thank you your honor may it please the court my name is jennifer garcia i am with the arizona public defender's office and i represent the petitioner opponent in this matter mr sansing with the court's permission i would like to focus on two of the claims before the court today and of course answer any questions you might have about the others the two that in particular that i'd like to focus on are the arizona supreme court's finding that the ring error in mr sensing case was harmless and on the claim that ultimately came back that it there is a harmless error analysis that is to be done of all arizona defendants that were affected by this is he the only one left he is the only one left here on our yes the only c what about you know what i would say that sense the murdoch decision the supreme court i think has clarified in the davis v i alla case that the proper way sentially say it's left to the state and so the reason why they concluded that there was it was harmless error of some kind let's leave that aside for a moment versus  sorry i'm sorry the murdoch court did spend some time discussing whether that error was structural but ultimately decided i don't think didn't i thought they concluded that because there was no clearly established supreme court law it was the arizona supreme court to said as such should be structurally yes that's correct and then because there isn't a supreme court had decided to evaluate it for him like that and then and this is the part i'm interested in in terms of i mean there is a just spewed between the parties as to what you're looking at when you're looking at harmless error which really goes back to and the cow in the arizona supreme court is quite clear that what they're looking at includes some version of the mitigating factors they it in a direct appeal opinion in cases that are this that are as old as mr sands things they do what they call an independent re weighing in the second opinion and mr sansing is case that had soley to do with the impact of ring on his case they did to some extent a different analysis they didn't redo their independent independent as you what they said they were doing with regard to harmless error in getting that the mitigating factor absolutely yes they discussed the aggravating factor and then said that they necessarily must i believe they use that word necessarily must consider the mitigation that was proffered ok and then we get to this problem about brecht and davis is it has mystified it but i think when this court said in murdoch that the state's harmlessness finding was essentially entitled to no deference by this court that  it does it it talks about the chapman analysis and the brecht analysis sort of together but i think they do state that it's the state courts harmlessness finding itself must be objectively and reasonable well i that that i think is the crux of the issue here is that i think regardless of which harmlessness standard you look at whether it's chapman or bracht or the case you know however you put those together that i heard in there that you're not claiming this is structural error you know ok so under the if you all a did say that the ninth circuit was doing it wrong did it not limit context of that case i believe that appears to be what they said ok even if we want to say they didn't say the ninth circuit was right  your you believe that the correct standard then is that a fair minded jurist as opposed to whether a rational jury could have found the facts differently jala that was a better argument why should not it was i think that was never a standard because that's not the that's not the brick standard and also in that was never the stand in richter richter's specifically also applies to cases in which there is no reason state court decision and that's not the case here there is very obviously quite a bit of reason state court decisions on this issue so i think looking at the ultimate question of harmless that the state court made a finding that beyond a reasonable doubt that no the ultimate t here is that that is that we're trying to figure out not what this could think that somehow that no jury is right mind could have found in favor of mr sensing on the record before the trial court that's basically yes i would certainly agree with you if you do it the way if you do with the other way which to my mind is more favorable to the state of the government the brecht way because they're the burden is on the  prove an actual prejudice not simply what some jury is right on would have to yes and because there is no jury here this was a judge sentencing case i think that it would have to be the objective standard i think strickland is clear about you  know when you're considering this if it that you would look at an objective sentence or i don't think this context would be any different well this case though is a little different than many because i'm not saying there are not other capital cases out there were a defendant has pleaded guilty and admitted certain facts as part of it but that's kind of an unusual posture in terms of so i mean because most of the ring cases were they had a jury determination of  that innocence phase and then the penalty phase was done by a judge and then they came back and here you have a defendant pleading guilty and you also have him admitting certain facts which i think become a little more problematic to the defendant because some of the things that you would want to challenge that a jury might have done differently he's taken them off i know you're arguing for different reasons that he's not bound by it but he took them off like admitting certain consciousness of the victim you know those type