seventeen seven zero zero three zero patrick henry murphy versus lorri davis outside in the car the jury that convicted mr murphy and sentenced him to death as a party in connection with the murder of officer hawkins did not find that mr murphy was a major participant in that robbery nor did it find that he had acted with reckless disregard with respect to the circumstances that led to the shooting and killing of officer hawkins nevertheless he was convicted and sentenced to death without those findings that of course we argue are required under tyson against arizona the supreme court has never held that a jury must find the supreme court has not held that a jury must make those findings specifically however bring against arizona in which the supreme court held that the finder of fact that is a jury rather than a judge must make the findings that make someone eligible for death ring itself is a case where the culpability was and men thyssen culpability so what had happened in rain was that the arizona supreme court had found that ring was subject to execution after finding that culpability criteria of tyson were present and when that case went to the supreme court the supreme court said the jury has to find those facts now has the supreme court specifically in the context of a tyson and linda case reviewed its holdings from the ban against bullock and specifically held that issue no and i will tell you judge l rod that if the texas court of criminal appeals in this case went before that court either on direct with you or on state t v is proceeding had looked at the record in this case and said yes well it's true the jury did not fall and those two factors that are required under tyson namely reckless indifference as well as major participant but we the judges on the texas court of criminal appeals think that those criteria have been satisfied that our argument before this court would be precisely whether or ring requires that a jury address those questions and i understand that judge owens opinion in the gun gora case suggests that see that the answer to court reached those findings i would also submit the judge higginbotham's opinion in hall against quarterman that i know judge king did not sign but it was not necessary to the decision in that case which is actually a decision applying the atkins criteria judge taken bottom's opinion suggests that the and when tyson requirements would have to be found by a jury because they make someone eligible for don't and we need to get back to where miller l responsibilities but but at this stage but i do have one last question in this area the state haber his court did make finding that would be satisfactory if they were if if the court could make findings those findings are satisfactory under thyssen aren't that you don't believe those findings are satisfactory either and the reason why what mundane tyson was inappropriate because it was directed towards the permissibility of his conviction and so the court of criminal appeals misunderstood the argument the argument wasn't that tyson and undermine the conviction but rather that they undermine the sentence and the state hey be a scored in finding of fact conclusion of law number eighty two says that the applicant never challenge the constitutionality of his conviction under and for the state hevia scored in fact recognizes that the challenge had been to the sentence but what that status court then does after first deferring to the court of criminal appeals and saying that the argument was procedurally defaulted the state court then in findings number ninety three and ninety four which is i think the findings you're referring to judge l ron says that the and when tyson criteria are satisfied but the reason that it says that is because it says that thirty seven zero seven one to be two that is the second punishment phase special issue that was given to the jury in this case is sufficient under tyson but that is clearly wrong thirty seven th special instruction did not require that the jury answer the question of whether murphy had acted with reckless indifference and it did not require that he answer the question of whether murphy was a major participant in the c so if in fact we knew that mr murphy had been convicted under seven zero to be that section of the law of the parties then the thirty seven zero seven one two instruction would not be a problem in this case but the reason that we don't know that is that the jury had four different theories of culpability that it was charged it could find murphy deal to under and was in given a general verdict form and so we don't know which facts it found and that's why i said at the outset that we do not have a specific finding in this case by the jury that murphy was recklessly indifferent or a major participant but in addition to that and that's i think an important factor that distinguishes our case from gun gora's case we don't even have an appellate court saying that the thyssen criteria have been satisfied in this case because the texas court of criminal appeals misunderstanding the trial objection said that the objection was to the legality of the conviction rather than the sentence the state havey of court then is in a bit of a box because the highest court has said on direct appeal that the challenge to the punishment wasn't made the state hey b s court looks at the trial record and perceives that in fact the objection was to the legality of the punishment but then  says it's not a big deal anyway because the so called tea parties instruction is sufficient to cure that problem with apologies for starting at the end rather than the beginning can you return to what i assume you're going to argue about whether there is procedural bar knots the question