welcome and good morning it's a pleasure to be here in seattle with my colleagues just smith and judge kristen we have one case set today and it is the case of weldon smith versus renee baker if the parties are ready to proceed you can come forward robert fitzgerald on behalf of petitioner joseph weldon smith i would like to reserve six minutes for rebuttal and i'll keep track of my time yeah you sound a little muffled to me can you pull the microphone up just a bit thank you very much for your honour's i'd like to address three issues this morning so much it will come yours mr smith represented himself in his penalty retrial proceedings for three months before permitting appointed counsel to take over the full defense after counsel's defense and partly after counsel's appointment mr smith said in his cell for weeks and never visited smith so smith filed a motion to return to pro se status alternately the trial court denied this motion and the nevada supreme court affirmed concluding that mr smith had engaged in dilatory conduct and disruptive acts during trial this is state court decision isn't involved an unreasonable determination of the facts because it's not supported by the record there is simply no evidence that just a minute and  asked to have the sentencing postponed pending a resolution of the post conviction or leave your honor mr smith did file a protective post conviction petition in order to vindicate his rights from the guilt phase of trial this was a timely post conviction but then after that did he also agreed av evans take over the fold of fancy in the penalty phase he did acquiesce to the court's insistence that counsel be appointed to take over the full defense in a very short hearing mr smith said yes when asked whether he would let evans take over the full defense and then a move to remove evidence of revenues and represent himself well he didn't move to remove evans but rather he moved to re turn to pro se status oh he had to remove evans in order talking about a situation where i now have to say this about a supreme court makes some kind of an error in the us district courts that has showed during trial an absolute disrespect for the orderly processes after being granted this fanboy counsel on the very eve of trial when the cards set everything up then smith can find a way to get around get counsel off the case and smith was trying to toy with the courts how can i say that i may even see that differently but how can i say this is just totally there's nothing in the record as supporting a defendant's forever right can only be denied if they engage in dilatory conduct yes your honor ok and the jury relied on a legally invalid theory in finding the single aggravating circumstance in this case the state alleged murder at issue in this case involved torture depravity of mind or mutilation the jury rejected torture the nevada supreme court i'm speaking of the three methods identified in vallejo to cure their right walton clemens chapman and your contention is that they didn't i don't take all your time your contentions they didn't do any of those things where they could do walton because mr smith's sentencer was a jury and constitutional instruction arguably an mutilation if you just take it if you take it as a hypothetical but i find the mutilation struction permissable and the other one  impermissible unconstitutional then we got a stronger problem right year and we're looking to the next question is what's what standard do we use and if you take it just as a hypothetical that i think brecht applies that that's the correct standard and it's not structural  done given the evidence and whether there's any daylight between that and what this jury did do is that right that's the test that's articulated in valarie assuming that a walton analysis could apply so no not walton we can't do often i'm asking about direct we have to figure out with state has to give us a fair assurance right that that that there wasn't a substantial injury is the fact i'm asking what the comparison is isn't it between what this jury did do and what a properly you are i guess where i would say this court's look at what the test would be would be looking into the united states supreme court's decisions in california v roy and meter where they're addressing a missing element and this is much more similar to this that's a more stringent test that says it can an error can only be dirk deemed harmless if there is overwhelming evidence of the missing element and it was interesting it was not contested by the defense what would that what would can you tell me what would the instruction in your view look like and what would be the outcome we know from smith to that correct instruction would have had a limiting instruction that said that depravity of mind must require a finding of torture or mutilation binding are evidence o instruction have been in order find a preview of mind the jury must find evidence of torture or mutilation beyond the act of killing itself not a finding evidence that he said it two different ways and it matters they must said that the sentence was based on mutilation and found there was fish and evidence of mutilation for the jury to find it beyond a reasonable doubt corrector of the end the dissent said and i swan i thought it was important that the sentence unanimous with respect with just a minute of supreme court of nevada said it was based on mutilation the supreme court of nevada did not wrestle with the well in just a minute just didn't the majority that's why haven't you look at it the