on the severance question mr mcallister mr chief justice and may it please the court the joint sentencing proceeding in these cases did not violate the eighth amendment because each defendant received the individualized sentencing determination to which he was entitled each presented all of the mitigating evidence he chose to produce the jury instructions explicitly told the jury to consider each defendant individually in fact there were several separate instructions some that related only to one defend or only to another defendant the jury for each defendant then had to complete a specific verdict form and this jury had already proven its ability to distinguish between these two defendants when it convicted one of some counts in the original guilt phase which acquitted the other the only way the kansas supreme court gets to an eight them an error in this case were really there two points one it relied upon possible and one instance not even violations or errors of state law to follow and a prejudice that that rose to an eight the moment level into it disregard it altogether with really no explanation the longstanding foundational principle the juries are presume to follow their instructions that the two state law errors arguably that the kansas scr one was the admission of evidence of the sister who made the comment about reginald may have told me he shot those people well that's not even an error state law they said basically that's prejudicial it might not have come in if they'd been another look at that second question depending on its resolution of the two questions that are in front of it today but if it goes back in that posture yes they would have another ground any evidence introduced with respect to one of the defendants that could not have been introduced against the other had there been severance the only orderable evidence really justice kennedy is that what reginald refers to as the corrupting influence but even that arguably it would be relevant to the mercy consideration to show his character the nature of this person as being sentenced and that was the notion that his mother testified that sometimes force jonathan looked up to his big brother and maybe sometimes reginald was a bad influence on him but that's that was really the extent of that evidence and that might have come in as a rebuttal to a mercy argument that the can the supreme court did not really definitively say that was even state law error but even if you assume that honor kansas would propose and i suspect the united states can propose something as well but it's a very high standard isn't eight the minimum that are and we would say we would be content to accept something like it's a serious risk that a defendant will not be able to receive individualized sentencing is sort of molding the traditional notions of joinder with the eighth amendment consideration because that seems to be the only ate them in consideration here is the end of the members or is it due process where you could use a due process standard which would also be fine with the question would really be did joinder so in effect the process with that was unfairness that the proceedings are fundamentally unfair that seems like the language  relevant rather than cruel and unusual punishments language well and that's exactly what this court said and remodel versus oklahoma a case in which the defendant's other a death sentence in a separate case was admitted against the defendant in the sentencing proceeding that sentence later got reversed and the oklahoma court said the jury should not have heard about his other sentence as a matter of state law that defendant romano citizen ate the memo violation and it's a due process violation court so they the moment doesn't of the things that pointed to specifically was jury instructions that said these are the aggravating circumstances you may consider you may not consider any others the court said we presume the jury follows its instructions and nothing in th direction gave the jury here anyway to give a fair act to that improperly admitted evidence and that's true here to the extent reginald carr argues some of this evidence was really used as an on statutory aggravating circumstance by statute kansas does not allow anything other than statutory aggravating circumstances in the instructions number five i think for red zone number seven for jonathan very explicitly and clearly say here are the for aggravated circumstances the state has alleged and then the next paragraph you may not consider anything else as an aggravating circumstance so in your view the most the kansas supreme court could come up with as a potential violation of state law if in fact the evidence which is minimal in the greater scheme of this proceeding that reginald was a corrupting influence on jonathan if that would not have been admitted that's really all the same candor supreme court is left with to hang its hat on finding and saying there's an eighth amendment violation here can you tell me if you're aware in other states or perhaps even in kansas and other trials is is it a common practice sever when they're the penalty phase when there are multiple depends justice kennedy i think in the briefs i don't remember the exact page there are two states that mandate severance one ohio and that's i think george very difficult for the troad to decide which should go first it would and that's one of the reasons i mean not just judicial economy but in a sense overall fairness having them tried together and you don't have one defendant having an opportunity to preview the evidence that the state may present and the arguments that may be made this court