please the court patty ghezzi and emma rolls for the appellant marlon harmon from the federal public defender's office and the western district of oklahoma gentlemen we have here a constitutional error that has been conceded and not just any constitutional error an error in the admission a confession mr harmon confession evidence the supreme court has said is quote white no other evidence and the court considers of evidence that the supreme court has said has a profound impact on the jury in this particular case that was something that was well known to these experienced prosecutors when they introduced and argument repeating the language that was said in that interview room repeatedly and it really is these prosecutors knew that when they said well we just want to get in evidence that jasmine battle changed her mind about cooperation and you know that's just a specious argument because in their closing argument it's clear what they wanted the jury  were made now that doesn't resolve the question for this court because the impact on the verdict here is a brick question and it's not a question that has to do with what the court decided in normally they would get deference but in this situation the question before this court is whether or not that evidence had a substantial interest impact on the verdict well what do we do with davis versus iowa i mean why determination as to chapman you will never show that there was a injurious graver and there's grave doubt and a substantial injurious effect on the verdict you won't be able to satisfy brecht you know if that's the case then there still is a role for as the deference in the harmlessness determination well i might disagree with your reading of davis to that broad extent let's just take for instance this particular error the corporal peals didn't actually review on the merits the fact of the error thing which is the place that we think it had the most substantial and interesting facts and so on that element itself there is no difference it's a noble reviewing way and that's that that's where we think there was a greatest impact these prosecutors specifically introduce this evidence knowing and actually conceding that it was tainted but coming up with a different excuse for admitting it and then when they get to the second stage what did they do they tied impact on the verdict so it definitely was exhausted and they were all but even separate from that and judge hogan i may have that i am am mixed up but didn't say first say you didn't raise it before and then they sort of b for not having raised the issue and that's appropriately raised impose conviction and so it was connected to the appellate in effect assistance argument end the impact on the sentencing was both because the crime is important to the sentencing obviously in oklahoma four step process conviction in that first degree murder is the first thing that must happen and must be found and then secondly the video which is a picture and where pictures are worth more than words the prosecutors were able to sort of expand on mr harmon attitude toward the killing and expand on why all this mitigation that was they claim was presented couldn't be considered because it didn't reduce the stuck where you were raised in post conviction proceedings the impact of this error on sentencing and if you have something you can show me or point to me i'd like to know that because i don't have any basis to believe that's right it's in the ineffective assistance we did not find it to be a basis for granting a fee is really and i mean in this case the council directed the jury to consider mitigating evidence in a way that frankly was not well actually i think it is hard to qualitatively compare those two there's differences in grant and here that are stronger here because both prosecutors here said the same thing look at the law the law doesn't allow you to to find that mitigation when it doesn't reduce your moral culpability or blank in grant the argument that was improper was made in the first day and the second prosecutor ameliorated that some want my saying that other evidence could be considered but here we don't have that and we have specifically the law doesn't allow that the law doesn't allow look at judge about bass's law you can consider this boyd they said the prosecutor did not do what the prosecutor did here i'm talking about the general common invoice to the effect of how you weight variables in one variable being the prosecutor's comments the other being the jury instructions and those things are not given if it's if the defendant points to evidence that it considers in mitigation and the prosecutor thinks it so should not that those arguments do not justify a lesser sentence what are they allowed to say and they say what you're saying as i understand it is it's forbidden for prosecutor say these other things shouldn't affect them here they can't they argue that came to a say that this mitigation evidence doesn't reduce culpability and should not i think you can say as long as you say we don't think this fits under this first definition it's not that you can't consider it a simple law prevents you from considering that's the instruction six times they do this and i'm looking at it at least condense excerpts of the their comments and they say things like look at the mitigating evidence they proper it's proper you consider it and person's guilt and culpability for the crime but to your point the the problem the legal problem is preventing them from considering other means and if if the prosecutor is saying you can consider this evidence but i'm telling you it doesn't extenuate their guilt that's what they doing well they're only doing that for that one section of the instruction that says there has there has to be some kind of nexus between the crime and the mitigating evidence and that's