we're here for argument in case number eighteen dash eleven thousand six hundred and thirty alan you gin eugene miller versus the commissioner of the alabama department of corrections mr nappy you've reserved twenty minutes for rebuttal i presume ten minutes flipped around here ok we're ready to go whenever you please the court and good afternoon ellen miller's death sentence violates the th amendment as articulated by the supreme court in ring versus arizona according to ring capital defendants have a th amendment right a jury determination of any fact on which the legislature conditions an increase in their maximum sentence miller was convicted of the provision of the alabama criminal code of killing two or more persons by one act or pursuant to one scheme significantly at the time of the offense this element of the code was not an aggravating factor that makes this case unique from other cases where an element of the crime such as a set under a sentence of imprisonment or during a robbery are also aggravating circumstances except in this case the jury did make a finding of the aggravating circumstance that the court ultimately based the death penalty on did it not the argument the argument is that it was implicitly found there was no explicit finding well we have to assume that the jury followed instructions right that's the law right ok and the jury could not return a recommendation of the death penalty and less it unanimously st found the aggravating circumstance under the law that's how they were instructed right so in this case because the jury made a recommendation by tended to of the death penalty that necessarily means that it had to find the aggravating circumstance and in this case there was only one aggravating circumstance that was presented to them to find so don't we have to conclude that they found that aggravating circumstance i would submit that you didn't and i think that that argument was rejected in that case of hearst versus florida which extension a natural extension of rain which it purports to be anyway in that case i agree that if you look at the language of the statute for alabama and in particular i am talking about and forty seven dollars section it says in deciding upon the sentence the trial court shall the term and whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist before it can impose sentence which means that it actually has to find the circumstances in addition to the jury having to find them i agree that that seems to be a problem under her st but here's here's the reason here cure the two problems that i think your side has won that's what hearst says and hearst happens after your client's conviction is not retroactive and two you have to deal with bo hannan where the state court of alabama construing its own statute says that what makes a person eligible for imposition of the death penalty is the finding by the jury of the aggravating circumstance which we have here right but i believe that by hand it is distinguishable on the grounds that the aggravating circumstance in which the defendant was sentenced overlapped with the crime with which he was convicted during the guilt so that's different o'hanlon is different than miller's case in that regard are there any that the supreme court of the united states reverse remanded a number of cases most hurst to the alabama courts for application of hearst to the extent you know were any of those cases in the same procedural posture as mr miller's case in other words non overlap cases where a jury was told you have to determine beyond a reasonable doubt that an aggravating circumstance existed before you recommend a sentence of death and then the judge made independent findings on the aggravating circumstance i do not know your honor i want to piggyback off of judge rosenbaum's question because she mention x x part davao hand and i'd like you to focus on ex parte state there's a bunch of different defendants there but it's listed in the west laws ex parte state there as i understand it the alabama court addressing the same issue did apply it to non overlap cases true or not true i do not recall so i'll read from ex parte state this is at page nine sixty seven dollars of the opinion the only question that arises and not overlap cases is whether it can be determined from the jury's penalty phase advisory verdict alone that the jury unanimously found the existence of an aggravated factor or circumstance necessary to make a defendant eligible for the for the death penalty and then goes through the circumstances as an only one circumstance where the jury comes back zero to twelve do we not know if it made the finding or not because there the way the instructions  are done the jury can only reach the finding and only make the only way the aggregators mitigators if they find beyond a reasonable doubt unanimously that the aggravator exists and if it's anything more different than zero to twelve it's one to eleven we know that they reached that nd step by having gone through the st step i follow your lead ok so now i answer judge rosenbaum's question which is given that hurst is not retroactive and alabama seems to interpret it statute in this circumstance as reading the statute such that the jury must make this finding before you get through the gateway of weighing and ultimate determination by the trial judge whether it violates ring i'm sorry i didn't i want to understand your question but i want to answer your question ok you want to choose one you want to ask it again or do you want me to go ahead and so the question is given that hearst is not retroactive and given that alabama seems to read its statute to mean that the jury must find the aggravating circumstance before anybody can do anything to trial judge order doesn't that then comply with ring again ignoring her st and ignoring what happened afterwards of florida statute i don't think so because i don't think that there was a finding and as judge rosenbaum pointed out the statute specifically requires in two different sections that were in effect at the time findings by the trial court but alabama has read it statute as i understand it to be different than florida was at the time and that different being that the jury was required to find we also have jury instructions which tells the jury specifically you must find this beyond a reasonable doubt before