has recognized that potential tactical advantage in other jointer cases of course it's not had a jointer capital case like this but in other circumstances that's a factor the court is also emphasized the consistency of determinations with respect to facts we're not saying the outcomes have to be the same but when the evidence the mitigation evidence is ninety nine percent overlapping they were using the same witnesses even the experts were co authors they were testifying to the exact same things essential about each brother all that overlapping evidence what this allows is a consistent determination by the jury and evaluation of all that mitigating evidence it leads to whatever outcome the jury decides but the jury was very clearly told to consider each defendant individually and that's what they got was individual consideration i would  say also you know remember even if this court were to think there were some kind of error which kansas simply does not see here again at most possibly an error of kansas law and not an eighth them a violation it would have to be harmless under any standard and kansas would accept any standard is beyond a reasonable doubt certainly here given the four uncontested aggravating circumstances you don't have to look you have any of them you know where you know the pages where they are despite well i think the in terms of the yes i can give the aggravating circumstances are set forth in the instructions just as were so i know and yeah instruction number five instruction number seven for jonathan and then following each one so i believe instruction number six and instruction number eight but the minute gating those are the statutory mitigating circumstances so what happens in these cases is the jury i have to do is go through this huge record on the sentencing anyway and see do i really think that that this evidence that came in that the younger one thought the older one was the monster that you really have and if well would i have to do i don't i don't see i could avoid that if there were no row well i would say first of all if you were to do that it would be quite clear the evidence is overwhelming but furthermore the promise is not supported really by the record they say jonathan's whole strategy was to paint reginald is the bad actor here that's not really what happened what they both presented was lots of witnesses and testimony about their their childhood and their experiences growing up and they presented psychological experts to talk about their mental condition no expert said reginald had some kind of psychological control over jonathan that testimony to extent it's there at all comes from their mother what do you think about a case whether or not this is that case in which it's quite clear to a judge that each of two defendants is just going to be pointing to the other person and saying that was the bad actor he is why these terrible crimes committed and you know that you know each of them is going to be doing that should it judge separate the penalty proceed in that context well not necessarily if a high standard is met that it will not be possible perhaps to give asking you in what kind of factual circumstances you would find that standard that rarely but i think it would be certainly the court has recognized in britain you have some sort of codefendant confession and confession situations if there was something that had not been used in the guilt phase might be relevant in the sentencing that might be so prejudicial we have tried think of other examples i might suggest something like one is claiming at the point in time some kind of insanity even though they didn't succeed on that at trial if there was something really starkly contradictory in their presentations and you were going to get a lot of evidence about one that really had nothing to do at all with the other but we do believe it's a high standard that we would rarely be satisfied especially given the court's longstanding presumption that the jury follows its instructions and that's one thing i'd point out here is the complaints the that each makes in this court first of all at least one of those complaints really wasn't even made in the kansas supreme court much less the trial court and that's the shackling of reginald and whether that might have prejudice jonathan but they'd there was no compliance during the sentencing proceeding this corrupting influence evidence is jonathan although of course the irony there is the jonathan's own expert all but diagnosed him as anti social personality he said out of twenty six risk factors that the department of justice has recognized for violence and sexual violence jonathan has twenty four of them and both brothers talked about family history of mental illness both brothers and their experts talk about whether some of these things were hereditary or genetic this was really a case in which it made very good sense to proceed with a joint proceeding because the evidence ninety nine percent was overlapping essentially and they were calling the same witnesses taking turns with those witnesses judicial economy nor fairness neither one would have been served any better by separating this into two proceedings and in fact i will conclude cornell unless there are further questions with this observation that prior to trial to the guilt phase the prosecution actually offered to have two juries sit through this proceeding jonathan's attorney said he would consider it and reginald's attorney rejected it so the state even tried to reach some workable system mr chief justice and may please the court can the supreme court erred when it found that the state violated the eighth