it please the court mark dressed ascii from the office of the federal public defender for petitioner appellate martin if martin kemp was on trial in orange county for two murders one an educated he was on trial in los angeles not just for his actions but for his words words protected by the first amendment i'd like to begin by discussing the certified claim that kicks constitutional rights were violated when the trial court admitted evidence of its favorable use of say two of these statements came in at the guilt trial the district attorney emphasized one of them in his closing and said it showed that there was evil in this world evil in this very community three more statements came in a penalty  and the district attorney read to them in his penalty closing and concluded by saying that kip had satan in his soul our claim is based on dawson which held that the first and fourteenth amendment spanish capital sentencing evidence of the defendant's association in a gang or speech or religious beliefs where the evidence has no relevance to the issues being decided and proves nothing more than the defendant's abstract believes this claim was raised on direct appeal and k cited dawson and six other supreme court cases responded to not reply to kipps federal claims but instead just focused on the state claims and so did the state court opinion which doesn't mention the federal basis of the claim at all under johnson versus williams  get to know both review even if the court disagrees with that this claim is it's reviewed to novo on prejudice because the state court never reached the question of prejudice now the attorney general does not dispute that satanism  religion protected by the first amendment or that speech about satan is so protected he has argued that there was never any attempt by the prosecutor portrayed kip as a satan worshipper but that's belied by the record kipps adoptive sister was an medication witness a penalty the district attorney's first question to her on cross after she asked for mercy was what if martin has rejected god and worship satan that's in the trial transcript of forty six seventy one but the prosecution failed to present any evidence of satanism was in fact associated with this crime or connected to a lack of remorse or future dangerousness the prosecutor failed to present any evidence of sane at all but instead just played to the jury's negative view of safe and sameness in their worst fears so i don't feel we have to draw a distinction between the guilt phase and the penalty phase on this argument is correct on the on the other hand martin keeps character was not at issue at the guilt phase and evil was not an element of any offense and the district attorney argued or you are was prejudicial we are arguing that we're arguing it was prejudicial of guilt but also it carried over and was prejudicial a penalty there's a stamp ok i understand then yes but the really two separate questions for it was far as i'm concerned i agree that's correct so what was prejudicial at the guilt phase about well what i reference when when when when the issue was raised as i've said i think it's prejudicial because there is a defendant's character can be in play at a capital penalty phase but it's not the guilt phase this doesn't go to an element of the crime that martin kipp is allegedly evil because at this statement about satan it had nothing to do with the issues that were presented and the prosecutor didn't present any evidence showing that it was he never argued and there's no evidence saying that these offenses had any relation the satanism is not good all the other evidence that was presented with respect to guilt it was overwhelming you know it's compelling i think in the in the first argument i think we have a similar situation here of why why is  district attorney sort of piling on and bringing this evidence that is only inflammatory and not explanatory the prejudice certainly carried over  to penalty and particularly in a case where the majority of the jurors were christian and we know that from the jury questionnaire said seven were christian three had attended church regularly we also know that from the declaration of sex i just want to understand so are you arguing that they should have been redacted correct then the defense attorneys argued for the reaction of the same references  different right well we know we know the prejudice and guilt by taking the district attorney of his own words when he closed his face closing one over two days and the end of the first day is when he read the statement from the letter and then he came back the next morning and if you're a sports fan it's almost like he's getting play by play commentary comes back the next morning and says i could see from the look in your eyes how distressing that letter was particularly how the district attorney used the references to satan in a case where we have a majority christian jury which he knows from from the questionnaires that were filled out but if the case if the evidence  weak i think you would have a stronger argument here the evidence as to guilt was pretty overwhelming his fingerprints his ponding of the victim's belongings the fact that in the letter he said he described how he killed rate sodomized beats war and laughed at the victims isn't that much much more compelling than the couple of satan references contained in those letters to christians satan is the enemy of good and of man and we have clearly something that is not tied to the crime as dawson requires it's it's perfectly but in times very much how is it not tied to the crime when he's at that's that's a park it's a confession i killed raped sodomized b xander a these women how is that not tied to the crimes the reference to satan is not tied well yes i understand that but that i don't think that was the question the question was you know why wasn't that how do you overcome those references going to his  if you take out the say in two references how does that affect the outcome right well we also have and in the same closing we have the district attorney making what the california supreme court concluded was an improper play for sympathy for the victim now they found that harmless but what we have in the closing of guilt is  improper sympathy for the victim and improper antipathy for mr kerik based on the same statement so those are interlocking