good morning ron and josh lee from the federal public defenders office for mr bush and mr bush's capital sentencing the prosecution violated every single restriction that the supreme court has placed on the  characterizations of the offense and not even the state disputes that this violated mr bush's clearly established constitutional rights why did the o c ca tell us about this issue it did two things his objections just before the witnesses testified then he raised this exact same issue in his direct appeal proof to the o c c yet how specific were his objections before the testimony certainly they were allowed victim impact testimony and written statements before the trial which is what they're required to do under all he objected citing booth and pain and several tints circuit cases and said that under no standing what oklahoma says you're not allowed to offer recommendations for the death penalty under booth they also directed to the abberations of those recommendations they objected to characterizations of the offense and specifically characterizing the offense as brutal and they objected to characterizing this or bush particularly as a continuing threat and then they told the judge we're about to get into victim impact testimony we followed response to the state's victim impact we again sided booth and pain and said you know you have misconstrued booth and pain you're not allowed to do this the victim's family wasn't allowed to make pleas for the death penalty they were allowed to characterize lester but what what difference does it make here if you think there is a difference by the fact that we have a sentencing by the court as opposed to a sentencing by the jury i don't sleep don't we presume here that the judge followed the law and would not rely inadmissible not in this case in most cases you do but the problem is the notion that the judge wouldn't consider in admissible evidence that was the little statement he made the state knows that there are limits and i think i'll follow the rule or however loosely you said it so that would indicate to me that he knew that the this just wasn't a free for all you can come in and any money that's right but remember that the state disclosed the victim impact testimony before the trial and so the judge obviously believed that nothing the state disclosed violated  oklahoma and the judge certainly thought that thought that victims families pleading for the death penalty was allowed because you'll see that repeatedly told them it was all theirs that now the difference between a written victim impact statements and then the follow up oral colloquy that occurred between council and these individuals are you objecting to both the written and the oral responses to questions by the prosecutor yes most of the oral responses to questions were contained in the written statements so the written statements answer various particular questions like do you have a recommendation for the jacket on the penalty and so the prosecution at the end would say all right let's go to the final question what is your recommendation to the court now there were some differences between the oral testimony and the written testimony  and there i have two responses so that the first is that as the prosecution i'm sorry the state at mit's in their brief after the defendant had made his position known and the judge indicates that he believes this testimony is admissible further objections on the same issue would have been futile and we don't procedurally default people for failing to make continuing objections on the same matter that are futile that's from osbourne versus ohio that i cite in my brief and leave versus can not also says that if you raise the issue in a manner that would allow the judge to decide the basic issue that that sufficient to preserve a legitimate state interest and failure to go through a meaningless ritual after that doesn't result in a federal default so if not procedur or contradict supreme court precedent we know that that's this court's decision and dot so then you would go to prejudice and you evaluate it under the bricks theater which is basically is there a reasonable likelihood that the result would they just argue procedural default but then when they go to the in effect of assistance of counsel claim they say it wouldn't have made a difference and i read that as going back to what we have some guidance in our prior cases as to how to look at these recommendations for the death penalty but they weren't the same sort of impassioned pleas that we got in this case the state admits that the first factor cuts in our favor then the second one is the strength of the case an accurate aggravation and in this case although there were three aggravating factors it wasn't especially strong as compared to some of these this court of cases where there are just these vicious killers you know all want to hide there you're here you're dragging a person behind a pickup truck who's a lot no there's no injured injured and means no the medical examiner said that she could not tell how long he lived after the first shot she could not tell how long he remained alive how long he remained conscious and could not say the body after the offense and even damaging the body after the defense is just not an aggravating circumstance under obama law and can't be considered but well so that's from the oklahoma's aggravating circumstances and the heinous atrocious and cruel aggravating circumstance says that there has to be conscious physical suffering before before death well he was shot he did not die instantaneously we know that he tried to move and get away he was shot again and i think we have proof of pain before death that is really no i'm not in fight now i think i think that my point is all murders are terrible where they linger for twenty or thirty minutes and are burned alive or are raped repeatedly before the offense i just think that dying of guns with gunshot wounds is separate from that but then you get to the third factor  which is the strength of the case in mitigation and the mitigation case here was strong he presented compelling evidence that