of thing and as to the guilty plea itself your honor the defendant murdoch mr murdoch also took a guilty plea so that i but could you get into nitty gritty of why you think that sub standard that applies theory there are a few there are a few crucial areas here first of all the aggravation the state argued three aggravators the trial court judge only found two and the arizona supreme court vacated of the violence that was perpetrated as part of the attack but there's arizona supreme court case law cited in the in the briefing that says that if a victim if the medical examiner cannot identify which blow was in fact the killing blow that a gratuitous violence finding is inappropriate so the law governing gratuitous violence is definitely a sufficient that a jury could have found differently   i don't know that it's irrelevant to the rape but it would not be part of the gratuitous violence i missed there's no evidence that mr sansing rape to the victim in part of the attempt to kill her i think that that could go to the  case law about when a defendant knew or should have known that the violence was nest was adequate to kill the victim because the m e cannot identify the order of the blows or which specific the stabbing wounds i'm sorry or which specific one killed the victim a gratuitous violence finding is inappropriate under the arizona supreme court's case law in addition the case law also states that senselessness and helplessness alone are not enough to support a finding of factual basis that stated she was conscious at the time of the race that was there to the only place that he said it was at the time of the right but i thought he just said that when he came back when he came back yes which was then when he raped her i don't think i specifically said at the time of the rape no no so she was conscious of the time of the rape i don't i don't believe that even the stipulation offered at sentencing specifically stated that exact fact but there were some discrepancies and discussing when she was conscious i don't think there is it any stipulation that expressly says she was conscious while she was raped the inference that she was i mean in the arizona supreme court in on the ring harmlessness as i relevant but i do believe is that presents a question of fact because again there isn't a supreme court case law about cruelty covers a wide variety of options and often when in cases where the defendant was not conscious at the time of the killing blow or it was not clear if the defendant was conscious or which blow was you know what occurred before or after the victim was conscious the arizona supreme court has specifically found that that is not sufficient to establish cruelty so that's one that's not the question here we have advance which is very hard to accept and the only explanation i've heard that you gave was that it was relevant to the robbery but i mean why they had a tire up and turned her over their head and all that is sensible but nonetheless i mean why isn't that connected to the murder sufficiently in itself that's enough and you're i'm by no means trying to say that any of it makes sense or it's logical  because i think it's far from that but i think the important question is how you establish cruelty under under and in arizona again an area that i would say is less than clear but there specific case law finding that when it is not clear when a victim lost consciousness if they were not conscious at the time of the killing blow or you know what happened when that is that a finding of cruelty is inappropriate so certainly there is evidence here that the victim was conscious for at least part of it the medical examiner testified that he found it unlikely that she ever regained consciousness but that doesn't prove anything it was unlikely it wasn't it certainly it's not that's not really the relevant question am i wrong in that otherwise or no rational fact finder yes because of the before he went out to the truck what happened that's mainly what they were talking about they do discuss that yes i would say primarily they also focus considerable attention on this the statement of facts in support of the plea and also on the sentencing stipulation regarding her consciousness when he came back and excuse me when he came back but suppose you just looked at the earlier struck if they just looked at the earlier stuff i suppose we just look at the what is huge i think it is still clear from the record that there is a question of fact here and that's why some question the question of fact is when she became unconscious which is certainly what we know that she was conscious when they write her to the blows on the head right but simply a supreme court and they are not arguing that we back all that out no i'm not trying to erase those the key is what is sufficient and the fact that the victim was conscious for part of the criminal a supreme court explained this they really broke this into two areas one of which was the attempted robbery and the other one of which was the murder itself and they found those two things to be separate and have separate intent and i think that is sufficient evidence to sue to satisfy the cruelty aggravator and the fact that the victim was conscious for some portion of the crime is not itself enough there has to be something more and that's essential to imposition of a death sentence is that it's a crime outside the norm so the the mere fact i don't want to say mere fact because of course it was terrible but the fact that she was tied up and restrained prior to the blows on the head would not necessarily be enough in and of itself to satisfy the cruelty aggravator and i can ask you to move off