majority of firm the sentence based on mutilation and found there was sufficient evidence of mutilation for the jury to find it beyond a reasonable doubt and then the descends said the sentence was totally based on mutilation and i was just what judge smith is is asking that was based on the sufficiency of whether there was sufficient evidence for mutilation correct whether the jury could have found a mutilation as instructed but they did not wrestle with the issue of the fact that the jury was not instructed that they had to be unanimous with respect to the means with respect to the alternative theories nor does the law necessarily require the jury to be unanimous with respect to that and so so what would the instruction of look like and what would have been the outcome that's a good question the instruction would have look as it did with accurate limiting instruction requiring a finding of torture or mutilation beyond the act of killing itself so when you say look as it did i think that's instruction number tuesday sentences the st sentence says in order to find torture or mutilation of a victim you must find that there was torture immediate mutilation beyond the act of killing itself would there be any change to that nor your own ok on the nd sentence it says in order to find depravity of mind you must find serious and deprived physical peace be on the act of killing itself what would be the change that in order to find a preview of mind you must find torture or mutilation so they actually refine and narrow the instruction that would be permitted beyond what robin's itself and that it two ways about what would be permissible they said in some cases that indicated that would have to have a finding of torture mutilation of the case number one different from sentence number two and what would be the outcome in your view or what are you arguing why would that be a problem still sure we can't we don't read these instructions in isolation there is also definitions for mutilation and definitions for torture there was no definition for the pretty physical abuse and that was part of the issue the thing about supreme court had what happens is when you have an instruction that requires a finding of depravity of mind to include torture or mutilation it precludes the prosecutor from arguing as he did in this case that all he needed to case made an incorrect read right and we know that yes but we still have to figure out even if i give you that the mistake was made and the depravity instruction was unconstitutional we have to figure out if there's brecht there and director asked whether there was a substantial influence on the verdict itself right and and right there valarie zero says the question for us is whether the actual instruction had a substantial injurious effect or implements on the jury's verdict and here's the important part in comparison to what the verdict would have been if the narrowed instruction had been given so i think what we're doing and i'm really inviting you now for the rd time to a case about this that we know what the evidence was right and we know you've told us what you think the instruction should have been and we know what the unstructured actually was in the actual instruction didn't narrow the jury's discretion in the way that you've described correct your honor here's my problem i think i think we have to look at the evidence that was presented and the evidence that was presented told the jury very clearly and the special verdict from trying to clear the jury as to christie you only get to decide whether there was depravity and then in the closing argument that was explained by the prosecutor why do we make that distinction and he explained very vividly because in wendy's case you're giving all three in the special verdict form because she was injured the blunt force injuries were so much more traumatic well i think so so that conveyed it seems to me to the jury that the private he requires less and that's wrong that's my hypothetical that's my read of the record i think that was really vividly painted for the jury so so i think of a very strong argument that it's an incorrect instruction that was conveyed to the jury about what the law requires i don't think under nevada law the privacy required less but if the jury understood that i still have to figure out whether that made a difference if you told them the right and traction given this evidence the evidence that wendy was so  horribly beaten how or why should i decide that it would have changed the outcome please because when you're looking at that special verdict form and you to see to check boxes one next to mutilation one next to depravity of mind there should be grave doubt whether or not the jury was unanimous in its finding of mutilation i think i would not agree with your honor's assessment of the evidence of mutilation in this case being anywhere near overwhelming you can use that i apologize but that there was substantial evidence that may have been  was finally shown and it wasn't revealed until the closing argument there was a gasp in the courtroom a family member went out that was the outcry basically was very very moving i can't see those photos in the record their photo that i can't see them but it's  reaction so i'd like to give you a chance to respond please there was a powerful reaction by a family member to those images i would think that any time that a family member sees images of a deceased member they may have  fair fair enough but the the point here is that the evidence of mutilation the prosecutor did