just not true they're not the you know we're not making your argument for you though i mean they're they're not if they're saying you can't these things are mitigation look at this piece a lot and they say if they're not then going to qualify by saying but look at all the other things that the judge have this might be relevant for i mean that's that's th say when i asked you that before you said no they point to this instruction by the judge but then the judge will pointed out at some point during the argument they also say you can consider this other evidence so where because there were other comments about how he had victimized his own mitigation witness how he was making the jury feel guilty if they had the mercy that oklahoma on two particular aspects of that and one is that there was no mental health evaluation there was a constellation of mental disorders that this jury never  also particularly the issue of sexual abuse which clearly is something that the jury did not hear when mr harmon was six or seven years old he complains of bleeding in this rectum to his grandmother his grandmother thinks it's paddling at the school at first and then it continues and so she examines him he's bleeding she is concerned about it she knows he's staying with someone who she has some suspicions about she tries to get in treatment tries to take him to a hospital but because she's not the guardian she can't even get him examined at a time when it could have been confirmed we have you know it's still just such a powerful mitigating factor of sexual abuse of a child that young and the during in never hear it it is if he agrees that that's what happened but he didn't agree that's what happens if she doesn't she has no personal knowledge of any sexual abuse she said i said down and i thought about it and i tried to figure out what that could be and you know what it seems to me it must be a sexual  knowledge of any kind well first of all you don't have to have firsthand knowledge this we should look at this group we should look at this from hello ledger eli i'm not responding to whether witness well i'm responding to the question of whether it was powerful and compelling as you suggested and that goes in part  one whether somebody saw something i think and also what about the fact that the person who was supposedly the victim of the sexual abuse denied ok first of all he didn't remember it but that we should know by now we should know by now from all the sexual of used a priest in the priesthood that these allegations and these these things come up much later i mean states have gone through and changed the you've got people in a spam way sort of pressuring counsel to make this argument i'm and i'm assuming this obviously we don't know what the conversations were right there but people pressuring him to make discharge amount and he goes to his client says hey this could be mitigating and i'd like to put it on the guy just didn't happen and don't remember anything about that i mean then how is he supposed to put that on he's got to have a good faith basis for alleging sexual abuse he just have the person the only person who can really say say i don't remember well well first of all this is a situation where proconsul never investigated the sexual abuse so that conversation that never investigating his history of abuse you don't know who do you know whether that investigation to that conversation never happened how do you know that that's the allegation that was made a post conviction there was never a hearing and posted this meet there was the allegation that the investigation never happened so the investigation into the sexual abuse didn't happen but when you have to film that that first but over the first from didn't you didn't find additional evidence you don't even have his evidence at this point i am i wrong is he now saying he was sexually abused i don't think he's that there is a there is evidence and hey b s that's more complete on this but and post conviction the only evidence that was presented to the state court had to do with the grandmothers but then i all i go back to what would who are not lawyers like we are how would they treat that evidence i think anybody that has a grandson in that situation would be thinking there is something wrong here is the mother saying oh that voice just can be rough this is a statements about sexual abuse come out and state this conviction ok's is there any evidence that the grandmother told the trial counsel about the rectal bleeding or the potential sex abuse there's no the record one way or the other ok so i mean is it your argument then that it was tried whether there's any indicator or not trial counsel has a duty to go check on as one of his boxers that he's going to check sex abuse well of course there's the guidelines that talk about you know a broader investigation right into trauma which of course is what sexual abuse is in fact a greenie kind of problem and so there is those guidelines and frankly what capital counsel wouldn't think that it was their responsibility to investigate into that particular kind of trauma and on top of that they've got red flags because they do know that marlon harmon's mother with sexually abused by her stepfather from the time she was two years old and probably was the father of marlon harmon when he impregnated her when she was fourteen years old we also have a younger sister of marlon's who was sexually abused by a neighbor and the same stepfather sexually abused a younger sister of marland's mother so when you have that kind of red flags in the capital tr t were you ever sexually abused me since i don't remember anything like that then what well first of all you have to you have you assume the first part but you have to assume that counsel also has responsibility to hire mitigation specialist who is especially sensitive