may please the court could mark morning my name is michael burke and i represent the petitioner appellant jo clarence smith i'm going to attempt to reserve five minutes of my time for rebuttal and we'll try to keep track of that with the court's permission i would like to address three issues today that apply with equal power to both of the death sentences that are facing mr smith and those three issues are first did the arizona supreme court violate the eighth amendment and due process and its failure to narrow the to aggravate or in this case was just which is the claim or the aggravator that he had a prior conviction involving the use or threat of violence the second issue was related did the arizona supreme court fail to sufficiently narrow the the six aggravated which was the cruel heinous and to pray ved and finally i'd like to address the question of the district courts denial of evidentiary hearing for mr smith on the ineffective assistance claim at the penalty phase and i'm aware the court has asked the court to be prepared to address the confrontation clause issue and both parties have submitted twenty eight j letters and i'm happy to address any questions that the court has on that particular issue as the court is aware that claim goes soley to the death sentence involving the murder of an eva levy and not that of sandy spencer which is why i would prefer to address the other issues i would make two brief comments confrontation clause claim if the court were to agree that it existence or nonexistence in this case of clearly established federal law on whether the confrontation clause applies in a capital sentence in context not matter this court could consider that question to novo and both parties have submitted cases that would address that one other point i would like to address is that there is much discussion in the briefing about autopsy reports and coroner reports and the admissibility of those in this case although that is a factor we have to remember also that dr kean the medical examiner who testify also relied on prior testimony prior in court testimony carter who was the original medical examiner so we have not just the question of is a autopsy report testimonial we actually have in court testimony but dr  he had read it and then he proceeded to to reference specific findings by dr kay regarding the timing of wounds the death of wounds when he disagreed with regard to timing  didn't didn't dr king disagree with regard to timing so he referenced it but right that i'm not sure that's the same as incorporating his testimony right he did disagree with whether some of the again though where this court to agree with me my client would still be facing a sentence of death which is why i would like to address the aggravators in this case the we have argued that the aggravating circumstance that is was set forth at thirteen for fifty two e two in this case the prior previously convicted of a felony involving the use or threat of violence is unconstitutionally vague now as by way of background this particular aggravator was repealed by the arizona legislature over twenty years ago it is not an aggravator that is now given to juries today the equivalent aggravators that the defendant was previously convicted of a serious offense and the statute then proceeds to specifically identify what constitutes a serious offense here however the question presented to the jury was mr smith convicted of a a previous crime involving the three use or threat of violence and as the court is where the district the government relied on the murders of the victims and the other cases as that crime  arizona supreme court pursuant to its obligation under the eighth amendment to narrow its aggravating factors has long held that that particular aggravating circumstance can only apply when the language of the statute governing governing the offense necessarily requires the use or threat of force and in this case the jury was instructed that but let's use it yet that violence is the exertion of any physical force we have argued that as contraries in my season to a lay person or even to a lawyer murder first degree murder under the arizona statute as it read at the time of the murders in these in these cases was not necessarily a crime that involved the use or threat of violence it's sort of like asking the jury to apply what we have to apply as the categorical approach which frankly sends me through the looking glass as a sometimes so i i share your the museum and that the jury is asked to answer that question but in fact that appears to be the state of the law at least at the time it was your honor that well that was the state of law at the time i would also i mean as the court as well the where the with regard to the categorial coracle approach the united states supreme court has recently held in johnson that that similar language and that statute is unconstitutional  y here the government is arguing that the issue was only one of state law that the arizona supreme court is entitled to interpret its own aggravating factors and decide what applies under a particular factor  s supreme court appeared to say ok to the system arizona adopted be it at a time when the decision making was made by a judge rather than a jury and therein lies i think mike my problem because i can't find a supreme court decision that says the procedure is not ok when it's done by a jury don't i have to find that with regard to the i  disagree your honor i don't believe you actually have to find that what we have to prove is that the arizona supreme court's ruling with regard in this is goes to the cruel heinous and appraised factor aggravating factor is that it's reliance on walton was appropriate and what we have here is what the arizona supreme court and the district court giving you only a flat out citation to walton the argument was post ringing walton is no longer a valid support for the fact that that the cruel heinous and pray that aggravator is not unconstitutionally vague and to simply rely on walton which holds that in fact it is unconstitutionally vague and only survives that and constitutionality because judges as we're doing the sentencing at the time and judges were able to access the extensive case law that might court talks about how they jeffers decision sort of lays out the process under the eighth amendment whereas the the court the state courts can narrow an aggravating factor first by properly defining it and limiting it and then applying that limitation in the individual case and in this case the instructions given to the juries and they were identical for both sentencings were horrifically today let me give you an example  jury was instructed in these is that e r for seventy five for seventy six which is the instructions and again the instructions were the same as to both the jury was instructed that the elements of cruel heinous and dupr