not spend a ton of time arguing mutilation in this case they focused on the invalid depravity means and that's where they spent the majority of their time discussing the case painting smith as an christie and when you were very similar both were struck with a hammer and then strangled to make a point that christie was ten she didn't fight back when he did she was twenty years old she fought back to a lot of defensive wounds what about that any suggestion your honor that the jury was not unanimous with respect to deprive the ways even more in support of my argument that they were not unanimous with respect to mutilation we simply cannot know what those checkmarks meant and this court should be in grave doubt whether or not the jury was unanimous on that point for those reasons i mean i m physical abuse beyond the act of killing so and i'm trying to now movie just a little bit because i was listening very much to what judge her gear was asking you the instruction here define torture the instruction here define mutilation the instruction here define pretty depravity as well as serious or deprived physical abuse beyond the act of killing so since why is it not harmless error how the of the structures to find it because your honor that it nevada supreme court has already identified that this instruction was inconsistent with nevada law other series pretty physical abuse is not something that the jury was able to rely involving mutilation there's just simply no evidence of that argued against that finding and when this court would look at what you think the prosecutor arctic argued against mutilation did i misunderstand or to give me your honor i misspoke it was defense counsel who argued against mutilation and but the prosecutor did not spend a ton of time addressing mutilation let me ask you a further question just to make sure given the way it was defined and given the way the nevada supreme court it properly defined it said torture mutilation or other serious or dupr me physical abuse because the prosecutor's argument to the jury which was consistent with the instruction permitted a finding the jury to find other serious to prove physical abuse as being any blunt for strangled which would constitute one part of killing if this court takes a look at the rogers opinion in the project opinion addressing a similar issue of using the test that your honor references the victims were stabbed by a knife and then shot thereafter and they concluded that that was a single act of killing let's go let's go just again i looked at what the majority said about mutilation and i appreciate what the majority said what their language suggests i also appre that the dissent says the sentence was based on mutilation no question and therefore attacked the mutilation instruction given that given that finding by the court i'm trying to figure out why we aren't reviewing to see whether the nevada supreme court made an unreasonable application of the facts your own or the dissents view that this death sentence rest exclusively on mutilation was a result of the fact that the depravity had been struck away i'm not sure that this court can read the dissent to say that the jury was unanimous all of us just i guess we'll argue about the language but my worry about this is this we've got the nevada supreme court saying what the instruction should have said we've got the instructions saying what they said and if they did put in their torture mutilation and our other serious to pray of physical abuse you wouldn't be here but they did define torture they did define mutilation correctly they did define depravity as what they should have deprived except adding torture or mutilation i am so i'm trying to figure out and then the nevada supreme court addressing a totally different issue says look there's mutilation near the dissent says it's obvious it's mutilation i've got attacked the obstruction and then you say well that doesn't matter in nevada supreme court adopted a different approach when they were looking instruction eight than they did in instruction tan i think this court looks to the eventually opinion in which it talks about the fact that a sufficiency of the evidence is not an appropriate test for applying harmless error this course he says by that the best cream court did not conduct and i and i appreciate the nevada supreme court did not conduct the analysis they needed to for instruction eight but that's why we're on harmless error here because if they did done the exact thing they should have done with instruction eight they did take in the st approach which was defined in the case that you and judge cristol of talked about but when we look at what they did in a structured hand it seems obvious this could be harmless there are i think this just goes to a fundamental problem in this case which is that there's no assurance the jury was unanimous with respect to mutilation and moreover there's no good now on human harmless error here could your honor and this invalid means affect both the eligibility determination and the sentencing determination in this case looks like you never raised a strong argument or prejudice argument pertaining to this whole depravity instruction at any point so i think what judge judge smith is asking is why are five supreme court handled that creates this error that we have here now at this point and after the nd penalty phase he presented it late if they decided it was procedurally barred because he presented it for the st time in his exhaust  honor well that's not good i mean a honest truth is this