one three six zero eight five william eugene thompson versus i looked up to parker warden arguments not to exceed thirty minutes per side mr burke for pal good afternoon my name is dance park and along with krista dolan we represent excuse me william thompson i would like to first of all i'm reserving  five minutes for a bottle if i could you may thank you i would like to address two issues here this afternoon the first regarding the discussion and very likely consideration of information that was brought in from outside the jury room that was not introduced at trial so that mr thompson had an opportunity to address it  that had a direct bearing upon the jury's deliberations while they were in the penalty deliberations and while they were deadlocked and secondly i would like to address the state courts application of mills the maryland to the penalty phase jury instructions regarding the extraneous information that was considered or what was discussed by the jury during the jury deliberations i think it's important to sort of set the stage here a little bit the jury had begun deliberating at approximately eleven am and at five pm they reported to the court that they were that they were still far apart and were deadlocked and then they returned a verdict at approximately eight thirty the foreman of that jury testified that while the jury was deadlocked there was discussion of a story that had been prominent in the media that one of the a news article that one of the jurors had raised during the deliberations regarding a man in florida who had been in prison much like mr thompson had been released from prison and then at the age of seventy murdered murdered someone now the reason why that was particularly significant for this particular jury is that in kentucky at that time there was no life without possibility  so the jury for all intents and purposes was deciding whether or not to sentence mr thompson to death or what he could get what twenty years fifty years or life was it something like that line life would have still meant he could have gotten parole after next year next year right right so it's twenty to fifty or life or life after twenty five when you when you just to be clear when you say that was in the news there's no indication that any physical object was brought into the it was not a newspaper clipping brought into the room that's correct the the information was discussed or was that if i read the transcript is correct at least somebody said something and then something else happened right so there was no newspaper that was actually in the in the jury room but as we know that it doesn't need to have actually been in the jury room for it to be considered extraneous information and so in this case it was a news story that had direct bearing on the jury's deliberations like i said the reason why i had indirect bearing might be a little well header as far as that because you know i'll put it to you my my question here is completely independent of this particular case jurors could certainly have said all come on fred somebody could were actually apt is it that the only thing that's wrong here that well i actually heard that there was a case of florida where you know what what the what was discussed is that the this is a this was a case that was ongoing in fact the trial started the following week so this was a certain circumstances where this story had been in the news because it was apparently the first time the man from florida head chopped off the arms of the of the first victim so this is a case that had gotten you know quite a bit of and there was a discussion about this new story about you know so about this man in florida who is about to stand trial in circumstances not unlike the circumstances where he said he hadn't even been convicted of this of the second right of the second crime was the first record correct but it would have been any different if he said gee you know we all know that whitey bulger the famous gangster was still killing people when he was seventy five that be ok well i think that would i think that would depend on if in fact the discussion was while we were reading or going to jury said i read a newspaper article about billy bulger who committed a and we don't know that he was still committing quite a whitey i'm sorry  have represented extraneous information read a book about somebody who killed people forty years ago when he was over seventy if the taurus you taught you were you referring to well or you know any other famous elderly gangster well i throw many share i think that if that book if they if they use the information from that book to then discuss too and then consider whether or not they were going to sentence mr thompson to death based on that information that i think the answer is yes that would be extraneous so are you are you specifying that that it needs to be a particular person and a particularly notorious person as opposed to as you seem to sort of be ok with my no statement no i think where that what it comes down to is whether or not in this particular case the circumstances were whether or not this i mean this man was prominent the news that they were talking about him but if in this case a person who was violent who was going to be eligible for parole at the age of approximately seven in this case is somewhere between seventy and seventy five the jury had to decide whether or not this man was a threat and the problem with what the jury considers that it contradicted the information or the the evidence that had been presented at trial or it certainly undermined that that the evidence that was presented trial and mr thompson had any means i'll was what that when he was seventy he would never commit no he'd never kill anybody or joe as you get older you're less likely to kill people well that's really the problem for me is is if you're just saying that on both sides it's common probability knowledge that is yes people who are over seventy kill less often than people who are twenty five virtually it's not a normal set people who are over seventy sometimes kill people so you've simply got those two considerations and this particular instance at least one person said here's an example ok but that mitigating evidence that was presented side from the fact that his you know his his father had abandoned him and things like that was that he had been diagnosed by the prison psychiatry as with a developmental personality disorder that she determined was both genetic and or caused by