of whether there is a procedural bar is i think illuminated by the provisions in the state have used courts fact findings that we were just talking about the trial lawyers for mr murphy at two different points in the trial proceedings asked for additional or specific jury instructions that would address the and tyson problem that's present in this case the first time that happened was at the end of the guilt punishment  prior to the charge of the jury and that objection from mr murphy's trial lawyer refers specifically to the end when the problem and says that we need an additional question here for the jury because otherwise we're not going to know with this general verdict form whether the two criteria that are required by tyson have been found by the jury and the trial court rejected giving not additional instruction if it had been given at the guilt phase of the trial in other words if we knew when the jury came back that they had found mr murphy guilty under seven zero to be then there would not be a tyson and problem in this case but we don't know that and you know i thought when i was trying to look at the various stages because it does seem pertinent whether guilt phase jury determination punishment phase jitters or you can even have a state court habeas jurisdiction decision as to the criteria but i thought at the why we say in pleadings in the court below i believe that we repeat in our pleadings in this court that in so far as murphy's trial lawyers were arguing that there was a problem not only with respect to punishment now i would say that it's a little bit difficult to tell ok if you could give me a page as i did look good so i can tell you i'm looking at the transcript itself and let me yes i can give your i can give you a page the relevant pages in the record on appeal are seventy five thirty seven to forty five thirty seven for those are the those that is the colloquy at the end of the guilt phase ok and then the colloquy at the end of the punishment  are away at eighty to seventy eighty two cents ok that's helpful thank you criminal appeals looking at the pages in the record that judge dickinson and i were just talking about concluded that the issue that had been raised on direct appeal was not a challenge to the punishment but was in fact a challenge to the legality of the conviction we produced in our in our brief all of issue eighteen from the direct appeal proceeding and at the risk of squandering my time since this is in the brief i do think that it's important that i hope the language here standing at the podium issue number eighteen is about a paragraph long and it cites and meant and then in the argument under the old that invokes both seven o two b and n mn mr murphy's direct appeal lawyer says that the instructions in this case violated and because the specific requirements that are required under and before death can be imposed as a possible punishment were not given to the jury in this case the brief goes on the trial court erred in using language on issues not saying stand by the emmen case which calls for reversal and new punishment hearing or run during a life sentence be read as a challenge to the conviction and is indeed a reasonable way for the stake court to read it and then if it reads it that way and it's within the realm of reasonableness i'm reading it we're still down to not review it under gardener isn't that the law if the state courts reading were reasonable then that would be the proper conclusion however there are at least two reasons or three reasons that the state courts conclusion is not plausible number one the language of issue eighteen itself that i just read cannot possibly cause somebody who's reading that sentence to think that this person is challenging the legality of the conviction all that it talks about is a permissive police of death that's number one number two judge all right if you were to try to think of some reason that maybe the texas court of criminal appeals entirely misunderstood this and then go back and look at the pages in the jury charge that judge higginson and i were just talking about and so you say oh well this is all sort of confusing and so because these pages are being cited i think maybe he is  challenging the conviction the problem with i think that is that as you will see when you look at those pages there is a whole lot of this conversation between mr murphy's trial lawyers and the judge that happened off the record and so it's somewhat elliptical and the same thing happens when you get to the objections at the conclusion of evidence in the punishment phase there's a reference to previous conversations that they've had previous motions that they've had and so even though mr murphy's trial lawyers are specifically invoking and mended tyson i will confess that reading that it is quite clear that they are referring to other conversations and exchanges that have happened previously but all of that aside the texas court of criminal appeals in its direct appeal doesn't cite those pages during the jury instructions and the charge prior to giving the jury if the texas corporal peals were saying we're very confused because it looks here like all you objecting to is the conviction rather than the punishment you would expect in the direct appeal for the texas court of criminal appeals to tell us why they think that but that doesn't happen and for that reason when the case goes back in front the trial court during eleven zero seven one proceedings the trial court says no this was an objection to the sentence not to the conviction so if you can if you got into the merits yes if you've gotten past procedural bar when you when you're the state habeas court did have a lot of findings and most of them did seem to assume