circumstances that he wasn't culpable for contributed to the offense so it's undisputed at least at this stage in the case that he was suffering from bipolar disorder he was in such mental distress in the days leading up to the offense that he had to be hospitalized the hospital unfortunately didn't treat him appropriately and instead prescribe to him a drug that is contra indicated for bipolar disorder and is known to induce violence in bipolar disorder patients and his expert witness testified that there was a causal link between the activation of his mania with the drug that he was for school i and the offense that was committed that's powerful mitigating evidence there's also the fact that the o c ca found that the prosecution hadn't proved that he committed any prior act of violence that distinguishes some of this cour prior cases where the court said it was harmless where the defendant had a dark history of violence and that's just not the case here and then finally there was compelling evidence of remorse and acceptance of responsibility offense the prosecution's own witness the sheriff said that he was very remorseful and overcome with grief and didn't even pleaded guilty to spare the victim's family from going through the trial so yes murders are bad and so this was a bad murder but when you look at all the factors and weigh them against each other do you agree just nature of the testimony the strength of the case and aggravation and the strength of the case in mitigation there's at least a reasonable likelihood that the judge would have made the balancing decision differently the other thing that i want to refer to is if you compare this case to dot which is which is a case where the court found that the evidence was prejudiced one thing that the court emphasize is that the prosecution in dot obviously thought that the victim impact testimony was important because he repeatedly elicited that testimony and the court said who are we to second guess the prosecutor who has more experience with this and we view on what testimony made a difference and the prosecutor here deliberately elicited this testimony from five different witnesses and then harped on it in closing argument that the prosecutor said that  said is you have to feel it in your heart the death penalty is appropriate for ronson doing women if you're a differently if it's a trial judge as opposed to a jury so in many cases you probably would  because you assume that the judge ignores inadmissible evidence but again in this case you don't because the judge believed it was something that he should consider i think i'm going to do what mr rule did in his first argument and say there's a case that i cite on a general point related to this issue but i went back and looked at it and it's more specifically relevant it's about long son case and i cited for the proposition that this presumption of regularity can rebutted but you go back and look at it specifically and what the court says you have through the poisonous tree or it has it is so when you go back and look at that was that was it as an old  considered well but again we had the trial judge so i think the third time since the trial judge said ok i hear your objection knows what the rules are and i expect the state to follow the rules so it's not that the court was just willing to hear anything from anybody or that the court was not aware that there were limits but the rule in oklahoma was wrong the rule in oklahoma contradicts clearly established federal law so the judge would have taken into account the victim's families pleas for the death penalty because he overruled objections that those shouldn't be considered and because  the o c c gay had repeatedly told him that he should consider it so so that's how we know that the judge did consider so really you're arguing for a presumption the other direction that if the presumption that the judge doesn't consider him to admissible evidence so at that stage you affectively treat the judge like you would treat a juror and i still need to make some showing a prejudice as if it were in front of a jury and i've done that in this case  and you have to overcome all of the evidence in support of the aggravator so my twenty three witnesses my position is not that there was no aggravator established he eligible for the dea no question about that he was eligible that's not the important decision that the senator had to make though the important decision that the senator had to make was ok i've got at least one three aggravators established now i to decide how much those aggravators weigh and balance that has been it's going to mitigating circumstances and decide whether that outweighs and that's where the victim impact testimony comes into play is when the judge is weighing the aggravation against the specifically testified that it was her quote opinion that the injuries that he sustained when he was being dragged on his nose and his mouth and his chin were not post mortem she  did say that if you look at it in context what it's clear that she's saying is she did not have enough information to declare them post mortem wounds she goes on to say and i quote she did not feel that he was definitely dad when he sustained the injuries to his nose and mouth when the dragging her exactly that's the operative portion where she says she could not say that he was definitely dead she couldn't say one way or the other and therefore she couldn't declare them post mortem ones but again even if he were alive it doesn't prove that he was conscious the aggravator were choir's conscious physical suffering and even if well don't we again we have the conscious physical suffering given the number of gunshot wounds that he sustained as he was trying to flee from michigan i think that's what's at issue of that to be honest reasonable likelihood when the heinous atrocious and cruel and heinous atrocious and cruel and continuing threat aggravators have been found these are cited in the briefs there who looks whether the court found a reasonable likelihood that the result would have been different where there were three aggravators including the hack