have found technology sometimes as not go the way to do it's all plain but it will be helped if we end you speak real clearly and directly into the market phone that way we know that the propensity of a sixty year old with a history of heart attacks high blood pressure hypertension and a perfect record of the just prison to pointing out valid acts and most goebbels par like all this domestic violence going to the baseball bat breaking plates i mean there was other evidence not when he was sixty but  occur in prison which is really the question you are being asked the jury is being asked is he going to be allowed in to get a life sentence or a death sentence this is the only two possibilities he's not going to have access to women and these other things that he did mentioned in the final argument which is not true dr coombs testified for sixty five pages of the trial transcript and he was along with mr miller one of the state's major witnesses at this trial excuse me contrary to the director's claims that coons was barely mentioned in final argument and contrary to the state courts holding that he was mentioned only briefly he was mentioned four times in the prosecutor's final argument and basically  valuation so the the texas courts have ruled that this should not be admitted under the texas rules of evidence and i would like to point out that going forward darpa clues like testimony should not and i guess including people that were going to be in the olympics and he would send these out he's had a lifelong interest in youth sports events so what happened to graft they're not drawing they were newspaper yes they were newspaper people whose pictures had been tak photographs and printed in the newspaper yes but the yes your honor these were innocuous photographs they were photographs newspaper photographs of the people they called these photographs from hundreds and hundreds of pages that he had in know of of of athletes basically athletes men and women athletes this is in the record somewhere but the it was cold from a huge stack of he would send these out men and women photographs of athletes to promote you sports programs which he had been involved with before his arrest in this case so i think it's a red herring to put much emphasis on these newspaper photographs of a gymnast he was collecting  i would like to point out be unique unreliability here dr coons and the director has positive the deval case as a as an example of where maryland says money i mean  money i'm sorry this is just does not involve devo but i would like to point out the documents have not interviewed kobo since one nine hundred ninety he lost his notes of that interview he could not remember the interview and he had no independent memory of that interview as a result wrote like entirely upon the documentary materials given him to given to him by the prosecution is nuts adultery was entirely subjective he could not say even one book or article that supported it he had not published his methodology in forty in a four year career had not even published anything at all in that career and worse yet he had not even read any of the scholarly articles on peter dangerousness nor was he familiar with the most prominent articles on his own reported specially when they were shown to him by the prosecutor trial he was not aware of the accuracy of his own methodology and he never even bothered to check the accuracy of his prior predictions despite testifying in fifty cases so this is why we say the doctor koontz's evaluation here was somewhat unique and it was eighteen years out of date it considered nothing he couple had done in the prior eighteen years with the exception of the so called evil grants that he pointed to which were less than eight years old  of evil grimm's were almost twenty years old so basically he tried to explain away called a spotless disciplinary record for the past eighteen years and he was his theory that people on death row are always less of a danger than those serving life sentences and by that logic every defendant would merit a letter like a death sentence because it's always the safest place to put some additional aid as a matter of public policy it's hard to see the state i that i tried to go through here there was no ample other evidence of future dangerousness that was a basis that they held to be arms and do with the other evidence of future dangerousness was was as i said thirty forty years old  the one another reason they used with that is that they said dr coons is opinion was not particularly certain or strong because he answered just to a hypothetical but that it was wrong he answered much more than just to the hypothetical he testified  escalated that he did it out of revenge that he needed to control his wives he said he cited the evil brienne and he said he said that everybody else on death row was on appeal so they had an incentive to behavioral the state courts were wrong when they said it was only a small part of the state's case for future dangerousness sixty five pages of transcript the state court was wrong when they said that dr collins testimony was effectively contradicted by cross examination we have alex cullen is affidavit that contradicts that so so basically that's that's argued that if you look at the facts on which the c c a held this to be harmless error those facts don't have that when we look at the r g two which is vaults he's testified falsely that he could be moved down to g two in ten years from the g three which is faults and he said that administrative segregation has to be earned t because it was it was not brought on state in the state courts it was brought in federal court we do not have to worry here in maryland claim about a pen holster problem of not being able to  seven forty nine said thirty three eighty three ninety five that's of have circuit case twenty fourteen so this is not this case was not if you get on the merits that means at the does not apply that testifying here i don't know if i need to go into the instances the details of the of the case but we've clearly shown that they were it was wrong as much as details of the perjury is not cause for reversal but what we have suggested here is that it was pretty clear we don't need to just admit marilyn was clearly a part of the prosecution team and his perjury should be attributed to the trial prosecutor because he's working as a special in the special prosecution unit in huntsville it prosecutes crimes on behalf of the local da's he said himself