amendment by conducting joint sentencing proceedings for the crimes that respondents committed together proceedings can enhance accuracy and fairness as a long line of court's cases hul they provide a fuller evidentiary record to juries that are assessing relative culpability and they prevent arbitrary disparities that may arise when two juries reach inconsistent conclusions about the common facts of a single crime dis any difference between the federal government's position and the position of the state of kansas on this question as to the standard i think there's a small difference i think our proposal is that the constitutional standard is whether evidence or argument resulted a denial of due process or the deprivation of an individualized sentencing proceeding and that's slightly different from kansas is standard because kansas is proposing a rule that involves analysis of risk and we think that's part of the statutory rule under rule fourteen as just the sort of my or alluded to it's also part of the statutory standard that states by and large are applying but we think the constitutional question is just was this person deprived of a fair trial by the evidence that came in and that's the constitutional question you said it the first time you had deprived of a fair trial and then something about individualized sentence and is that right is that supposed to indicate that this is derived in both from the due process clause and from the eighth amendment while the eighth amendment does speak to this need for individualized  determination we would think that the due process clause also requires the proceedings be individualized but we would agree that if there were a situation where there was a joint trial and because of the evidence introduced by one for instance a jury simply could not give individualized consideration to a second to the second defendant that would be a constitutional problem and to give an example of that i mean i think the example the court suggests ins of fear of that is where there's aggravating evidence that pertains only to one defendant but that aggravating ever it's just so prejudicial and so overpowering that the jury couldn't really separate the few would be inclined to sort of judge the second one by association saying that's the example the court gives in to fear but it's not oh don't you think individualize consideration is required even in non capital cases absolutely your honor so i think it's really a due process consideration and i think due process in compas is that requirement that individualized consideration just to address the several the points that came up during petitioners argument as to the question that justice kagan asked about whether when defendants are simply pointing the finger at each other that would i think that's the question that the court addressed in saffir oh that was essentially the claim the defense were making that we're both going to point fingers at each other at trial and the court said that doesn't necessitate a severance that that may in fact increase the jury's ability to reach an accurate verdict initial he said he's the one who he said he's the one who shot i don't think that's prejudicial evidence and certainly not any constitutional problem with the admission of that evidence i don't think that even reginald carr is asserting that that evidence couldn't have come in against him rather he's asserting where the state below suggested the sticker below suggested maybe that maybe the state didn't know about that evidence and maybe just as a factual matter it wouldn't come in but there's no constitutional reginald's primary claim before this court is that there was a violation of state evidentiary law because some of the other evidence the evidence of bad influence might not have come in under the state rules i think this court's cues are clear that  i take it that reginald could not have introduced evidence refuting these brothers state of mind that he was the monster that's what you're referring to by the bad influence so the jury might have taken that evidence into account in trying to decide whether reginald for other reasons and in the statute was a sympathetic enough character not to provide the death penalty it's conceivable but severance is very very rare and joint trials are very common and very common is the claim on an appeal in any kind of a case that it shouldn't have been severed so do you have cases that you can think of that would a good precedent for you we are a court including particularly this court said of course there might be a little prejudice here some but it's not enough to warrant severance because i think what i have to use read the record on this point and then i amendment has to be with the constitution have prohibited this evidence from coming in as to reginald carr that and we think the answer is no any evidence that's relevant to an individual the family doing normal severance cases for getting the dea cases seems to me the argument has been look they never would have gotten this piece of evidence in against my client they brought it in against the of the client a go look at that evidence and you'll see how much my prejudice of my client prejudiced bath i don't know if you call that due process maybe you do but that's the kind of argument which seems for a quantitative way what's that's why i asked the question i think i would go back to the furor again on on that one your honor because i think the fear is that when accurate evidence comes in through a codefendant that's relative that that's relevant to the jury's determination that's not prejudice that's information that may enhance the accuracy of what