i plan to address issue one today the state courts refusal to point a risk assessment expert the commonwealth's case for death rested primarily on a prediction that william morva would beef would be a future danger in prison the commonwealth presented evidence of more of his behavior in the community and his behavior in the jail and then argued that because of that behavior and because of his intelligence and because of his mental illness he was too dangerous to allow to live in prison he would kill again if you were put in prison and more was only reasonable way to respond was with an expert that could provide evidence that the real likelihood of morva committing a serious act of violence in prison was exceedingly low now the government or the commonwealth the da present any evidence on that question that the government presented evidence of his behavior in the community his behavior in the jail and argue from that behavior that the jury could make a prediction of his future violence in prison well i guess my point is that the government did not present the kind of evidence that you wish t that's right the government did not present the same evidence that moore wanted to present just like in skipper the government did not present the prison condition evidence or evidence of skippers behavior in prison but skipper was allowed to present witnesses the us supreme court said about his behavior in prison just like in simmons where the government didn't make any argument about parole or that he'd get released but simmons was still allowed a due process right to rebut the argument sui generous in the sense that there was a real sense of danger that the jury could mis understand exactly what the circumstances or of the defendant's likelihood of being released we don't then see me we have that same fact that the defendant would be confined meant that he would not be a danger to society isn't that kind of intuitive from a layman's perspective that that would make sense you saying that the defendant argued that he did argue that but it is so counterintuitive that when one commits a murder that they are less likely to be violent in prison the future and it's counterintuitive that one escapes from a jail remember he was in jail for burglary and he escaped and the argument of the commonwealth was that if you escape and if you kill law enforcement and now you can find for the rest of your life in prison what will happen those correctional officers he may kill again and more of a needed evidence to  rebut that very attractive argument but the argument was not true and in fact the fat the the crime that more were committed in the community does not correlate to an increased likelihood of committing crimes in jail exactly just like simmons was able to present evidence of his good behavior and in the jail and more than did present evidence of his good behavior in the jail and that was was very helpful for his eighth amendment argument and it was helpful in mitigation here's haven't said he behaved well after he escaped from montgomery county jail so then he was did have some opportunity to do it but well somewhere the evidence that he presented about his behavior in jail was not rebuttal evidence it was really mitigation evidence but it didn't it did not help him rebut the argument that if you were confined in prison for the rest of his life based on his murder of law enforcement left right and and we are very limited in terms of how we now could proceed in granting relief in this case you're limited by the a d p s right so you're not limited to find that there's a constitutional er but give me those limitations of very important in terms of how we can view this evidence and what we must do well i would say the first thing you have to do is evaluate was there a constitutional error the same as the supreme court was out of virginia was asked to do the same as a district court was asked to do and then you can't grant relief in less you find under the under twenty to fifty four d one or the two that the decision was either contrary to or an unreasonable application of law so we have to find that states ruling here would have to be on here for every two or unreasonable application of clearly established law absolutely that's what i have to convince you of in order for more of a to win and in this case in court ask what in your opinion is your absolutely most strongest authority or under well absolutely simmons would be considered stands for the very clear proposition that where the prosecution relies on a prediction of future dangerousness in requesting death that due process requires the admission of relevant evidence in rebuttal and one way of seeing how clearly the supreme court of the genius decision that all evidences are irrelevant if it doesn't bear on a defendant's character prior record or the circumstances of the offense if you apply that rule to simmons you'd wouldn't get a parole instruction the rule in in the this case and simmons are very similar in this way that simmons was able to present evidence of his past behavior in jail he was able to present an expert who predicted what he would be like if he was committed to the department of corrections and then he would behave and what simmons couldn't do what he couldn't do to complete his rebuttal of the argument that simmons would be dangerous in prison is he could he didn't have his parole instruction his no parole instruction the only thing missing from mor was the expert who would have provided relevant evidence of his future behavior in prison more had like simmons had he had people who testified that he behaved in jail more had a no parole instruction so clearly the jury  that when they made a decision between life without parole or death that more would be spending the rest of his life in prison and what the jury is telling the jury that a life sentence and that of a death sentence is under the law of state acts without parole is that a matter of evidence well the  argument right if i understand no you're saying that my argument doesn't rely on the fact of whether the parole instruction is evidence what what i thought you just said that under symonds what you're arguing to us today is that  your client was entitled to introduce evidence that's right and and that's what gives rise to my question so nat but now you're saying summons summons didn't involve the admission of evidence  did involve what simmons needed to rebut the allegation of future dangerousness in prison what cements needed was an instruction and argument but the whole thing which is not evidence that's right but the holding does use the word advocates