we're like a d a s office in ourselves reverence for the artist or a way one to  six or one and basically he prosecutes crimes he's acting as an investigator here so his perjury doesn't matter that we're not saying at the trial prosecutor had to know about th may have made it up on the stand we don't know that but we do know that because he was acting as a state agent that this perjury has to be attributed to the state here so that's the that's it's just very mr prejudice i think it's very important that he gave a false impression here that cocoa could be housed with lesser offenders and he could go to a less restrictive status and ten years  he prejudiced the jury by telling them that the more restrictive administrative segregation could only be earned by violent acts that's not true telford unit or story the one instance of prison violence allowed was designed to appeal to testimony is never acceptable we're saying that these factors here in this case they were very unique nothing violent happened in eighteen years he had no notes he had no methodology he hadn't even read the articles on his own specialty that this is this is fairly unique and the eighth amendment requires a fair trial and these these these both these claims are based on the eighth amendment fair trial and eighth amendment requirement of individualize ation of punishment and the fourteenth amendment due process so with those in mind i think i would respect in caldwell the supreme court found that it was impermissible to rest a death sentence on a determination made by sentence or has been led to believe that the responsibility for determining the appropriateness of the death sentence rest elsewhere in a slow down a little bit you broken sufficient legal grounds to establish a principle the lower federal courts cannot establish it themselves under it up on clearly established law on the specific subject of expert future dangerous and other eighth amendment cases the majority believe that the rules of evidence cross examination presentation of contrary evidence and in general the adversarial system were sufficient to guard against unreliable observed this court recognized and feels when the supreme court talks about reliability in capital sentencing it's not talking about the reliability of a particular piece of evidence or a witness's testimony what it's talking about is did the defendant receive individual ised sentencing that the jury have the ability to consider mitigating an aggravating factors and turn its consideration into a sentence in any event the district  neighbor he touched another neighbor at his house and then again when she started working for the drive in movie theater that he managed when the niece was fifteen he spread her legs and made a lewd gesture and later he tried to kiss or in three five dollars out or  that he attacked the man at work with a hammer and tried to kill him ex wife karen testified that he had repeatedly almost gotten into fights with other men after money or couples and the c c a noted that several other sixty four report and my opponent notes that this is an old report made when kopel was a teenager it's also a report that was made by a disinterested witness you know a witness that was not conduct a harm review of the constitutional claim because there is no constitutional air here under barefoot this testimony is permissible but under twenty two fifty forty one a determination of the factual issue made by state molester who has killed three people but there's no clear and convincing evidence that this finding of no harm was incorrect to some of the doctor queenscliff name although the c c a admittedly found that the testimony was erroneous lee admitted under state law but the relevant supreme court precedent shows there is no constitutional problem with the testimony the say court's decision was a reasonable interpretation of federal law and the federal court correctly found that relief is precluded under that and even if there was some constitutional or the c c a correctly found there was no harm a finding which this court would duplicate under  well i don't think the prosecution minimized that fact and i don't want to minimize it either and the c c a recognized that he did not have any reports of bad behavior for the eighteen years that he was in prison however the facts of the crime are sufficiently egregious to support a finding a future dangerousness also there was evidence that he had been violent towards women and children up and so he committed the instant crime and also i believe the c c a noted in its opinion that the jury was not required to only consider mr cobol's future behavior in prison but we can consider what his future behavior would be in the free world as well under the law in effect at the and turning to the second claim mr millet was a member of a special prosecution unit in huntsville an independent agency that investigates and prosecutes crime in the prison in a mr cole is case confrontation clause and inadmissible under the eighth amendments heightened reliability standard for capital cases c c a found no authority existed for increasing in admissibility requirements due to heightened reliability and fields on federal habeas review the district court held there was no relief for state lawyers and no confrontation clause or district court for their health even if there was a mare it was harmless in his c o a application coble contended that his rights were violated by the contending that mr merrill lots of knowledge can be imputed to the prosecution's team however it's clear in this case that mr merrill it was not a member of the prosecution he works for the special prosecutor prosecution unit that is true but simply because the witnesses put on the stand by the state it does not mean that the witness is a member of the prosecution team not a moment that some winter but i would know down to mr cole the affidavit from the inmate perpetrators attorney and suggest that he later pled guilty to manslaughter so at the end of the day the perpetrator inmate did kill the  was put on first place given the issues in this case that was sought to be tried to be there's no doubt about one doctor but this airline and investigative those of us who tried cases just the clock on piece of a witness to put on given the parameters of what the state needed to show given that he didn't have a new that kind of knowledge he wasn't profit as an expert right because he was an investigat and so what was the probative worth of the