and that's part of our key motive our claim as well now pretrial the defen the information to be read tactic and was the trial court's ruling that they would not come in at the guilt phase but only at the penalty phase that is correct and so then counsel then made the strategic decision that if it was going to come in the penalty phase anyway i want the letters or the references to come in at the guilt phase as well was i think counsel one of the front loaded to try to take this thing of that importantly though the evidence never penalty phase of the little there there are additional references correct yes apparently we have two more references he reads from the september ninth letter and you know here what's significant to this is that the district attorney is not just summarizing evidence that was previously presented he's actually presenting the evidence in these closing arguments that then in closing is when the jury first heard these letters read first heard the words and  jury had requested the letter which i think shows the focus they had on that we've already another aspect of the prejudice here and we discuss it at penalty where the letters were used as a basis for the prosecutor's conclusion toward the end that martin kipp had satan in his soul and because of the wrongful admission of the satan references  to this resulted in the jury learning about the prior death judgment again defense counsel thought they had to mention that through the testimony of craig haney to try to explain why mr kipp had written these letters now despite the wrongful mission of this evidence the jury deliberated for three days before returning the death verdict showing it was a close case and in any error could have been prejudicial i'd like to move that was alleged to excuse any procedural default but there was no procedural bar here to california supreme court never found the procedural bar on this claim they turned the general never argued procedural bar in steak or or  procedural default in federal court so the in effect of assistance claim we just don't need it on the letters claim because there is no default on that i'd like to move on to the juror misconduct claim  which is related to the same no evidence which is that a juror read from the bible to fellow jurors during penalty deliberations to help them decide whether mr kipp should live or die she read the phrase an eye for  that's a more ambiguous reference some by then they actually had judged martin kip they had returned they had found him guilty of murder and returned a special circumstance so i don't think it's balanced out again we have the majority jurors here were christian the prosecutor presented mr kipps favorable views of satan which the prosecutor emphasized in both the guilt and penalty let me ask you this is is the is the misconduct bringing the bible itself into the jury room or is that the reading of this scripture if you have or says it's both this case has more prejudiced in cases where the bible is read outside the jury room because here when the bible is read in the room the statement has more status right i mean the person is not just reading it don't you don't have to believe me believe the bible the word of god to christians so why didn't he just suppose she hadn't brought the bible in but if you're you know studied the bible all my life and live my life  pattern there is that capital penalty jury goes home and asked her father that night is there anything in the bible that would help me make this decision and he gives her the passage an eye for an eye and she reads it that night and the next morning she goes into deliberate she doesn't take the bible with her and she goes in to deliberate and the fourth circuit held that the state court decision the state court denial without an evidentiary hearing district court and i think that's the right outcome here and our our claim is stronger because the bible is actually read in the jury room there are circuit hasn't because we have to determine whether there was extensive evidence yes right and then whether it was prejudice prejudicial yes and our circuit hasn't accepted our we don't have a case in the bible is this kind of extrinsic evidence contemplated by this maddox grammar framework ha cases i've seen have denied haven't resolved the question of misconduct but if i have denied the claim for lack of prejudice fields i think it's one of those cases and so i don't think there's a decision that that this panel would be contradicting i just don't think it's been reached and fields is different from here because the california supreme court there called fields case among the most aggravated he was convicted of robbery murder of one woman robbery of a manic gunpoint kidnapping robbery rape and forced oral copulation of three more women and he had a previously been convicted of manslaughter and his penalty jury deliberated just one day where skips deliberated for three again showing  prejudice fields also the jury read the bible outside the jury room and made a list based on the bible and the dictionary of reasons for and against a death penalty and there were eighteen reasons and an eye for an eye was was one of the and then as the voting goes around you know displace supreme court law and i think the danger there is the validation if you go around and vote and you say this is that someone holds up the bible while they vote for death i think the message is still being that arises from this kind of external influence and it's the state that bears a heavy burden of her body in the presumption and the state hasn't done that they didn't state court there only argument was that ms rivers declaration was not credible now that's it happened it happened this way is there more evidence about the statements were made can we get more information on when the statement was made this declaration the jury deliberations were for three days we don't we don't have that in this declaration i don't i don't think it prevents us from going forward but that might be more information the state argues while there are some other jerk declarations and they don't mention this well they also don't say it didn't happen and i think there's declarations from for th answer because even under california state law they're supposed to apply a presumption of prejudice and it was not reported here by any other contrary evidence