it had been found procedurally barred now it comes back to the district court in the district court says well it is procedurally barred because it was done before by the honest truth is that the this is is this a legal issue can they do they have they waived it that's the question because that was going to be my next question judge kirsten volunteered it if it's procedurally barred did the state waive it and if it was waived yes well is that a legal question then it isn't necessarily waived you're i'll let the states speak to whether or not you know what their position is on that but at this point the claim is properly before this court in the state has not argued that it's procedural defaulted curious what evidence are you thinking would be submitted at this hearing and you know that's not included here what is there something we're missing here your honor at an evidentiary hearing the experts who have provided declarations in this case could testify and their credibility could be assessed by the judge in that case we would be able to explore those opinions and have a more fuller hearing at that point and it's important to note that the question of prejudice in th assistance counsel context is going to take a look at what a juror would have concluded from the evidence presented jersey do not read reports from experts your honor jurors hear live testimony and at least one judge should hear the li testimony from the experts in this case to determine what type of prejudice that would have happened so it would be the existing reports or doctors who refer to in your submissions below would there be additional medical  mental health evaluations there would be the opportunity for that your honor at this point mr smith has presented evidence that establishes that he suffered from mental illness delusional disorder that affected his judgment and thought process that alone should satisfy any standard for receiving eviden may suggest a mental health issue i think there were the letters that mr smith left at the scene was also a reference but i guess taking this into consideration how would the jury have decided differently if they knew that mr smith was delusional of the grandiose type because it seems like that's the main thrust of the mental health evaluations and i'm just trying to decide how would that have made a difference if the jury knew that mr smith was delusional or had issues of grandiosity that evidence establishes mr smith in this proceeding we've established mr smith mental illness for the very st time there's no testing but no testing beyond that your honor but to your question as to what this would have done for the jury they would have been able to put into context these crimes in this case and it would have offered some type of explanation it was inherently mitigating evidence that the jury could have heard and did not hear because of counsel deficient performance i'm out of time appreciate the opportunity to speak about the case and give you a few minutes for rebuttal thank you an alternative grounds for this court to affirm that judgment from below of course even if it is even if you waved at this well that's what the case law suggest your honor but i would say that even if this court is determines that we have waived the procedural default issue me somebody should who argued certainly and somebody didn't argue it so now we're going to do it on the fly well i mean this court case law does allow for that that's on suggesting is that if the court is determines that its way  saying is court court can do that and you know if the court wants to do that i certainly wouldn't be opposed to that i think you know there's there's certainly a ground for this court to find that it is procedurally defaulted is that ground that there the the ory that they're raising here is different than what was actually raised in so to the extent this claim was not fairly presented in smith to it was an exhausted and then what when it was presented in the subsequent stay post conviction proceeding it was the of claiming now ok so there's not there's a there's a well there's not necessarily a strong burke problem per se there's a two step process to when you're dealing with a claim of instructional error here what what they're raising now is saying not that this that the depravity instruction was insufficiently narrowed it just improperly stated nevada law on how to define the aggravator itself right so they're raising a claim of state law err with respect to how to define the aggravator in that circumstance mcguire applies in when you apply a style st require they have to show not just that the instruction was wrong they have to show that there's a reasonable probability that the jury applied the instruction in an unconstitutional applied incorrectly then starts to really ratchet up because there were two victims and the jury was given a special verdict form as to christie they said you may only consider depravity and then v and the state argued very clearly to the jury that the reason that all three  options were available visa be windy is because she was so much more seriously beat press so so the message was right depravity requires a lesser showing and i understand that's wrong but the problem is since we're trying to figure out how this played out it seems to me this is this cuts against you but so that's that's the that's the preliminary question that comes up before you get to the bright promise hair analysis and that so the st thing i would say about the homeless argument that they're making today underneath