prison conditions and that kind of thing that he was able to test what was the probity worth of that for the prosecution's case would have a couple of responses also the court of appeals opinion and the court of appeals opinion was evaluating whether in assessing the instruction was called a whore based on the inmates testimony obviously the perpetrator inmate and his defense attorney will have a very different perspective on  help if you answer the question and not the one you prefer that i ask all i ask you was is this capital case you know with the issues of future dangers in the jury has to find from a perspective of was the purpose you say you don't want to claim is part of pride he's a table not trying to make you do it just trying to understand what was his purpose in the framework of what the prosecution was trying to show since he was not an expert witness and so he was a witness to didn't him back what was is sought to show in connection with this face of the trial he didn't seem like he had in the knowledge about that's what i'm asking  show that those statistics were frequently unreliable due to the under reporting of violence and prison according to mr merilahti many crimes in prison are not reported for a variety of reasons for instance the violence that occurs might not meet the penal definition of violence or inmates not may not report it because they don't want to be labeled a snitch or perhaps the warden feels like the matter can be dealt with  informally or internally and that was the purpose of mr maryland's testimony he was there to rebut dr cunningham statistical analysis by showing that those underline statistics were not correct actually false and concerning the other pieces of evidence that mr kopel contends have been fabricated for instance concerning mr mail etc money that assignment to administration ministry of segregation is something that one earns through bad acts coble says the t t c jay can assign an individual to them in a straight of segregation based on previous incidents of escape hostage taking and stop assaults but the fact that in individual can be assigned to segregation based on these acts does not seem to undermine mr merrill lots testimony but you have to earn segregation through misbehavior also he doesn't show that mr kopel had any of these negative designations meaning that the relevance here is sentenced to life without parole could theoretically drop below a g three classification but he was unaware of that t v c j regulation that would prevent that from happening it was a new regulation but that's not the area that's been alleged here and moreover those are cases that were litigated on direct appeal with the c c a was exercising its supervisory authority over the trial court not federal a b s cases the district  found there was no harm associated with mr marilyn's testimony supported by the record on the surveillant only rebutted dr cony him he sought to educate the jury about classification and what i think is an uncontroversial proposition that violence occurs in violence which far outweighs any prejudicial effect from the surveillance testimony given assuming that it was false murder and a child molester the jury's decision to impose the death penalty in this case was largely inevitable and any error in the admission of these testimonies is plainly harmless thus the director would ask that the district court's thank you and first of all i would like to address counsel's argument on united states resists fields fields and all the federal death penalty act which is certainly not what we're looking at here today  wrong here our fall back position is that the in this case the circumstances were picture killer early unreliable such that it was unconstitutional unreliable for dark occurrence to testify therefore there's a whole slew of cases that say that the sentencing perceivers have to be reliable walk versus ohio a greater degree of reliability with death sentences gardner versus florida the penalty phase evidence must be based on reason rather than caprice or emotion says mississippi sentencing processes should facilitate responsible and reliable exercise of discretion and ford were says rain wainwright capital fact finding procedures aspired to a higher standard of reliability and then we had last year the supreme court's decision in buck vs davis which held on unreliable future dangerousness predictions based on race that's unscientific and that's unreliable that's what the supreme court said second next i would like to say that the sentencing procedures have to be reliable next the counsel suggested that or the question was asked by the court was the good behavior ever minimized and it was minimized dramatically by dark the coon's testimony that everyone on death row is on good behavior so they're for billy call those eighteen years of good behavior on death row doesn't count for anything this  extremely prejudicial this leads the jury to believe that it just does not count for anything and i can't see the state policy in wanting to do this it would discourage the other inmates who are supposedly always on the behavior because their cases are it is one of several cases that we're depending on giggly zero for instance is maybe even more implying where it says that behavior can be attributed to behavior that the trial prosecutor doesn't know about can be attributed to the prosecutor if a person on the team knew about it and that leads to the other argument that maryland was not a part of the prosecutorial team which is dramatically contradicted will prosecute these crimes on behalf of the local district attorneys they brought us together as a unit to prosecute these crimes on behalf of local da's were invited in by the da one two six four one does one two six four two or prosecutors cases he says he takes the cases to the grand juries he says he testifies we've taken condemned inmates to trials in district courts across the state and he quote he said each of us investigators work for a particular prosecutor in our office and that's a our that's an hour away one two six four three if they're indicted he says we'll move forward with the prosecution of the case and get ready for a trial in district courts across the state and quote i work for the prosecutor i and i work the trial with my prosecutor in a courtroom coordinate witnesses and such as that and that's it one two six four three his duties are very similar to the d a investigators that's what he said at one two six four three