it does say and argument in future dangerousness and a defendant's right to robots or perhaps the court would have been arguably more accurate arguably just to use the word information rather than evidence there is a point where they use the word information but they they are the rule that they ascribe to is that one has a right to relevant evidence of course this evidence is relevant every other state that uses the aggravator of future dangerousness allows this evidence every state has everything that it's constitutionally require that's right it doesn't it isn't it isn't just not only that this ruling was incorrect but that it was so far beyond the pale that no reasonable jurors but it come to that conclusion i don't it's you know there's a distinction here seems to me between  evidence of parole eligibility was it which is easy for a jury rapids arms around and this kind of evidence which is a little less to think and you know a judge could reasonably conclude that on the face of this evidence it would likely confuse rather than help the jury that is exactly what the south carolina state court and supreme court said about parole we're not going to allow parole instruction this will just confuse matters but no other state believes that evidence that an individual is going to be a low risk in prison the future is confusing it's just not confusing the argument was made that he would be a high risk of of committing serious acts of violence and in the future how is it education his mental illness it would have taken all his characteristics and then like any sound and valid prediction would have used base rates it's how any valid prediction of future dangerousness would have to go that's not then at the same time keep the defendant at all costs from indicating that he would never get out on parole the courts as well you can't do that you don't have that issue here because there's no question here the jury knows this defendant's not going out on  so now you've gone to statistical analysis evidence which an expert to be paid by the state would come in and testify about the statistical in significance of age and education and other factors a trial court indiscretion last week unless we're going to extend symons beyond what the holding was well i would not say it's extending symons it may be that it's an unreasonable application of simmons to morva i would argue it's contrary to the were saying the same thing it sounds the same that it's contrary to symptoms which means that maybe it goes against the spirit of simmons and i'm not sure that makes it clearly established law it's clearly established from the line of cases of gardner skipper instrument and sim and said gardner and skipper determine this outcome and the rule is that you have a right to rebut with relevant relevant evidence remember in simmons they did have an expert who evaluated simmons and who a his chance of future dangerousness in prison said it's exceedingly low he had what more wanted so simmons had everything except what he really needed to complete his right to rebut a no parole instruction no more  had the pro instruction but what he needed to complete his right to rebut and remember this is the truth the truth is that more into his his chance of committing a violent act in prison is exceedingly low but he wasn't able to present that good morning may it please the court alice i'm strong on behalf of the warden owners i think that the court has actually landed on the precise legal point that's before this court and that is that federal habeas corpus is not available to a state prisoner unless extend it to all of the wisest contrary to some i heard him say that and i also heard him say it's very similar to summons and the supreme court of the united states has in a recent series of cases white versus what all how versus fields and woods versus donald made very very clear in rather in phatic language that similar to does not carry the day that if the supreme court has not confronted the precise question presented and in a holding rather than in dicta or the explanation in a holding has not announced the constitutional categorical right upon which the petitioner realized then whatever the state courts disposition was cannot be contrary to well i guess that depends on how specific you want to drill down to the question because clearly the defendant has a right ever get to that question well i think there really are two concurrent things going on in this case but the the claim that was presented to the state or was i was denied my right couched in constitutional terms but i was denied my right to an expert to present this specific sort of evidence and the supreme court of the united states has never held that an indigent defendant is entitled to the appointment of anything other than an expert psychometrist and even in that circumstance only when the mental health or the question of the defendant's mental health is going to be a substantial issue in the case now that happened in this case he had the appointment of a an expert psychiatry stand in fact he also had the appointment of the nearest psychologist to conduct the testing but  himself labels something mitigating evidence that he has an unfettered right to put on whatever he wants to all of those cases including the language that was just cited from women's talk about relevant eviden which is a matter of state law and the supreme court recognized that unlock it and there's actually a caviar out in eighty itself that says when permitted as a matter of state law are one permitted as a matter of under the rules of evidence so there's always been that carry yacht that it must be relevant but there has frankly that's in some ways the most troubling aspect well the most troubling aspect of this for me at least to call it irrelevant it seems to me to go a bit far i mean the commonwealth of virginia has evidence rules may not be exactly like the federal rules or other states but i mean relevant is a very expansive and schenn arist legal concept right and under the federal rules there's a presumption of admissibility essentially and evidence that's relevant admissible unless it's irrelevant and so this was not a case where the virginia supreme court said under a four hundred three type of balancing the district  judge the trial judge didn't exclude the evidence in the exercise of sound discretion to avoid complications the court i think if i reading it correctly said it's irrelevant which essentially says even in future cases the trial judges in virginia essentially would be prohibited from admitting this evidence do i have all of that right i don't