you can get to the weighing an act an aggravating circumstance before you get to the way and unlike cases where there's a lot of aggravating circumstances we know there's only one so the jury had to have found one to get to that tended to a verdict that ultimately got to right i understand what you're saying yes but i do think in this case there's a significant procedural issue that i i would like to point out that i think addresses the issue of whether or not we can rely on this implicit finding of the ultimate sentence and that is on appeal on his direct appeal the arguments were raised and the court remanded the case to the district court force findings fact findings by the trial judge as to whether or not whether and related to the heinous atrocious and cruel aggravating fact so i understand that and i i think that the argument the point that you raise is a worthwhile one but i think that here's my concern right alabama has clearly construed its statute the way we've just been talking about and we as a federal court don't have the authority to say alabama is wrong in how it construes its statute would you construes its own statute file it's the constitution we've not made that argument ok so that being the case we are stuck with alabama's construction of its own statute and alabama has construed its statute to say that the that the defendant becomes death penalty eligible once the jury unanimously finds an aggravating circumstance we have that here and we know what that aggravating circumstance is and we also know that that is the aggravating circumstance that the court relied upon in imposing the death penalty whether it came to its own decision or not we still have a finding a unanimous finding of fact by the jury that this aggravating circumstance existed so i'm not seeing where the problem is i don't know that we i w that we don't know what the jury found because the jury was never given a special verdict form we don't know what they found they were given a lot of instruction what else could they have found i mean what we have already agreed that they could if we assume that the jury follows the jury instructions right that is the law and all that ok so that being the case the jury was told you must unanimously find the aggravating circumstance that is presented to you before you can consider anything else and then only one aggravating circumstance was presented and then it said if you find unanimously that this aggravating circumstance exists then you must decide whether to recommend a sentence of de we know that they had to find that if they followed the instructions because they couldn't have gotten to the recommendation of death unless they st unanimously found that the aggravating circumstance applied and there is only one aggravating circumstance they could found because that's all that was presented so i guess some missing where there's a what he or she know here's what i'd like to say about ok or is as i said it was remanded but before it was remanded this very argument this very argument of the implicit finding was made in the was made in the court of appeals and yet the core still remanded that wasn't sufficient apparently to uphold the sentence of mr miller under rect appeal so it was remained after this argument was made and it came back up and then it was affirmed so the question i have what i w court is what did the court what did the court on direct review have after it came back than what it had before it went down and i always tell you for my part i think you have a very strong argument of hearst applied because the procedural set up here is very similar to what happened in hurst in florida in her st the jury was instructed that it could recommend a death sentence only if it found at least one aggravating circumstance beyond a reasonable doubt they were given to general verdict recommending death by a seven to five vote trial court that independently finds both aggravating circumstance when the case gates gets to the u s supreme court florida argues there's really no error or any error is harmless because the jury was told that it could only recommend  aggravator beyond a reasonable doubt and the u s supreme court in a separate section of the opinion rejects that argument about an advisory jury verdict and so here because of  retroactivity principles we're sort of operating in a parallel universe so if we were doing i speak only for myself not for my colleagues if we were doing dyno over review i think you'd have a very good argument under hearst but we're not and hearst is not retroactive so you're left with ring and the precedent that follows rings suggest what both judge rosen bomb and judge luck of suggested is if a jury makes a finding or implicitly makes a finding that makes a defendant death eligible that's all that ring really requires but i think if you look at ring specifically this really is  issue because in footnote six of the opinion the course specifically calls out the states that had sentencing schemes like arizona's and they include include florida alabama delaware and indiana what do we do with and i think judge jordan was referring to these cases our precedent between ring and hearst which explicitly applied sentencing schemes that you're talking about and specifically florida as in this case are in evidence and said that there was no ring violation what do we do with that i think that the right think that person is just an extension of ring it calls or that the problem is i we have precedent which says that it's not retroactive so i there's no way for me and i and i'll speak only for myself to be able to apply that here that that decision may be right or wrong i don't know the answer to that but that's certainly what our president is and given that we are in i'll use the same phrase jordan used the alternative universe of we can't look at her st we're in post ring and it seems to me as if our president has already decided this exact issue with regard to a very similar sentencing scheme i do we have not argued that her applies retroactively in the district court in this case in mr miller's case found that retroactivity was not an issue that hearst simply informed how ring applie and i believe that ring applies here just if you follow this this syllogism from arizona to florida and alabama the supreme court of the united states has viewed all of