by the state so we have contrary to maddox and rammer right there which how do they fit into the prejudice analysis no i think that's right i think if the court if the question is ultimately if the question is is there prejudice that's what the court gets to but before you get there under the presumption of prejudice under good boy and maddox remember that hasn't been rebutted yet but i think the first ultimately we may need to get there about the first question to ask is whether the conduct was possibly prejudicial that's correct once you get yes i mean but help me understand this i mean here we have to examine whether it was unreasonable for the state court to determine whether the conduct here was not possibly prejudicial i mean that we corrected it or to say it was that unreasonable for the state court to say it was possibly prejudice that there's a  threshold to meet for the presumption of prejudice to to attach but it attaches quite readily when there is an extra influence brought in into the courtroom as the attorney general and the arch county case acknowledged in state court that the bringing in of the pants and the pamphlet that they agreed there that that that was misconduct now if a pamphlet on cocaine is misconduct i think certainly a bible is what it's come in it's brought in to read an eye for an od to decide whether mentioned live or die but that's not i mean that's you're talking about whether it was asking what do we do after we determine it that's extrinsic evidence and how we review this matter and here on the prejudices for i  understand your position and i think as we first ask whether the conduct was possibly prejudicial and so we have to determine whether or not the state court was unreasonable for the state court to determine that the conduct was not possibly prejudicial in my ra i'm asking more than i'm stating so i just want to know is that the right fourth amendment fourth circuit case that had a situation that was not even not as pronounced as here and they reached that conclusion that when it when someone went home and my memory is that the only statement in that case was was no i don't think there was another statement aside from and doesn't that make this case different it does make it different but i our phrase is so so proud of death penalty and against supreme court law that i don't think you can unring the bell of it and certainly not when there's just one other statement it's not like fields where there's eight hundred statements that's a more diluted situation i would like to briefly discuss our ineffective assistance of counsel claim a penalty if i may quickly  because i think it's important not just for this case for arms county i don't think there's i don't think the court can say that there was no prejudice in the other case because here more mitigation was presented mitigation case that was ultimately presented that so that's what's missing here well the omissions were material material and they appointed pin in a much more poignant picture one is kept was  from birth to the age of twenty two by his father curley carpenter the jury didn't hear that they didn't hear as much natural mother hit him too they didn't hear they kipps father locked him in a shed to punish him that his mother drank alcohol while pregnant with him that he drank alcohol left over from their parties to the point of passing out a child under twenty two months and that he drank feces and urine out of the slop bucket joseph still smoking his older brother five years older six years older and his cousin   wayne still smoking could have testified to that but they were never contacted by the defense another piece of information was that the jury didn't hear that kip saw his natural father beat his natural mother or that is adoptive father john beat his mother in front of the him and again joseph still smoking says i and the other kids witnessed my father beating my mother many many times we screamed and cried hysterically this matters in a case where the jury had to assess the moral culpability of a defendant found guilty of violence against women and the porter supreme court case focused on that in finding prejudice under twenty two fifty four day third and i think that the court already mentioned this in the other argument that the beatings and violence by john kipp started much earlier in martin kid's life than was presented a trial where they said this basically started when when martin was fifteen or sixteen and there were only three instances of physical abuse by kidd mentioned at trial and there on two pages are two forty nine o two and forty nine of three there are much more going on here including john tyner martin's hands to a crossbeam in a barn and putting a gun to his head and pulling the trigger and when no bullet fired then beating him with the web and wayne's you know was able to talk about that but he was never contacted by the defense and he said at the orange county evidentiary hearing he was ten years old when he saw this martin was for five years old jury didn't hear that so there were specific instances in addition to what could have been presented but there was a lot of evidence presented in each of these court cases from pelisse father locked him in a in a pen in a dog pen the supreme court thought that was important enough to put in its opinion there are other examples like that from the supreme court cases good morning may please that it please the court deputy attorney general ran a line hard on behalf of the pelly respondent turning to the certified claim regarding the references to say in the two letters the issue here is not about religion the prosecutor didn't introduce evidence of of kipps religious beliefs or group association and asked the jury to make some sort of inference therefrom there was no expert testimony on satanism the prosecutor chip's own words in letters he wrote admitting the crimes in graphic and vile language and explaining why he killed these young women and that he enjoyed it and there was no reason to sanitize kipps own words chip invoke the the ordinary meaning if you will of satan as a cultural reference to evil as he apparently fancies himself a bit of a bad boy and certainly is a judge when noted  essence that the the word satan was not the most offensive parts of these letters the letter was compelling because it was keeping admitting