think that the holding was a as expansive as that ok and i think we need to unpack it a little bit because the claim was i was entitled to this interrupt but is it your argument that under the under the ag doctrine unless and until the supreme court case by case by case by case by case says yes you're entitled to this type of expert yes you're entitled to this type of expert is it's hard for me to believe it's actually your argument that clearly established law would require the supreme court of the united states to grant cert in a direct appeal from a federal trial or state trial and actually say yes you're entitled to a ballistics expert yes you're entitled to a psychiatric expert that's what we held in a cage yes you're entitled to an expert on geo physical characteristics of the crime scene i'm not sure if judge the says you got to get specific but do you really do you really need to get that specific well i think under the recent cases on woods and fields that we do have to be get pretty present specific that the criticism of the circuit court in those cases was that the analysis was conducted  at too high a level of generality and in response to is really that limited i would say yes under caldwell versus mississippi it is and in told the court decides to take up another expert or a class of experts there is not a constitutional command that the defendant is entitled to anything other than a psychiatric expert and so what the supreme court of virginia then said was it's not a constitutional command under aiki we understand and they addressed simmons and skipper and gardner i mean this is not a situation where the court did not identify the controlling print legal principles that was attempting to do and what the supreme court of virginia said and maybe i can tie back to the point that i was hoping to make here is because he does not control we will look to state precedent and under state precedent he can get other experts if he shows a particular eyes need he could not make that showing in this case because as a matter of state law he's not permitted to present evidence of general prison conditions in the first instance he has recognized that if the commonwealth opens the door to that then he is permitted to present evidence of prison conditions in rebuttal if the commonwealth raises that the commonwealth's argument didn't raise that here the commonwealth's argument was geared to the offense he actually or offense is he actually had committed in this case the reason he was before the court so without the constitutional right to the expert wheat pivoted to the state right to the expert and as a matter of state law it was not permitted within the coming commonwealth also argue that he had escaped once before there's no guarantee that he could not do it again well i don't remember that there's a nice good i'm sorry no i don't remember the precise contours i know the argument was it would be a shame it would be wrong if that happened again well that it only implied the possibility that that could happen and so why would more of be able to rebut that evidence by showing hey under the circumstances under which i'm going to find myself in prison that's not likely to well i think he did rebut that because he brought not a late witness like not like only witness he brought the captain of the local judge of the regional jail that he had been confined in for approximately a year maybe even bit more from the time of these offenses until the time of the trial and this is that was i'm sorry he says that was well i think it addresses the question of how he would behave in the future because we had a year's worth of evidence or or behavior opposed to these crimes that showed that he could be put in circumstances where he was you introduced evidence showing that's if it's true and i don't know whether it's true showing that since virginia reinstated the death penalty no defendant who did not get the death sentence from a jury had ever escaped or committed a homicide going back  there is not a supreme court of the united states holding that establishes the categorical rule he's asking for here which is he's entitled to an expert on these other points the supreme court of the is that when you have to say if i take some of this and some of this and some of this then we get to this new principle we're going to extend the legal principle of these principles apply to this situation that's not clearly established when you can point to a holding of the supreme court of the united states that announces the categorical right upon which he's relying then he cannot satisfy the contrary to clearly established law under twenty two fifty fo is perhaps the next logical step right and i think that applies here perhaps the next logical step of skim and separate skipper simmons gardner etc perhaps that is the next logical step but that is a question for direct review that is not a question for twenty two fifty forty one review and because it is not a question for twenty two fifty forty one which the but the court could do it under forty two fifty four right it wanted to because it want put two faced under t you could put welding you can put two holdings the suggestion is that you can put two holdings together but i don't know that that the supreme court has actually ever approached that the doctrine in that manner but hundred days could give the court an opportunity to do to do both things i don't i don't know i don't know what the court would do but because we are in collateral review i don't think they would because of the t doctrine because and it ties break back to the same language of twenty two fifty four d one at the time that the supreme court of virginia was asked to pounce upon the question it was applying the law that the supreme court of the united states applied at the time and the reason for the doctrine is we don't make the states marshal although evidence repetitively every time the court finds a new right or announces a new role because we don't if you will punish the states for doing it correctly at the time they were ask so you know it just seems to me we are in a difficult situation yet the supreme court has interpreted the law to indicate how we view of this is very limited this is a right if you got to extend the rationale yes by definition not clearly steps there may be an opportunity we wish we could go a different way but basically the court's not saying you cannot use this evidence what do you say if you're not required to and that's that that's the key is when the state court and the takes to do this is a discretionary call so i'm you know i think we could we could