[00:00:03] Speaker 02: Good morning. [00:00:05] Speaker 02: May it please the court, Charlotte Merrill from the Federal Public Defenders on behalf of Mr. Doar. [00:00:10] Speaker 02: I'll try to watch the clock and reserve five minutes for rebuttal. [00:00:14] Speaker 02: And if the court would like us to do it in any other order, I'm happy to do that. [00:00:19] Speaker 02: I'd plan to just address everything since it's our appeal was filed first, but if the court would like us to split it up any other way, I'd be happy to do that. [00:00:27] Speaker 04: I think we're fine with the typical process, just wasn't quite sure if you wanted something different, so thank you. [00:00:32] Speaker 04: Sure, thank you so much. [00:00:35] Speaker 02: The errors in this case deprived Mr. Doar of an individualized capital sentencing, one that recognized that he was a child with serious developmental issues, that he was raised in a sadistic, abusive household, that he was put in an orphanage at 15 and started drinking there, became an alcoholic, and had brain damage. [00:00:57] Speaker 02: I'll of course defer to the court's questions, but I had planned to briefly address the IAC claim and its posture, and then turn to the merits of the Eddings writ. [00:01:12] Speaker 02: Regarding the IAC claim, Ramirez now requires that for Martina's purposes, a petitioner should bring evidence in a procedurally proper manner in state court. [00:01:24] Speaker 02: And here, a procedurally appropriate way to do that still exists because the Arizona courts recognize exceptions for preclusions and unusual circumstances. [00:01:37] Speaker 02: And the unusual circumstance here would be that Mr. Doar is intellectually disabled and illiterate, and his post-conviction counsel only ever communicated with him by sending him letters. [00:01:47] Speaker 02: And the most recent case on this unusual circumstances exception to preclusion in Arizona is State v. Anderson, which was the subject of the 28-J letter that we recently filed. [00:02:02] Speaker 02: Turning to the Eddings and Tenard writ. [00:02:05] Speaker 01: Let me ask you a question before you move on. [00:02:08] Speaker 01: Are you asking us then to reconsider our order? [00:02:13] Speaker 02: Yes, Your Honor. [00:02:15] Speaker 02: Please, to reconsider the order denying the state of the case. [00:02:19] Speaker 01: Denying the Ryan state, yeah. [00:02:20] Speaker 01: Okay. [00:02:21] Speaker 04: So I have a follow-up question on that as well. [00:02:25] Speaker 04: I understand the argument that you're making about there is some authority, it seems, that Arizona might ignore its preclusion rule that I think the parties otherwise agree applies, right? [00:02:36] Speaker 04: Yes. [00:02:37] Speaker 04: Okay. [00:02:37] Speaker 04: So, and I think that, you know, I read Anderson and there are a few other cases that seem to suggest that Arizona does have that discretion to ignore its preclusion rule and go ahead and consider a defaulted claim. [00:02:49] Speaker 04: What I'm not clear about is what that means for federal law, because in federal law, my understanding from reading the Supreme Court cases in this area, it is still a procedurally defaulted claim, even if the state has discretion to ignore that default. [00:03:03] Speaker 04: Is that correct? [00:03:05] Speaker 02: Yes, and because Martinez continues to be good law, you know, that would excuse the default. [00:03:13] Speaker 02: But the problem after Ramirez is that the evidence isn't before the court. [00:03:18] Speaker 04: I understand that. [00:03:19] Speaker 04: But I'm trying to get at sort of what bucket we're in in terms of classifying the claim. [00:03:23] Speaker 04: And I just want to see if you disagree with my reading of the federal cases that seem to indicate [00:03:31] Speaker 04: that even if a state has the ability to ignore its procedural default rules, for federal purposes, it's still a procedurally defaulted claim. [00:03:40] Speaker 02: I think that's right, and I think that that's what happened in Martinez itself. [00:03:45] Speaker 02: Okay, thanks. [00:03:47] Speaker 02: So yes. [00:03:51] Speaker 02: So turning to the Eddings-Ritt, the Tenard grant, [00:03:54] Speaker 02: The district court got it right. [00:03:56] Speaker 02: The Arizona Supreme Court unmistakably applied a causal nexus test to Mr. Doar's mitigation. [00:04:04] Speaker 02: On his low IQ, he presented evidence that he was functioning as intellectually disabled as a child, that people described him as an adult as kind of slow and like a kid, and a trial expert found he was poorly equipped