those capital sentencing schemes to be indistinguishable to be followed i don't i'm not trying to evade your question i understand that but if we assume with me for the moment that evidence for example is president at least with regard to florida scheme which you said is like alabama's which says that it applies a ring and says the florida scheme does not violate it in all of its forms and how are we to then apply it to here and conclude to the contrary while again without going into that that case this i do believe that the fact that this is a nominal lap case is significant and i don't know whether that case is a not over that consumer doesn't have overlap or not overlap florida's has a different scheme and when it comes to that sort of stuff one possible answer the question although it may not be satisfactory is that hearst shows that cases like evidence were wrongly decided and maybe you can argue that that rejection of a case like evidence is something we can't ignore but then that creates the problem of how do you apply hurst itself substantive here you can spend all your time on whatever issue you want but you're trying to your time is drawing to a close and i want to make sure if you want to get to any of the other issues at oral argument you preserve everything in your brief of course yes but as i said i wanted to i wanted to address the the remained issue on the point of what did the court have after we made that didn't have before and i would submit that it's gunshot wound and the final fail shots for each of the victims to realize his fate and quote and that was relied on or that was what the court signaled was different that was the factual finding this psychological harm to the to the victims that it didn't have before remain and that it had afterward so i think in this case regardless of what the jury was instructed the actual procedural posture of this case a stablish is that there was additional factual findings to make mr miller eligible for death for heinous atrocious and cruel heinous atrocious a cruel i really just a conclusion based on the facts but the facts under ring have to be found by the jury just as in mr ring's does let me just make sure i understand are you arguing that when the alabama court of ultimately want up affirming it was an affirming on the basis that the jury had found the special circumstance it was affirming on the basis that the judge had found the special circumstance because it was and it was necessarily doing that because it was alluding to evidence that was not before the jury when the jury need to find him i do believe just to be clear your honor i do believe that in the court of appeals decision it will live on the implicit nature of the finding so i don't want to in any way suggest that it did not what i'm suggesting is that it wanted more fact finding and these facts under ring that are required to enhance a defendant a capital defendant certains were in this case in fact found by the judge i think again for myself that you are right to a degree and an important degree that under alabama law no matter how the alabama courts have interpreted after her st you need a judge's own factual findings if a jury recommends a sentence of death right by a twelve dollars to zero vote and the judge impose a sentence of death without making any findings there's going to be a remained under the old alabama law it's changed of course because alabama law back then statutorily required a judge to make parallel findings as well so i think you're right but the question is for us is whether or not what the jury was asked to do here is enough to comply with and satisfy ring i think that my time is up thank you very much you got your full time for want to sometimes in these cases it helps me at least to sort of wipe away ed but for a nd look at an issue to novo and then sort of step back and see what the state courts did was unreasonable or contrary to or was a reasonable application of existing precedent what is the difference thinking the novo now what is the difference between what happened in the florida case sentence you must find at least one aggravating circumstance beyond a reasonable doubt they were given to aggravators general verdict returned just like here split verdict seven to five there are ten to t here and then the judge makes independent factual findings that both aggravators existed the state of florida makes an argument if there was an error it's harmless there was really no error because the jury was told it had to unanimously find an aggravating circumstance before recommending death and in a separate part of the opinion the supreme court rejects the argument with this language it is true that flow and that in florida the jury recommends a sentence but it does not make specific factual findings with regard to the existence of mitigating or aggravating circumstances and its recommendation is not binding on the trial judge o florida trial court has no more the assistance of a jury's findings of fact with respect to sensing issues than does a trial jury in arizona referring to ring what's the difference between again did novo what's the difference between the florida scheme struck down as applied in hurst and the alabama scheme as applied overlap or an aggravator in there being an overlapping out aggravator submit it during the guilt phase but isn't that a problem then i mean if the problem is well let me let me go back to basics here under this statute where it says in deciding upon the sentence the trial court shall that term and whether the aggravating circumstances if finds right to exist so so regardless of what the jury finds in order for there to be a sentence of death the judge must also independently find an aggravating circumstances and that right before the judge read both but the jury must find that aggravator according to ring ok but well let me put it this way if the jury finds an aggravator and the judge does not can the judge impose a sentence of death having not found an aggravating circumstance under the death depends only on whether the judge himself finds an aggravating circumstance that he's willing to rely on or she is a risk there are spots to that may be that the judge may have weighed the mitigating circumstances differently in that case and and based on now weighing up those mitigating circumstances found that outweighed