony there was he he testified a lot and i never have denied that he gave the jury it lot of information about cocaine addiction what he was prevented from st was the critical and reliable opinion that negated by itself and it element of malice murder the problem with his testimony ju based on its finding that he ended the kill none of those facts were inconsistent in other words with a conviction the jury could not however in contrast except excluded opinion and can of it the jury was instructed with voluntary intoxication instruction they understood that they had to decide whether he had the requisite intent they were given all kinds of evidence about his voluntary intoxication and how that would impair his ability to form the intent not the specific testimony that you are speaking of but and in he himself testified i believe that he could've formed the intent and i think defense counsel pretty strongly made that argument in closing argument the jury certainly seemed to have understood what they were supposed to do with this evidence about his level of voluntary intoxication i'm go quibble with you on the edge of mort's i think it's at least you ought to have at least grave doubt as to whether the jury took precisely the opposite inference from his testimony for as the o c c he noted what was whether the jury believed as i think interesting because that's that's something that in finding the evidence material i think the jury said of the jury the o c c said if the jury believed this it certainly could have  factored in in terms of the degree of the homicide but then it seemed to me that what the cia was saying was we don't think the jury did believe it would have believed it because of all this other evidence and some of it was his own actions very specific actions in surrounding the crime that would indicate he knew exactly what he was doing two things first i o c cd in aid in detail that evidence but it's part of the record yep and i don't deny that happens to things in response first i'm not questioning whether the evidence was sufficient and mr coddington even on this it was that's not the issue the question is what was excluded from the jury's deliberation the degree of homicide for which mr coddington was convicted that was the whole point of calling dr smith was to reduce the degree of homicide could you address the state's argument that they they seem to focus on in their response brief that you don't have your habeas petition here is not based on clearly established federal law and we've said fairly recently in the house case inter breeding us supreme court fairly recent case all that that's a threshold requirement we can't get any further we can't talk about the one or the two without that threshold clearly stablish federal law and as you know federal law doesn't even permit the federal reserve evidence in particular and i'm not talking about supreme court but it doesn't even permit this opinion testimony it perhaps it under the federal rules and the supreme court in the closest case i could find that side was cited in a twenty eight day letter the current case would seem to say yeah this doesn't implicate his right to present his constitutional right to present a defense this opinion testimony so i'm and that clearly established federal law has to be based on specific you know the case with the most specific or facts the most akiane and it seems to me that clarke case is sorry about the long question you know and i'd like you to address that because i think it's a very important argument if that is the threshold question i agree it is important to the heart of this case and i think i sense two issues in europe question which is a long it's fair point he  first just to be clear my argument is not and never has been the exclusion of doctors by filth just free floating exclusion violates the constitution it most certainly does not  l for closes that argument my argument is that the priors make the exclusion of dr smith evidence the priors i'm referring to is a state created that goes to the issue of the violation of the right to do so evidence of intoxication as of the following five page eighty one of the trial record you will find the proffer it from dr smith an expert in psychiatry who would have testified that because of mr coddington's longtime addiction to cocaine amplified by the three day been junk crack cocaine he could not possibly have formed the specific intent to kill that was what the jury was denied for he could not consider that opinion as it weigh the evidence no that's very important the excluded evidence was not presented in any other form neither a witness nor a doctor nor any document supplied what dr smith could have s which isn't to say to repeat that the jury was ignorant about the effects of cocaine on mr coddington it got quite an education but he didn't get the critical negating element negating it and i'm itching holdings are in the exclusive touch tone are clearly established federal law and they must be construed narrowly and consist only of something akin to on point old ings why doesn't clark the supreme court holding in clark control this case and say that there is no clearly established federal law so we don't make it past that threshold determination in this circumstance well because as i said i understand that but we're still talking about clearly established federal law that must be based on supreme court but what's important in both clark and i think house is there was no this court said you shouldn't even if you've got to bats and because bats and hadn't been extended to these venue changes and so it back to it up a notch which is what we're doing here we're backing it up a notch you said oklahoma supreme court you should not have even talked about this being a constitutional essentially a denial of a constitutional right without there being some clearly established federal law well i say that the oklahoma supreme the oklahoma court of appeals wasn't even we have a finding of constitutional air but harmless and i alos like the pathway the first pass is to show the twenty to fifty for the violation that was found in the state court the rule harms iowa says the first thing you do is to ask whether that was a clearly an objectively unreasonable application of chapman and so i allah is the more appropriate analogue because there the case arrived in the federal courts with the