and the continuing threat aggravator and smith versus mullens where there were four aggravators including the happy continued threat aggravators now those are ineffective you still have to weigh the aggravation against the mitigation and when you compare the aggravation to the mitigation there's at least a reasonable likelihood that the judge might have felt differently about the subjective sentence who decision that he had made was their medical evidence as regards his mental health in mitigation i know there were family members and cetera there was a very extensive mental health litigation corner is the one who testified that he was suffering from bipolar disorder that he had been misdiagnosed that he had been in appropriately treated in the days before the offen and that the drugs that he had been activated his mania and contributed to this offense so again my position is that that's powerful mitigation when you combine that with the fact that he didn't have a prior conviction for a crime of violence and he had remorse and acceptance of responsibility i think that that establishes a reasonable likelihood that have the remove worse things or kicks us into one of your other issues what to do with the proffered evidence question it does and i think if the court is well if the court has doubt about whether it was prejudicial  standard requires you to grant relief but if you think that it's close to the line but doesn't quite establish prejudice i think then you go to cumulative error and you can take this national offer of proof into account and when you combine those two things the impermissible offer proof and the victim impact testimony it's really a classic case of a synergistic effect for again we have any clearly establish law that would guide us from the supreme court on this particular issue the offer proof there are still there is clearly established federal law that states sponsored courtroom practices can deprive the general standard that if there is unfair conduct that is so infects the proceeding as to deny the defendant a fair trial it's a due process violation but the supreme court has said that the general standard can be applied unreasonably and support a b s really and it's not the case that the supreme we don't have any supreme court case to talk to offer proof we don't and that's not required the supreme court doesn't have to separately take up undermined this awful proof undermined his basic right to a fair trial because it was so prejudicial that it couldn't possibly be ignored and i think that he did he did say that intoxication defense that he was planning to escape and would murder people with the needed to do to get out and they laughed about the killing and didn't have any remorse the reason that that was synergistic with the other error is that it demonstrably affected what the victims would later testify to but because the victim impact testimony the victim's family was in the courtroom at the time this proffer was given a defense counsel asked to approach the bench to discuss this offer of proof but the judge said no you can do it from there so it so that everybody can hear it demonstrably affected what the victim's family would later say and also it had the effect of supercharging the state's case in aggravation and undermining the defense's case in mitigation which is exactly the same thing that the victim impact testimony so when when you combine these two things i don't think there's any question that it rises that least to the reasonable likelihood state that you cited kerry as your support for clearly established law that's one of one of the three or four cases that i cite and kerry says supreme court holdings must be construed narrowly and consist only of something akin and point to the question and i do believe that it's on point because of the stablish is the defendant's basic right to a fair trial it anything they're narrowly i mean that's just saying you should have a fair trial so anything that happens that you would argue is unfair falls within the habeas relief it does if it's a state sponsored court room practice there's all different kinds of unfairness that can happen during a trial well the proffer was this was a practice it was a court of state sponsored courtroom practice yes because the prosecutor stood up and did it it's also a  on direct appeal we did in or or in history we did raise it in the district court so you see i have it here yes so the effect on the victim impact testimony in the district court it's at volume one of the record no twenty seven right of volume one of the record i'm sorry a pig sixty two no twenty i don't think that's required under miller l versus direct where the court says if you advance the basic claim in state court that you can marshal new you can marshal new facts about what the evidence shows for the first time in federal court so there's a distinction between the basic legal and factual claim that supports belief and here we said this offer of proof was unfair and we cited the fourteenth amendment and then you can marshal different facts to show that that had an impact and that's the case that we cited  testimony in this case cover to overarching reasons first the fact that this was a binge sentencing and not a jury sentencing and the consequences there from and second application of the dogs factors as recently in numerated by this court in underwood first as to the fact that this was a bench sentencing and the presumption that the trial court knows and follows the law the dissenters council this morning or this afternoon this morning sorry has overstated the extent to which oklahoma law permitted victim impact testimony in fact many of the descriptions he uses pleading for the death penalty inflammatory and is true that death recommendations were permitted only a concise statement without amplification was allowed and so here any employer employee the case should we must presume the trial judge disregarded furthermore oklahoma law limited what petitioner claims on appeal was improper was actually redacted from these statements when when the prosecutor finally to the statements it was highlighted