that aggravating sort regardless regardless of whether the judge found that to be the case the judge cannot impose a sentence of death unless she or he independent of the jury also finds that an aggravating circumstance exists right we just agreed on that otherwise there couldn't be any overwrite cases in alabama and there are plenty of those are jury could come back even in an overlap case in and scuse me a non overlap case like this one the jury could come back with a recommendation of life and the judge could say i find that this aggravator exists which makes you death eligible and i also find if this aggravator outweighs the mitigating circumstances i'm going to impose a sentence of death right correct that on a day noble review and again i know we have to then go back and put at bon top which is this case and i'm not suggesting we're not going to do that but if a judge can override in those circumstance isn't there a significant problem under hurst again i have to fall back yeah i think the alabama courts have gotten this wrong now it's not for us to say on didn't over review but in my personal opinion the alabama courts have this wrong as a hearse matter as a ring matter different story but i cannot see a significant difference any material difference between what happened with mr hurst case in florida and mr miller's case in alabama they are exactly the same jury told you have to find an aggravator beyond a reasonable doubt before you recommend the sentence of death there's a general verdict jury recommends a sentence of death without saying what it did judge impose of the sentence of death by independently finding aggravators florida says that's enough supreme court says no not enough you can't rely on the jury's advisory verdict so i said my piece but i think that if you're doing that no over review there's a significant problem with the alabama scheme as it existed back then in a non overlap case  of who has to make the finding for eligibility because remember that's what ring says correct not what happens later not what the judge ultimately decides but for eligibility even get to the judge to make that finding right current in other words it's kind of like a door to get through that door the death penalty door you've got to make a finding who breaks that fine that's the question in florida as i understood her st the supreme court looked at the portion of florida statute which says that finding is made quote by the court right and so the court was the one who ultimately made the finding to open that door were as in both hand and i read and let me know if i'm wrong i'm reading both hand in an expert to state to state no in alabama the jury and only the jury is the one that makes that aggravated circumstance finding to open the door and then once the doors open the trial judge then gets to see if if he agrees or disagrees or she disagrees and whether he or she would impose the death penalty or not or override or not is it my reading that right that seems to be a pretty big distinction both in the between st and the way alabama is reading it statute and between the florida scheme and the alabama scheme yes ron ok if that's the case and just look i think is right but if that's the case there could not have been any judicial overwrites constitutionally during this period of time right well the statute it says sure language to provide for judicial overri right but constitutionally it could not have happened if the jury is the one as but one hand in an states say that has to make the eligibility terminations and a jury comes back twelve to zero back then recommending life supreme court was affirming overwrites over a dozen of them during this time period that they are from affirming cases with judicial yes which suggests that maybe the alabama scheme was in operating in the way that that state now describe them at the relevant time ere go the problem and in over review thankfully under a death a review we are simply considering whether or not  our statute or what was done in this case actually complied with the brain and whether or not the jury followed the instructions of the core which we know that they did because in fact of the trial court actually specifically asked the jury when they were returning its verdict during the penalty phase in this case whether or not it had followed the court's instructions and its formula in making its determination in this case which of course we know  st of all was to make a determination about the aggravating circumstance and whether or not the facts supported making that finding and the jury did affirm that they did in fact follow that formula when it was making it determination so it's the state's position that there wasn't a ring ball ation in this case the i want to go back to the point that jordan was asking about so it is i understand it there are very few very very few not overlap cases i'm sorry there are very few what not overlap cases there are there are few yes and that's because alabama statute essentially tracked capital cases with aggravating factors almost word for word yes right this is actually one of the few in fact six months after this case this very capital offense became an aggravating factor correct right so there are unlike florida and other states there are very few where the jury did not actually make a twelve though finding at the guilt phase at the guilt phase of what the aggravating circumstance would be right i'm sorry can you say are very few cases where the jury would have made would not have made a unanimous finding of the aggravating factor at the guilt phase because the capital to qualify as a capital felony it had to meet that very same aggravating factor right doesn't really sure i follow your shortened if if to qualify as a capital felony it's mirror image for what qualifies as an eligible aggravating factor which is what i understand almost makes it almost all as alabama this is one of the back even though the jury recommended not to act not to impose the death penalty and the judge overrides that for whatever reason there still would have been an eligibility finding and all of those overlap cases right correct right it's only in the very few like miller not overlap cases where this would possibly be the case and even here of course we don't have a no twelve a recommendation right correct we had to grant i