the jury cheeto me why we should apply the standard which was joint trials but this is joint sentencing where there's a different why there should be exactly the same standard applied so we thinks of you know even to individualize sentencing so can't you say well aren't you required to say that something a little bit more than then the efficiency of a joint trial has to  to be considered yes your honor we agree that sentencing is may involve special consideration is what we think the fear establishes is that generally when more relevant information is placed before a jury that's not prejudice to a defendant that's not unfair and that more information are likely to make more accurate decisions and i think that's required for sentencing and similarly that juries with more who are confronted with two defendants together can avoid the on warrant disparities that may occur when juries reach different results to differ juries considering the same facts trunk it's it's certainly possible you are that if there was a second jury the government could simply introduce for instance the evidence of reginald card statements to his sister at the second trial so you're introducing this disparity that just as candy alluded to between the defendant  first and it would the second jury have been present for the past for the guilt things well in the federal system there are a number ways you could do with it you could have two juries that hear both the guilt phase and and the penalty phase and you could have a second jury impaneled only for the penalty phase but then in a case like this you would need to essentially repeat all the trial evidence including crime victims again because that because the state was relying on its evidence from the trial  and that's generally we should be going to be the case i think i missed something you said but forgive me but the constitutional standard that you are proposing is that a constitutional standard for both the guilt phase and the sentencing phase and is it also for both non capital and capital are you drawing no distinctions among those four things i think that's right your honor because we think that the due process standard essentially subsumes the requirement of individualized consideration and of phase of a capital crime and then as the sentencing phase of a capital crime if i mean answer very briefly your honor we think the reason that's the case is that joint trials often enhanced accuracy and fairness so we agree that accuracy and fairness considerations are at their paramount in capital cases but we don't think that militates for a different standard couple of cases because we think that the standard that the courts are applying is one that's going to generally enhance that ice thank you counsel any case where two defendants point their fingers eight at each other we're advocating a rule that this court has recognized and sant stringer and sanders that that an eighth amendment violation occurs when the weighing process itself is skewed in the way they are you saying the severance rule is the same in non capital as in capital cases the general severance rule your honor is the same and you just look for prejudiced exactly that the general rule is you can't have  have affected the choice well this court your honor recognizing satterlee it precisely how difficult it would be to conduct a harmless error analysis in a felony phase and that's precisely because there are so many factors involved sure the crimes in this case were h so that's just one side of the scale in a harmless error inquiry there's an entire other side of the balance the mitigation side and so it is quite difficult for this court on a cold record to go through the harmless er the evidence that jonathan presented that reginald had a corrupting influence on him while they were growing up and that evidence as the kansas supreme court itself held a petition appendix for eleven folds beyond the rubric of any valid sentencing that mr libby i mean given the kind of evidence that was presented in this case the idea that somebody was a lousy big brother seems pretty small on in the in the scale of well a few responses to that to begin with i think you're your honour's understating the evidence here this wasn't just that reginald was a lousy big brother it was that he did things to jonathan that turned jonathan into the person he was capable of committing and even leading these crimes so this wasn't just lousy big brother evidence this was evidence that reginald himself was the source of what caused jonathan to do things he did but you're right i think it's also important to keep in mind two separate parts of the admitted wouldn't have been admitted in the separate trial while all this evidence mr chief justice that says reginald was a corrupting influence on his brother that wouldn't have come in in a separate trial for two reasons number one  as the kansas supreme court held a petition appendix four eleven that evidence was improper non statutory aggravating evidence which is to say all of the aggravating factors for the pick prosecution pursued in this case all had to do with the circumstances of the crime but this evidence had nothing to do with the circumstances of what happened on december fifteenth it had to do with the defendant's character concerning concert that occurred years even decades before the crimes at issue no one to me you're you're representing the brother who was the alleged corrupting influence right that's right the corrupt or the corrupt or was certain stood by the same jury to death so how could it possibly be that without the corrupting actions of your client we jury would have sent your