versus united states merits the strongest argument is that there's overwhelming evidence of of mutilation here i think the question i think the question we have to answer is framed up very clearly and valerio if the if the instruction was mcginnis question with respect to what the instruction should have looked like according to than about supreme court as you removed that you remove the deprived physical abuse from the definition of the aggravator and just before you get over that forgive me but statute you would never need to find depravity if you found torture mutilation aggravated would be satisfied so it seems it must be evidence of mutilation and there is evidence of mutilation in this case correct your honor mutilation unanimously it's if we get rid of the error in the instructions what a reasonable jury looking at the evidence what the if that's a appropriately instructed jury reached the same bird that is not that test you're asking us to do the area what's did you read the law i've read larry yes your honor the question for us is whether the actual instruction had a substantial interest or excuse me substantial and injuries affect or influence on the jury's verdict in comparison to what the word would have been if the narrative instruction had been given correctly as to impair the two we don't just do the dyn o we don't do the comparison that's right so you have to take that the evidence as it exists as it was presented at trial and assume that the jury was properly instructed as opposed to getting the erroneous instruction and what they've still reach the same outcome right and so your problem that you saw grappling with is that in christie's case they were told i think they clearly would have understood that depravity requires adequately channel the jury's discretion ok which is why you think that wasn't a myth application of godfrey correct so that's the godfrey question is different than a stealth question about whether or not the instruction properly stated nevada law and so how would you have what do you think the correct version of the instructions should have been as i just said and as the nevada in court said here in the in smith two is you would have to remove the  reading this differently but i understood that robbins gave the narrowing instruction that you've just talked about subsequent to that and i think it's jones they removed the deprived physical abuse part of it and said that there either had to be evidence of mutilation or torture they never approved the depravity verdict without evidence of torture mutilation and other places that they've never they've always acquired a finding  that you'd have to add in torture me right into that you would add it into what's there correct right so then what would that mean well what would that mean in terms of what we have to determine whether or not but i talked about this with opposing counsel of it and i said here in fairness there's that you're right and that is the number of strikes what's the overwhelming evidence i think i think on top of that year is also if you look at and  when you look at dr sheldon i think it's told in green's testimony from from the autopsy the description of the injuries is significantly different with respect to both judyth and christy and wendy   you know i guess you know  if it doesn't fit squarely as that as the ear being torn off with the claw the hammer but i think that if the nature of these injuries radically altered her body beyond  the fact of the killing itself lee let it go at this just a little bit differently if i could how many jurors found mutilation i don't i don't know that that that   i'm not trying to be tricky you're just trying to understand what you're suggesting do i have any fair assurance that they unanimously found mutilation i don't think that's the right question to ask if you can say no but then tell me what the right quite i think i think you i mean by the bottom line is i'm trying to figure out what you're really arguing to me i think are you arguing to me that this jury instruction was not right no question but because there was evidence of mutilation in the record it nonetheless should be affirmed is that what you're arguing that's partially right your honor what do you argue i think i think that and what case tells me i can get there i'm trying to understand your argument because i was trying to get there that the supreme court in nevada had found mutilation no question that's what that's found you're not going there you said there's no nothing there so i'm trying to say how do i get there what is your argument are you going to say well the injured your jury instruction was wrong but one could have found mutilation now tell me how i can firm that jury verdict on that that's that's what davis that's not at issue here what i'm talking about is brett commissaire in the context of a claim of instructional error in that in under the framework for determining harmless error in that case you asked whether or not in appropriately instruct the jury would have reached the same outcome based on the evidence that was presented at trial so what's your best shot that they would have that's the definite relation because that's what we have to decide whether they would have made a different conclusion and they didn't the prosecutor's argument in closing which i'm looking at in destructive and it only on page e o are two dollars to sixty three dollars only relies on the last phrase he says the final phrase after the word or reads quote alter radically so as to make him perfect and i challenge