mentally, emotionally, and socially to cope with everyday life. [00:04:23] Speaker 02: The Arizona Supreme Court rejected this as mitigation because the experts didn't testify it would affect him knowing right from wrong. [00:04:32] Speaker 02: And we know from Atkins and Tenard that the very basis of low IQ evidence is that it's inherently mitigating regardless of whether the person knows right from wrong. [00:04:42] Speaker 03: of what relevance is the trial court, the sentencing court statement that even if it had considered every one of the mitigating circumstances, they still wouldn't have been significant enough to call for leniency in this case? [00:05:00] Speaker 02: I think reading that special verdict as a whole, it's clear that the court is repeatedly replying the causal nexus error and it's making that statement [00:05:11] Speaker 02: in the context of applying that law, which is Arizona law at the time. [00:05:17] Speaker 02: And because the court is applying that causal nexus test, which is unconstitutional, you turn to Brecht error. [00:05:26] Speaker 03: Well, see, I sort of had read that statement as saying, notwithstanding our causal nexus, [00:05:33] Speaker 03: look, I'm just going to look at this evidence as a whole. [00:05:36] Speaker 03: But you're saying within the context, it should not be read that way. [00:05:39] Speaker 02: I don't think it should be read that way. [00:05:41] Speaker 02: And I think, you know, the most, because of McKinney, the most important question is, what was the Arizona Supreme Court doing? [00:05:50] Speaker 02: And it's clear that it was cutting out all of that mitigation. [00:05:53] Speaker 04: And just to... Well, so to follow up on that, I mean, I have a similar question to Judge Thomas about that. [00:06:02] Speaker 04: I think you're right that there are things in the Arizona Supreme Court's decision and frankly the sentencing court's decision that indicate that they were thinking about that causal nexus test. [00:06:13] Speaker 04: But there are also statements that indicate that they were considering these factors, this evidence about his background in a weighing manner. [00:06:22] Speaker 04: And the causal nexus test would say, you don't weigh it at all. [00:06:25] Speaker 04: You just don't consider it, period. [00:06:26] Speaker 04: You just set it off to the side. [00:06:28] Speaker 04: And it's not part of the calculus. [00:06:30] Speaker 04: So if we have statements in the Arizona Supreme Court's decision, which I think we do, that indicate that they weren't just entirely setting it aside and they were weighing it to some degree. [00:06:39] Speaker 04: There's a couple of statements that specifically use that terminology. [00:06:43] Speaker 04: What do we do with that? [00:06:44] Speaker 04: I mean, because that wouldn't be error to put it in the calculus as a weighing of all of the considerations. [00:06:53] Speaker 02: I think the district court got it right that the Arizona Supreme Court specifically ignored the childhood abuse, the alcoholism, the low IQ, and the brain damage based on the causal nexus requirement. [00:07:06] Speaker 03: Well, but at one point the Arizona Supreme Court says the trial court correctly gave the family circumstances minimal weight, but it doesn't say that [00:07:20] Speaker 03: no weight should have been accorded or that they were irrelevant. [00:07:26] Speaker 03: So I guess maybe I'm just asking the same question, but there are a few times where there's a statement about minimal weight and [00:07:33] Speaker 03: It's hard to know what to make of that because that doesn't seem like what the causal nexus test would have demanded that the court say. [00:07:43] Speaker 03: I think the court should have said they were irrelevant under that test. [00:07:45] Speaker 03: Yes. [00:07:46] Speaker 02: I think there are two things that are relevant to that. [00:07:50] Speaker 02: The first is in McKinney, the court discusses the various formulations. [00:07:55] Speaker 02: The court may be saying it some way slightly differently in each case, but it's clear it's imposing that test. [00:08:04] Speaker 04: Isn't it possible that they could have been doing both that they could have been saying, we think the causal nexus test applies. [00:08:10] Speaker 04: But regardless, if we were to weigh these things, this is the, this is how we would do it. [00:08:16] Speaker 02: I think the, the court's analysis in this Arizona Supreme court is really useful on that because [00:08:22] Speaker 02: they're going through factually and paying attention only to whether there's a causal