ved are separate elements disjunctive and that finding either or any one of them was sufficient to find the six aggravating factor it's interesting on page forty six the judge says the jury was instructed in order to find heinousness or depravity you must find that the defendant had a mental state as exhibited by gauging at least one of the following actions one is violence on the victim and to needless mutilation of the victim's body after death the jury was non structed what those findings went to if the jury found one or both of those were they supposed to find that the crime was heinous or they supposed to find that it was to prate because they had been told that those were separate separate factors all under one giant umbrella of cruel heinous and brave so right there we know that the juries in this case were not properly instructed under the limiting instructions or the limiting interpretations that the arizona courts had developed also the jury was instructed with regard to cruelty that a defendant that they must find that the defendant either knew or should have known that the manner in which the crime was committed would cause the victim to experience physical pain or mental anguish and one of the critical roles of aggravating factors was deep most critical role is to identify those first degree murders that are different from the vast majority of other first degree murders so that those are the first degree murder in which the death penalty can be elected this definition of cruelty essentially defines any first degree murder and almost except for the rare exception a victim in a first degree murder will feel physical pain and or will experience some mental anguish that was all the jury in this case was required to find and we submit to the court that that is not sufficient narrowing under the eighth amendment so even if a jury could make these findings and in the normal case they were certainly not properly instructed in this instruct and if this court were to find that it would really necessarily need to grant the writ as to both the spencer and the levy sentences the other issue that i would like to address with the court is the question of ineffective assistance of counsel that was a claim that was procedurally defaulted in state court the post conviction counsel which in arizona claims of ineffective assistance of counsel must be brought in what's called a rule thirty two proceeding a post conviction proceeding did not raise any claim of ineffective assistance of counsel instead what he did was he argued that evidence that he had discovered through experts that he had retained  he argued to the state court that this was newly discovered evidence and because he so argued and because he conceded that he was not raising ineffective assistance of counsel claim it placed his his claim under a much higher standard that he had to prove and we submit that a minimally competent post conviction attorney in a capital case would know that this is where you raise it claims of ineffective counsel and so we believe that we have set forth a colorable claim that there is cause and prejudice to excuse our procedural default of the claim of the underlying i c claim and if we have then we case we had six so sure it's that simple but that's another digression well and i will agree your honor and i think this court's own opinions indicate that martina's is is difficult to apply and what is the standard that evidence we were never able to develop any of the evidence that would support this what the district court basically concluded is that the additional evidence that was discovered in post conviction was merely cumulative and wouldn't have made any difference but we're talking about very detailed very specific medical evidence which the district court was not qualified to decide on its own we don't know today exactly what the significance of those findings of organic brain damage are we do know that this court and the us supreme court has held that evidence of organic brain damage is more compelling significantly more compelling than other types of mitigating evidence and in this case was submitted with the p c r petition that there was evidence of frontal lobe organic brain damage and then and it and pined and i have to be completely honest your honor it's it's in medical speak so even when i read it i'm not entirely sure of the extent of it but i do know that damage to the frontal lobe is the frontal lobe is the part of the brain that that takes care of executive functioning the ability to reason the ability to to think through things and we know based on this evidence that there we have evidence that there is brain damage in this case and we know and part and trial coun mr smith was involved in a terrible car accident when he was merely an infant in his mother's lap which would suggest that there was reason to further investigate this the district court dismissed all of this by saying ten experts have already checked out mr smith and none of them suggested this which is i submit if you look at what those ten experts are it's completely insupportable for the for the proposition that the district court is using it there were ten experts and i've gone through and looked of those ten experts we have four of them were well eight of those ten were experts who were retained by the courts in various proceedings to do competency evaluations which is a much different animal than doing a mitigation investigation as a defense lawyer four of those were done four cases prior to the cases we're talking about here there were earlier crimes that mr smith was convicted of and they were done in some instances only to determine his probation whether he would receive probation or not receive for a patient so that takes care of eight of them the other two to one is a doctor that was retained by our office when we first represented mr smith back in the one nine hundred eighty s a psychologist who despite you know i might question the my colleagues you know decision to hire this man in the report is very good but a psychologist would not be able to necessarily would not be able to identify brain damage and the other one of dr goldberg this court expressly held in the prior decision in this case from one thousand nine hundred nine the trial counsel was ineffective for relying on dr suppositions and we're guessing as to what the evidence was but he has made a colorable claim that would entitle him to an evidentiary hearing in this case so that is why i can't answer your question more fully  and reasonable hinges claim on there being an unreasonable determination of fact but that doesn't work either because the alleged henri's more the term nation fact that regarding whether it was a conduit was determined in connection with a state law issue that wasn't this arizona supreme court deciding the constitutional issue that was the state law issue of