the honorable the judges of the united states court of appeals for the circuit oh yeah oh yeah all persons having any manner of business before the honorable united states court of appeals for the fourth circuit are managed to dr good morning may it please the court morning twelve citizens decided mark lawler's fate based on their appraisal of his future dangerousness mr lawler's best argument on that question was that he would be a nonviolent and manageable prisoner and he sought to present the testimony of an expert psychologist who personally examined him interviewed his former parole officer and prison guards reviewed his record and determined that mr did not pose a serious risk of committing future violence in prison the trial court repeatedly for me the expert from testifying to his conclusions however on the ground that mr lawler's future conduct in prison but supposedly not relevant to the question of his future dangerousness i thought his concern i thought the would behave what his character and behavior would be like in prison it is true the trial court excluded that all of that which was which was dr cunningham's expertise and it was the focus of his testi too although the instruction was not quite the same but i thought that the district courts problem with your argument was that the court read the prior decisions of precedent to require that  show future that you only be allowed to put in evidence of future lack of dangerousness in general and you kept insisting and therefore he resisted evidence of just about prison that was my question ok so that is correct that that is how the trial court ruled and how the district court reason however that has never been virginia law in any case but mr l question is society as a whole now evidence that is relevant to that ultimate question includes evidence both in prison and out of prison aside from the fact of how the virginia courts define it the united states supreme court in vs south carolina said a defendant has a constitutionally protected right to present a defense in mitigation that he will be a good prisoner in the future he has a protected right to present evidence from his pas present conduct to prove that but he also has a right to prove that in other ways as well ever see what i found was missing and maybe it's not a necessary element of your argument that you would say to the district court look you're right the the the universe is larger than what my witness can testify to but my witnesses testifying to evidence that is relevant within this larger i  i attempted to make that argument and i believe that the united supreme state supreme court has repeatedly held in the context of future dangerousness evidence that relevancy is not for example in mccoy versus north carolina to prove the ultimate point you don't have to prove at all at once i'm sorry but you keep you have you keep morphing out of the question ok which is whether it was clear because it wasn't clear and then i'm sorry to take up your time but it really wasn't entirely clear to me that it was clear to the trial court that it was a subset of a larger picture because all you talked about was that that was mr waller conceded that he would be a danger outside of prison ok his only good argument was that he would be a safe manageable prisoner alcohol as soon as you go out of prison or yanking and he was a wild man yes absolutely that kind of defense is constitutionally protected in justice o'connor's controlling concurrence in simmons she explained that the defendant there had h e was he assaulted elderly women and he attempted to put on a defense that i'll be in prison forever i won't be able to act out in the violent way in which i am prone to that was a constitutionally protected  i'm going to tell you what my understanding is i want you to tell me from wrong my understanding is that the witness was allowed to testify to the history historical facts past behavior as if you will a model christian your objection is that he was not allowed to give predictive testimony that's correct correct that's correct and that on and there were a number of different categories of evidence that the defense painstakingly put on to lay the groundwork for mr for dr cunningham's predictive testimony so but the the trial court's rulings which were made to the jury openly to the jury saying in prison conduct in the future of mr lawlor is not relevant to this sentencing determination by repeatedly telling the jury that it cut off the inference that skip are constitutionally protect prior in prison conduct is predictive of future good he didn't exactly say that i thought it said just the narrow focus was not relevant as opposed to what we're you know i'm sorry i'm waiting back in my former question are right i think that the effect i think either way the effect on the jury was we're not allowed to consider mistakes while there's a future in prison conduct in determining his future dangerousness think that was his whole defense that was the only argument really that he had and that he laid and that's what one of the jurors confirmed at least one of the jurors confirmed that that was their understanding absolutely and the jury questions themselves demonstrate as of record that the very point where the trial court drew this erroneous line that that is where they were seeking additional guidance is seeking additional information it's what dr cunningham's testimony would have spoken directly to an cases in the simmons line of cases the supreme court has repeatedly relied on jury questions like that to demonstrate that an error like this was was a substantial one do you have the site of the i mean  i want to briefly address more of an importer because i know that the court raise that in the party is addressed that in their supplemental breeder's we addressed why under ed there's different clearly established federal law governing those claims and governing mr lawler's clean but i wanted to explain how those cases arose and why they were treated differently both morva and porter had terrible violent prison records and the state was using and arguing those records in fact arguing in morva that he would be violent in prison one of many examples where the state argues a capital defendant's future in prison conduct can see him getting a death sentence what mr a lot the opposite of what mr lawlor was not permitted to argue here they use that ordinance to show his dangerousness as a prisoner and what more importer both wanted to do was to bring on expert testimony not a not focused on themselves but focused on the department of corrections and what steps and security measures that apartment of correction could take to ensure that despite their violent action characters as prisoners the d o c would be able to control them that