nexus. [00:08:28] Speaker 02: So for example, with the alcoholism evidence, the court is repeatedly, it doesn't talk at all about whether his long-term alcoholism would have been important. [00:08:40] Speaker 02: It talks about intoxication on the night of the fence and it doesn't [00:08:43] Speaker 02: um, address any other impact of his alcoholism. [00:08:48] Speaker 02: So on each factor, I think especially the way the court is going through its factual analysis, it's clear that it's looking for a causal nexus. [00:08:57] Speaker 01: As I'm reading the opinion of the Arizona Supreme Court, the paragraph preceding its talking about what the trial court did, quoting State v. Towery, [00:09:13] Speaker 01: The language in State v. Towery that's quoted is, in the absence, a difficult family background is not mitigating, period, not mitigating, in the absence of some connection. [00:09:27] Speaker 01: So we get the causal nexus test is not mitigating, and then we get a citation to Wallace that again has that very precise language in it. [00:09:35] Speaker 01: Then we get to the paragraph. [00:09:38] Speaker 01: And at the end of that paragraph, the Arizona Supreme Court says, while the judge found the defense had established an abuse of family background by proponent of the evidence, he correctly gave those circumstances minimal weight. [00:09:54] Speaker 01: And that is what the trial judge said. [00:09:57] Speaker 01: He said minimal weight. [00:09:59] Speaker 01: Well, but it looks as though this was affirmed based upon [00:10:03] Speaker 01: these cases that say they get no weight. [00:10:08] Speaker 01: So what am I supposed to make of minimal weight? [00:10:11] Speaker 01: Are we supposed to read that as saying, in effect, we're not going to pay any attention to it? [00:10:17] Speaker 02: I think you can't read, based on the totality of this Supreme Court opinion and in light of McKinney, I think that you can't take that one statement [00:10:29] Speaker 02: as indicating what the Supreme Court has done in the face of all of the factors in, you know, McKinney, Greenway, and Oppelt, that there's the factual conclusions about the causal nexus. [00:10:42] Speaker 02: The Supreme Court goes through those, and as you know, it cites Wallace, which is the case that established the unconstitutional causal nexus test. [00:10:52] Speaker 04: Why shouldn't, so that language that Judge Fletcher just read, of course we're all wrestling with that, why shouldn't we read that language as an adoption of the sentencing court's alternative statement about, even if I was to consider everything, I'd give it minimal weight? [00:11:10] Speaker 02: Again, I think it's just, it's the full language of what the court's doing. [00:11:16] Speaker 02: The court is saying repeatedly it is not mitigating. [00:11:21] Speaker 02: And under McKinney, under Martinez, this court looks at the Arizona Supreme Court and only looks to the trial court to the extent it substantially adopts what the trial court has done. [00:11:33] Speaker 02: So, you know, as to the abusive family, the court is repeatedly saying and citing Wallace, it is not mitigating. [00:11:41] Speaker 02: And on other factors, it's even more clear. [00:11:46] Speaker 02: So even if the court finds that that one statement, despite all of the other findings, means there's not a causal nexus problem there, it's very clear that both courts ignored his low IQ evidence. [00:12:02] Speaker 02: They completely rejected it as a mitigator. [00:12:06] Speaker 02: And the same with the alcoholism. [00:12:08] Speaker 02: They just say these are not mitigating because there is no causal nexus. [00:12:13] Speaker 02: So there's an Eddings error. [00:12:15] Speaker 01: Well, and as the alcoholism, the court does some analysis in the sense of there's no proof that he was affected by alcohol at the time of the crime. [00:12:26] Speaker 01: And once the court's done that, they're finished with it. [00:12:30] Speaker 02: That's right. [00:12:31] Speaker 02: And that doesn't pay. [00:12:32] Speaker 02: any sort of individualized attention to the fact that he had been a long-term alcoholic and started in an orphanage and that that's all interrelated to his plea for mercy. [00:12:48] Speaker 02: So once the court finds that he can overcome D because of the causal nexus error, it has to turn to prejudice. [00:12:58] Speaker 02: And I just wanted to highlight one case that we neglected to put in the briefs, which is sprites. [00:13:05] Speaker 02: And that case is very similar on both sides and important to the prejudice issue. [00:13:13] Speaker 02: So