what was supposed to be read and that highlighting appeared in the state's exhibits as well  and and anything beyond a concise recommendation in the amplification was was redacted many of the descriptions of the defendant and crime for example the mr harrington's brother's indian folklore anecdote w because this is before trial court and there was a presumption that the trial fort knows oklahoma law and follows it we can presume the trial court disregarded those descriptions and  the judge said is this i hope that some confidence has been retained in the legal system a system where competent prosecutors and defense attorneys present their cases to the best of their ability it is not i hope your confidence will be restored once i impose a death sentence and it is considered to be aggravation the mitigation and outweighing finding if he had said then i consider the victim impact because that's the only place oklahoma ball allowed him to consider victim impact testimony it cannot be considered until have been redacted there were some descriptions of the defendant that should have been redacted but by and large and i'll just go through some of these that were redacted from petitioners brief bobby harrington statement the he knew that those things were improper and aroma loff when the prosecutor filed her horrible notice with the attached statements redacted she said oklahoma law places a duty on the prosecutor streams from victim impact statements that are in compliance with the law and that's what they did and so it is so that is my position is that though they were ultimately read in full it provides evidence that the trial court understood that many of these statements were not permitted under the law and the second reason this court should reject petitioners claim of harm is based on an application of the dog factors which contention that these aggravators were not supported by the evidence or not weighty betrays a misunderstanding both oklahoma's law have been in these aggravators and the evidence in this case the first as far as the especially heinous atrocious and cruel aggravator this aggravator has a two part definition and he entirely norse the second prong as to the first prong of the murder whether the murder was preceded by either torture of the victim were serious physical  abuse which is established by conscious this will suffering here or mr harrington's bloody footprints tell us that while he was being shot six times he staggered from the living room of kleiner collapsed in the kitchen managed to get back up go back through his living room go outside into the cold december air barefoot wearing only a teacher in shorts and then eventually collapsed the medical examiner testified that there's no evidence any of the gunshot wounds would have rendered him unconscious there were none to his head or brain stem there was only one wound that would have one been fatal and it was not instantly fatal one of the bullets punctured his lungs which with a compromised his breathing adding additional consciousness will suffering and then on to the inflict a high degree of pain or utter indifference to our enjoyment of the suffering of others and this second prong is not limited to conscious as it will suffer and here we have overwhelming evidence of the second prong after shooting mr harrington  petitioner tied mr harrington to his own truck and dragged him to the back of mr harrington's large bridge this caused catastrophic blunt force trauma to mr harrington clearly qualifying as heinous atrocious or cruel under the definitions i provided opinion that the victim was still alive when the blunt force trauma was sustained because of the nature of his red wounds which shows that the heart was still pumping blood and that some of the pages eleven twelve to eleven thirteen of volume far as petitioners focused on the medical examiner not being able to definitely say that's what i always see a medical examiner say they say i wasn't there i can't say with one hundred percent certainty but they testify as to the evidence they see on the body and here the and also discusses coming over to her house for the upcoming christmas holiday and finally toward the end of this ninety minute phone call during which she testifies that she knew in her heart something that happened to her son she begs petitioner to let her speak to mr harrington and he she can hear him get out of the truck she can hear leaves rustling as he's walking and he says believes about fifty feet away and then when he apparently reaches mr harrington he says bill we can't talk right now and under the se focuses on the fact that there wasn't a previous conviction of the violent offense but this aggravator encompasses much more than that here petitioner showed an escalating disregard for the law described at length by both the trial judge and  behalf and harass her over who she was sleeping with and there are his to jail escape attempts which are shown by evidence entirely independent of the national for a proof he also there was  shame discovered in his jail cell and finally the callous and remorseless nature of this murder itself as i've already described as far as petitioners contention that he showed his remorse and confessed there are several interviews with him and  that is is in my opinion not an accurate description to just simply say he confessed in fact his story continually changed at first he denied memory of what exactly had happened  at one point he said that the conversation between him and mr harrington where mr harrington basically came to him and confessed that he had been sleeping with miss morgan happened the friday before the killing which was on a monday later that  the morning on december twenty third and there was one mid morning on the twenty third and then again he spoke with the o s b i investigated on december twenty third talking about the aggravator something kind of bothers me and i don't know that it's even  this is a very unusual case in that we have an all for plea to first degree murder yes when the only facts that we really have are we know that within a twenty nine minute period  harrington's