genetics and environment all that had environmental causes but importantly for our purposes what she also said is that this personality disorder which resulted in him having poor violent impulse control that he would age out of that at the it would start at the age of forty and he would age out of that and so for purposes of the consideration of the jury that he would age out really begin to kill anybody would begin to age out no that have anything to do with with poor impulse control did it i mean that no other words if if the grab a man of that other case was he and this guy has the same kind of cock or maybe psychiatric argument that our guy does then i think you would you would be in but much better shape and i think that's exactly it because the jury didn't because this wasn't introduced at trial the jury only heard this information about a man at the age of seventy who who killed somebody else so mr thompson didn't have the opportunity to and of course i don't think it would have certainly would have come in through this juror but through say the another psychiatrist for the for the for the commonwealth to be able to distinguish the difference between mr thom s personality disorder and whatever was wrong with the man from florida if there was something wrong it wasn't just that he was a you know a mean and vicious person but that's the problem is that mr thompson didn't have an opportunity to explain that to the jury and under the circumstances where they were deadlocked where the only choice really was between his up the possibility of being released at seventy five and  a death sentence the likelihood that they considered that information as we know they were there we know they were discussing it the likelihood that they say that it was that this is based on mr da testimony which as i read it is kind of all over the lot in terms of how many people were talking about it and whether they were at one end of the table and maybe during the eating and it's sort of you know there's nothing about you know well bill said this and then sally chimed in that that's good information and that kind of right and of course that's because that you know the trial was in one thousand nine hundred eighty eight and he testified in two thousand and twelve so a great deal of time it gone by but he didn't he was he never backed away from the fact that there was a discussion amongst the jurors about this story about the man from the new story about the man from florida in fact when he talked about he was asked about that discussion whether he had considered other things he actually said yes i do you know we discussed that and not had you discussed other things yes we discussed that and this whole box of evidence so based on mr dowdy is testimony it's certainly appears that the jury was discussing this new story after they while they were deadlocked in the context of this other evidence that they were that what actually was introduced at that's the way you read that statement as opposed to just you know we discussed lots of things they sent us  whole box of evidence you you're trying to read that is saying that that the box of evidence was about his propensity i think a box of evidence that he's i think they were referring to the  the evidence was introduced at trial whatever but all the evidence not just the evidence right ok go ahead and i think me and i think i can look it up but that was going to vary and i think along with that so they considered they were considering that all the evidence in trial there are unable to reach a decision then they were discussing this new story about this man who killed someone at the age of seventy and shortly thereafter they reached a reach up but i know it was while they were deadlocked because he testified to that and they were deadlocked from approximately five o'clock till eight thirty so it was some time during that stretch that they were that they're discussing it this is where he says this is on page eighty two seventy seven after it was brought up by the jurors was there some discussion about it from some of the jurors i don't i don't have a clue right now it may have been i just don't know  and he was there several times but i don't have a clue but he does say that they could have been talking about it and that's why i was kind of reluctant about the relationship to the box of evidence i haven't quite found that  yet but the part that i just read is when they were specifically asked was there some discussion about that from some of the jurors that's the bottom of to seventy seven copper two seventy eight it was probably brought up some time during the period when it was nine to three eight to four so that supports you as to the timing but as to how much discussion there was that was where i i found it there's a lot of i don't have a clue  that in that portion but you know go ahead with your were you wish to take it what makes it extraneous evidence or material i mean is it where do you draw the line between general knowledge and experience and something that undermines the jury's verdict is it because it's specific or i mean what is your honor i mean in this case it wasn't you know there wasn't any sort of a life experience that the jury was talking about it was while this new story was going on and it was actually and fact he but we read things i mean if somebody says i once read about a guy who well i think the difference that between between that in this news or is that the new i mean so the reason why for example if we don't want jurors to be reading news stories about the actual crime that is being you know defender who's being prosecuted is because jurors are are likely to put some credibility into those news stories as opposed to art you know i know someone who knows someone who you know heard about a guy who you know killed someone you know it's because it's the facts of the event that the that when you decide what happened it has to be evidence that introduced at the trial right so that's why they can read about that event or speak to people about the event because they may get information about the event but we know that if there is someone who is approaching the who is that prior to jury jury i'm sorry a trial who was aware of the facts who had you know heard someone talking about it that that does not exclude them from being jerks because they are able to still able to consider if they can the evidence and be impartial jurors in this case we don't know whether the jurors were able to do that