it sort of invited this mini trial about the department of corrections and the prison conditions that it would impose on mr moore and mr lawlor this case involves none of that evidence despite the fact that the bridge and the supreme court applied those holdings and accepted the commonwealth's representation that mr lawlor was proffering the same thing there is not a single place in this record where m proffered prison security conditions or anything about what the dio c was doing was going to do to control him quite the opposite what mr lawlor proffered was an individual lies assessment and although the commonwealth has disputed that it has never identified one additional thing that mr lawlor could have done to make this assessment any more individua and it's just a point i'm particularly interested in what was yes your honor so maybe you can talk about the rest of that argument yes so there are two independent constitutional bases for admission of this evidence and if this court finds the state court was on reasonable in applying clearly established federal law on either ground then relief is what i'm not wrong but on reasonable and reason we apply clearly established federal law correct the skipper is directly on point skipper to protect i'm actually i'm interested in application in this case in other words i think that the states are human if they hadn't made it would be it when to make any difference the evidence against him was so overwhelming that it's not a show terrible that he would have gotten the death penalty no matter what  n this case for two full days and part of a third day how is the trial a few weeks maybe three weeks or so it's not a test at all and toward well not saying it's on toward i'm saying it was it was a close but i don't know that's an indication three days of jury deliberations after a two week trial is it's not extraordinary it's not extraordinary but it shows that it takes a little bit away from the state sentence for marc i do not believe that marc would be a continuing threat in prison while serving a sentence of life without parole that's correct your honor and ash the judge's destruction that this was irrelevant i was my understanding that the judge's instructions that this was circumstances of mr lawlor once he has delivered to the department of corrections is not a matter with which you should concern yourself correct and it was after that after that instruction which seems to confirm its earlier erroneous dr cunningham testifies a lot right his testimony has been admitted in virginia before and i believe he was his what how he makes his living yes right so that  i'm i'm sort of curious about how this all of you go she ate with the state about what the questions were that you could ask he put into our danger process or put them to the trial court from just from my reading of the record yeah it seemed like a complete surprise to us that there was this rule which had never existed before and hasn't existed since in virginia that you know conduct evidence is irrelevant under under the statutory so i think that came as a surprise they had discussed they had proffered that what he was going to testify about but the actual ruling that the trial court made came out of left field and it and it totally cut off sort of every line of questioning that the defense attempted to pursue i see that i'm running into my rebuttal we might have some more sleaze i did have when you said that this was a close case with respect to the penalty phase only with respect to the penalty i  just wanted the defense conceded his guilt for the murder at the beginning of the guilt phase thank you relevant i think that was the question then you start i thought you started out in that direction and then i sort of lost track what is your statement about what virginia law says evidence limited to prison society is not admissible and where do you know what let's just back up a second in virginia still part of the union right yes ma'am so we're guided by supreme court law especially in at the cases right retired by us right court so how do you square that was supreme court law because what about that wasn't such evidence excluded from the sentence or is consideration here the only evidence that was excluded from dr cunningham were in objections to when he conflated the question of dangerousness in general to the question of prison society and the objection an argument that was made at that point the trial as i read the record is that this was a misstatement original law that he was making where another would be isolated from giving his opinion order i understood you to say that he wasn't but i was thinking you were going in the direction of saying he was not allowed to testify only and i'm i'm sorry i don't mean to put words in your mouth but i've been trying to understand the thrust of your argument that he wasn't allowed to testify oh yes to prison conditions that that was that was the gist of what the trial court were saying which goes back to my which is a slightly different argument i'm not sure it's i'm not sure it's ultimately availing but it to slightly different argument and that was what i took to be the trial court's ruling that when it defense counsel admitted he would be dangerous if out in society he's already admitted that so the only thing only aspect left is future dangerousness while incarcerated he knows you know it now and he admits he probably shouldn't get out what about that what's what would be the point of so i am again yes i would be dangerous and they can see that i don't recall them don't know when i agree with you or not but what your argument is that the way it was presented to the jury was that that was the dispositive question although you have this you have the fact that it already conceded that he was likely to there's a very low likelihood of serious violence being in prison and the report recommendation recognized the statement of it just reported opposite it that's one ninety three spring board  prison the objection was focused on expert coming to him inability to make predictive findings about going forward about lawler's future but with respect to those  excerpts that you refer to i actually found them a little confusing because it wasn't clear to me whether it was phrased as there's low there's a low likelihood of wisc of violence in prison in a way that didn't necessarily suggest that it would be lawlor who would be committing the violence it was a very odd formulation that that language it didn't seem to be personal future dangerousness and was sometimes short and it is violent biased and the jury in this case both circumstances to be here are you talking about the statutory aggravating factors i'm talking about this in mitigation right this is expert testimony is proffered