of this point because i'm not persuadable on this i just think there is a supreme court is clearly right that any reasonable jury would have found this aggravator to to be present so you don't lose if if that's the case just move off of the explain why the arizona supreme court was unreasonable in thinking that whatever mitigation evidence your client put on the table just wasn't sufficient to overcome a pretty pretty strong aggravat or i would say here i would certainly agree that this case that the sole remaining aggravator could be considered i don't dispute that but i think the difference here is again the way a rational or reasonable juror could have looked at the mitigation evidence in this case and i think standing above all other issues is that mr sansing is genuine demonstrated remorse and acceptance of responsibility in this case an addition to the fact that mr sanson repeatedly stated during the sentencing proceedings that he was not i mean he didn't he didn't question i mean he confessed he allowed his family to turn himself in and he wanted to admit guilt sooner than he even did but he had i mean he he pl to the place to he did yes and i just confession what did he say about the consciousness oh your honor i don't remember that off the top of my head but i can look at it and let you know i'm sorry i don't but that wasn't really part of the record here i don't think so because he pled guilty i think that factual basis is a leading into that i was just looking for that because it seemed unusual if he didn't resist the family so they sort of turned him in he didn't resist their arrest and so it seemed like he would have confessed but i didn't hear anyone talking about it he went to see his sister i think with the intent of telling her and he wanted to speak to his mother before he turned himself in according to her testimony so when they called the father to try to track down the mom so he could speak to her then that dad's told them that he was going to call the police and mr sansing waited for the police turned himself in and then except at all responsibility for this crime and repeatedly stated how sorry he was how remorseful what a terrible act it was i mean this case is fairly unprecedented in my experience as far as the degree of acceptance of responsibility and remorse displayed by a defendant and that alone is something that a reasonable jury could have found should result in a sentence less than death in addition to what are we review but but under after jala and after the fine and that we have of the supreme you know after the opinions that we have what deference do we have to do they obviously heard all of that you know sometimes  sadly and we see this i mean sometimes you can do something that it doesn't really matter whether you're sorry or not it's too much and i understand that i don't i believe based on the record in this case that that that's not true here that there isn't a supreme court was objective leon reasonable beyond disagreement by fair minded jurists whatever standard you want to apply in finding that there was there was simply beyond reasonable doubt no chance that your primary that i mean that's kind of hard to plug into the i mean what i have a lot of trouble with his what what is the what would be the jury's role here now i i suppose at least trying to the arizona supreme court standard the jury would could part of the harmlessness analysis is whether a jury would have that mean the remorse that he had remorse is really debate right now so the question would have to be whether they thought it alone was enough to counsel leniency and i'm not i'm not but no one seems to think that the ultimate question of whether he gets the death sentence is part of this is it i think the question as to whether or not the mitigation was sufficiently substantial car for leniency was what the court was deciding ok so yes but certainly the remorse alone is not at all the only thing on relying on i think the other is very strong part of the analysis here is the consideration of the g one mitigating factor about whether or not mr sanson was significantly impaired at the time of the crime and the trial court did find mr sansing was impaired but not significantly not enough to rise to the standard of the statutory definition and that is certainly again a question of fact for the jury there was ample evidence presented that the arizona supreme court does not address regarding mr sanson is drug use even in the middle of the sequence of crimes in this case i mean he called the drug dealer and had the drug dealer come to the house and sell him crack while the victim was in the house before he actually killed her and none of that is even mentioned in the arizona supreme court discussion even  it was presented to the trial court so this is certainly a case where it again like murdoch where a jury could have viewed this evidence very differently than the arizona supreme court did and murdoch that this court specifically discussed the arizona supreme court's reliance as post crime actions and covering i think are that doesn't really always there's another way to look at that it doesn't really make it any less heinous if someone calls for more drugs while someone suffering but this isn't consideration of the mitigating factor though of whether he was significantly impaired so again no one is no one is trying to undercut the severity of the crime here but the question would be whether or not he was significantly impaired and between the evidence proffered by mr sampson his wife regarding his state of mind and his actions the evidence regarding his ingestion of drugs that the day of and during the crime and his