air that i have presented you unlike unlike clarke they could not get through the constitutional horror so when they arrived in the federal courts they did not have what i have which is a judgement from the state court a final judgment declaring the that mr carden rights were violated constitutional right by the question is under what standard and when do i do it my position is the first question is it's a fork it chatman right if it did smith whether your client was capable of forming the specific intent of committing the crime and defense counsel responded your honor we would make that question in his answer as if he was wondered what we would make that question and his answer as an offer a proof for the court because we know that white versus state states that an expert cannot testify as to that particular aspect so that's one clarifying point i would like to make is that everyone at the time including defense counsel believes that the capacity opinion with excludable that was was prohibited under one of our oklahoma state law yes but then what happens we had the trial in two thousand and three and then in two thousand and four while petitioner's direct appeal was pending the court of criminal appeals decided a case called johnson in which they seem to expand that area of the law and said you could introduce this kind of testimony and then when they decided petitioners case they did say very clearly once and for all that this kind of cat capacity opinion is admissible under oklahoma law but it is not the case that this was some type of arbitrary or disparate application of the role the diff trial courts and the parties simply misunderstood the law and believe that this was not admissible in the oklahoma law  forfeited and waves claim however even if we look to the merits of that what happened in hicks is a defendant was deprived of a state created right to jury sentencing and courts have interpreted hicks basically to state say that it stands for the narrow proposition that some state created rights are so fundamental that it's basically creates a liberty interest and that right and you can't be arbitrarily deprived of it and petitioner has cited no case suggesting that the state of all right to introduce the capacity opinion is on that level that it so fundamental it's like what happened in hicks and that it would be an arbitrary deprivation and as far as the right the right to a percentage defense line of cases petitioner continually attempts to distinguish his that could have been substituted for that evidence and i think his answer was no and i disagree with that your honor and this this claim comes down to one line six words like what dr smith was not allowed to say was at the time of the murder petition i was not able to form the intense of malice aforethought he was had as able to say in his opinion a reasonable degree of medical certainty but just schumer was not able to think reasonably and rationally on the day of the murder so six words for me intent of malice aforethought that's all that was excluded here there was honor at all explain now why that was not outcome determinative and not critical even had dr smith said these words which i call his capacity opinion as shorthand the jury was not required to accept that opinion the jury was instructed extracted in instruction number twenty you may consider the testimony answering this is as to expert witnesses you may consider the testimony of these witnesses and give it such weight in value as you and so here are the reasons that the jury would never have accepted the capacity opinion even had it and get it and so the first thing i want to talk about is the time line as far as the degree to which petitioner would so this is yes your honor exactly this i'm sorry and this goes back to my opening point and i didn't make that clear but the point i wanted to get across to this court had to do with why this it should find the court of criminal appeals harmlessness determination reasonable bludgeoned terms repeatedly so that he could take the money and leave and so i i think it was rational in that sense yes exactly like it had a purpose it's rational in that sense that was his purpose so are you saying it's the nature of the bludgeoning the four times with the hammer that somehow established intent to kill him rather than simply maim him or deacon passed you know incapacitate him some time somehow  because i'm struggling with that yes i think those are some of the things that factor and what i'm what i'm trying to get here is the totality of the circumstances and yes i think it's relevant that he continued to hit him after the first time but but my point was actually i was trying to establish the timeline as to his level of intoxication that the killing happened around six thirty pm that day and the last robbery that has occurred before that was around two thirty am so around sixteen hours before the petitioner as i just said admitted he went to mr hill's house because he needed more money for cocaine he admitted on the stand that every time he committed a robbery and got money he would immediately buy cocaine would immediately spoke it up and would save it for later he didn't he also testified that he went into the bathroom and used cocaine while he was there at the home that's correct your honor but that was when he said that on the stand it was the first time he'd ever said that in five years he  he did not say that during his meeting with dr smith in fact dr smith said on the stand that it was his understanding that it was sometime in the hours before petitioner went over to mr hill's house that he had last used cocaine and  dr smith said that generally without using additional coke the actual high is over in about twenty to thirty minutes and that's on page four of the volume six of the trial transcripts and it's only after hearing dr smith testimony that petitioner gets on the stand in for the first time ever in five years says i used cocaine in mr hell's bathroom and and so i think that all of this  fact that i'd never been said before and the question of why he would save cocaine all day having before said i smoked up immediately and also it undermines dr smith in that he never says how he could be so testimony as to memory deficits but titian or makes the claim in his reply brief that his memory of the crime is not inconsistent with intoxication however dr