client to life even though the corrupt t was certain to death and it doesn't seem to me at all likely well to being begin with i don't think jonathan carr's sentence is a proper baseline two years as my friend will argue in a few minutes his own sentence was prejudiced by severance but even beyond that there's every reason to believe that the jury viewed jonathan as overall more culpable than reginald after all the state never established who the shooter was here if the jury believed that jonathan was the shooter the jury could have believe that johnson was so culpable that even with this evidence that he had been co  these two men broke into a house in which there were three men and two women they ordered the five to remove their clothes forced them into a closet over the course of three hours they demanded that the two women perform various sexual acts on one another they demanded at gunpoint that each of the three men have sexual intercourse intercourse with both women then reginald drove the victims one by one to various a t m s to withdraw cash jonathan raped or attended to rape both women twice and reginald raped holly g who later testified once placing the three men still naked in the trunk of one of their cars the cars drove all five to a soccer field forced them to kneel in the snow and shot them execution style in the back of the head one of them for asli was not killed because i think it was a hair clip that she was wearing deflected the bullet and she is the one who testified to all of all of this activity and  truly think oh and they ran over her too after shooting or in the head the car ran over you truly think that this jury bought for the fact that that your client was a corrupt after all deliberated a full day and what picked what kansas thinks is quite an easy case i think that the scales of the weighing process were much more evenly balanced than that do you think that the desire to spare holly from having to testify more than once is a relevant factor here and if so how could that be how do you how would you propose to accommodate that it's not a relevant factor and that's not my saying it's this court saying it this koreans or fire and britain has said that the benefits of joinder while they may exist cannot come at the price of constitutional rights so while i completely appreciate that severance would require some duplication of resources that's precisely the sort of benefit of this court has said cannot trump the eighth amendment so if you are right join your being among the most common kind of thing with gangs of drugs and so forth won't the same argument be made over and over preventing requiring severinsen in dozens and dozens perhaps hundreds of cases where the government tries the gather is they'll say there are different relationships among the members of the gang those relationships some evidence will come in that would negative the relationship that would tend to show that this particular individual wasn't actually involved in this aspect of it so that's why my experience on the courts lower court to think it's a very rarely accepted argument well you every year i just not so i'm interested in the i mean because if it were you'd find very unusual to try people together which in fact is very usual and it's only when you told me there's no separate thing for the death cases then i imagine it would affect every criminal trial of gangs throughout the country well i phones with that is something that's concerning me and i looking for any and you're absolutely right justice prior that under our rule the circumstances of each case are relevant but i think what's also important is is that the sun the circumstance of some cases might not give rise and it's what i'm looking for why use it you believe that if i were to decide in your favor in this case and find the sufficient providence prejudice to warrant severance here i wouldn't at the same time be throwing a huge monkey wrench right into the ordinary cases of gangs drugs etc where join sentencing hearing or are you proposing separate juries each of the brothers while the kansas supreme court in this case ordered as its remedy a new trial with two juries but i don't think that is necessarily going to be the required remedy in every case there are different ways justice ginsburg to solve the problems of say let's take this case if you had only one jury and jonathan goes first with jonathan going first is going to work in this case or so i say because the jury won't be you won't be able to the bell of precisely the evidence that we think is prejudicial in this case but that's not to say that  solution isn't going to work in the mine run of cases this case is special just because there is some allegation that the prejudice ran both ways by the minute but the minute you defend the idea of two different juries then you sacrifice the desire deserve believe in the in the possibility of consistency well justice kennedy there are many ways that states have developed to resolve the problem of inconsistent verdicts among different juries one way is what the  georgia state has done which is have proportionality review they ask the appellate courts to look across many sentences to see if they're inconsistent another way the federal government has a solution to this it's that let one jury know how the other consider this an individual circumstances you know these people acting i mean by the way a jury of your peers unanimously found beyond a reasonable doubt that this other guy should be sentenced to death or do whatever you want with this john that's that sounds pretty prejudicial to me well it it's it's if you think that's precious prejudicial