one is in rebuttal to the aggregate aggravating factors and the other is in mitigation so take the rebuttal out and focus on mitigation do you have to show that that evidence would not have been persuasive to the jury in mitigation with respect to the death penalty  person and that he had the evidence come in it would have been a subject to the same argument that was the commas objection that all he's arguing is that the department of corrections would be able to control his violence not that he's not violent not that there's not a risk of future violence but that we're counting on the o c to be able to control the person's mistake you make that argument the evidence can come in the state can make that argument well may prevail and i'm arguing  in this setting that that argument would be quite strong and i think the court can infer if it's looking to to what to make assume error from not letting dr cunningham's further testimony that it would not have been persuasive over the record evidence of his violence so you don't make the argument that dr cunningham was in fact allowed to testify i was answering within the hypothetical all right i don't understand why you are briefed argument that in fact he was allowed to testify to the relevant characteristics he was able to testify to his history he was able to testify to  the result of his examining the medical records and dealing with mr waller he was able to give a great deal of expert testimony that was allowed in as relevant to the i have you had trials benatar i have been a trial you know how sort of maybe that's all coming out and being understood but since every question is objected to since there's a long discussion and then there's a ruling from the judge it's hard to tell and then we have this letter from a sure how do you square your what you are saying now with the with the affidavit but we of course we have who we have to extrapolate that to speculate frankly to think that how that might have affected the jury's deliberations as a body a and the other reason that the mitigation evidence that was proffered to the trial court was found improper by the supreme court virginia was it was not individual asked that they had a list of specific questions that were shown it's been argued here and earlier that it wasn't to go on and the trial court reviewed the proffered questions and found except in the one case that they were not individualized him that they were simply the application of some t  back and forth that occurred during his testimony over his opinion was all because after having been reminded once of the limits of more of a and in the motion apprehension didn't manifest itself in a way that could have been resolved and perhaps clarifying even for the it was clear that the defense or at least the defense maintains that it did not understand virginia law do so limit didn't read more about in the in the way that you do i take their representation as i read the trial transcript i don't lay as much at the feet of trial counsel as their witness that he continued without necessarily being aware there was a troll counsel's questions that he perception of future danger in prison and the witness kept coming back to that or what i objected to presentation of it and that that was the principal cause of a lot of the back and forth during his  testimony i'm still because he conceded to me that he would be dangerous out of prison and it's history certainly demonstrated that i'm not sure i understand still not sure i understand what the state's position is i mean all the time in cases you have one witness testify as to one fact and another witness testified to is another fact and you don't say the first witness you have to testify to both the other half of the equation the jury is allowed to look at and i'm still not sure i understand the state or the district or the trial court's problem with that but let me try to repackage thank you and there are two problems on the it one is the supreme court held that the proper questions dealing with mitigation were not individuals except in the one case and they found that evidence had already committed but as to the statements that they witness during trial which objected to the direction of the stain the problem was not that particular ruling was focused on the fact that the statement he may appear to refer to society as a whole where in fact he was basing it only on prison it was a misstatement of virginia law to say that the danger in prison was the focus under written new law and it was as a result risk misleading the jury on that point so you what you're saying yes it is that the way it was presented to the jury it was it was designed to mislead or convince the jury that specific holdings by the trial and i just i'm sure before you sit down that i do understand what the commonwealth position is here you do acknowledge that future dangerousness in society and in prison both are relevant and  for the issue here is how the conclusions were reached and how they were presented not whether there needs there was some global bar on this type of on the question of the defense's concession of mr waller's dangerousness in society at large it may be in other places in the record as well but at least during his closing argument at eleven forty two to eleven forty three of the joint appendix he tells defense counsel tells the jury after all there's no denying that when mark is on drugs and alcohol and he is in the community he is a danger to others can't deny that simply can't goes on to nonetheless argue for a life sentence and that of conceding the technical applicability of the aggravating factor that right to nonetheless argue for a life sentence is recognized for example in total versus netherland by the united states supreme court for genuine stache torrie scheme permits the jury to find the ags and still sentence to life that's what the defense was angling for the entire trial i don't think the commonwealth at any point at trial disagreed with the factual conclusion that mr waller makes for a good prisoner and in cases where they have had the argument  them that the defendant makes a really bad prisoner they make that argument strenuously morva is a prime example he had eggs escaped from jail so of course any prosecutor in front of a jury is going to hammer that home in terms of using it to prove his future conduct in prison where the facts are the opposite mr lawlor merely wanted the opportunity to argue in his own favor that he would be a prisoner and not having a factual defense the commonwealth resorted alternately in the trial court accepted objections based on a principle of law that simply is not grounded as the commonwealth appears to concede that both in prison and out of prison evidence and then we'll go directly to next