well i just need to assess if there's sufficient prove that he anticipated death might occur but i would say when you read through those paragraphs there are conclusions as to direct understanding that deadly force would be used you disagree and you probably know by heart but you know i'll help you a little bit the court also finds that applicant thought his role in osman's robbery was to use deadly force against the police if necessary how isn't that how does that meet the tyson culpability see enter  the second prong right i didn't fully understand it from the british what you do with him saying that they're all he and i mean he said himself i mean that's a really bad fact isn't it that they're all equal they all  crimes of violence then he is the lookout he's monitoring the radio and hawkins is going around the corner he says get ready that's sounds how could be any what case would say that isn't major participant what case do you have well i don't have t that you are suggesting that there are propositions in the state courts findings of fact and conclusions of law that could be deemed by that court to satisfy the major the the court below in foster recorded and which granted relief said that that this is a rain problem it came to this court and the court said that the state court specifically found the presence of the tyson criteria it didn't parse through the findings of fact and conclusions of law to say that if the state court had used the language that is required by price and they really major participate in rec indifference these are the findings that would have supported that conclusion it looked at the state record and it said the state court found that foster was a major participant and recklessly indifferent and that didn't happen and i guess just stepping back to your statement before so the issue of the c e o a debatable issue here is not what was debated in our court i think in gore versus taylor versus foster recorder and whether the texas anticipated c enter can stand up against tyson your argument is no finding as to major participant that's the argument you're making to us i'm making yes i'm getting that argument i would be making the additional argument if there had been  so if there had been a finding in the state court of major protests they took participation then my argument would be the state court can't do that under race and what this court needs to do is address the question that judge owen was addressing in  address whether following ring bulwark against the ban is still the appropriate standard such that an appellate court can address those issues now there are reasons to think that at least some of the charges which for the political appeals or at least one soon to be retiring judge thinks that the answer to that question is no in her concurring opinions in both ex parte him a drano next party would judge al calla said these are basically eligibility not made the argument on direct appeal that was a tribute to us by the texas court but you've said you're not arguing element of guilt jury finding you've disclaim that explicitly so in my mind i put the ring argument aside and i'm focused on and men tyson at punishment and now the pro helps me you've narrowed that to the major participant prong so if i'm following you then i get to and ten pages of extraordinary participation i think in my not the e u saying the law says we can't look at those state a b s findings or you're saying there's nothing to tell us that equals major participant  and i think that if the state trial court thought that oh gosh we don't even need the anti parties instruction because we've got the culpability findings that are required under tyson it wouldn't have to say that but that's exactly what it says and the ante parties instruction this argument is i think adequately briefed i don't really know that i have ok i hope a whole lot to add i think that the briefing indicates that the principal basis for the lower court's conclusion that ms busby's performance at trial had not been a deficient was its belief that there was no body doing mitigation investigation until the supreme court decided wigan's and that is simply flatly contradicted by evidence that's part of the record and indeed if that were the case then wakens wouldn't have come out if if if is i could see a vision had said the counsel but you need to test more there seems to be something here counsel doesn't but a vision the lawyer does get mental health expert and they don't find out what's the case that then says that's still i see i don't know  but i would what i would say is i think an appropriate answer to that question that at least in my experience when the psychologists who are hired by trial lawyers and appellate lawyers to examine their clients to reach some psychological or psychiatric diagnoses perform that exercise they also look at all of the other evidence that counsel have collected including social history evidence which is part of that diagnosis so a psychologist is not going to make a diagnosis of p t s d without having some baseline that baseline is created by the entirety of the mitigation investigation and that didn't happen in this  you know for for mental health people that the trial court had it that's really hard to say that that's in effect when none of them said that it was pete that's a this is p t s d itself wouldn't be ok that it made again because it would show that he might be explosive or something in there and that's not a positive thing under the circumstances so performance and run pill was not identical to the deficient performance and that in this case i agree with that but the deficient performance in this case was simply not hiring a mitigation investigator where what the mitigation