mr chief justice then this proceeding was quite prejudicial too because the jury was asked to compare make that same exact comparison but that specific prejudice were alleging here is is is unique to visa or at least quite quite restricted to the circumstances of this in mr lu could you for me just tell me what is the specific prejudice you're a legend here in other words tell me more than just he was a corrupting influence what evidence particularly him in sure and why do you think it might have managed to the jury surely you're like that shot sure well the kansas said there was no expert testimony on this but that's wrong dr cunningham join appendix pages three twenty four to three twenty nine explain how john king looked up to reggie and every time they would get together they would they would do drugs have we together that reginald is worse because reginald is the one who created the person jonathan is it's in a sense making reginald doubly culpable for these offenses that well whatever you think jonathan did and and ye scalia read there were some horrific things done well reginald should be punished for not only everything reginald did but also everything jonathan that so this is precisely the sort of evidence that basically transfers all of johnson's actions to regi and that's why it's so prejudicial when you get in the jury room it's because it it it skews the weighing process and the skill and the way in process is an error this court has recognized for thirty years this isn't something we came up special for this case this court has recognized time and again that when a jury is told to consider an improper element in the weighing process the weighing process is therefore skewed and the only thing that can cure that there is either harmless  doing by the state court but it has to have been who are malicious in as much as the person who was influenced by your client also got the death penalty how can you say that what made the difference was the fact that your client was a corrupting influence upon his younger brother well justice scalia that the state never established the identity of the shooter and that is the key horrific act in this case if the jury believed jonathan was the shooter then the jury might have given him the death penalty anyway regardless of what reginald did to i doubt whether that's the key if you really think that that's the only thing the jury's going to be focused on those who pull the trigger lord i don't think it's the only i don't think it's the only thing but it's certainly the the man thing given that we're here on a capital murder charge do you think that on a retrial they can't use the sister to prove that reginald claim to was the shooter no and i think that just highlights exactly how narrow our rule is that evidence that to mika said that reginald told her that reginald was the shooter those are the circumstances of the crime and that sort thing or pointing who shot who on the day of the crime is going to fall comfortably within an existing sentencing factor and as a result is not going to skew the way process so the only issue you think was prejudicial was that he was shoulders well if i may i'd just like to address a few points raised by my friend from kansas he said the instructions solve the problem well none of the instructions told the jury to consider this evidence about the corrupting influence only as to jonathan on the contrary the instructions instruction number two told the jury consider the evidence a clickable to each defendant well this evidence was equally apply coupled to reginald as it was to jonathan after all it was reginald reginald's actions that were at issue my friends also point to the instruction on an statutory aggravators but that just regards an entire swath of evidence that the jury heard that it could consider against reginald this was evidence and time mitigation evidence that the jury considered could have caused them to remove weight from the mitigation side of the scale and then structures left the jury completely free to consider this evidence in anti mitigation my friends also suggest that i'm here only arguing an error of state law will no less than the petitioners were in xanth stringer and sanders each of those cases recognizes that a skewing of the weighing process has to be based on state law premises that's why this court in sand went so far as to certify a question to the georgia supreme court yes it's true that to understand the effect on the weighing process you have to look at the state  law but the mere admission of evidence isn't what causes the violation here it's the c admission of the evidence followed by the fact the jury was required to consider it he was required to consider it because it was part and parcel of johnson's mitigating evidence and this cour time and again that a defendant has a constitutional right for the jury not only to consider but to listen to the defendant's mitigating evidence so by considering this evidence for jonathan the jury necessarily considered against we rejected a two jury solution before a trial where we rejected that not because of it wouldn't work to solve any prejudice in the penalty phase but because it wouldn't work to solve any prejudice in the guilt phase and remember the kansas supreme court found that it was actually error to keep that guilt phase joined so we were perfectly appropriate in objecting to a jury through jury solution at that phase of the trial can you explain why and again i thought you  for severance of the entire thing and if you look at those pages you'll see johnson's attorney johnson's own attorney saying that if the penalty phase is joined