you know thirty minutes per side is sixteen hours i want six five johnson versus carpenter mr hurd if you're r my name is tom heard and i represent the appellant drayman johnson with me is my co counsel sir journey can be a theme i want to return to several times hopefully in this argument it relates to all the issues particularly the first two flows from an instruction the trial court gave in this case instruction that correctly states the law in oklahoma construction thirteen here's what it says even if you find the aggravating circumstances outweigh the mitigating circumstances you may impose a sense of life or life without parole so what you see in the oklahoma scheme and structure is that prosecutors and jurors looking at imposing death there are many restrictions for them very much guided discretion but if you want to choose a life there's complete and utter freedom total unfettered unfettered discretion to choose life under the oklahoma framework to example wow well i didn't really think that raymond johnson could do good be a good preacher after these facts but i watch that preaching video and the way he gets down in the audience with the congregation and the way he uses a prison parable parable you know suited for a prison audience in that structured structured environment that he thrives in that he'll and then switching over proposition to you know this fear that prosecutors have that makes them want to exploit that moral culpability instruction and  it's going to keep happening until some relief is granted we've seen it over and over again it was happening to state court in the end in the leak case in two thousand to this came up the tenth circuit case opinion on for example on the more we call it the more moral culpability boundary argument is what we call it our office we see it so much keeps happening it's going to keep happening but i would just basically say deny they describe it in three words i believe in just that no prejudice so that's why you know i'm i'm looking at this prejudice prong and looking at disability a legitimate ability under oklahoma law that's not in every state some states you weigh the aggravat in oklahoma one individual bible belt juror can look at this preaching for example and say i want to choose life so the prosecutors want to have seen this exploitation this argument before this prosecutor doing it they're going to keep on doing it there's an argument tomorrow and in this court same same problem so what happened in this believe really did a great job of dissecting the grand opinion he went through the five factors i believe that were talked about in hanssen and but there's one  the three principal actors before the jury in this case of the exchange between the prosecutor the defense counsel and the trial judge that really makes this case different and we're going to try to finally at one point he says but the judge tells you the inquiry is about moral culpability and that finally gets greg graves defense counsel you know i have a seat iraq your honor i'm going to object to this repeated statement that he doesn't say no i'm not trying to limit it he says the instruction says this your consideration must be limited to moral and wary as to cope ability the senate that's what the law said the prosecutor is telling the jury what the law says the second actor defense counsel greg ray says your honor i'm going to jack that in and not an accurate statement of what the law says the trial judge the king of the the master of the courtroom the one who knows the most kind of the you know well below if you've got the jurors who don't know anything about the law you've got the trial attorneys saying this is the law that it's a lot of the trial judge says nurturer jackson over this factor that was deemed a deemed important and these other cases was that the prosecutor did not at you know at no point did the prosecutor say the jury was not free under the law to consider all the mitigating circumstances so this is a much worse case in those cases the other thing is the endorsement by the trial judge in front of the jury that's the huge thing it really if you think about the jurors back in the jury room trying to make heads or tails of that moral culpability instruction it's it's ambiguous it's exploitable but they can remember back to that exchange you got the prosecutor saying one thing you got the defense counsel saying another thing get the trial judge a master of the law tell me about the law is siding with the prosecutor well there is like a case we we just heard or rather the jury was correctly instruct subsequent to these exchanges and i mean i guess the argument in this case that the prosecutor correctly reciting the standard at one point you know why are those curative and then the jury was given a list of mitigating circumstances here right so you know whatever confusion there might have been from the argument well it was really spelled out for ed we've had this argument in the courtroom about what the law is and the trial judge sided with the prosecution so he's got jury did the jury come to believe you know is there a reason the probability that the jury or one juror or several jurors might have believed the prosecutor who seemed to you seem to believe that he was saying there are you know them and we have to read you know keeping on this mitigation boundary argument there was this whole i don't say grooming or conditioning the jury where early on involved are sometimes they say that the old way sometimes they say the new way but they kept saying with th jurors believe that that was the case especially if you know if that like my image magination were actually the juries that sitting in the jury room trying to figure out this kind of mushy instruction for all remember what the judge said remember that argument there argue about what the law was so what did this do while it obliterated the entire second stage which by the way the defense had to sit in on a friday on the last day of the ten week life story than counsel you've got three propositions and i think you spent most of your time on number two the lock and issue are we moving to where are we now in your argument well it's let me you're framing the issue because it's stated as an ineffective assistance of trial counsel and appellate counsel right and we have the we have the witness part of it right ok so here's my question i'm i don't think i'm understanding as to the non witness evidence and that would include the sermon that you're bright get in