have and probably is it's good to look at to the efficacy of this and how it goes but if the u s supreme court is really really narrowed this review on this and i'm trying to struggle the way in which we in a way go beyond that how's that applied differently than what we're dealing with here and only we get it is that when we define this specific question we're talking about mitigating evidence in terms of what is allowed in the net and compas maybe like parole evidence o whatever an expert testimony but it does sound like it's a white extension of a russian male very much as i would say it is i would say that that line of cases would see white fields a well new i mean it's not like it was one hundred years ago we talk about the last couple of years exactly and i would say that the supreme court has been the word i use is in phatic pretty emphatic about the limitation that that statute places on federal relief so it's stricter than teague but i think the what we're talking about here actually would implicate teac as well but if we have cobble things together if we have to extend something if we say the case is similar to even though the facts and the circumstances are a little different i think underwood's does not carry the day  field and i believe it is very pointed out that brittany apparently stands alone and excluding this type of evidence is the fact that the virginia may be alone some indication that perhaps there is a constitutional problem here or is it simply your position that virginia got it right the others they threw out the lunch it's not my position that anyone is out to launch but i think other states have and i haven't surveyed whether that they have claimed that that is the constitutional federal constitutional right that's being vindicated or simply a state constitutional right that's being vindicated so the supreme court to date has left the states to sort out for themselves in their own way how to apply equally other than in the circumstances of a psychiatry has and different states are free to do different things when it's not a constitutional right here it is not so i don't know that virginia stands alone i don't think that the supreme court of virginia announced a categorical state does it i mean i understand you have done the survey but you know those cases probably would have been helpful if you know if there's been ten  it you would have told the law i am aware that dr cunningham has testified in other cases in other states he's testified in other cases in virginia so because there is not a categorical rule i think that's part of the the fallacy here there is not a categor role it's submitted to the sound discretion of the trial court the supreme court didn't say they were sprinklered a virgin you didn't say they were announcing a categorical rule here they did essentially a case specific analysis and said that the proffered testimony was not specific to more of it now we can agree or disagree whether they got that right or wrong but it has to be objectively on reasonable and and it has to be an objectively unreasonable application of federal law and so th submission is it's not an objective leon reasonable application of federal law because there isn't a clearly established precedent that the supreme court of virginia got wrong rebuttal like to address three points quickly one in the a d p a i think judge when you're being a little too stingy in your view that this court doesn't have enough room a question it was a b s case and what it happened was a juror had consulted her pastor and in state court they didn't give the petitioner a hearing and this court was faced with the same question juror the u s supreme court said in that case you need to give a hearing to that petitioner now of course in this court the state argued those cases are different rammer was about a court officer giving information to a juror the barnes versus joiner case was a case about a juror consulting her pastor and they said that's not that's that's applying a rule to a different set of facts and this court said very clearly that the a does not require state and federal courts to wait for some nearly identical fact pattern before a legal rule must be applied the legal rule in this case that we're asking be applied is clearly established and it's very clear state death based on future dangerousness you have a right to rebut with the limitation relevant evidence this court said a state court's decision is an unreasonable application of clearly established federal law if the court identifies the create the correct governing legal rule from supreme court cases but unreasonably applies it to the facts of the particular state prisoners case it's not a reach to say that simmons had testimony about his behavior in jail simmons had testifying that he wouldn't be a future danger simmons didn't have the one thing he needed a no parole instruction morva at the no parole instruction had the testimony about his past behavior in jail what he needed is what is the thing that symonds had but he didn't he needed relevant evidence to rebut the argument of future dangerousness there was also a question about can you put together a series of cases to come up with a rule in the us supreme court abdul kabir versus quarterman five fifty us two thirty three that was a case in a d p a case where the majority said it was a it was a texas case where the mitigation evidence that was banned at trial was very different from penry and the s supreme court looked at penry versus link directly texas johnson said look we've got a rule here the broad rule is the jury must have a meaningful basis to consider relevant mitigating qualities of the defendant's proffered evidence and even though abdul kabir's proffered mitigation evidence was very different from pantries the court said there's a room from all these cases and this fits under the rule more clearly fits under the rule here i also think there was a little mischaracterization mischaracterization of this  case this is not a case where the trial court had discretion and chose not to use this is a case where the trial court said the evidence is not relevant so i'm denying your expert if the court had said this expert is not qualified if the court had said this expert is too expensive this expert is from too far away that would be a different case but they judge did not have discretion to make those decisions because he was limited by this really if you really look at it it's a bizarre rule it's a rule that says any prediction of future dangerousness is irrelevant of course and i'm not sure if we put this case  we thank you for your services