and then i would like to reserve five minutes f this case is a unique the unique opportunity for this court to examine all of the different ways that the eight men report quire meant that mitigating evidence relating to the conduct of defend it cannot be considered by the jury or will not be considered by the jury in this case to start we start off with this ensuring proposition two and then in that proposition the proud lawyer in this case made a decision not to present evidence of mental illness except to try to do it through an incompetent unqualified witness the court of criminal appeal said in a one sentence finding that the suffered some serious psychological problems so but she did say that but then on cross examination she admitted that she was totally unqualified to testify about anything choice be merited given the outcome of the first sentence even because that goes against everything that every lawyer that i know that tries these cases capital cases understands is that it's the main duty that we have is to explain to the jury any mental illness that might have caused the defendant to act like he did but it did it in work the first time well it didn't work perhaps it would work because of the because of the instructions that the court gave that caused it to be reversed i mean if we're going to speculate on why it didn't work maybe we don't know if he gave improper instruction maybe they were looking at getting life without parole but in these cases under under ed we give deference to the trial counsel making strategic trial decisions and if we can imagine a reasonable litigation approach that would use a different tact than the first short answer is yes but there's exceptions to that and the exception is this mr rowan in this case wanted milner's to be part of this case he just chose to do it very badly and that's not the standard  minded jurors could believe that the c c a had erred in ratifying that strategic decision well so called double deference but don't well the problem judge that we're dealing here is that he made a decision to tell the jury was mentally ill but did it was a lawyer a was a doctor of psychology educational psychology was totally unable to do that and as a result the jury found out that when it's a two it still work well in isn't that what we have here i mean one thinks the district court determined was that if the mental illness evidence had come in that both of the experts both dr smith and dr call were going to testify that mr harris showed many of the characteristics of the psychopath and the district court thought that that was a pretty it was a strategic decision not to run the risk that there would be evidence of psychopathic which which could be very detrimental to mr harrison the  the important thing to recognize about antisocial personality disorder is any one kill someone takes another human being life is going to qualify for three of the factors to be as big but still pale in brantford or bill said th jury in this case already knew that jimmy dean harris was a dangerous person they knew that what he did they knew not only did he do this murder that was that was that was the purpose of their being charged with murder but speedy are dangerous they knew that but what they didn't know and didn't ever want or anywhere is there that bipolar disorder to with a psychosis explains why didn't acted as india is for sure let me ask a evidence through an expert witness to who is who will be able to just talk about these other psychological records and can taint the jury so that they will be cruelly to know th he is mentally ill and still not subject the defendant to this powerful form of aggravating evidence that judge sauls talked about in grant and now it didn't work but put on a person that is an educational psychologist and have them testify that mental illness it's going to be objectionable you can't give professional opinions about things unless you're qualified to do so the cut off on this  dr smith in the two thousand and one trial is that mr harris had no control over his emotions when he was in a manic phase of bipolar two disorder he had no control over his actions and there's also the issue harris when he was in this that when he was in this wreckage two weeks after the murder then mr harris was sent off and he was medicated and this is the other did that with this testified at the first  you know there were other divergent you know psychological testing and analyses and you know what five or six doctors examined him and came out you know it differing conclusions ranging from the i john is distinguishable because in littlejohn he could be medicated it was conduct disorders could not be medically well isn't that the problem with time if you have anti social personality disorder because the experts agree it's not treatable my medication and yet does people are prone to violence and that's what the exact words would have sat i mean isn't that the strategic decision that trial counsel had to make antisocial disorder you can change that person it's not just social it can be medicated because the actions that he did no longer occurred when he was medicated except for the one time he did get into an attack with regard to there was a lot of testimony about his medication was messed up and he didn't get it properly but that does change the the consideration of a s p d and every like i said everybody that commits a murder is going to probably qualify for that but what if evidence go was with put in that he would have a psychopathic mentality and it seems to me that there was some record evidence of that be inadmissible evidence i mean how or how are we to say w personality or psychic could not preclude that he said he had some characteristics oh well of course