he's going to have to present evidence that quote there is no way the state would be able to introduce if reginald was sitting here alone well has his attorney was exactly right that's exactly what happened many months later i see that my time is up thank you counsel chief justice and may it please the court i'd like to first try and change the narrative here with some illustrations about the difference between the mitigation cases of both defendants that's easily seen in the jonathan carr's forensic psychologist clinical and forensic psychologist got up and testified that that johnson was sensitive he was affectionate he had attempted suicide and what he really was contrary to what mr mcallister represented you was was depressed and and schizo phrenic that isn't that is it unique illustration of exactly how different these two defendants were in their presentation and why again  sequential penalty phase even if they had been separate wouldn't work reginald says he didn't want to hear ever we thought it would be prejudicial if the jury heard evidence from the from the judge from jonathan's witnesses about reginald being a corrupting influence on the other side jonathan doesn't want the jury to hear from reginald's expert and to answer your question justice kagan that's the evidence that would not have been introduced justice walters doors door testimony about incurable sociopathy would not have been relevant or that maybe i'm missing something but if if your client strategy was to make reginald as bad and the bad actor in the case why didn't that evidence actually go hand in hand with your client strategy which was to say it's on reginald one would think that it would in a typical case and maybe that some jurors had inferred that way the problem was that the fact that the two brothers were sitting together allowed the prosecutors to repeatedly paint them with the same brush and if we take a look for example at j two the prosecutor says to the jury in her opening argument at the beginning of the penalty they work at the conclusion the penalty phase ladies and gentlemen they have the same i color they are now wearing glasses although their mother said reginald doesn't need them they share some d n a this is the maybe you can in your experience cure what's bothering you about the case is nothing to do with the facts or for this is concern it has to zafira and that's the ordinary case of joint trials right and what the court says is you can have the jointer as long as there isn't a serious risk that the joint trial would compromise it doesn't say harmless error it's as compromise a specific problem right or prevent the jury from making a reliable judgment doesn't talk about harmless error now that's the standard that used in dozens and dozens and dozens of cases or if in this case we start talking about harmless error and that you can't have the joint proceeding if there is an error that is not harm us well what have we done to that and what have we done to the trials that are joint in hundreds of cases that don't involve murder or death that is the legal problem that is worrying me and you will either cure that worry or say i've made some elementary mistake it has slightly different language on page fifteen so we should not use the words harmless error we should quote from za theorem and say could they make a reliable judgement now that sounds harder on you because if you all you have to show is the error was harmful it sounds like an easier task you have than to show that the juror jury wasn't reliable or are they the same thing that would be i think they're the same thing and i think that's a generalisation but we've we've offered a test that actually specifies it a little bit more as prior in terms of saying that the test should be whether there was a reasonable risk and i'll explain the difference between reasonable and serious in a minute but whether there was a reasonable risk that there would be evidence introduced material prejudicial evidence introduced that would that would in fact not have been introduced in a severed healthy phase proceeding and to go back to justice kagan's question about the intuitive difference between these two things are between scuse me trials and penalty phase proceedings the answer is that's because in a trial the the relative culpability of the defendants makes a big difference with respect to who's conspirator who's a principal who's an aider and abettor but when we turn to the penalty phase the inquiry changes as mr new indicated it changes from exactly what happened to who this person is and whether or not the jury wants to put this person who if you have separate proceedings who gets to go second because obviously that person will have a significant advantage since we'll see all of the evidence presented in the in the other proceedings while the and most of the evidence here was overlapping so that at least you'll have you'll be able to see what the state thought about that evidence you know sort of a dry run if you're the second person well in in this case respectfully no mr chief justice because what they what the state basically said was we're relying on our evidence from the from the trial phase or from the guilt phase of this capital trial that's exactly what the prosecutor told the jurors when they turned into the penalty phase and all that the prosecution did in the penalty phase was cross examine the defense witnesses well that cross examination is important were there any common defense witnesses there were family members so that so much least it would be it would be helpful for the second person to go second to know well what did the prosecutor  talk