smith s in his report that petitioner had a spotty memory of the crime and while dr smith also says that cocaine intoxication wouldn't interfere pervasively with memory and that there wouldn't be a complete walking of memory of what one has done that suggests that you would have some memory deficit so it wouldn't be pervasive and the problem for petitioner is he has a total lack of memory deficits as i described in my brief your judgment your frontal lobe is still affected so yes i agree that the cocaine would still have some effect on him but the question is and what he had to show is did it render him so intoxicated that he was unable to form the specific intent to kill and to manifestations a doctor sniffs reasoning that he was so affected by the cocaine was that he would have that he had a spotting memory and a lack of self awareness and so my point is when you look at all of the evidence it absolutely does not show either a spotty memory where a lack of self awareness but but yes i agree with your honor that it would still have some effect on him and i'm not  that the degree to which the cocaine affects you is related to the time when it happened in other words as time goes on you're less under the effect and so my point is just it i think it can be either thing whether he did smoke cocaine in the bathroom he and was intoxicated at the time he still is it's one of the ways you can consume and it's how petitioner said he used it and that apparently produces the fa high whether he used cocaine in the bathroom and was high at the time he still was was not to the point of not being able to form intense because the measure of that is the self awareness and memory deficits so i think that even if he was high he says we still don't have that those markers and then my alternative point is that there was also a lot of evidence to suggest he was not high at that time in an excuse me and it had been hours since he used cocaine and based on dr smith's testimony that the effects lessen over time that again undermines that capacity pinion and shows why no jury would have accepted it even had it been rendered could you address his argument about what's the proper pathway for us to take in light of your argument about the lack of clearly established law federal law  with respect to the actual denial of the opinion evidence capacity of events he suggests that we because he suggests that because we are the challenge here is to the harmless error that and we do have clearly established federal laws to harmless error standard and there's a question about what that is here but why isn't that  pathway instead of the way that you i think you approached it in your brief which is to first discussed the clearly established the existence of clearly established laws to the right to present the testimony itself correct about that describes it as a threshold showing and i agree it is it's not it's not perfectly on point i can't point to a case that is perfectly on point with this issue as far as his point about i alla honestly i have not read it recently enough to remember the  besides the characterization the threshold requirement it is some of the policy arguments that it it seems strange to punish a state court where it's interpreted the constitution more favorably than clearly established supreme court law requires more review but as a member state court finds no constitutional error and we have no clearly established supreme court law to then say you know if you would be cut off at that point because of lack of clearly established law and so base by making it is a policy argument combined with house the hatches language that this is a threshold determination and as far as i alla i i don't recall the constitutional error issue there but i don't know if there was an argument made that we had to make a threshold showing that it was actually constitutional error under clearly a standard in house the state supreme court error and then whether there's clearly established constitutional error because i think the former is probably more clear i mean it's it's definitely a fundamental tenet of pay b s that you have to have federal constitutional  point that federal courts have drawn a distinction between capacity opinions and the other types of evidence you can present in support of this kind of claim and have said it does not violate your right to present a defense and i think that it's only reinforced by park and schaeffer that these types of capacity opinions it's not infringe upon a weighty interest of the accused and and back to the point that petitioner has to course neither of those cases involve state where we have state common law here that actually establishes the right to present this opinion testimony yes and that's where i think two points first like i said i think that sounds more like his hicks claim which is totally forfeited in  waves and also not fundamental like hicks and the second thing is as far as the right to present a defense case the only difference i see that that makes from these other right to present a defense case is he's shown a state law error  it doesn't then follow automatically that he has that he's shown a federal constitutional violation other otherwise i think that would make a novelty of the rule in a style that either has to be more than just a violation unconstitutional trial court ruling like he's claiming here he still has to show that a weighty interest was a friend in french and so i mean if that w the deprivation of an offer to introduce evidence of impairment at the time of the commission of the crime which is authorized under which is permitted under oklahoma state law is not the way the us i mean if that's the test holy cats that that seems to me the not a very hard question to answer the more difficult question for me to answer is the line that you were following is to say well even though that right may have been impaired this was harmless because it's going to get to the  your because that i did that again i say i pause because i think you're telling me that the reason it's harmless is because you feel that the jury would have found him not to be impaired because of his ability to recollect events which is a marker and one other  my point that there was not a weighty interest in friendship and the supreme court has drawn a distinction between the kind of factual observational evidence and all of