you he's speaking to the jury after you you have viewed the autopsy photographs of wendy cotton to any conclusion other than that her appearance her body her head her ear was not altered radically so has to no longer make her the perfect young human being she was before this murderous assault that's their argument that no it's not it's not a jackson sufficiency the evidence you would you have to ask whether or not a reasonable jury would not could that's the jackson sr jackson center requires you making all inferences in favor of the not asking whether they really could do it so to do this one place here you're supposed to step into the shoes of the jury and ask whether the jury would have reached the same outcome and i think that both the evidence of her being beaten so badly that her with a hammer that her ear was nearly torn completely off and also the fact that he turned to him around and was hitting her with the call the hammer all over her on both sides of her head permanently disfigured her head ok so that on the way i shouldn't be concerned if you would about the fact that the jury was i think hold middle of this isn't it direct instruction the judge made that ruling outside the presence of the jury but but but juxtaposed against christie then structures is removed well what the jury had done not it's not whether the jury actually relied on that wrong instruction it's well the standard is whether or not with a properly instructed jury would reach the same conclusion that's and i think that's what you know that's where we're struggling with and that seems to be an important point here and i'm wondering could this juror who only found serious physical abuse but not mutilation existed i think that kind of if i understand the court's correction i kind of wraps around on itself because you have to get one to listen to one more time i think it's a really great question i'd love to hear your answer so could serious physical abuse but not mutilation under the improper depravity instruction looked at the properly narrowed depravity instruction and concluded that no serious physical what does that mean now it seems very confusing to me and that's and does it provide context in brooklyn describing what the physical abuse is what is happening it so that it rises to that level or exceeds it prosecutor i mean you've got to address that question because everything you've said here sounds good but when i go back to the argument the prosecutor made to the jury i didn't hear the prosecutor making that argument to them so i'm having a tough time understanding how i get there have all you're saying is the prosecutor can argue whatever he wants to argue as long as mutilation is defined correctly if you sit here on appeal and say there could have been there would have been mutilation based on that you can affirm nobody argued it nobody presented it to the jury but you could affirm nonetheless i i'm fairly certain that the prosecutor argued mutilation to the jury  pervasion and all kinds of things argued that any blunt strike to christie would have been mutilation that i don't think i don't know if that's i'm and then he says he explains why they made that distinction and he talks about the autopsy photographs i think you say wasn't going to argue torture they was arguing to the mutilation not torture to the jury he argued torture and mutilation and he explained he's explaining why as to christi they're only arguing depravity crack and now was because the trial court did not allow for an instruction on mutilation or torture with respect to christa because she suffered so many fewer blow that's the point cracked and this the seriousness of her injuries but the injuries to wendy very squarely very comfortably fit in the definition of overwhelming evidence of mutilation you can be reasonably assured that had the jury been properly instructed as to what this aggravator meant that the jury would have still found mutilation beyond a reasonable of the hammer rather than just the head of the hammer this isn't just trying to knock her out to subdue her he turned the hammer around and was repeatedly beating her both sides of the head with the  hammer if we do we determine that mr smith's claim is has merit what would be the proper form of relief in your view if the situations if they find that there was penalty phase error they issue a conditional writ that gives the state the option of giving him a new penalty phase or imposing a lesser sentence than a capital so i want to before your time is ask you about the is that not prejudicial well i think the district court's analysis on the prejudice aspect of the claim is accurate one there's two questions to ask is one is the jury going to even look at this evidence as mitigating at all and in judge may had found it wasn't particularly mitigating to begin with but even assuming the jury at finds that it's mitigating you still have to ask whether the jury's going to see that if there's a reasonable probability that the jury's going to see that as outweighing aggravating trial had a competency evaluation performed that evaluation goes far beyond just addressing the issue of competency and actually did a criminal responsibility analysis and found that he was competent at the time of the offense and that he had a mix personality disorder with no cystic histrionic and antisocial characteristics for features that's very damaging evidence to try to present to a jury in a penalty phase hearing because those says they didn't have anything else they presented really and the jury certainly