I just wanted to highlight that. [00:13:23] Speaker 02: If the court doesn't have further questions, I may just save the rest of my time. [00:13:28] Speaker 01: I thought you were going to get into the effect of the evidence had it been considered. [00:13:35] Speaker 01: That is to say, so far we've only argued Edding's error. [00:13:39] Speaker 01: Okay, why is it harmful, Edding's error? [00:13:44] Speaker 02: It's harmful because it ignores almost all of the evidence that the court or a sentencer could find empathetic. [00:13:53] Speaker 02: The best comparisons are sprites and poison. [00:13:58] Speaker 02: The evidence here is particularly compelling. [00:14:01] Speaker 02: The district court went through in good detail about his really disturbing childhood. [00:14:11] Speaker 02: his serious developmental issues. [00:14:13] Speaker 02: They were noted he was functioning as intellectually disabled in an orphanage and started drinking there. [00:14:19] Speaker 02: There's evidence of alcoholism throughout his life and brain damage and especially [00:14:30] Speaker 02: in considering this crime. [00:14:31] Speaker 02: All of those things are really crucial to understanding. [00:14:34] Speaker 01: And brain damage is tricky in this case because we can't find or the doctors weren't able to find through MRIs or they don't see it physically in the brain. [00:14:44] Speaker 01: But we do have pretty clear evidence [00:14:47] Speaker 01: that this man is, I'll say it in an informal way, he's not right. [00:14:53] Speaker 01: And we have one of his caretakers at one point saying, well, you get mental retardation for some people because it's an aid. [00:15:02] Speaker 01: Basically, it's genetic. [00:15:06] Speaker 01: Or you get it in some people because it's caused. [00:15:08] Speaker 01: And he says, and here it's been caused. [00:15:11] Speaker 01: That is to say, we get somebody who's just observing this boy or young man in real life and saying, listen, whatever happened to him in the home was so awful that we end up with this mentally, I don't know what the right word is, limited person. [00:15:32] Speaker 02: Yes, I agree. [00:15:34] Speaker 02: I think I should address that, the issue of the trial court finding the brain damage speculative. [00:15:45] Speaker 02: I think what [00:15:47] Speaker 02: If you look carefully at the experts' testimonies and their letters, what they're speculating about is what caused the brain damage and whether there's a causal connection to the murder. [00:15:57] Speaker 02: They're not speculating that it exists. [00:16:01] Speaker 01: Well, I mean, I've dealt with a lot of... [00:16:05] Speaker 01: cases over the years. [00:16:06] Speaker 01: And I've been on various study groups and so on. [00:16:10] Speaker 01: And the gold standard that the defense always wants is physical evidence that shows up in the MRI. [00:16:18] Speaker 01: But that's very seldom there because a lot of things about brain capacity, brain function just don't show up in MRIs or other sort of [00:16:28] Speaker 01: picturing devices, and that's the case here. [00:16:31] Speaker 01: We clearly see that this man is struggling intellectually. [00:16:35] Speaker 01: He basically can't read, he's got emotional difficulties, and the fact that it doesn't show up in the brain scan, well okay, it doesn't show up in the brain scan, but that doesn't mean it's not there. [00:16:48] Speaker 02: That's right. [00:16:48] Speaker 02: And Dr. Heisman, who did the PET scan, writes a letter about this and says, you know, diffuse brain damage isn't necessarily going to show up on a PET scan, and that's not surprising at all. [00:17:03] Speaker 02: And you're very right that there's a lot of evidence of his limited intellectual development through testimony, through the state court records. [00:17:16] Speaker 02: He's noted as functioning as intellectually limited. [00:17:21] Speaker 02: And another just [00:17:26] Speaker 02: clear piece of evidence about how low his functioning is, is his aunt testifying that he writes her back, me okay for today. [00:17:39] Speaker 02: That sort of gives you a picture of what the trial court was missing. [00:17:46] Speaker 01: As a way, or as I tried to weigh the horror of this crime against the mental deficiencies [00:17:58] Speaker 01: One of the things that's puzzled me about this, well I shouldn't say puzzled, but one of the things I've tried to get my hands on is [00:18:05] Speaker 01: the Rosales testimony. [00:18:07] Speaker 01: Because that one, he's the jailhouse, I don't know what the right word is, I could say snitch, but the