because mr thompson didn't have any means of fleshing that out he had no he had no means of so unbeknown to him much you know not unlike graham the florida where you know this was with the judge who was considering stuff that that the defendant didn't have an opportunity to address or to contest here mr thompson had no opportunity to do that he had no opportunity to differentiate between the man in florida man in kentucky in this case william thompson but for example to take another example suppose the witnesses some of it's about how good was the eye witness how much light it was in the guy says the witnesses says well gee i mean it was it was only eight thirty in the morning it was still pretty dark in the law and these farmers are sitting around that you know i know i know it's not dark at eight thirty in july can they not say that i mean that's life experience they didn't have maybe they read it in maybe not but it's extraneous in the sense that it wasn't testified to sure but again that would be a life experience or likely a life experience now if that was immature my brother told me ok so if this if this was a you know it a really material fact right if it was it was the end all be off the case if it was if it was you know so we this is a not guilty as it's penalty but if it w say guilt innocence and it was a difference of you know guilt or innocence and this and this jerk talked about this information he had learned about you know sunrise being at eight thirty or sunset being at eight thirty as opposed to what the what the evidence was then yes that would still be if he was bringing that in from outside because he had learned of it from a book then or from a lecture he'd gone to or whatever internal or external ok and so if it's internal within the within the within the jurors experience ok incidentally i found the part about the box of evidence which is at the bottom of two eighty one or two eighty two and that gets started by did you all discuss anything other than this one murder in florida and he says oh sure we discussed a lot we brought out the evidence we had boxes of evidence when we were there for twelve hours we had to eat two meals so he's not tying the box of evidence to the to the florida case at all that i can see that because the question is did you discuss anything other well i murdered i think he did because i mean he said is that the only thing you discussed oh we discussed a lot we brought out the evidence several times it wasn't just know article it wasn't just this piece here i mean we brought out all we had a box of evidence in there period so what's the reference though what page are you relying on the timing o so the t's between somewhere around twelve for the the deadlock in the jordan the judge brought him out with some around it was at twelve eighty four volume nine or the page of it was twelve eighty four of the transcript it was volume nine and the for the deliberation it was at eleven o'clock it is all in volume nine that's when they that's when they discussed or that's when the you know the it's actually part of the transcript where the court reporter observed it but like i said i can't tell you when they actually other than the fact that while they were deadlocked i can't tell you when they first discussed the newspaper article your time counsel which you might decide whether you want to talk about mills point yes let me thank you  the mills instruction or the instructions u pon reading the instructions as a whole the jury likely applied the law in such a way that they felt they needed to find the existence of the mitigating factors unanimously and the reason i say that is and it's you know the instructions are laid out in the brief but the from from top to bottom the only time the jury is told it that the  what standard they're supposed to apply is the very last instruction which is that they're told that it needs to be unanimous but more to the point throughout that the jury is told in the told what to do including they have to make fin aggravation and mitigation and they are told in the plural the you plural you are you know must find this now they are told brag of asian they're told it has to be beyond a reasonable doubt and they're not told that on mitigation but as far as the unanimity there is no reference or no mention by the in the instructions at all except for that for that one point like i said the jury does have to make findings of whether or not the the mitigating factors actually existed that is in the instructions much like they're told they have to do the same for the aggravators so when it gets down to the throughout the jury instructions there's no mention of when you know what the standard is that they need to apply whether that you know that they can do it individually i just want to represent there's no you say that they are told that they have to find ok whether they exist but there's nothing on the jury form for that i'm jury you know considering the jury instruction and the instruction i'm sorry the form at issue well the foreman issue here didn't talk about the mitigation because they would've found any mitigation there if there are you know their sentencing him they sentence him to death so the fact that they didn't find the mitigation well wait wait a minute wait a minute because as i understand it each individual each drawer in fact there was nothing that i asked them to list mitigators each individual juror or could find mitigators they chose and could then find that they did or did not outweigh the aggravators right you got twelve jurors in there could be zero zero zero three five six but because that long as each juror found that for that juror the unanimous aggravators outweighed any mitigators isn't that the correct law well beaten but kentucky is not a wing state so the jurors find the if they find the aggravation you know beyond a reasonable doubt then they presumably they consider the mitigation individually and then they can decide whether or not to sentence someone to death wayne in the sense that each juror weighs his or her decision right if a i perhaps i yes it helps you're saying formally instructed about wayne i'm using wayne the jurors clearly were instructed that they could fail to sentence him to death even though they found aggravators correct yes but they weren't told they could do that without finding the mitigating factors unanimously so there is no doubt it did these instructions differ in any respect aggravating circumstances needed to be