to training information like this because frankly lawyers aren't the best to go out there in just over the phone in a meeting at the jail were you ever sexually abuse that's not the a real problem here for you unless i missed it is there's no affidavit anywhere from the lawyer saying what he did or what he did not in some of these cases you have you have counsel who is on the stand or in  claim not talk about whether you made showing if you don't have anything else and you don't you don't have it we are going to be assumed that there was no investigation are we i think what you have to assume is when you're looking at reasonable this you're looking at the talk to my client about whether we had sexual assault or not i didn't think it was necessary then we could evaluate the legal significance of that fact we don't have that is absolutely no evidence that there was not an adequate investigation in this case and not only strickland as judge holmes said but burke versus tetlow says that where there is no evidence as to what kind of an investigation was or was not not the admission of the videotape which was the issue on direct appeal and so now your honor is not exhausted so turning to that claim the scope of the claim as i argued in my brief the only thing that's properly before this court is the introduction of that videotape and the prosecutor's arguments regarding they did if you look at this proposition of error and it would be in paragraph twenty six through thirty three of their opinion they used the word the videotape twelve times they said the videotape the videotape the videotape and in fact they found the admission of the videotape to be harmless in part because then i'm in paragraph thirty one here first battle described the circumstances of her arrest in cooperation with police during her trial testimony before the tape was admitted for the jury battle explain to the jury the content of the videotape without objection admission  videotape it sought was simply cumulative to her testimony so if they considered that the videotape was harmless because it was cumulative to miss battle testimony they obviously did not consider miss battle testimony to be erroneous lee admitted which is where petitioners girlfriend's mother live and on surveillance video a petition and a friend of his can be seen on surveillance video when that credit card was used at the gas station and the other evidence gasoline that evening she had loaned him the car earlier in the day when he returned the car it was all of gas and mr todd her credit card had been used at a gas station right across the street from her around the block from where they lived so there's that as well yes and the fact that he petitioner also made a statement when he learned that tyrone boston had given the police information about the murder that you should have killed tyrone boston which is evidence of consciousness of guilt so the evidence of petitioners guilt was overwhelming and admission  the confession what's harmless was not comparable to the argument that has been made in harris where they did find error the prosecutors did not want to tell the jury that they could not consider addition ors mitigating evidence in fact they were three times they the entirety of the jury instruction and on page one hundred twenty two the prosecutor asked the jury to look at each one of the mitigating circumstances to see whether and then he quoted the fairness sympathy or mercy language so there was no mitigation boundary place here this case is certainly weaker than grant where this court found no constitutional  if the court does not have any further questions for me i would ask you to please affirm the decision as you see it right now on the cumulative error argument what would be within the scope of the videotape proposition three goes only to guilt stage so it would and the other two propositions go to sentencing and so at most there would be one single statement that cannot be obviously accumulated with other errors and there would be to your honor in constitute constitutional error without harm so simply errors of counsel no matter how egregious the spin quite explicitly said in strickland do not amount to constitutional error without prejudice and then thinking with before and after the robbery with mr battle that's the district court's take on the evidence supporting another perpetrator i think that what the titian are relies on there were some police reports attached to the first conviction application and there were some police reports attached to the second post conviction application and i cannot tell you for sure which were there which you know which ones are proper to consider but some of them did indicate that one of the police officers believed that there w and i would point out just never talked about the gun that mr lancaster had his girlfriend hide he had actually used that gun to shoot tyrone boston so he had a very good reason to hide that gun  thank you thank you answer your question about the affidavit of the trial lawyer this court did hold in anderson that a affidavit by a trial lawyer was not required to prove the claim and also to your question judge hearts the specifics about what the prosecutor said regarding the mount boundary arguments are on the brief that page fifty seven and specifically most interesting info in the defense counsel object the prosecutor very clearly  persuaded by the evidence that wasn't presented as well as the evidence that was improperly presented there's a qualitative like difference in the death penalty in other cases and that's one one thing the supreme court has continued to maintain and there's a corresponding need to bring liability that reliability is not here this is a case that at one time the prosecutor was going to drop the bill particulars the we now know the victims were on board