investigator is going to learn in the course of the mitigation investigation is part of the raw material that the psychiatric professionals are going to use when they make their diagnosis i would have to tell right maybe the simplest way for me to make this point is that i would have a much richer basis for a mental health professional to make a diagnosis that would be used the appropriate purposes of answering the mitigation question in my favor if i had a full social history that could have been given to that potential and we didn't have that you're saying it wasn't informed she wasn't even aware of it so then double edged drops out if you're not aware and if she testified at the federal adventuring hearing that yes i knew all of that stuff we did it and the reason that i didn't put it on was because i made the tactical decision that this would have been worse even if she did know you could certainly do that yes you agree with we can waive aggravating and mitigating factors and know if i mitigating if there's a that we've done that before  going to outweigh the mitigating effect enough for decision yes you can reach a conclusion when you are performing out analysis however you do a doctor have to take all of the evidence has been presented into a celt you can't look only at the piece of evidence that wasn't given to the jury thank you thank you we have your argument you said time for he sat in the car with four loaded weapons including a ar fifteen he monitored the police scanner and he communicated with the heavily armed and violent escapees inside of the store these facts make clear that reasonable jurist would not  completely without merit indeed and tyson stand for the proposition that the proportionality standard and body in the eighth amendment prohibits the imposition of the death penalty on a class of people who although otherwise guilty under state law did not  not intend to kill or who are not major participants in the office with a reckless disregard for human life what and then tyson do not stand for it is the proposition that the jury need to be the one to make those findings indeed although my colleague is relying on  those facts which would increase the maximum punishment apply to a defendant under state law under statute must be found by a jury it does not stand for the proposition that those facts and the constitutional consideration therefore they are disposed of at the guilt innocence phase a trial under texas law or the aggravating factors sufficient to make a crime capital murder and therefore put the death penalty on the table you're saying forfeited if not forfeited judge allen's dissent has it that has found the admin ties and needs to be found by a jury and you're saying they didn't present it to us so what they have presented is they don't have a the procedure bar doesn't exist and on the merits there is it's debatable whether in the spectrum mend and tyson this not shooter has sufficient culpability when phrased that way which seems to be accurate legally it would almost seem to me it's always debatable factually you have horrific tyson type facts these aren't those in my group contemplated and plotted the robbery contemplating the use of lethal force together they murphy's particular rule was determined that he would sit in the car as a lookout he sat in the parking lot he monitored the police scanners into which he himself had programmed the various radio frequencies of the irving area and had learned all of the regular codes that were relevant to that area he then talked them apprised while they were inside exactly where the police officers were he told them that there a suspicious persons call he told them the police officers were on their way and he also told them exactly where officer hawkins was in relation to them i e in the back of the store he therefore as a state he views court found explicitly afforded the inma an advantage over officer hawkins that officer hawkins did not have and so that in function it ended up being an ambush on him that is precisely why the others were allowed to shoot officer hawkins eleven times and then and ultimately ended up running over him before leaving the scene murphy clearly majorly participated in this oftentimes he also even though he knew that there was a shoot out and even though he knew that officer hawkins had died continued to engage in criminal activities with this group ultimately fleeing to colorado and ending in a establish the requisite admin and tyson findings in addition to the anti party special issue which was found by the state court when resolving this claim questions about the record citations the only time that he clearly raises a punishment challenge based on admitting tyson in the trial court was not until the punishment phase a trial it was in the reporter's record that's forty nine  that was dealing with specifically the anti party special issue the only citation that he relied on to the c c a and direct appeal was pages four and five of the guilt innocence phase a trial but when he does go directly from issue phase the trial the style of the case or the style the claim was in fact a trial court error for overruling the objection and the objection that he was citing two was at the guilt innocence phase a trial under exhaustion principles for example by analogy in the supreme court case to jury had enter its conviction based on and entice and combat at that point had made absolutely clear that admin entice and could not preclude a conviction and soundless no new element of the crime of capital murder so at the period that he  was not saying the punishment charge later cannot apply here he was asking for a directed verdict and as such and because that is the record that he pointed the c c a to