the kind of evidence he did gets put in versus the expert capacity opinion and then to your second point your honor you're absolutely correct that it why this capacity opinion would not have been accepted comes down in particular to the mit the lack of memory deficits lack of self awareness and i want to talk more about the self awareness petitioner says that after he bludgeoned mr hale he looked down and realized what he done and no reasonable juror would ever have accepted that his mental powers were so overcome that he couldn't intend to kill but that immediately there after he realized what he done and thought to take money from mr health pocket and another evidence of petitioner says he started to take mr hale's rings off but could couldn't do it again demonstrating that mental powers were sufficiently intact for him to feel guilty and that also contradicts mr smith's opinion that he was allowed to give that severe cocaine intoxication affects one ethnic ones ethics and so that is the moment where petitioner showed both ethics and self awareness but titian are testified that he left mr health house without contacting the police because he didn't want to get caught he washed his hands in the kitchen sink and rap to the murder weapon the hammer in a newspaper he was able to drive himself away break the twenty minute drive to oklahoma city to buy more cocaine afterward he disposed of the murder weapon and washed his clothes he returned later to try to take some of mr health sessions to pardon them but then he saw police lights again showing his awareness just to summarize the point your argument the over the under oklahoma law he had the right to introduce evidence of impairment the judge did not allow the ultimate opinion on that point because of his understanding of oklahoma law which at which he attributed to mean that he was not allowed to introduce that evidence yes subsequent to that the perspective does that mean that the judge that we have to presume the judge's ruling was wrong given the reflection of the later reflection of  under oklahoma law properly applied that ruling was erroneous in that you must resort in that we must resort to a harmless error to the same harmless error review that the courts appl with that position ok i think there still i mean i threw some importance in the way we you know the pathway here right i think that it is a threshold determination and even setting aside i think the more unsettled question of whether the clearly acquirement applies at that time i do think you this court would need to first find before you get to harmless error analysis whether it's federal constitutional error i mean i think in a similar case where we just had you know it's clearly simply state law or it would be unavoidable but can't open the door to harmless error review in federal court and i contend this this case case should be in the same boat that there has to be that preliminary determination that this is federal constitutional air before this behalf and it's i think more helpful to analyze the law purely without getting all this involved but of what you have to do and don't have to do would you please answer judge mort's as question and that is the order that pursued this case to the point where counsel says yes there is probably state error or in the court not allowing oh i think i don't think there's any question that you are bound to accept the o c c a state law determination that the material unconstitutional a or so i guess you're asking us to overlook that aspect of their harmlessness determination i asked as though it were just separate and apart from from that issue i don't think so i'm asking touchstone is balance while a vs are not which requires a right to present a defense claim to rest on the unjustified or arbitrary exclusion of material evidence which is to say reliable and important and i do think while you're not bound by the o c ca's materiality judgement on who you're going overview i do believe you are bound by the subsidiary factual findings implicit high on that list is that mr dr smith's evidence was reliable and important to the defense i think you are bound by those at home to mentally in some legal find materiality right in the oath mean you need to make that call you know and you can overview but i think that question has to be informed with some deference to the subordinates facts that inform the o c c materiality judgment i want if i have i don't think it's a problem but it in a not what i have is a chambers but one thing you'll notice in the chambers minds of cases is that this state ever densher a ruling rule or or judicial decision was itself the constitutional problem i and i you know in other words chambers wasn't allowed to win each his own witness under mississippi law and the city court court has made that distinction in clarke and they've specifically said in that case that the opinion testimony there was no violation of due process right there remember the background state law mark was prohibited under state from presenting this as mr coddington was not and i don't think you should be complacent about the importance of the evidence excluded here by treating it as mere opinion for the factual izing rights and you are not bound by the o c s determination you are free to reject that i think you're subject to those subsidiary factual findings and i think it's going to be difficult for you to come to different conclusion when you apply val under the noble review but if i could go back to the opinion mere opinion evidence it's misunderstanding something critically ill of mr coffey either did or did not have the requisite mens rea that's a factual determination and the jury was denied reliable and important evidence from a credential expert stating that he did not have that intent as a matter of now this isn't today not that mens rea a draw on subjective moral choices but in the first instance under oklahoma law it's a factual determination now i started say resign introduce hicks is to acknowledge that unlike the chambers lines of code he says i don't have a problem with oklahoma law i'm in brissie oklahoma law that's what makes adds to this discussion it's not a new claim it's just an argument an authority for you to grab onto a c c the way i define here which is as i said the beginning not  to establish a violation not of the hicks claim but of the right to present