was going to hear and did hear that he had engaged in a lot of really fraudulent conduct so the jury i mean the argument from those in council is that if they'd had some kind of diagnosis they would have had strategic if they didn't know the full aspect of his mental health nobody really except for that competency evaluation which is just superficial and really that just goes to competence it doesn't go to any other mental health issues which a very different standard as judge cristol see it for competency than for mental health evaluation and doctor has said that he was you know that he was with that competent at the time of the offense like he did a criminal criminal directly to judge may hands analysis of why this evidence is not particularly mitigating and that's because it does not actually explain the conduct here and on top of that as as your other pointed out there's no actual diagnosis in any of don't mind just because i think it's important for you to answer our questions that only goes with the question that i'm trying to figure out is deficiency because we have to see whether or not do the review of whether or not his lawyers were deficient for not pursuing more mental health ave here and when you say what you just said right now why wouldn't that just show the deficiency on the part of the lawyers it it doesn't show deficiency because the actual doctor that they were relying on did testing and came to a completely different direction for competency for competency but did a full evaluation under the m m p i two and did you know looked at looked at this stuff and said he had mix personality disorder with anti social and histrionic features he had now you know got those it also saves an intelligent individual without any serious cognitive or affective psychological disorder it does and on top of that under this court's case establish prejudice under strickland with respect to the failure to call an expert at trial you have to say what it is an expert would actually testify to during hearing there's more diagnosis here on to is a much stronger basis for you there's no diagnosis here that would demonstrate that i mean that would explain this conduct if there is no diagnosis but we have these reports doesn't that speak to the fact that we ought to have a hearing  i don't think it i mean my worry about your argument is it seems to me that you focus very carefully on there is no diagnosis i thought your argument would be somewhat different i thought it would be more about prejudice rather than there was no diagnosis in those reports so therefore it's not important because it seems to me that if i'm going to have a hearing the reason i'm going to have a hearing is to allow the more discovery and to determine if there was really cause because that's what we're really talking about here was their cause and phil therefore i mean i guess i'm trying to figure out if your argument is there's no diagnosis it seems to me that it's obvious i need a hearing that's my argument isn't just stuck on that that there is no diagnosis ok what is it that this is what what's there to establish prejudice they have to do to get a hearing your honor to actually have to determine that i want to have more discovery and want to have more look see as to finding out whether there was cause they have had an overwhelming opportunity to present that up until now and all if they've got is these two reports that don't make a lot they do they don't deal with doctor has his report eleven that dr love her report addresses break i think the psychotic break comes from the other dr i don't think so but either either way evaluation that was done very close in time to the offense itself that is an actual diagnosis to say that that means that if somebody is competent you can't later or at some subsequent point challenge the mental health aspect well it's an important point about why it would be strategic not to start digging into that stuff is that once you've already got information that your client has an unfavorable mental health diagnosis that's very well could work against him in the penalty phase but there are so many red flags that were coming up that not only you know you have that competency evaluation but you have all these things that he was doing in his criminal so there's that are relevant and then that was happening during the course of this proceeding that seems that would have raised you know the specter of some concern on on the mental health side here there's two problems there is one you've already have one expert who  gave your client an unfair will diagnosis you don't get multiple experts to you don't indigent person doesn't get the shop around and choose their expert they get their one expert to help with presentation and development of the defense so you've got they've got that and the other problem is they even assuming they could have gone out to find another expert that would have given a favorable diagnosis that then waives the six member privilege in the th amendment privilege against self incrimination and he's going to have to undergo a state ordered somebody else has any question i think this court should affirm with the judgment from below i think there's overwhelming evidence on the mutilation and so any any error with that the instruction was harmless under brecht and  just doesn't even show a substantial claim of ineffective assistance of counsel to get his evidentiary hearing under martinez thank you very m we went over time with the state so i'll give you five minutes here state contends that mr