jailhouse testifier. [00:18:16] Speaker 01: And there's some reason to disbelieve him. [00:18:19] Speaker 01: But he's the one who testifies. [00:18:20] Speaker 01: That door told him that he played with the blood. [00:18:27] Speaker 01: And the court then uses that as support for relishing. [00:18:33] Speaker 01: I didn't find in the ERs the full extent of that testimony and cross-examination. [00:18:42] Speaker 01: And I've asked to get the underlying state court record, and I haven't seen it yet. [00:18:46] Speaker 01: But depending a little bit on how much the jury was allowed to take that testimony whole, that affects my balancing. [00:18:59] Speaker 01: Is there anything you can tell me just standing here about the Rosales testimony? [00:19:04] Speaker 02: Yes. [00:19:10] Speaker 02: The trial court, the judge did the sentencing. [00:19:17] Speaker 02: It's definitely clear from the record that he can't read, and it's clear from the record his trial counsel sent him all his police reports. [00:19:29] Speaker 02: There's evidence that's sort of invisible to you because of Ramirez that people later said down the line. [00:19:38] Speaker 02: But the only testimony of him saying anything about that is Rosales, who claimed to have been his cellmate. [00:19:49] Speaker 02: And even if you have to take that without the sort of invisible evidence because of Ramirez about what we later learned about Rosales, [00:20:00] Speaker 02: you still have a lot of evidence in the record about his low IQ and his sort of bragging and making things up, which is really typical of someone with low IQ when they're masking. [00:20:15] Speaker 01: So... Well, what I'm trying to figure out, and this of course is a piece of the puzzle, this is not the entire puzzle, but what I'm trying to figure out, and I can't do it until I've actually read the full transcript of the examination of Rosalice's, [00:20:29] Speaker 01: How likely is it that their jury believed Rosales when Rosales testifies that Doris said he played with the blood? [00:20:38] Speaker 01: Because that particular comment is so revolting. [00:20:43] Speaker 01: I have to think that it's going to affect the jury verdict as we're trying to figure out what would the jury have done had it been, or as we evaluate the effect of this mitigating evidence put to one side. [00:20:57] Speaker 01: How am I supposed to look at the Rosales evidence? [00:21:01] Speaker 01: That's evidence on the other side. [00:21:03] Speaker 02: The trial court credited that evidence and talked about it, and so did the Arizona Supreme Court. [00:21:09] Speaker 02: They found that compelling, and that's understandably so. [00:21:13] Speaker 02: On the other side of it, there was a lot of [00:21:17] Speaker 02: evidence in the record of both the DCFS records, Hollyweg's summary, and the testimony that puts that into a different context. [00:21:28] Speaker 03: So what you're saying is that there isn't some deficiency that would be apparent to us about Rosales's testimony itself? [00:21:38] Speaker 02: I think that's right. [00:21:39] Speaker 02: There is evidence of that, but it's now, again, not before the court. [00:21:45] Speaker 01: Now, I'm sorry, what's, I'm not quite understanding. [00:21:49] Speaker 01: What is this invisible evidence that we don't have? [00:21:53] Speaker 02: So, this is in the yards specific to the IAC claim, which is evidence that he wasn't ever, there's declarations from Mr. Rosales, from a person who was Mr. Doar's cellmate, Stephen Schwartz, and from an investigator who spoke to Rosales. [00:22:11] Speaker 02: And those all basically say, [00:22:13] Speaker 02: He wasn't actually his cellmate. [00:22:15] Speaker 02: He took his police reports. [00:22:17] Speaker 02: He wanted, you know to make a deal The things that he's he wanted to say what they wanted to hear So that's the stuff with respect to the IAC claim, that's right. [00:22:30] Speaker 02: It didn't come in in state court so but that's why I said but on the on the record that we do have on the transcript that will [00:22:37] Speaker 03: that will get, is there anything about Rosales' testimony on his face that I guess would have been troubling to the jury? [00:22:46] Speaker 02: The trial counsel does ask him some questions about, isn't it strange that you are claiming to be cellmates because you're different races? [00:22:57] Speaker 02: Isn't it weird that the jail would put you together? [00:23:00] Speaker 02: And so he does ask him some questions. [00:23:04] Speaker 02: He doesn't bring out evidence that it's not true that they're not cellmates, but he does