on direct appeal it is perfectly reasonable that that is how they construe the claim and is therefore also perfectly reasonable that when the state k b s court addressed his claim which he again raised a conviction challenge on state habeas in addition to this time a clear punishment challenge it was two points of air it was point seven and point eight hearst then secondly it would be procedurally barred and finally of course it would be without merit and i'm standing we're not judging this as what the trial judge should have given in the instructions that that's not the proper question before us at this stage of the case but it does seem that it would have been really pretty easy to give these instructions and then we would not be here today is that they advised to do  and it is perfectly reasonable that they would rely on a special issue which is only submitted to the jury on punishment where a defendant is convicted at gilt innocence as either a party or a conspirator and asks the jury to answer in the affirmative whether they believe that the defendant did actually anticipate that human life be taken but the only time we really faced this i think the last question of whether that's an equivalence to reckless indifference was in there are two thousand and six so in two thousand and six looking at exactly the proposition you just said that anticipated suffices under tyson our court said that's debatable and granted c is debatable what's changed to say it's now not debatable our position your honor is that it is not debatable is that you're saying that panel was wrong has to but he only focused on one today so i will also only focus on the wagons claim first of all he claims that they were adequately briefed however and again the i and he claims were both an exhausted and procedurally barred and despite being procedur barred and despite the requirements of slackware he must seek c e o a on both the procedural determination and the underlying merits he did not seek to see a way on the procedural determination with regard to the i t c claims and he does not at any point as argument even cite to martina's or tri therefore we would argue that this claim is waived but regardless he can benefit from martinis intervening because his id seething with regard to the medication is simply not substantial the evidence is clear that there was a more than adequate mitigation investigation in this case trial counsel trial team the trial team consisted of two trial counsel one consulting appellate counsel one fact investigator and four mental health experts as your honour's pointed out earlier all of those in covered the extensive evidence of his troubled childhood and came to several diagnoses of mental health issues but did not come to p t s d diagnosis and to judge chickens and questions earlier the case there is no case that says that where she relied on where she relied on her experts and they did not come to that diagnosis she is deficient in fact it is the opposite trial counsel is reasonable for relying on her experts particularly for mental health experts which the best case for that  and again contrary to murphy's claims although she did not hire what was quote unquote a mitigation expert because that was not a term and so we're going came down in june of two thousand and three she had been conducting an extensive mitigation investigation which is under clear constitutional law required her not she is not required under any supreme court law to hire a mitigation expert she is required to conduct a mitigation investigation and she did do that she in fact it conducted one for at least two years prior to trial extensive interviews with murphy so it's the label that's the weird thing whether you call it a mitigation expert or whether you call it a team of people to look into the past in the mental health situation and all of that is that what what how you interpret it as best as i can interpret this claim given how extensive her trial team was that must be the only difference is that she didn't hire someone who by title was a mitigation expert cannot simply  the facts here that there was a mitigation investigation conducted and therefore to me it seems an issue of almost semantics particularly where the mitigation investigation presentation was extensive she had multiple witness testify including dr these cases so the correct your honor and trial counsel was able to get them to do so here so much of the evidence that he alleges would have led to the p t s d diagnosis was already presented to the jury and in fact there's just no way he can prove that it  overcome the ample aggravating evidence that was presented at trial in addition to all the facts that i discussed with regard to the un and tyson claim it's clear that he also participated in the violent escape from the texas prisons he also had an inciting note that said there's deficiency and prejudice i've never quite understood this can't in the prejudice analysis can we still say overwhelming evidence of guilt and brutality and therefore just do a waiting and say well it doesn't his gets in addition to other aggravating evidence that is often the punishment phase a trial for example prior often switches wouldn't have been submitted during guilt innocence and those here include arguably that type of evidence if there's a missed diagnosis of sort of organic brain injury then that might explain all the government's aggravating evidence so hard to wait because the argument would have been no a jury this is all explained by this condition that the person had that wasn't now and here it simply cannot be the case that when presented with all of the evidence that had led to our lives maybe give me an example of a case where that weighing would ever