private why is that evidence relevant to ineffective assistance claim against the trial lawyer in other words it was the judge who  that that purely appellate level is ok that's helpful so that's the pellet but then then what the ineffective assistance against the trial lawyer relative to the witness the you can't you know being pressured by a judge or worrying about alienating a judge is not an excuse and in a death penalty case if you look at that opening believe the opening argument and second stage by th some of it was he was pressured into abandoning the mom the stepfather you know jurors want to hear from people like that that's but he gave it all up under pressure three there's it's more of what he didn't didn't even attempt to do to tell that life story he told him and you know i think he you know this idea that i'm going to tell you about the whole raymond johnson a person is the sum of their experiences he didn't do that at all as should've part of it was getting pressured by the the end of the prosecutor you know filed a motion in the trial judge what is it about early childhood preacher father and i'm going up to him his real biological father was this you know multiple repeat felon who looks forward psychotic the psychotic features and this identity of the in the preacher's son and then learning it's a total lie that your preacher dad and mom are lying to you you know the whole your whole sense of identity now that was raised in the mothe least i can see that it does at least trying to give some explanation another part of that post conviction with the fact that he did it was in the homeless shelter and was suicidal once and try to give some context of what happened that jury was given no contact at all surely they would have wanted to know what was going on here we need to we need to know a little more and yes strategic decisions are much trying to challenge a strategic decision you know the standard exactly was the video made wasn't this you know it was made while it was he was in prison before i believe he was at the lexington assessment which is kind of a beginning type but i believe how many how many years before the i don't know what happened in this case i know i'm not don't have that fact of right at my fingertips but it wasn't it wasn't too  before or you know he wasn't he wasn't out very long he wasn't so i think it was you know and he was a young man he was in prison so wasn't wasn't very you know video for the show that you know this idea and that's where this idea about you know in structured environment he can do it you probably don't believe it you know after what you've heard in that first day video shake would have shown it to these oklahoma understood six minutes left you have questions i'd like to say for the i told you i had a question about your third proposition which is the development of mitigation you help us understand a little bit later what evidence was presented there that was not in trial counsel's possession or was not impressed actually what was not there and what was their right most of it was in most of it right or if you look at the you know the material about his biological father that they got that from the tribal listed both of them on his witness list or the trial and summarized what they we're argument is that he didn't know that they were out there and didn't know what they were going to say was that contradicted by the fact that there was information about them on the witness list to begin with well i think that speaks to him violating the a b a and not being pressured in worrying about alienating a judge but also but you've got these two claims i mean you've got him it seems like you're arguing a b i stander so you have to develop these relationships with the family members he has not even made made it clear to her how important it was for her to testify and then after listening or you know partly wanting to use her backing off under pressure please the court conifer crab on behalf of the warden i would like to start with proposition to you which is the mitigating evidence argument proposition  the only way in which this case is materially distinguishable from the dollar grant case is that in that case the jury was given the old jury instruction which included only the moral culpability or blame language in this case the jurors were instructed that mitigating circumstances where one moral culpability or blame or two circumstances which in fairness empathy or mercy may lead us jurors individually or collectively to decide against imposing the death penalty in grant the same or types of arguments were made the prosecutor there's about the law required that the evidence reduce moral culpability culpability or blame excuse me said quote in order to be mitigating and also quote before something can be mitigating that it must reduce moral culpability or blame and so that's the argument for this thing there was an objection and i'll grant that was overruled just as there was here all of the relevant jury instructions were the same except for the fact that this court found and on the grant that the instructions i believe this court said that there was a plausible argument that the prosecutor's statements were improper but then said that the instruction sure that and there was less of an instruction in that case and there is here where the jury was explicitly told by the trial court and also by the prosecutor that they could consider anything as mitigating would you  here i don't your honor because you have to view his comments as a whole and he never never once said you cannot consider mitigating evidence never not once the district court made that finding the statement that your consideration must be limited to very that's margaret right but that was not directed at whether you can or cannot consider mitigating evidence when you look at what he was arguing as a whole he was saying when you get down to deciding whether or not raymond johnson deserves the death penalty consider his moral culpability or pulp ability or blame i'm sorry i'm having trouble with that word today so it's no well the fact that he didn't grants and saying grant if i'm understand your argument grants control here but even in grant the court says that it's a plausible argument that these were improper comments and as counsel mentions this seems to in these cases and it just seems like this is kind of repeating itself i mean we we now have we now have developed case law we have the new instruction or we can keep seeing