found and animists lee and they were not told that the mitigation needed to be found unanimously was no mention of it and so the court determined that based on that the jury was able to draw a negative inference that in fact they wouldn't have to find the that's correct it just says they have to do it beyond a reasonable doubt right but it says that it is there's a unit in the unanimity instruction right it's not specific exactly and that's the last instruction that that i think a jury reasonably would would presume applied to all of the instructions it's where it where it belongs it's at the end of all the instructions and so when they're rendering their verdict it will apply to all of them ok counsel you'll have your time for rebuttal i'm sorry go ahead if you've got questions may place court again with the extraneous information in crime there's actually there's three claims in this but council has chosen only to address two and so unless the court has questions for me on the proportion jury if the juror has general information that somebody can get released on parole and commit a crime he's not saying he's not talking about general information of what's possible he's saying that there's a specific account a specific person who was released at a certain age and committed a crime that's right i would have but if they had just general information that's not extraneous but if it's something specific there's a difference between saying this is possible and making that argument which is general information and specific information which is more in line with see here's evidence that this can happen as opposed to something like the pedicle but as opposed to just saying that i see on the night on the nightly news every night that someone had been been released in may now has been charged with a new crime and that that specific it's not naming a specific way it was the age well i think they i think you're right i think the issue is that to but at the said but it's the same idea that we're considering whether or not to grant a sentence that will release this person or sentence it's not every other option that the jury had allowed for consideration of parole at some point and in the end in their closing argument to the jury asking for life without parole as judge wrestled such forth and a different in his opinion defense counsel specifically argued giving parole he'll be seventy five years old before he sees the parole board and so i think it makes it certainly relevant for the jury to consider well you know i've heard of a between saying i guess what he's arguing is that the more specific you get from i purred which has as much value is well i've heard of this i've heard of that too this is happening right now in florida this is specific information now would start to look more like evidence like somebody getting on the stand in saying the fact is that seventy year olds really are by lynn do these things and it looks more like evidence or something specific that is factual and is balanced against the testimony that he's going to become more and more or less and less dangerous i have a hard time hearing a question and that question is what do you need when when is something extremely isn't permission that is subject to some sort of scrutiny but i think that if this court is set in garcia extraneous information is something that's derived those specific knowledge about the case or the parties or their witnesses that that they were used example came up  of a case where of sunrise thirty percent thing and then say there's testimony about from someone that said no it was it was dark that morning today thirty and then there's no other evidence presented about that issue and enjoy liberations a juror comes in and says you know what i looked at the almanac last night sunrise on that day it was five forty five in the morning so it could have been dark what about the never case the nevers case there was there was specific information about the defendants in that case the stress information that the jurors had learned there was also information that the jurors had learned on that case specific to what the result of a specific outcome would be and how the city was preparing for a specific outcome that they were preparing for right riots if they returned a verdict in that but they also they had the strength of the information was introduced that these that the defendants in that case were part of the stress unit and that that had not come into trial and that you know had a reputation of harassing african american news and the defendant nevers had testified as to his motivation the question there was not did he do it but why did he do it and that went directly to contradict his testimony that he had given excuse me the movie had nothing to do with it the court certainly didn't rely on the movie as judge russell said the could the court in its decision focus primarily on this on the information regarding the stress information but ok but the  in terms of the city preparing for a verdict that would i don't know that would seem somewhat analogous to this there's nothing to do with the facts of the case it has to do with what's the effect be the jury is saying the jury looks at themselves well if we don't come back with the verdict the city our city is going to to riot so we can prevent that if we just come back with the right verdict in this case are you saying that that would be ok or not ok in that instance again it never was the primary focus was about the defendants themselves that that's what the court focused on whenever a when to granted a b s or relief and that cable you're argument being that in general in a high profile trial the drawers say if we do this people will riot that sort of common knowledge and that's at least not reversible as opposed to for example a specific preparation or a specific evidence about the the defendant himself i think if it's discussion just amongst the jurors that some of the jurors might believe that to be a possibility that that would not be extraneous information is when it's coming from a third party source the news media report in evers that it becomes but but if that had been the information alone yeah you'd never is very well could have had to have a different result if the court certainly did not rely upon that factor in finding that there was but there should be a reasonably information has to be specifically about the facts of the case about the facts of the case or the parties or their counsel's correct