girlfriend had called mr harrington and heard that mr bush that in the background all this well and then twenty and then twenty nine minutes this murder must of occur there's death must occur and what is alleged what he says of course the defendant is that it was a blast that spark of anger over this you slept with stephanie morgan what which makes them sense and i don't know that there's any evidence of premeditation and or anything else in other words unlike most cases real big question in my mind if we even have a first degree murder and so does that bleed into the aggravating circumstances can i consider that when i know i'm all for pastor i don't hear any arguments about rights i would say are not as much to aggravators i think there could be perhaps as to continuing threat and certainly as to one of the dot factors which was that strict it gets to legally i think it can be considered however i think there is overwhelming evidence of first degree murder in this case not sense that it was formed hours or days before furthermore so can you have a crime of passion that's burst green murder in oklahoma yes if there was not adequate provocation which is one of the points i would like to make is that under oklahoma law it letter law that adequate provocation is required and that words alone are not enough no matter how offensive and so that is one reason it has a potential heat of passion manslaughter claim would fail further with him and the sheriff was called and moreover petitioner told stephanie morgan if he ever saw her dating anyone else he would kill that person and that's one volume volume seven of the transcripts page one three seven eight and so those are all the reasons that the evidence of guilt is overwhelming in this case and it could not be a heat of passion manslaughter case as to as recognized and this brings me to my next point that makes this case different from yes absolutely honor and moreover there have been cases and again these were jury cases whereas here we have a child court judge where this court has found to be harmless victim impact testimony similar every category of impermissible expression each family member characterized welsh as a an animal or a purist i implored the jury to impose death and despite this the support was not left in great doubt particularly in light of the overwhelming strength of the harmless in light of the strength of the heinous atrocious and cruel aggravator and the weak nature of the mitigating case which i would like to get back to in a moment of petitioners case and then finally i would also direct this court to hang versus gibson where four out of five victim impact witnesses gave death recommendations like in this case and four make comments on the defendant and the crime but it was found to be harmless in light of the heinous atrocious and cruel continuing threat aggravators and the substantial evidence of guilt and finally back to  dog factor regarding the weak mitigation case especially which when it's way to gets the ire of ation case here petitioner had a completely unremarkable childhood especially compared to the typical capital defendant in fact his social history expert dr music so it's very unusual to see a capital defendant who came from one such good solid people that petitioner did in particular case two biological parents and his stepdad there was no abuse in his past  often see and quite frankly he had an almost idyllic childhood working on the farms owned by both sides of the family right in four wheelers he had his own course and he was continually given jobs and opportunities by his instead he claimed that he felt weird out of it in a lack of emotion which is the opposite of aggression and moreover his trial expert gail pointer simply assumed to that aggression was explained by selects in his case based on reports suggesting a very small percentage of people experience such an effect and she also testified as to people who are poor metabolize or successor to men which would cause a build up in the brain and that that's kind of her something going on between mr harrington and stephanie morgan despite no evidence to the contrary if you seem to obsessed not just with mr harrington but also with other people he thought was sleeping with him and he continued to be obsessed with this even after he was in jail for this crime and that's and so i think that may have been part of what drove him i don't believe that mr harrington ever said anything that would lead him to that even if the aggravators were established prejudice is shown by the compelling case and mitigation even the state's explanation of the offense makes this clear no one disputes that mr bush was seriously mentally ill and in the gri manic episode at the time of the offense a manic episode causes paranoia which is mr bush believing that mr herrick to everton was sleeping with his ex girlfriend and a serious lack of judgment i  going to judge phillips as a point i can't imagine that this offense would have occurred but for the fact that mr bush was seriously mentally ill and in the grips of a manic we often do not see mitigation that is that compelling and has that type of a connection to the offense so it and all of the all of the aggravation evidence is also mitigated by the fact that he was seriously mentally ill and lacked judgment at the time now the state says that the judge would have ignored the more inflammatory aspects of this evidence but we know that he didn't because defense counsel did object under oklahoma law and the judge allowed the testimony even over an objection and or oklahoma law by opposing counsel talks about the indian folklore comparing him to a snake thing there was a specific objection to that in particular and she said i object to the comparison to mr bush as a snake and the judge said overruled so there's no question that testimony should have been redacted thoroughly refuted the trial and in fact the state has taken just the opposite position with respect to the ineffective assistance of counsel claim so they can't very well say that it was thoroughly refuted when they say the end response of the ineffect