prosecutors to say consider the moral culpability and then have you come in and say all but they didn't say you couldn't consider anything else but it is not improper your honor to consider moral culpability or blame in fact that i didn't say it was it's part of the larger picture but if that's the only the prosecutor says and it was in certain circumstances here i understand you're reading it as a whole but if you take if you take some of these statements that's all the prosecutor said yes yes there were there were and don't think that that is improper to do that i will say that doesn't grant there's a plausible argument that it's improper and yet even the supreme court has recognized that when an advocate is standing before the high understand your argument i just wonder if the thought find this case to be distinguishable from grant in his arguments and i it's difficult because the closing arguments are lengthy for me to go through and pointed out point by point but i do not believe that the prosecutor was directing the moral culpability or blame specifically at mitigating circumstances but at the jury's overall sentencing decision that third step after they find an aggravator after they find that the aggravators outweigh the mitigating circumstances and then at that third step where they have unfettered discretion to decide what sentence to impose that's what the prosecutor's comments and i think i believe again reading as a whole that what he was directing its use of there was no attempt correctly no that's ok but the bible i still addressed that i don't believe that the words themselves even were directed towards whether the jury could or could not consider the mitigating circumstances in this case but if this court disagrees with me  in brown versus payton the prosecutor no doubt told the jury that they could not consider the mitigating evidence under california's instruction factor k and the supreme court nevertheless denied rel because of the arguments of defense counsel the arguments of the prosecutor as a whole in the jury instructions and in donna gray in this court pointed out that it would be hard pressed to great relief where the supreme court has never done so in a case such as this and so for all of those reasons of the prosecution of a couple of the prosecutors individual comments here there is no reasonable likelihood that the jury would have believed that they were not free to consider all of the circumstances in this case and one final point i would make on this proposition is that it is an ineffective assistance of appellate counsel claim not a prosecutorial misconduct claim and so we then must also look at the part of criminal appeals case  supreme court's precedents there was a reasonably determine there was no prejudice if the court doesn't have any further questions on that proposition i will turn to proposition one and the sickly beginning with  further on this this theory that the trial court was rushing defense counsel was not presented to the court of criminal appeals most of the evidence that position or relies on for that was developed after where they were discussing scheduling in the trap court look at her calendar and she said we could do the trial on this date then we would have two weeks and the second week would be a non jury trial week and everybody said ok no problem and then subsequently in two thousand and nine when the defense was contemplating the continuance the judge did the same thing looked at our calendar said ok if we did the trial on this date we would have two weeks nobody ever said two weeks isn't going to be enough and it wasn't and the  never said and only two weeks and if we don't we have to finish it by that friday we cannot go over into the next week and then in the trial transcripts and petitioner point to nothing in the record where anybody said trial court's rulings but not by this artificial time constraint and we know too that approximately two months before trial is in motion hearing the defen asked the state for a for them to provide and more a shortened witness list and then said and we'll probably cut ours down to that was two months before the prosecutor's genius of objection was filed and was there was a time a childhood friend terence cooke all we know about him in from the witness list is that he was testified that petitioner was in a gang was involved in a shooting incident in the news going to testify about an incident in prison where petitioner was angry at a fellow inmate and  mr cook said that it was like something clicked and he just lost it and petitioners lost it so there was a very good reason not to introduce the t and then the trial court did not permit him to present and the objective testimony of prison officials and so the supreme court held that the jury would have naturally given much greater weight to the third parties been to the petitioner and his wife another factor that they found very significant it was the fact that the prosecutor specifically argued that petitioner would be dangerous in prison  donald green as i point out my brief this court reviewed under the very lenient c l a standard a claim where the defendant presented the testimony of an expert witness who had relied on other expert  well aware that petitioner preached when he was in prison the prosecutor did not refute that did not argue that he wasn't good at it argued only that its heart was in it that he was mimicking what he had grown up watching and nothing about having seen that video what was the nature of the junction that it was that what was the basis that it was not relevant and that it was hearsay so you're today you do say it was rather what that's a really hard question or a that the hearsay i do not and on that the supreme court has defined mitigating evidence as characteristics of the defendant or his record or circumstances of the defen singing with the talent the preaching was not a challenge in her view and then also hearsay and she also said and this is never been cleared up she said i don't know how you're going to authenticate this how you're going to sponsor it and that's never been reveal evidence a videotape something that the jury could see with their own eyes which just nurse that would show his remorse and his state of mind in his demeanor in this court said that it was and i'm just i'm i'm a little confused about this whole relevance  notion that if the theory of mitigation is that is that he could function well in a prison environment how could showing that he