he did dr suess at the same time there were some characteristics there but totally disagree that he was out of social personality that this was a play by it right and so the question for us given the double deference that we have at this stage is whether that was a strategic decision and if it is a strategic decision the supreme court has said that it's going to be very rare that we would be able to second guess it at this stage it's it's it's not rare it is rare but it's not  witness even domestic violence and the like right it was a mental health focused strategy and that's your your argument is that was constitutionally inadequate i i get that but that's the i mean if mr rohner said no i wasn't trying to do that except to the extent i could baby back door it is a part of the developmental psychiatry's but that wasn't the that wasn't the theme of the second trial was  a terrible witness maybe not the fault of mr roach because what she easily could have said is look i'm not a psychologist i'm not a psychiatrist but what i  am is somebody who just testified in a number of cases about the developmental problems of disadvantaged individuals just like give it harris and th her and when it fell apart she had no she hadn't been told what to say if it falls apart he's responsible who goes no where he's response but he's responsible for for preparing her to testify to something she says she's well below seventy and despite its evidence despite the fact that the original direct appeal council in fact asked for an act in this hearing and despite the fact that dr krinsky testify that the competency trial unequivocally that well this reliance on dr callahan and dr krzycki and perhaps the specific argument in the heaviest petition wasn't made that the over was and reasonable by saying that no former expert had testified that mr harris was mentally about well what do i think the issue here come to the fact that direct appeal counsel raised this in two propositions the fair and the first proposition of error in the direct appeal brief it was raised as an ineffective assistance of counsel claim for failing to  said because he couldn't have stablished that he was intellectually disabled based on all of the adamant that was available both you didn't act efficiently and you were prejudice would point to the fact the district court found that it wasn't predicated on the determination and not until where before the circuit did respond and even defend on the performance problems i think that ok my position is that it did not the deficient before this i mean it's typical in the strickland arena that if if you couldn't have won if you couldn't have gotten a determination that he was intellectually  harm no foul and there was no reason that he would have as an attorney had to do it but i think we need to talk about that this wasn't and before my own conclusion that he would not have been able to establish his mental retardation at the time of trial first of all this  to perform to investigate and hire an adequate expert in the area of intellectual disability because clearly that is not within dr draper's expertise that this miss armacost you know state the state does say that there is no evidence that there was had a special affinity for dr draper by her own testimony she said that she had testified for him in the neighborhood of twelve to fifteen times in the last ten cases in the army the last ten years and i can't imagine that the socio developmental would be more poor that  psychologist or psychiatrist in those instances so i would ask this court to to infer from that that mr rowan did not add consult with somebody with expertise in intellectual disability how do you distinguish if you do grissom in other words it is the argument of grissom was not exactly the same but it was very similar that mr grissom head well were there was a mitigation defense based on that but there was a lot of mitigation evidence presented and so under the hearing to stay under the court couldn't buy paris twenty two fifty four d that but the evidence that was presented at the atkins hearing was later developed into really really compelling strong medication nonetheless the client still got the death penalty but it was a completely different set of facts and the statement was made there was a lot of mitigating evidence presented in this case but when you look at that proposition for patty hyde the district attorney told the jury you can't consider any of us unless it reduces the culpability the oklahoma mitigation strategy and we have not found that it was enough all those cases are distinguishable from this case for this very reason in those cases the district attorney at some point in their argument told the jury you need to consider all this mitigation and weight well the problem with our case they were told every single element was not mitigation and couldn't be considered and by the time it got to the point where mitigation he wouldn't take that's why i didn't take a very long going to death for and then on top of that then you have the the the the families pleas for death which has been here for thirty some years and the consider mitigating evidence and yeah i you know i've read the closing arguments and boy that's a stretch from my reading of it what they did was they went through every piece of r in fact i know the words you can't consider were never uttered but if i may start a little one of the facts said there's two questions one is did it happen the other is does it matter and that doesn't matter from the bit was if  meeting but if i could take a step back and begin on pages nine o seven to zero eight towards the beginning of the closing argument mr hyde said what this evidence and she said evidence is three things testimony