to killing these two women how he did it and why they didn't that he liked doing it that i think that was the prosecutor with the references that the confession part is certainly powerful but what relevance does the satan reference have why not just agree to that that reference well these are his own words there's no reason  that to clean it up he in essence said he commented that he killed these victims and that satan was looking them up and laughing and in essence it almost tied into a circumstances of the crime as as possibly why he did it and with respect to there was no evidence that you regarding that he believed in some sort of religious organization or whatever that was you know satan was right absolutely there's no evidence of that right to any signs of the crime was committed in the murder was committed in such a way that no that's a this is a ten week but that correct it was just sort of the as i mentioned sort of sort of a general euphemism for evil one and he was rebellious he was i think that that time he wanted to be a heavy metal rock star which is tied into the whole image that he was going  just just just his anger and and that as the statement we're coming home satan our satan we're coming home i'm paraphrasing was that it made it in the guilt phase that was in the  puts his character in evidence at the penalty phase the prosecution may properly rebut with evidence or argument suggesting a more balanced picture and that's exactly what happened here the california supreme court could reasonably conclude that the references were properly reference to satan to when he used it in closing and the california supreme court could also he had no goodness in this heart did he say he had no goodness in his heart and satan his soul i think i don't think he said he had no goodness as harvey said he had satan this is so he said it was a definite reference to satan oh yes that he didn't have goodness right now he did say that satan is saul but i was suggesting that what he meant is he had no generally understood as a symbolic rejection of good values i don't know if that's in the state court record i think it seemed to be my recollection is correct the district court i would suggest that it was just the court reasonably found that was it was invoked in its ordinary meaning of just a cultural reference to evil and just a more general sense and that was just  reasonable the court this court looks to whether there is any reasonable basis on which the fornia the california supreme court could've found it proper and it also because chip introduced evidence  n the penalty phase that lifers had a propensity to become model prisoners the prosecution could rebought with evidence of future dangerousness of sentenced to a life without parole including the writing in the ninety nine letter  he felt satan rejuvenated his energy to carry out his intentions to rape and sodomized every female deputy and gouge their eyes out in a terrorist killing and again the word satan in that in that letter was hardly the most offensive part of his own statements as well furthermore even if even if the references shouldn't have been introduced it was harmless because the death sentence here didn't result from the word from keep using the word sane there was overwhelming aggravating evidence  that the vulnerability of the victim the horrific nature of the murder the numerous other crips excuse me the numerous other criminal acts by kip involving the attempted use of force or violence in his face prior rape conviction de minimus references to say it in his confessions and threats didn't have a substantial injurious effect on the penalty determination here what about it what if you combine those records with the bible i was just going there yes while the jury the jury should not have read by should not have read from the bible and discussed it with the other jurors the california supreme court could reasonably conclude that that conduct didn't rise to a level of a due process violation chip points to no united states supreme court  as talked about it in the brief it's and it's really a state court supreme court case is that it's expected that jurors can consider their religious beliefs during penalty deliberations in order to make a moral assessment of the fairness mitigating evidence and given the collective nature of deliberations it's not improper that jurors may share that with each other that was the lewis case people via lewis a twenty six cal forth but well i mean if there's just i mean you know i guess if there's  experience and you know we don't ask them to drop their life cumulation of life values and experiences at the court at the at the courthouse door right and other sources and other do their own investigation conduct their own experiments there hasn't been any showing here that the jurors render their decision based on this this bible passages or bible reading and the end that respect the california supreme court could have reasonably concluded that the jury declarations were admissible or inadmissible as attempts to impugn the jury's mental processes and were in the miscible hearsay and uniquely religious context that people would really be unaware of the make a difference so that the bible within the in the jury room with those statements does make the mere fact that they had the bible within the jury or i think not  because it's a little more credibility right hard a little more well you have that you have the bite you know you're able to read from it i suppose it depends on individuals he points it may or may or may not i mean what is  to their system of beliefs and then you're not reading from the bible sky then it's in terms of what to do it all adds together doesn't it there's a wide spectrum of  the volunteers for lack of better term for because someone's christian whether they're highly devoutly whether they're not i mean council referenced i think three declarations worse people said assuming they're even admissible that they went to church regularly none of the others said that at all and these as you pointed out earlier were really opposite ends of the spectrum which sort of goes to the the harmlessness here that and eye for an eye and judge less bible involved there and they were found not to be prejudicial so really in addition of the fact that there were very strong aggravating circumstances as we