whether this is proper expert testimony or under rule seven or three so it can't be an unreasonable application original extermination of fact on a federal issue when it wasn't even made in the context of that issue secondly lopez versus nath united states supreme court told the federal courts including this court and you can't just something that's really a determination a loss of the term national fact and lopez it was a determination of adequacy of notice in this case the determination that whether or not there was a conduit for admitting prior testimony that's very similar legalist mean the facts were developed right island and basic what the problem with the argument that i see is he's basically just asking us to give a different gloss right i was in the supreme court so that's very difficult there wasn't wasn't a condor king wasn't a conduit because the autopsy report itself was an admitted and it didn't even exist all they had is a cover page that had some very general conclusions so that that shows that it wasn't a conduit and also that kean was a conduit as shown by the fact that he actually disagreed with dr carnoustie on some points and he was very clear about what he could reach an independent opinion about several times in his testimony talks about this is my independent opinion i can't say anything about that but at worst it even if you take that state law issue which the district court said this is really a state law issue and we can't i can't look at that again but at best it's a it's an argument arbitrariness and nobody can that attempted murder turns out not to be a crime of violence because of the kind of argument posited by petitioner here that is under the and i've forgotten which of many states the statute was but under the statute of that state you could accomplish murder without ever having form of violence well this played out in the arizona supreme court was given an argument about the use of poison in it responded directly to that argument saying well there's force involved there too so now we have from petitioner a different maybe a sharper hypothetical i'm sitting here looking is this really an argument that says if that argument had been made to the jury the jury would have been stuck because it couldn't have concluded and perhaps the trial court would have been stopped because it would have to have concluded as a matter of law that you don't have to have force and violence to accomplish first degree murder i think the first distinction there is to talk about attempted murder th that i just my own expect but actually but the problem i have a hypothetical posed by petitioner suppose you've got the kid is locked in the closet starve to death it still requires force because you have to keep the kid from eating i mean you have to  physical pain and the requirement of consciousness which is the exact definition that the united states supreme court affirmed and was and and walton so whether or not a jury can apply it i mean you assume that jurors can apply it's covered evidence claim rather than in effect assistance claim but that was definitely a strategic decision because when i responded i was thinking ahead to federal court thinking this this should really be reason for that because there was no prior evidence of neurological damage dr tara dr parrish testified to that that nobody none of the ten doctors that had come before had found their logical damage so he said it's a strategic decision but not sure what you just said matches my understanding it it may have been a calculated decision but it isn't like he had done a fight ok i've got these two options and i'm  the new evidence route instead of the ineffective assistance route recognizing that new evidence route has some extra obstacles down the road it sounds like instead he made a professional judgment that he doesn't have anything with regard to ineffective assistance of coun that's not a strategic judgment between two options it's a professional judgment there's no one effective assistance well it was a choice i mean it was it was a choice between two choices you know i offered that i said in my response i said addressing this in effect assistance he came back no it's not in effect assistance it's newly discovered evidence so i disagree it shows that he thought about the two and he chose to prisoners there was kind of evidence but as i point out that was that was a reasonable decision because it would have had a good effect assistance claim because there wasn't any any neurological evidence of neurological damage that would have been a basis for a good in effect the systems claim and it also goes to the underlying claim of those of stansell claim now this court and andrews recently summarized what you have to do but then in effect assistance climb i mean it's kind of a complicated process you look at all the evidence that was presented  impairment which was reasonable in arizona law at that time but when it was the mandated counsel didn't do any more for instance this client pointed out they couldn't call family members which is what he did at the sentencing in this case he called his mother dorothy spencer testified extensively call the sister and also point out that larry maddox a friend of his could have been called a max was called so if you look you look at the actual sentencing proceedings that occurred in this case they were pretty substantial and they were separate sentencing so as to reach the found it plus missed benefit by getting  and as far as getting evidentiary hearing in this was the only evidence that petitioner offered to the district for i mean i've worked on several capital cases and often they produce a lot more expert reports as exhibits and then and autopsy with detective paul who wrote the report and then dominguez signed a report and then that report was one of the things that dr king could have considered but he didn't consider he said i don't care what's state court makes a harmless error determination that also gets to friends and had been kind of an open question before that you just do brackets in that case or do you actually apply some more deference to the state court harmless fair determination and and the arguments that my friend have made as made with regard to whether we should obtain an evidentiary hearing arguments that should be made at the district court he spent several minutes argued the court factual conclusions mr anderson referred to the m r i in this case and that the pet scan has some pictures and the government is trying to get this court to make a decision on a question that has never been developed factually ever and under martnez we have raised a colorable claim that there was ineffective assistance of post conviction counsel and that there was ineffective assistance of trial counsel whether we succeed in that claim is not the question before this court it's whether we are entitled