exhibits and stipulations she said that the state stipulated with the defendant that he had not had climbed misconducts in the department of corrections and then you only had one misconduct while in the county jail that is two of petitioners listed mitigating circumstances she said quote so you have seen all three types of evidence that's what you can consider so high unequivocal you told the jury that they could consider petitioner's mitigating circumstances woman she says on nine  so you've seen all of the three types of they haven't and that's what you can consider that's all you can consider say the one thing the law tells you that may consider sympathy or sentiment for the defendant in deciding whether to vote the death penalty and then she goes on to explain that when you're looking at what is mitigating you're looking at whether it reduces both with ability she does say that then she goes on she set up with the jury did it happen does it matter so she said even if you find the evidence the three types of that evidence show that it happened it doesn't matter if you don't meet my distinction very clearly the court stated the prosecution can advocate what evidence the jury should value it just can't tell the jury that it can't consider the mitigating evidence unless it seeks to culpability quest or a drug regas there were various points during the closing argument when the prosecutor repeatedly said we are not telling you not to consider this maybe gating evidence you should consider this mitigating evidence we don't ha comments either by the first prosecutor or the second prosecutor and yet this court still denied really even simpson and simpson there were i think three days of the mitigating or maybe forty ability gave evidence put  significant and troubling yes and there is no doubt i'm quite familiar with simpson since i offered it that there was some frustration frustration from this court about the prosecutor's behavior and it's a continuing brown versus peyton your honor supreme case the prosecutor specifically told the jury on a number of occasions that they could not consider petitioner post crime religious conversion and the supreme court said that in light of the proper jury instructions in light of the arguments of defense counsel in light of the just the fact that the evidence was presented to the jury without objection all of those factors which are the factors that this court has relied on every time that you have  not i would like to turn next to proposition one and effective assistance for not requesting an african's hearing the appellate attorney who took over petitioners case decided to seek another evaluation of the petitioners intellect so he hired dr kelly dr kelly and found and i quote from taking on her report the current findings in conjunction with past evaluations indicate borderline intellectual functioning so even dr kelly is the expert that appellate counsel hired to prove his in effect of assistance claim did not believe petitioner to be mentally retarded live in the big challenge th here did diagnose mr harris as borderline intellectual functioning dr kelly never ever said that he is not mentally retarded challenged but you have an argument that one  on his his intellectual alleged intellectual disability of the first trial and he stated that he gave a range borderline intellectual functioning is really distinct from mental retardation and  mentally retarded by inference by diagnosing him with something different which is a higher level of functioning she must have concluded that he was not mentally retarded yes and i also think on page eleven fifteen the  don't believe that they were speaking of dr kelly yet they do when they get to proposition eleven which was the proposition that alleged that the truck council should have conducted further investigation on intellectual disability so i don't believe that they were speaking to dr kelly in there i think if they were it was entirely reasonable because she could not have diagnosed him with borderline intellectual functioning without ruling out mental retardation i also wouldn't say that that claim has which would require him to identify a factual finding that was unreasonable within the quarter kamil appeals decision he gave the district court no opportunity to evaluate whether this statement was unreasonable  ski because the only argument that he made was that it was unreasonable as to dr kelly i think this is not the district court's job to make up titian's arguments for him and especially given i mean this court applies that sort of rule in all cases that an argument must be made with the testing that he had as a child with the experience that the professionals at eastern state hospital had with him and as well as with his occupation which would have led dr christie to think that he had like believe eighty five and so as this court held in donald grant you don't parsley fine don't you don't finally parse excuse me the cortical appeals decision looking for error you look at it as a whole whether it's reasonable just quoted said that in the text that he said that he is not mentally retarded and if you're saying well the quote explains it well maybe the footnote explains where they also got the fact the error in having them testify as to the preferred and and we look at all the prosecutorial error and we put that together with perhaps what what possible reason could there be and i don't want to avoid your question your honor but i do want to just state and we can come back to later if you'd like that the court of appeals made a factual determination that evidence of low i q was present and in fact there are there are several items of testimony by dr draper that refer encompasses psychology and medicine and that she's