go through that. [00:23:11] Speaker 01: Some of that might be sorted out if we were to grant the right with the Ryan's motion. [00:23:17] Speaker 02: Yes, that would be much clearer because that evidence would then be before this court that it could have the whole picture of that. [00:23:25] Speaker 04: I guess I'm trying to figure out which of the claims before us relates to the Rosales testimony. [00:23:30] Speaker 04: Because you're not actually asking us to revisit the jury verdict. [00:23:35] Speaker 04: You're asking us. [00:23:35] Speaker 04: Your claims are based on sentencing. [00:23:38] Speaker 04: I suppose you have the jury bias claim. [00:23:41] Speaker 04: But other than that, it's sentencing. [00:23:43] Speaker 04: And so I'm trying to figure out what [00:23:46] Speaker 04: What claim was the Rosales evidence going to go to? [00:23:50] Speaker 02: It goes to the sentencing in that it's important to the weight of the aggravation. [00:23:56] Speaker 02: As you pointed out, that particular fact, that statement, is more compelling in mitigation because there's no other statement that he remembers any of this. [00:24:14] Speaker 04: What's the standard of review that we would apply to that? [00:24:16] Speaker 02: So that, that's the IAC claim would be Strickland. [00:24:20] Speaker 02: And that, that particular evidence goes to the relishing factor of F-6 and whether that. [00:24:27] Speaker 04: I'm trying to string this together. [00:24:28] Speaker 04: So the theory would be under the ineffective assistance of council claim that the trial, uh, the sentencing council was ineffective for not discrediting Rosales further. [00:24:41] Speaker 02: Yes, for not finding the evidence that, well, for one, sending in police reports to a jail to someone who can't read them, and then they're used against him. [00:24:49] Speaker 02: Well, that's a separate issue. [00:24:50] Speaker 02: So I'm just focused on the Rosales piece right now. [00:24:52] Speaker 04: OK. [00:24:53] Speaker 04: So if that's the theory, then we apply Strickland. [00:24:56] Speaker 04: And what I'm struggling with is how would we ever say that there is Strickland ineffective assistance of counsel where the sentencing court found, I think, three other aggravating factors that [00:25:09] Speaker 04: each one of them all by themselves would be sufficient to support the sentence. [00:25:13] Speaker 02: Yes, so there's one aggravator, and Rosales' testimony is one piece of that, which is relishing. [00:25:21] Speaker 02: And you're right, we're not arguing that that aggravator would exist. [00:25:24] Speaker 04: We had cruel, and we had heinous, and we have these other factors that don't depend on Rosales' testimony at all. [00:25:31] Speaker 02: That's right. [00:25:31] Speaker 02: It's simply that in the overall weighing, [00:25:34] Speaker 02: That is important in that they didn't bring in all of the mitigation, including of his childhood sexual abuse, including of his intellectual disability diagnosis. [00:25:45] Speaker 02: And on the other side, they didn't show that he didn't, it's likely he really didn't make those statements. [00:25:52] Speaker 02: So that's just all interconnected to what they didn't do to have an appropriate balancing at the sentencing. [00:25:58] Speaker 01: So the question is not whether the aggravator exists with or without the relishing. [00:26:02] Speaker 01: It clearly exists without the relishing. [00:26:04] Speaker 01: The question is the strength of the aggravator. [00:26:06] Speaker 01: Yes, Your Honor. [00:26:09] Speaker 02: I see you have four minutes. [00:26:10] Speaker 02: I'll save the remainder of my time for rebuttal. [00:26:27] Speaker 00: Good morning, and may it please the court. [00:26:28] Speaker 00: My name is Jason Gannon, and I represent the respondents in this matter. [00:26:32] Speaker 00: I'm intending to just use my entire time. [00:26:35] Speaker 00: I won't do anything different. [00:26:38] Speaker 00: I would like to first address the readdressing the rein stay. [00:26:44] Speaker 00: The Anderson case was an extremely limited application. [00:26:51] Speaker 00: It does not alter Arizona's rules of preclusion or Arizona case law stating that ineffective assistance of counsel claims are that were not raised in a previous post conviction proceedings. [00:27:08] Speaker 00: will be considered waived and precluded under Arizona law. [00:27:12] Speaker 00: Anderson is an extremely limited holding based on the specific facts of the case related to Arizona's removal of parole and the legal community's persistent misunderstanding of what that