if you look at these instructions this talk about we've seen the build out there's only one place where there is a reference to unanimity and says the verdict of the jury must be in writing ok that's the only reference most of the instructions refer to the jury is you you you you you which i guess can be understood as being you is an individual juror when you're in the mitigation instruction and this is really the only place i see it it says you consider these things in the mitigation extenuating fa circumstances been presented to you in the evidence you believe picture and then if there's any other circumstance or circumstances arising from the evidence which you the jury deem to have mitigating value and doesn't that sound like they're saying that the jury is a whole has to find that it's on it's at the top of page twelve thirty nine and i don't i don't have that page in front of me but but i think where you have to read the mitigating circumstance instruction as a as a whole and then it but when you mean it's the only time in the instructions where the judge says you the jury in the next in the aggravating it says you shall consider the following things now and right in kentucky you can be have to find aggravating circumstances unanimously right so you can try all of the distinction that oh they said unanimous for aggravating they didn't say unanimous for mitigating the a for the only reasonable inference blot i mean you don't have that dichotomy in this case but they say that your verdict must be in writing and it be unanimous and then they were given for verdict forms one of which two of which required findings of aggravating circumstances beyond a reasonable doubt no where in the verdict forms where is there any requirement for a finding and mitigating circumstances so they're told that your verdict has to be unanimous and then they're given verdict forms that only deal with the sentences an aggravating circumstances nothing about mitigating circumstances so they're not being asked to render a verdict on the mitigating i think that this court has has said that the failure to explicitly say that the mitigating circumstances have to be unanimous does not lead to the implication that they must be in a so we we believe that these instructions and don't fall don't fall to the thought same flaws that were in miller's they they are similar to the to the instructions that this supreme court found acceptable think it's a good idea but is there clearly established supreme court precedent that would that would say that this kentucky court's decision was wrong and i am in kansas versus card just recently the court of the court has said reason for the lack of preservation less or any other questions the warden will be glad to stand on its very thank you mistaken he cited to garcia which cites to it and i think what's important to point out to the court is that it is true that this court i'm sorry it's it distinguish it from this case because it was found it was internal deliberation in garcia but nevertheless it addressed never talked about never saw the idea that never did not qualify as extraneous evidence and have to skin it specifically talked about the malcolm x movie that the jury was exposed to so the idea that it's limited to facts or circumstances directly related to the case simply falls on top of that the this court addressed in depth but nevertheless talked about the introduction of a bible into jury deliberations and penalty in co and also that that clearly has nothing to do with the facts or circumstances of the case so i don't think there's a limitation there as far as extraneous information goes secondly as far as the mills maryland issue the conduct supreme court never applied the mills the maryland analysis to the way they set it out in the opinion but they never actually applied the that standard so if we're talking about clearly  law that the law the supreme court law is milky maryland and if and if you look at what the court said and this is at one forty seven southwest third page forty eight they laid out  the the standard but the the extent of their analysis was this issue was not preserved however no such instruction was required and therefore no error occurred well that's not the mill standard that's the mill standard is whether or not a reasonable reasonable juror would have applied the as an instruction in the recent cases it's not whether the the state last state court gave all the right reasons is they did make a determination that it didn't violate the clearly established law and then we'll look at that and if we can give better reasons we're simply judging did it violate clearly established supreme court precedent we're not grading the argument made by this but your honor i i think that the kentucky supreme court applied the wrong standard and that's why it should be denote a review because they applied standard did was there or requirement of having a non unanimous mitigator and if the answer was no then there was no error and that's what they said so therefore no error occurred but that isn't the standard mills says that the court weigh that has to consider the instructions and then based on those instructions determine whether or not a reasonable juror would have misinterpret misapplied the law which is what occurred here in  the as far as the and i'm unclear as to what the what the comm officer was referring to when they said well the you know there was it was plain error so therefore they only looked a plane or in fact under capital cases the kentucky supreme court does not apply just a plain error standard they actually consider the merits of it and the only thing they would they would they decide or determine is whether or not if they decide it was it was not objected to based on trial strategy and there's and there's no indication that that that happened here and certainly the kentucky supreme court did not indicate that they refused to consider the under an elevated standard and the reason they do that is because they're capital cases so the idea that they  jury that was considering whether or not to sentence him to death who was exposed and discussed information extraneous information and at the same time they were relying upon jury instructions which were would reasonably lead them to misinterpret the law or to apply the law in an unconstitutional manner again that was a in a determination of whether or not to sentence mr thompson to death both of those things occurred and consequently mr thom