actions afterwards including the next day when he sobered up and you please the court my name is lisa guard i'm from the attorney general's office and i represent the warden in this deal i'm happy to clarify the call to standard if the court has any questions about that why don't the standard for proving cruelty go ahead and all it requires is a period of conscious suffering either mental or physical suffering so to answer some of the questions that you have from its course the period of time prior to the moving van during which the victim was indisputably there is no dispute that she was conscious and the evidence establishes her you know asking the children for help and praying and begging all of that is sufficient to warrant cruelty and i agree with the court's observation that the arizona supreme court has just what have to assume that he was he was needing to come back to murder her and that this was part of getting ready to murder her does that matter i don't think it does because i don't think we have to assume what his intent was at that time because the state court there's a supreme court looks at the entire murder transaction and the totality of the circumstances to see if there is a period of conscious suffering during the murder transaction and here i think we have i think the record has several minutes of this supreme court's on matter yes and what i think there isn't a supreme court was doing was as a matter of state law going beyond what ring to required it to be say that well not no in all candor it didn't say that but it did say  it does recognize that throughout the ring the state court ring opinion ring three that ring two was limited to aggravating factors at the end of the opinion they mentioned that mitigation is also needed to impose a death sentence or a finding of no mitigation sufficiently so that he needs a card as another fact it was necessary to write to him right and i think the critical word there is imposed not to make the defendant eligible for so well that's a little have no clearly established supreme court law right now let's go there for a win when arizona now is filling in that that vacuum and it's telling us what it thinks the standard is and it did why we supposed to do something else so what if it thinks the standard is i think i look at the question a little bit differently than that i think i think what's at issue is that there is a right to sixth amendment to a right to a sixth amendment finding of aggravation and that was the right that was violated i think lopez versus smith i think white versus what all i think the supreme court's recent emphasis that you can't expand its precedence in order to say that a state court decision is i thirty i mean under under our law what three judge panel could do miller versus gabby requires that we have a head on conflict and we don't know i think it is a head on a conflict in the application of because because what murtha says they actually say understanding of murder wasn't that it said this is the standard set this is a standard the arizona supreme court is using in the vacuum of any clearly established law so that's the standard they said effectively i think that's what they said and i think that was incorrect because it's the standard that the arizona supreme court is well maybe i misunderstood your question but i think what murdoch says is that because the arizona supreme court went farther than ring to required and doing its harmless error review that well they are i may have gotten less far because again it didn't do structural error but it did what it did and the question is in the absence of a supreme court clearly established supreme court law why don't we use because i think that the critique clearly established supreme court law is ring and i think that when the harmless error review of the aggravating factors was completed that the harmless error review of the federal question was completed and what remained was a review of really a state of the analysis and i'll just tell you where i met i i don't agree with you on this murder thing i think we're bound by it i do agree with you that the aggravator there was plenty of evidence to satisfy that and that any reasonable jury would have found tha t when i'm on the fence about is whether the mitigation evidence is strong enough and in some ways i think your opponent is right in some way unique enough that we could say that the arizona supreme court was unreasonable in basically saying course and let me just preface my my statements by saying that to you because under davis versus iowa you do have to defer to the state court decision you have to find that it's just not even debatable that it's wrong  so why do you keep saying that we're supposed to do the i mean as i say i think you're better off with the bracks standard than with the davis standard if you properly which are brief did not factor in that the standard has to be what a reasonable jurist would think a jury could do beyond a reasonable doubt if you put if you put that beyond a reasonable doubt and there must be better off with brecht but whichever what is true how can you tell me that that gave us especially given our  subsequent law which applies brecht and doesn't leave the breakfast  so what is the standard of review for the arizona supreme court's from your perspective determination that ring error was harmless and how much deference mets we give the arizona supreme court's decision and may we determine for ourselves whether a rational jury could have found the facts call for leniency so can you just tell me your position and i'll let you do that without asking any questions and then my position is i disagree i just