come out whereas an example where our courts ever said well we're to hypothesize what was in the mind of the jury and even though this would have explained away all the aggravating i guess i'm thinking it's going to be government wins every time let's get a case where the government doesn't win well wakens around here reasonable decision based off those would go to deficiency but this court can weigh the value of both in aggravation and mitigation of prejudice but the double edged quality of that type of mitigation we can't do that if the lawyer didn't even know didn't at the time say i know about this and here's why i didn't do it right it's not a post hoc there's no case law that says correct me if i'm wrong that when you're assessing deficiency that the government can say well  prejudicial there's not a high producers of value in that sense how would you seek for us to resolve that claim this this climb that we've been discussing at length here and first of all i would find that he did not adequately brief and zero it is cannot establish to say he is counsel is ineffective and then finally you would i would argue that the trial counsel was not deficient nor is there any prejudice and therefore because he cannot show a substantial r t c claim he would not be a three separate arguments right any one of which would be satisfactory for you to prevail  quick points your honour's first with respect to the house and we saw a c away on both dimensions of the judgment of the court below first its conclusion that the argument is procedurally barred and second its alternatives there are its conclusions so i just want to emphasize that i haven't abandoned either one of those second i just want to without taking back or attempting to take back anything i said earlier my conversation judge who can send i want to clarify what i was intending to communicate with respect to this issue that i've been characterized as having conceded if the jury had downed at the guilt phase m murphy guilty under the first or third of the disjunctive bases for finding him guilty then i would not have an intent argument here but i don't not have an intent argument because we don't and i would have only a major part his participation argument but as we stand here i do not not have a intent argument because we don't know whether the jury found him guilty under a theory one or two or three or four and if it bound him guilty under the either two or four where the trial court tells the jury you do not have to find that mr murphy had intent then we don't know either whether you have the requisite intent or whether he was i asked you very clearly twice if it's important and i was focusing you on the state he b s findings and you said i am not contesting santer i'm contesting major participant with focus on the state habeas findings on contesting major participant on the so called party's instruction no i was asking you when we look at the ten paragraphs or fifteen paragraphs of fact findings by the a b s court what's your position as to end tyson and use really explicitly said our position is the findings are insufficient under major participant problem and you disclaimed that you thought the findings were insufficient under intent that's why i read you the one about his understanding that deadly force would be used against the police well the let me just be clear judge against that intent it's not the same thing as reckless disregard for purposes of the tyson criteria c enter the mental state which is what all the courts described that prong ass that the jury instructions use the word intent in one and three and say regardless of intent in ok and may i may be an object can figure this out but i am getting confused when you say jury instructions am asking you to focus on the state he be a score finings if you're telling me the law says that is where we focus then give me the authority that says that i'm not asking you what the state during the guilt phase or punishment conference discussion was because it's garbled culpability that you can read those findings as you can read the his findings where the state court is saying we think he had the reckless intent as being the state court saying we think that he showed reckless disregard but you cannot read those findings to be saying that he was a major party that's what i thought ok and in both and so and and let me stress and this was the last point that i wanted to make in both on gore and foster this court express y noted that the state court found that the actor was a major participant who had acted with reckless disregard for the life of others so that when this case went back to the c in gun gora the c c a said he was a major participant it goes back to the c c a i'll just tell you all the citation it's not published it's two thousand and six west law two three four nine eight seven and the jump site is twelve and similarly when foster comes to this court from the court of appeals it comes to this court with a finding from the c c a that foster acted with reckless disregard and was a major participant and what i will say finally is that these so called ante parties instruction which is the state courts basis for finding that there is not an tyson violation in this case that's the state courts merits determination that the reason that there no end when tyson violation is because the instruction required in thirty seven zero seven one to be two was given and what that says is that the jury has to find that the defendant either caused the death which of course he didn't or did not actually cause the death but he intended to kill that person it doesn't say anything about major parties right anderson i think we have the arguments in this case this case is submitted we appreciate your