indicated. [00:27:30] Speaker 00: So a rein stay to raise the ineffective assistance of counsel claim that was raised in claim 28 would still be procedurally defaulted and the evidence could not be considered by this court as stated in McLaughlin. [00:27:50] Speaker 03: I guess the question is why we shouldn't just go ahead and let Arizona tell us that they won't consider it rather than us assuming that they won't consider it. [00:28:00] Speaker 03: How are we really to know that they won't find that it's an Anderson-like, unusual, extraordinary circumstance? [00:28:06] Speaker 00: Because this is not—Door's ineffective assistance of counsel claim isn't an extraordinary circumstance. [00:28:16] Speaker 00: The original PCR council made a strategic decision in raising the claims of ineffective assistance of counsel that they did raise. [00:28:24] Speaker 00: As the district court found in reviewing whether Dorr would have been prejudiced, the substantial and weighty aggravation in this case makes prejudice particularly difficult to find, and also the district court's evaluation of the habeas evidence [00:28:43] Speaker 00: showed that the claim would be meritless of itself. [00:28:46] Speaker 01: Well, you're just telling us why you would argue to the Arizona court that they shouldn't forgive the procedural default, but they might do it. [00:28:54] Speaker 01: You don't know. [00:28:56] Speaker 01: Or at least I don't know. [00:28:58] Speaker 01: Well, the procedural, the preclusion rules are clear and... But it's also clear in Arizona case law that procedural default is sometimes forgiven. [00:29:10] Speaker 01: I mean, we know that. [00:29:12] Speaker 01: That's correct, Your Honor, but those are only... Why wouldn't they forgive it now? [00:29:17] Speaker 01: And why should we predict... And therefore, to stop this at the gate, why should we predict the unfavorable result rather than find out from the court itself what's gonna happen? [00:29:31] Speaker 00: Because, Your Honor, as I said, Anderson is extremely limited holding. [00:29:36] Speaker 01: Well, I read Anderson, yeah. [00:29:38] Speaker 00: And the other case that comes to mind [00:29:41] Speaker 00: is state v. Diaz, which in that case was another example of an extremely limited exception to the procedural default rules. [00:29:51] Speaker 01: Well, if I were arguing the other side, and I'm not trying to decide the question, it's for the Arizona court to decide, I would say, well, you know, this is extremely limited because the Martina circumstance is itself an unusual circumstance. [00:30:06] Speaker 01: That is to say we've had ineffective assistance counsel at trial, we've had ineffective assistance at the post-conviction proceeding, at least that's the contention. [00:30:16] Speaker 01: You don't get that very often, and the Supreme Court has given us a special rule directed to that very narrow circumstance. [00:30:23] Speaker 01: And this case would then come to the Arizona Supreme Court dealing only with that narrow Martinez circumstance. [00:30:29] Speaker 01: And who am I to say that the Arizona Supreme Court's going to say, sorry, that falls under the general rule. [00:30:36] Speaker 01: It doesn't come under the sort of the narrow band that we've enunciated in Kerrigan, and it shows up in Diaz, and it shows up in Anderson. [00:30:44] Speaker 00: Well, also, Your Honor, this claim would be untimely. [00:30:47] Speaker 00: He had the information for the ineffective assistance of counsel claim in 2002. [00:30:51] Speaker 01: Well, that's one more argument you've got to make to the Arizona Supreme Court or the Arizona court system. [00:30:57] Speaker 01: You might succeed. [00:30:58] Speaker 04: I mean, related to that, are you aware of any federal authority that grants a Ryan's stay in abate, a stay in abatement on a procedurally defaulted claim? [00:31:14] Speaker 00: I am not aware of one, Your Honor. [00:31:17] Speaker 04: My understanding of how all of this works, and it's very complicated. [00:31:19] Speaker 04: I did this like complicated flow chart last night as I was trying to put it all together. [00:31:23] Speaker 04: My understanding about how all this works, you know, in habeas we're sort of, we're sensitive to federalism principles and sort of respecting state decisions, but we're also making sure that federal rights have been honored and trying to balance those things. [00:31:38] Speaker 04: And so my understanding is that we send back unexhausted claims, [00:31:44] Speaker 04: to let state courts decide them. [00:31:46] Speaker 04: And we stay federal proceedings for that to