written a number of books in the first book she wrote was one for slow learners when she talked about this she wanted to look for slow learners it's not a book of diagnosing people with low intelligence right yes or no but there's no evidence in the record that she would not be qualified to do that she said that she was not person to talk about the psyche actually issues but that does not establish that she would not have been qualified to speak to his mental retardation and she fact say a number of times that he has a low i q that makes him difficult that makes it difficult for him to solve problems and mr rowan relied on that extensively in both opening and closing argument but to return to your and as far as the prosecutorial misconduct there is no constitutional error unless the boy versus california is satisfied and that is not satisfied in this case and then as far as the victim impact testimony goes it was relatively brief and emotionally restraint just as an underwood there were two witnesses there was a very strong case in aggravation the mitigating case while again as the court  august fifteenth of one thousand nine hundred ninety which is the day that she left petitioner for good she said and i quote dean said to me this morning that i caused what was about to happen what he was forced into doing now and that it was irreversible and that he had already thought about the fallout and what and who would suffer i asked him what that meant and he said i was dumber than i thought he said what was going to happen my mother my brothers or of all police force couldn't stop he didn't care who knew and if i w say anything now would only delay what was going what was doomed to happen so that's the evidence that the jury had before it that's the reason that number titian has pointed a couple of times to the fact that the trial court indicated that  they said that brady playing with her to reality there may not be a constitutional violation but because materiality or ineffective assistance with her prejudice those things speed t if it's ineffective assistance of counsel would you agree it's constitutional err yes ok so if you're talking about prosecutorial misconduct and you're doing the task to see if it violates the due process clause because he's been given a fundamentally unfair trial and you say doesn't buy make that the whole point of cumulating is that if you get multiple errors they might gather meet that constitutional threshold isn't  fortunately he missed but he then attempted to reload his gun when that was not successful use it as a blunt object and bludgeoned her over the head with it it was such a violent attack that she lost one of her fingernails and there were clumps of her hair looked at the scene of the crime so the great risk of death aggravated it was overwhelmingly established and then both the court of criminal appeals and the district court found the petitioner has a life long history of violent conduct and so the continuing threat aggravator was overwhelmingly proven and would have been even more paraphrases positions i mean he may or may not be mentally retarded but there was nothing to lose and everything to gain but of course that's not the strickland standard the standard is whether any competent counsel could have made the same choice that he did which is not to pursue the necessary got co g mr rowan told the jury during one year that petitioner was not mentally retarded that he wasn't far from it but that he was not mentally retarded and he believed that reasonably based on all of the evidence that had been presented previously so it cannot be sad even on t hearing in the first instance or if you can't after napkins hearing you don't prevail putting on the evidence hard evidence his low i q in medication and what it was at the strategic reason for not doing that he is not mentally retarded but did that that's a non sequitur even if he's not mentally even if he is not intellectually disabled he might be of low intelligence so he would put on as mitigation not as i have a complete defense to the death penalty under ag and but one thing for the jury to know about the defendant in deciding whether to put him to death is that he is very low intelligence i'm sorry i misunderstood i thought you were talking about the atkins diet read that that is certainly a mitigating circumstance that could be and was present in this case what w those weren't reliable so it's not just the state's position those are in fact not reliable tests and so the rest of the court recognizes a slightly different context and plus tell the rest get into a battle of the experts distracting the jury from the want i do want to follow up with a question just a moment ago and i want to make sure that i thoroughly understand your answer because he is what i asked for americans hearing and my understanding is that your ears are tell me if i mis is a full scale mentally impaired person under atkins i believe that's what this is and i wanted to answer the three little question that you brought up  all we can do in oklahoma is ask for an evidence you're hearing there's only one way we can do it and we have the weirdest procedure in oklahoma ever it has to be done on direct appeal and it has to be done in this real live in motion so sad to have to have evidence here in this case because i think that they gave them was abused all the way across the board from the from proposition to all the way down the forward and when you put them on again there i think that he didn't get a fair says well maybe something would have happened if they had a map and see what i mean how can we speculate you know it's amazing in oklahoma and every other state union that i'd be familiar with everybody gets a hearing in this case you