to develop it and we have argument from the government here that is filled with supposition well this probably means that and this probably means that that proves our point and a case of this magnitude in this seriousness it cannot be based the decision cannot be based on pure supposition  with regard to the e six aggravator the government argues that walton controls but again walton expressly said that it was limiting itself to application to that the the aggravating factor in that case survived only because the judges are making the decisions and then the government further says when that is not enough to distinguish walton what supreme court case can we sentencing in a capital case that the state court must both narrowly limit its aggravating factors and must properly instruct the jury and in this case that you're in the clear that that's not what you know in this case the jurors were given and in fact mr anderson refers to the cruel heinous excuse me the heinous deprived finding the jury was was instructed in what amounted to legal mosh the jury here was told these are the things that you find for heinous or depravity but they're separate but you find the same things and if you find one it's enough that does not satisfy the dictates of the eighth amendment and that is  they should have been instructed under the limiting analysis that had been performed that had been conducted by the supreme court over its many years and there are more specific definitions for cruelty for skin for error heinous and  certainly in it to the point that it violates the eighth amendment a due process which is when the federal courts must step in which is what the u s supreme court has always stated if this is not a question of state law is the question of whether the state i mean is the judge or didn't just instruct the us traction the supreme court regularly tells our court and others you can't work from that level do we have anything more specific to hold on to with regard to the instructions given here yes your honor in jeffers first is lewis which is actually  arizona case justice o'connor held that that the courts must narrow the aggravating factor and apply the narrowing construction in the particular case our argument with regard to the east six aggravator fact aggravating factor is that it did not under the words of jeffers apply the narrowing construction in this case the jury was improperly instructed on on  that the we also argue that the cruelty instruction was unconstitutionally vague the way the jury was instructed on cruelty would apply to first truly every first degree murder it does not narrow it does not narrow would seem to fall within the so called narrow definition that is what makes that insufficient there were a a conscious victim who for any amount of time could experience either physical pain or mental suffering would cover virtually every with the exception of the rare instance in which you have it and i'm conscious victim who was then murdered with a cause of virtually every first degree murder case and that is that is our argument as to why that it is is over like to be clear that our argument is that the constitutional error in this case occurred in the arizona supreme court the arizona supreme court committed the error they failed to fulfill their obligations under the eighth amendment and due process by properly narrowing on this is not a question of state law if the arizona supreme court held that securities fraud was a crime necessarily involving the act of violence and in this court were able to see that it does not that would be a constitutional by a violation of the failure to comply with greg and then with regard to the with regard to the confrontation clause clause question and judge paez there was some discussion about was there really a factual finding here the government keeps saying that this is really a legal finding it was was was dr king a conduit or was he not a conduit and he the government suggested that the factual finding must be related to a federal constitutional issues but d to says that if a decision is based on an undue reasonable determination of the facts as presented in state court then we have satisfied our obligation under twenty two fifty four d in this case the arizona print supreme court expressly found that dr keene made an independent finding regarding the cause of death and in that way they said that he was and simply an expert opining on information that he had before him for their determination that he was an expert is a legal determination correct but they are factually incorrect your honor that he made an independent finding on the cause of death he did not and in that set forth  finding those independently that can be found at our five thirty four five thirty four dr keith said he did not reach independent conclusions that it governments the arizona supreme court's finding therefore it made incorrect find cases based its decision on this confrontation clause issue on patently incorrect factual finding that you know the problem i see a major hurdle for you is that basically you're asking us to disagree with the arizona supreme court's factual determination that it's unreasonable no we are not your honor i am telling we are guess what you are you're saying you're telling us well this court can there's no you don't there's nothing here to suggest that there was an inadequate fact finding process right i'm not sure i understand your question is your claim is based solely on all the evidence that's in the record yes right yes you don't claim that there was some improper fact finding took place no your honor but our argument is that the in the process not in the process right though the error is in that the arizona supreme court based its decision on a rony as factual factual conclusion that was not supported by the evidence the evidence was clearly contrary and that is a finding this court can easily make by defense counsel on cross examination actually on waaa he expression he said i am not reaching an independent finding on cause of death and that is what the supreme court said happened it is an incorrect finding of fact we satisfy due to this plain isn't how she died how they died i guess which one is this the way that they can die both victims in fact died in similar and similar to energy and so i'm not sure i i hear what you're saying if we parse it that way but i'm not sure it matters it does your honor because what would happen then is this court with them look at the confrontation clause issue to novo would not be bound by whether it applies in this in the capital sense in context and i understand but i'm interested in terms the finding of fact it's not like there was another alternative on offer and that is not the analysis the issue is whether the confrontation clause was violated if this court finds it i guess your and your question goes to question is it or is