how did the prosecutor attempt to cross examine that witness because i'm going to call the same witness and her testimony is going to be a lot better the second time around because you will know exactly what the cross examination questions are going to be that might happen it could well be that that would be i would consider that a minor advantage your honor but that could be handled by the judge it with protective orders with orders about rules against witnesses and and folks in the courtroom we have another p i would submit and then with respect to witnesses who might have been traumatized by these events that the you know a trial court could easily have simultaneous penalty proceedings so that that witness would only have to testify want the defense team on one side wouldn't get an again at the penalty phase right yes you would have to do that but i would imagine that with respective cases like this the defense attorneys are going to move right into what counts and stipulations will read test them on sure you'd like to stipulate  to all the facts that were proven that the guilt phase but i doubt that the state is going to want to stipulate to those and the state might do that and again i think a trial court judge could easily handle that by x but i mean matters and this is what happens in a lot of the federal trials i'd refer the court to the to the brief of the promise of justice initiative which shows that when we have joint trials we get joint results when we have several trials we could separate results twenty five twenty twenty five joint trials same result for the for the defendants would since says we must have individual eyes sentencing at the penalty phase so i don't see why this a fierro test would not it would would work for penalty phase proceedings without some sort of change there has to be some recognition that penalty phase proceedings are different then than all the other armed robbery drugs so how is that different from what the government said let's do it so i think we ought to lower the risk standard we have a lower the a reasonable risk and are not and that's what we propose in our brief page fifteen we should lower the standard because that would recognize the acute need for reliability and accuracy when it comes to penalty phase proceedings and the decision whether somebody is go live or die he said you want to make the distinction between an serious and reasonable rate right so a serious risk may be treated as a as a preponderance or or above with respect to reasonable we're at a we're at a maybe a likelihood maybe that's maybe that's perceived as thirty percent versus fifty five percent or sixty percent something like that and indeed this court said in boyd with respect to reasonable likelihood that is not a preponderance standard the court has no further questions we dirge thank you counsel mr mcallister five minutes the admission of evidence that might or might not be in violation of state law is not only the moment concerned the only time the interim need to mimic comes into play is when the evidence is involves constitutionally protected conduct and the example will be dawson vs delaware where they sought a capital sentence he was a member of the arion brotherhood in prison and had nothing to do with an aggravating factor that was first amendment protected activity the courts and that kind of thing could be innate them a problem if you use it against the defendant there are cases i could be wrong but i think all of their cases in the string of others they refer to skewing the wing process are not about admission of evidence they are about invalid aggravating factors so you've basically told the jury there's something else literally on the scale an aggravating factor that later the state says no that was that was not correct that should not have been there that's distinguishable from this case agree completely with justice scalia's point in the dissenting justice made in the kansas supreme court if the evidence the corrupting influence evidence was so prejudicial to reginald why did jonathan also get a death sentence and i would close by saying that we all agree i think that the constitution value is accuracy and fairness but it also values finality in each of these individuals received an individualized sentence presented all the evidence they wanted to the jury was instructed to consider them individually and if we were to undo this now it would be very difficult for kansas to go back we'd be talking about having to redo all of the guilt phase evidence and again you get into question separate proceeding traumatizing victims yet again none of that is necessary because at the end of the day they got a fundamentally fair proceeding that gave each of them the sentence they deserved and the jury found warranted both under the facts of this case and the law of kansas we would ask that you reverse the kansas supreme court on this to a trial yes that's the third question presented in the petition which my understanding is that is something the court could reconsider it's not denied the court granted questions one and three of the other question that we presented was the only other ground that the kansas supreme court gave for reversal that's a confrontation clause violation in terms of some of the hearsay evidence presented in the sentencing proceeding so if the court were to reverse on these deny on that question then the kansas supreme court could in fact rely on that ground that are hold would be that the court would do something different than that if you reverse on these two questions unless there are further questions thank you thank you counsel that cases are submitted