smith has had an overwhelming opportunity to provide evidence of his mental illness but at allstate stages of this proceeding in federal habeas the state has objected to any type of development of those those facts they we lost his claim on the state's motion to dismiss back i believe and what do you make of the argument then that the competency evaluation was sufficient enough to not hold me accountable as being ineffective counsel didn't rely on  the has report penalty regional council donald york evans said that he wanted to have a mental health work up done of smith and he recognizes red flags and that's what he wanted to but apparently mr smith had been reluctant to engage with a mental health expert which you can say that he says he thought that mr smith would be reluctant i can't find any place where anybody ever says the after mr smith is that right if that's what your sin says your honor then i would i would to submit to mental health testing during the penalty retrial that speaks more to penalty retrial counsel's ineffectiveness than smith's unwillingness to participate in a mental health examination smith participated during his st trial in a mental health exam when a competency examination he went with a meth mental health expert there and then in these federal habeas proceedings he met with two with one mental health expert here the only time he showed reluctance to meet with a mental health expert was when he was represented by mr evans mr evans who did not meet with mr smith for two months after appointment it suggests that he failed to create the type of relationship that would have permitted mr smith to trust him and to follow that course of action so that would be  mutilation that is consistent with what argument is exactly that a jury could have doesn't mean that a juror did in fact in this case mr smith may not have valid single valid aggravating circumstance found by a jury with joe and he refused to submit to any testing he insisted he was not crazy so this is a different counsel them when i was looking at it is is is judge smith correct if it sounds like in this instance the defendant did flatly refuse that really changes the playing field for me sorry the other just the other lawyers seem to indicate that they suspected they didn't think that mr smith would cooperate this person or page you know are thirty five ten may be even more important to let us agree that to get this particular defense when the defense requires testing you know by this and there's other kinds of defendants in the context you're talking about that that that that sentence that that principle would make sense  but here are two points your honor paper says that dr lundberg love was able to reach opinions based on mr smith's mental illness based exclusively on his social background and records and a mental health expert could have done the same even without smith's participation during the months that there was time for mr evans to get a mental health expert and work with mr smith so that an evaluation could have been conducted and that was in dr dudley's examination if i could just have one follow up  how with these diagnosis that have been made suggest or explain the violent conduct that occurred here well as this court is aware there's not a nexus requirement for evidence to be and perhaps could have engendered sympathy for him that this mental illness of a delusional disorder impacted his thought process judgment and decision making such that when he's in a delusional state that he is divorced from reality those that type of information if heard barger could have permitted them to determine that an individual who had never had any type of violent conduct in the past something occurred something occurred and that this evidence helps provide some type of ex planation or good con text to how somebody who had never had a violent past could commit such atrocious crimes when everything else suggests that he had been a loving husband and stepfather providing for these children help opposing counsel speak to the fire pretty hard asking what is the strongest argument that the jury would have found mutilation and we talk about the definition of mutilation and i think he came down to the that in wendy's case  but the jury was instructed they had to find beyond that of killing itself and we know that at least one juror found mutilation beyond the act of killing itself but with respect to that check box ok it's really not asking answer your question because wife it's a very good one because if i'm going to be placed in the position i'm not talking about could now not talking about what the supreme court in nevada did or didn't do i'm talking for this court would be that it's not a sufficiency analysis because we're not under sufficient prong we're on the fact we've got to have an instruction which is rick constitutionally wrong everybody seems to be admitting so what is my standard of what i have to do in that instance seems to me counsel and you have said i put myself now is there enough evidence or could the judge would the jury have found based on this evidence your honor i guess i direct the court to hedge past the ny state supreme court case and hedgepeth which was a th circuit case that said in instances of stronger error there has to be absolute certainty that the jury didn't rely on an invalid theory absolute certainty suggest a higher standard than whether or not a juror could or would have found the the specific means thank you your honor sir thank you mr fitzgerald mr connor thank you for your oral argument