agree that practice more favorable first of all my position is that we that you need to defer to the state court merits adjudication and that you can only set that aside if it is objectively unreasonable  that is not debatable by fair minded jurist now so how does that determination compare to whether a rational jury could have found that the facts called for leniency that's a standard let's just leave it aside ok because it's not the standard ok ok then i guess i'm sorry i filed late and i didn't let you finish so go ahead that's i think i had i think i is there anything in her decision that you disagree with or that you think is inconsistent with a ya know my memory of her decision was that she just focus on the aggravation it was before and i think that  i think she did the analysis right frankly you know my position is that's what that's all you look at could you just answer my call yes i can and to answer your question you know i understand this garcia's point i agree with her in some extent that it's unusual that a defendant would take responsibility and stein in fact found that mr sampson had genuine remorse however the aggravating factor in this case was extraordinarily weighty and aside from his say that the statutory mitigator that was one of these number straight that there wasn't enough evidence to meet that but there clearly the his drug use obviously played a very significant role in his involvement in the crime right so you have that as a given i think the jury could give quite a lot of weight to his wife's yes they're still married his wife that on this day he was that was not my husband ok i've done drugs with him a million times and i'm telling you that day for whatever reason the man when i came home from work the man i saw there that was not my husband he was in some other place so i put that together with the  obvious role that the drug use played in his commission of the offense and i i just want to why wouldn't a jury be able to say look maybe this was aberrational right i mean maybe this guy isn't the the epitome of evil evil that his axiom to suggest he is maybe for whatever reason he was just you know you know i'm saying that seems to me a totally reasonable reading of this record i guess i need to hear something more from you on that point well i agree with the arizona supreme court's finding on that that that is undercut by his his actions and planning and in concealing his activities which show that the drugs weren't really you know completely driving him that he still had control over his faculties and nothing to prevent himself from being g one mitigating factor can't be established if the if you don't have that kind of explanation relationship with that but right but the non statutory mitigation the weight of it can be affected also by the fact that it doesn't explain what his actions were and here i think you know what is there any evidence of a plan to murder i don't recall i don't believe that there is evidence he planned to murder her now and then and then they say well but he tried to cover it up well he sure did i crazy job of it if that's what he was trying to do because he left her  crime and then as soon as you sobers up he goes in and turns himself in essential right well he also he also lied when people called the house when the church called the house looking for her he lied and gave a false address to throw them off the tr in looking at the arizona supreme court in terms of it seems to me that they evaluated and made certain findings about what a rational jury could have found  so then it seems to me when you get to our level and you have to apply that we don't ask that same question that we're asking the question of a fair minded jurist whether fair minded jurists could disagree on that point all right so incorporated in this i'm concerned that after  seems that they made the rational jury analysis and that we're looking at it through a different lens how does that agree or disagree with your that seems correct to me that's that's what i was i guess trying to say before that you know you are answering the question could any rational rational or was it objectively unreasonable for the state court to apply chapman the way that they did and to make the findings that they made and if it was and if those are at least to this question which was the before the the trial court the point well then maybe it's more appropriate to say that they corporator the sense in judge's findings or you know they made they made they had to make found to be proved by by a reasonable jury so i think they had to resolve some and they have to be legal or not binding what happens the stipulation in the guilty plea and all of that how does that play end to what can be revisited at this point what can be revisit well i think counsel for the petitioner is arguing that there are still issues that need factual issues that needed to be resolved by the jury how does that play into what he stipulated to because there i think she's arguing that there are certain things about the consciousness there are certain that still have to be decided right well and that goes back to my prior argument that that i don't think that it is to the extent there is a factual dispute about the host of the unmoving period which i don't disagree that there is but the extent there is i don't think it really matters because we have the undisputed pre pre van moving period also he did admit on two occasions that she was conscious when he came back and the record really isn't aside from his admissions really isn't that ambiguous as to whether she was conscious because kara sansing said that she was even though she she initially testified