gave sermons in prison not be relevant to to that argument i really i'm having a hard time with it  relevance in this sort of four rule for a one sentence it's not that no absolutely no help at all or is it more of relevance in a four or three sense that maybe it was cumulative of all these witnesses who were preaching to show how good he was at it is relevant but that isn't the only reason it was offered i believe so your honor i mean the council didn't make it clear other than showing moving on assuming that it was error to exclude to exclude the evidence and lock it versus trammell there was an expert witness who testified and the trial court made her testify only in generalities she was not allowed to testify that in her opinion and the position or style to cause him to become the person that he came in because of the limits on her testimony there was evidence the jury did not receive such as that petitioners the petitioners mother used drugs while pregnant and that his father threatened him once with a gun so we have her opinion testimony was not allowed and then there were actual pieces of mitigating evidence that ansari i have to but that's fine i think we know where we are about five of us have to consider what the prosecution would have done with this videotape and the prosecutor had emphasized in closing arguments that based on a statement in position or confession where he said that miss whittaker said she was dying and the the petitioner said you deserve to die you deserve to die and so the that you're sitting in you're watching t v nice to see a cockroach what do you do you get off your bunk you get a house you and you track it down and you kill it and i know we're talking about a cockroach but i'm the prosecutor could very well have gotten up there and or tracking mrs whittaker down and killing her and you also have the very stark contrast between petitioners preaching video where he shows passion in the confession video where he's talking about killing the woman that he referred to as his wife in the seven month old baby that he said he thought might be his child and he's cold and he's matter of fact and he blames whitaker over and over again and yes all of this was before the jury but i think any competent prosecutor would have sat please do go back to the jury room watch this tape of him preaching and then i want you to ineffective assistance claims talks about looking at what the prosecutor would have done with the additional mitigating evidence yeah but isn't it a bit speculative though to be thinking well the prosecutor might have been able to do this with this or might of been able to do that seems to me that goes more to the calculation that the appellate counsel would be making as to whether the issue should be raised on appeal in the first place it's certain that could absolutely and there were nine propositions of error raised here but i'm still a bit but but when you move over to prejudice then that puts the court into kind of engaging in that well that they might have been able to do this in might have been able to do that i'm not sure that's what it's typically done in the strickland prejudice in the office it's more it's just more a matter of you know was the deficient performance because we're kind of on the countdown on proposition three and this is really the same question i asked mr hurd and that is this this claim about failure to develop  mitigating evidence and the question of at the first post conviction state post conviction proceeding what was presented at that point the trial counsel didn't already have can can you help us with that sure there is only one thing that we don't know for sure whether counsel had it or not everything else we know counsel had we know the parents were on thing that it's possible that counsel did not do is actually speak with petitioners father we don't know whether counsel did or did not do that there's no evidence in the record as to that and the third c e o way that it does it cover because the issues relating to the first post conviction proceeding but does it expand to the second and the evidence presented in the sept second post conviction could not be in fact it's in and i argue that it's also an exhausted it's such an entirely new i'm sorry that doesn't make sense that the way petitioner presented it in his opening brief which was combining the two is an exhaustive because the first post conviction theory was counsel should have presented additional evidence that he had a good child and the second one is a completely different claim that he was physically abused she was raped she his parents although they acted like they were good christians that mother was a gambler and his father was a serial adulterer so it is an entirely different feeling and your are you are you saying that mr johnson's opening brief covered all of that up they did they didn't make the argument relating to the second post conviction proceeding yes and no there are at times it it  counsel argued that the court or criminal appeals unreasonably failed to find that the new evidence contradicted what was presented at trial the new evidence at the second proce council does not acknowledge that but i think that's the only evidence i find in search of preservation of the issue here and i just but you think it is reserved as far as having been presented in the opening brief yes it's a very difficult calling and i probably not adequately prepared hints it out but it is certainly not the focus at that p know we had there were ten cases where this court found that prosecutors were were violating the constitution and nothing ever came of it and in dobbs this court said hey these prosecutors know what they're doing to say that it feels like instead of a a g c l e there's a da c l e going on and they're telling him this really works to limit the culpability limit it's a moral culpability because we see it over and over and over again and really and and on the victim impact issue what the prosecutors were doing the state was trying to do what it couldn't under the under the law because is unique he has a gift of preaching it was taught to him and it works and it helps people and it has the stream legal totally legitimate reason to vote for life without  cognitive dissidence the jury needed that video to get over it under this case in bad cases there can be a release we've seen it over now we're going to sometimes it seems like bad takes get relief more often almost because what the prosecution does and what the