talked about the chip can demonstrate that no fair minded jurist could have found that the state court judgement here was how does the bible at all relate to this reference is to say it doesn't because the there's no showing that the jury used the bible to that were that were there so what do we do about the fourth circuit case i mean do does that instructive for us the one that your colleague across the aisle referenced regarding the bible and what they found frankly i'm not route my recollection and i may have missed some of what he said is that the the bible quotations there were more substantial more damaging yet they still found no prejudice and i'm not sure if that was what counsel relayed think it was i mean they sent it back for a hearing i believe based on the bible references that was true the state court here found that either didn't rise to a level of due process violation or that there was no prejudice so there'd be no reason to send it back for any type of additional development because we have  we have the objective statements is what what was reported by the jurors as to what the other juror said and i would also suggest that we talk a little bit about our counsel talked about the dossier which nice circuit case which is first of all in th the record here and as noted by its respondents in formal response in state court the california supreme court could have reasonably concluded that any prejudice was  turning away from the overall record i'm stunned by the overall record by the overall record does it they would have by the overall record and whatever arguments we pointed out in our informal responses to why there was no prejudice of course our  argument in our response was based on the overall record yes we're turning to the ineffective assistance of counsel as was noted previously the focus here should be on the reasonable us of what counsel did rather than what he could have done and whether anything he could have done would have produced a different result as noted counsel present an extensive mitigating case here involving dozens of witnesses and as the district court correctly concluded in great detail the areas they kept points to as is deficient were adequately covered to trial and in addition to the extensive mitigating case with with the dozens of witnesses  was also presented extensive testimony that the chip again was it was a good person deserve mercy here like in strickland counsel's use of the mitigating evidence already in hand which he had the two years of two years of vesta geisha from prior defense counsel fell within the range of reasonably professional judgment and moreover even if he was to fit even if there was some deficiency which there clearly wasn't there was no prejudice again there was overwhelming error aggravating evidence in this case chip raped or attempted to rape four women and ultimately strangled to death the two killed are only nineteen and under these circumstances any failure to put on additional specific instances of physical abuse or drug abuse or additional examples of child neglect was not prejudicial not and then information would clearly change the balance and relation that were brought out at a hearing for a new trial motion not a claim on state habeas and state hey b s kip had the burden of showing that there was misconduct and once he surmounted that showing he had the burden of showing that the misconduct the rebuttable presumption was the presumption of misconduct was not reviving so he had a burden so he his national bird was showing there was misconduct bringing the bible in  state to rebut that and state hey vs it's the petitioner that has the burden he has the burden of showing that there was misconduct and then he has the burden of showing that the rebuttable presumption at here at step one the court ask where the context was possibly prejudicial you know the meaning it had a tendency to be injurious to the defendant if so the contact  prejudicial and the court proceeds to step to where the burden rests heavily upon the state to establish the context was in fact harmless do you agree with that i would distinguish that from  s matter rather than a trial matter because i agree with that in the trial context absolutely but on state hay vs the petitioner has the burden of both those prongs he has the burden of showing that there was something that was ones ours is just this claim was brought up for the first time on state hate us but we didn't seem to draw that distinction in good order i guess all i would say is that that's not united states supreme court precedent and i don't have the nuances  were hearings for a new trial motion where this germ is conduct claim was brought as opposed to a state hey vs which is the venue where the germs conduct claims were brought here so i'm  that the the shifting of the burden to the state isn't the same and there are those different  thank you the california supreme court statement of the generally understood notion about saying appears in the california court of appeals recent opinion denying the claim it said excerpts of record one seventy eight talks about the suborn value system and as we discussed there's there was no evidence presented in the record contrary to dawson on this it's just the supreme court sa we have to look at the reasonableness of the state court's decision to that is correct ok the state court reasonably conclude that the state rebutted the presumption of prejudice and the answer is no just first right the first step that we have to say the state court unreasonably made a determination regarding the first of all possible pressure yes that's correct we are under twenty to fifty four days so you could in the last time you have why was that unreasonable with respect to the first step we were bringing in extra no influence right even in fields this court said the core principles we settled evidence developed against a defendant must come from the witness stand here they're relying on an outside influence the bible the most powerful word to christians to reach this penalty determination that is at least possibly prejudicial it's unreasonable to hold being more versus chapelle this court held granted penalty phase relief on a medication claim even though a trial they presented over forty witnesses insist same set up here a california supreme court summary denial lester's any further