differently than she had previously told police but was later in piece at that statement and the medical examiner said that he doubted that she would be conscious but it wasn't impossible so i don't think there's certainly willing to grant deference to the arizona supreme court's judgment but no no jury in there no juror correctness just even a single juror no single juror would be moved enough by this mitigation evidence to vote for leniency and i guess just one of what  how do you make that prediction what are you relying upon that we have empirical evidence that says when twelve random people are exposed to this kind of mitigation nobody thinks that counts for anything i mean i just it's such a abstract kind of moral judgment that we asked jurors to make and i that's why i struggle so much with trying to figure out is the arizona supreme court objective we are reasonable here or something just one of you seem so confident that you know not a single juror would have been moved by this what do you rely on point to make that reason why this assessment should even go into mitigation because the aggravation is the factual question pressure on bank petition but where and i know i understand that but i just i think it's relevant to answer your question because you know the assessment of mitigation is inherently subjective so from that perspective i well if the standard is fair minded jurist all right if we don't agree a med star selves or a fair minded  a fair amount a lot it would be helpful to me if you quickly addressed the mckinney problem which your opponent cannot but it seemed to me not the trial court which seems to me there is a read of what he did that says he did consider these factors in some way but that's how the arizona supreme court both in its first opinion and it's a second opinion on the ring the lack of a causal link in terms of weight and i gree that in the first opinion they did cite some of the cases that were found to be problematic in mckinney including the wallace case but when you read it the opinion as a whole and and i'd like to i thought of twenty eight a letter citing greenway which says that you still have to look at the individual language in each opinion to determine whether there was there and we can't just rely on the time period during which the mckinney found that there was a causal nexus test applied but if you if you look at the first opinion the court does cite those cases but then says that the sentencing judge gave the evidence appropriate weight and he did give it some mitigating weight but not significant mitigating weight so mckinney as i understand it says that there was a cause of much this test some place that that if it was if if the mitigation didn't pass that test it was deemed irrelevant and couldn't be given anyways so here the fact that there was weight given in the first opinion i think defeats any make any problem the second opinion and the ring opinion i think is much farther removed from mckinney it doesn't have any of the well i guess let's go back to what yes the supreme court and this first opinion arizona law holding sure arizona law states that a difficult family background is not relevant unless the defendant  white because because it's not relevant unless you can establish it as family experience into his criminal behavior well i think there are incorporating his ruling on that and judge weinstein gave some weight to that evidence he said he's not giving it significant weight and they also say no testimony suggestion of the defendant's childhood affected his behavior on the day of the murder that's correct the evidence on this subject cannot prove a loss of impulse control or explain what caused him to kill so they went on and on about that that's correct that's correct but they're not they're still giving it some weight what's kind of a fine line because it's sort of like if let's say you had a good no you had a really bad you had a bet you know they put on evidence that you had a bad situation at the dentist ok and the court listens to it and then just says i don't really see how i'm hearing it i'm listening to it i'm not saying it but it just doesn't change you know it just doesn't seem to figure into why you committed this particular crime that you know that it is i think the mckinney problem is just like saying out a hand i am never going to look at and you know but you have to necessarily when you admit something you have to how much weight you give it has to somehow taken to a fact what how relevant it is to what happened and if it's completely it just doesn't seem to have any value to explain what that it doesn't mean you didn't consider it it just means at the end of the day it it's not going to make a difference that's correct that's right and even you know even that after the post two thousand and five period that mckinney said because he says arizona is that a jury would be entitled to say all right this is why he committed the crime but he has such a miserable life that you know just in general and terrible things happen to him and we're going to and therefore we think he should be put to death even though he did this terrible crime and this wasn't because of it that's the concept of adding society right and that's seems to be the concept that's being rejected here well but i say it's not relevant not relevant seems to mean it's not there is no chance you can matter right i agree that i agree they cited that but then i think that there's no weddings problem because at the very end of the paragraph they give way second ring opinion i understand they talk about a causal link in that opinion but they don't have the same citations to the problematic