just want to touch briefly too on the remain  available or it so that the appellate courts can review that finding so that it's not necessary that doesn't necessarily take away the jury's finding that doorway finding if you will that aggravating circumstance  actually applied in that case and didn't put its close of power to the trial court for a fact finding purposes that determination had already been made when that really in order was sent out to the trial court and to read it as otherwise would essentially allow trial court to rescind its a defendant which was not the intent purpose behind that remain in order in this case let me ask you something though i mean if the jury finding in and of itself was enough to sentence the defendant to death why would you need to have the why would you need to remain and the matter to the judge to listen to have a hearing not even just list reasons but have a hear an evidentiary hearing and then list his own reasons for why he also and independently found that aggravating circumstance for this particular aggravator there are under state law required to actually provide facts that would support  cruel but it has to provide supporting facts for that can i flip things around for you and see if i can figure this thing out a little bit better was the trial judge and mr miller's case permitted after the jury came back with its ten to two recommendation based on a single aggravating circumstance that it found beyond a reasonable doubt have rejected the jury's factual finding and ruled that under the facts and circumstances presented this these murders were not specially heinous atrocious or cruel based on the statute at the time at the time he could have right i believe so yes that's why at the time again this doesn't go to whether mr miller's claim succeeds or not but at the time the jury's overall recommendation of the eligibility finding but the overall recommendation was advisory only right well that's actually language in the statute does note that their recommendation was an advisory one right so the judge can not only in these few non overlap cases as judge look described override but could also reject the death recommendation to by saying i don't think that aggravator exists in this case right and then the court of appeals would review the trial judge's decision on the aggravator to see whether or not it survived appellate review right correct but at that it is but you still at at the very beginning before you get there have the jury make a determination about the aggravator itself right understood understood but the judge has to make as the scheme existed in alabama at the time to validly impose a death sentence the judge had to make his or her own independent findings about the statutory aggravator or aggravators that made the defendant death eligible right correct you'd like to address one point that counsel made in in response and that is the state said that for heinous atrocious and cruel specific additional factual underpinnings are required for that aggravating circumstance to be to make the defendant eligible for the death penalty and i agree and those are factual findings the jury hasn't made correct the question then becomes whether or not as you argue the ring line of cases starting with the present the require more than just a death eligibility finding but findings necessary to decide to impose the death penalty as a matter of the script and in your view they do correct and that's i think how we satisfy twenty to five thousand and forty one and so if you you know if you're limited to dealing in hearst universe what would you cite that supports that supports the fact that the fact is required to be found by it but as a pure it's that supports the argument that you have just made which is that it's not enough that a jury finds the mitigating or not the mitigating the aggravating circumstance the jury has to find the particular factual findings that support the aggravating circumstance even though the aggravating circumstance is the same as the jury found i mean i'm saying that they have that ultimately support the imposition of the death penalty by the the trial judge yes and in this case i think it's i don't want to say it's unique only to this aggravator because but i do think it's significant for this aggravator because heinous atrocious and cruel has its own issues as opposed to a robbery or a kidnapping or whatever which are easily ascertainable facts i would  ring and i would cite ring at page five hundred and eighty nine dollars of the opinion right before section one quote capital defendants no less than nine capital defendants we conclude are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment and quote in the ring case itself the sentencing judge found as the heinous and treacherous and cruel aggravating fact that the defendant in that case was impressed with his marksmanship that was the fact that supported the heinous atrocious and cruel findings so i would submit that that is indistinguishable for present purposes and that is why there role that the jury play in that the termination ring none right so there's a little bit of a difference here right rip but i would be a big difference but we don't know what the jury found because it was this general it's a one liner tended to is what well i know that they found it was especially heinous and atrocious or whatever the language is we because that's the only aggravating circumstance that was offered to them and because we've already agreed that we presume that the jury follows the instructions so i think we can all agree to that that question is whether it matters for purposes of wrecked the ring analysis whether the jury found that circumstance or whether it found the facts underlying that circumstance that the it's trial judge ultimately relied on and you're arguing the latter correct ok correct that's what we are there are no other questions i appreciate your time thank you very much we want to thank both of you for your game it was very very helpful we really do appreciate it mr nappy i presume that your firm was handling this case pro bono and we want to thank you in the firm for doing that it's a great service to us and to the public at large and please saw everybody there we really do appreciate it and this jordan thank you very much for your argument as well we're in rece