cases from mckinney in the ring to opinion and in that case t about weight again i would submit that when you're looking at the harmless error question if you get to that point if you disagree with me and you find mckinney or i think that the ring to or the stance into opinion should w the analysis as to whether there is harmless error because that opinion tells us what the arizona courts would have done assuming there was a causal nexus error in the first one that they still are not giving weight to the mitigation and also i true yes but and i would direct you then to also i say i understand it's a different issue but i still think it's relevant to the harmless error i would direct you to the rule thirty two opinion by judge jones who made the same finding based on even a more enhanced mitigation profile that that this would not be enough to warrant a life sentence and that was done well outside of the time period but again you know under greenway the time period just isn't it's not just positive you still have to look at the language of the case just a few quick points that i'd like to clarify first of all the greenway opinion is not the same as that is what we have in this case as far as you can you are the important thing in the greenway opinion was that the court made no mention of a causal nexus at all and that opinion there was no evidence that was applied they didn't even say the words causal nexus in that discussion however when you look at there is in the supreme court's two thousand and three discussion here they specifically state that there is no causal nexus so even though they're not citing the same cases they had cited in their previous opinion they're clearly not establishing any kind of a break with that the findings and certainly there's nothing about the time period that has changed from that between the two thousand and one and two thousand and three opinion they don't disavow their previous discussion of the mitigation finding no causal nexus so certainly the fact that the mitigation that was present at the time of the ring harmless opinion was discounted based on the lack of a causal nexus is another factor that this court should consider when deciding whether the mitigation could have beyond a reasonable doubt the court could say that no no reasonable juror would have sentence sansom to something other than death in this case we have the dispute about the drug evidence and just like in murdock when that discussing the steps that were taken during the crime and judge a person as you noted a lot of the actions that mr sansing took were nonsensical based in the light of what had actually happened who knew what happened the actions he took to cover up the crime care for and so i think that i too in this occasion murder now as to the drug issue have observations about how he was behaving yes his estimate about how the the dollar value of how much cocaine he taken which is meaningless to me i don't have a clue as to whether how much called paid for and fifty dollars or two thousand dollars worth of cocaine is  know anybody else would and you know some objective view it was behaving as if we had made it otherwise yes i think that's probably true your honor and i will agree that i think that the especially considering how long ago this crime took place it is hard to quantify i think if you know again looking at the post conviction proceedings as ms guard had suggested as analogous there was a drug expert that was used there and his his statement was that the drug regarding the crime i mean we do know he moved the truck only a few blocks away you know we know he put her body in the backyard in plain sight i mean the actions that he took really were not were not the result of some sort of logical or well thought out plan and i think that in itself is analogous to that discussion and mr murdoch's case and in addition one other factor is that the arizona supreme court emitted in the discussion in the ring harmlessness opinion about mr stance and low i q it did talk about his lack of education but low i q was another factor that was presented to the trial court and the record reflects that a motion for reconsideration was filed regarding the omission of that factor and of the four justices that were partaking in the decision of that the fifth justice was then justice hurwitz who argued ring before the united states supreme court so he recused himself so at that point one of the other judges change sides and so it was a two to split and based on that the motion for reconsideration was denied so at least another justice the court agreed that the evidence i mean most likely that was that was a recess chasten of the issue about whether it was a structural struck the issue was the was the fact that the evidence regarding his low i q had not been considered in the opinion that was the issue that was in the motion for reconsideration and yes your honor so that is another so i think when you look at the fact that you know between the drug use mr stan sings lack of education and his low i q the evidence that was before the trial court regarding those things in addition to the information about his drug use those are all things that a reasonable jury could have decided were warranted a sentence less than death your time so thank you so much thank you both for a really useful argument difficult i would also like to compliment both of you on your argument these are really difficult cases and you both showed a  great understanding of the law and the facts and i think argued very professionally it's really easy in these cases to get upset and it isn't always helpful to the court and i think that you both really did an