happen. [00:31:49] Speaker 04: But exhaustion and procedural default are separate things. [00:31:53] Speaker 04: And so if we conclude that a claim is procedurally defaulted out of respect for state rules of process, we don't send those back. [00:32:03] Speaker 04: We then apply our own rules of is there a reason to ignore the default? [00:32:08] Speaker 04: And then we have the cause and prejudice standard. [00:32:10] Speaker 04: So I'm trying to figure out is there any authority for sending back [00:32:15] Speaker 04: to the state courts to answer a claim that is something that everyone agrees is procedurally defaulted? [00:32:23] Speaker 00: Nothing is coming to mind, Your Honor. [00:32:25] Speaker 00: I haven't fully briefed this issue or researched in preparation for this. [00:32:31] Speaker 00: If the court would like supplemental briefing, I could do that. [00:32:35] Speaker 00: But I believe that given the clear law in Arizona, [00:32:41] Speaker 00: claim would be technically exhausted, but procedurally defaulted. [00:32:45] Speaker 04: And this court, unless it finds... Has the Supreme Court given us any guidance about, in terms of the Ryan's stay process, how we should think about technically exhausted versus actually exhausted? [00:33:02] Speaker 00: Again, Your Honor, I apologize. [00:33:04] Speaker 00: I don't have that [00:33:06] Speaker 00: Right on my tip, I can prepare supplemental briefing if this court would like on that issue, but I'm just not prepared to answer exactly that question. [00:33:19] Speaker 01: I'm sympathetic to that. [00:33:20] Speaker 01: Given the order we entered previously, you might have thought this was not really on the table. [00:33:27] Speaker 00: And I would also like to, unless the court has further questions, I would like to move to the claim three. [00:33:36] Speaker 00: I'm sorry, the cross-appeal. [00:33:41] Speaker 00: And so, as this court mentioned in the questioning of my colleague, the Arizona Supreme Court seems to both apply the causal nexus test [00:33:56] Speaker 00: There's some evidence showing that it applied a causal nexus test but also shows evidence that it considered and weighed the evidence So given that do you just concede that at least to some degree there was error We do not concede that there was error We understand the respondents understand that this court [00:34:15] Speaker 00: does not have authority to overturn McKinney, because it's an en banc panel, but we do not concede that there was any error in this case. [00:34:26] Speaker 03: Well, is that even accepting McKinney you don't concede that there is error, or do we have to set aside McKinney? [00:34:35] Speaker 00: Well, so to preserve the issue for appeal, for further appeals, [00:34:46] Speaker 00: We maintain that McKinney is wrongly decided, but even if McKinney is applied in this case, the district court erred in finding that Dorr was prejudiced by the failure to consider the- That's a harmless error argument? [00:35:05] Speaker 04: There was no error at all. [00:35:06] Speaker 00: Yes, that is an alternative harmless error argument. [00:35:11] Speaker 00: And the district court, [00:35:15] Speaker 00: analysis after McKinney focused solely on whether there was a McKinney error and then concluded that there was a substantial and injurious effect on the verdict. [00:35:27] Speaker 00: The district court did not conduct any analysis into the aggravation in this case or the rebuttal evidence presented by the state to address the different mitigating factors. [00:35:41] Speaker 00: The aggravation in this case [00:35:44] Speaker 00: is extremely weighty. [00:35:47] Speaker 00: There's both cruelty and heinous and depravity. [00:35:51] Speaker 00: Cruelty focusing on the physical and psychological suffering of the victim. [00:35:56] Speaker 00: In this case, the murder was a roving assault covering every room of Doar's apartment, leaving blood in every room. [00:36:07] Speaker 00: There was a bloody footprint in the [00:36:10] Speaker 00: The victim's bloody hair swipes were on the walls. [00:36:15] Speaker 00: She was found clutching her own hair. [00:36:17] Speaker 00: Her neighbor heard her screaming, blood curdling screams, no, no, at 3.30 in the morning. [00:36:28] Speaker 00: Further, there was defensive wounds. [00:36:31] Speaker 00: She had multiple injuries all over her body. [00:36:36] Speaker 00: That's the cruelty factor. [00:36:39] Speaker 00: And that alone would satisfy the aggravating circumstance, but then there's the heinous and depraved. [00:36:45] Speaker 04: So to get to Judge Fletcher's questions to your, to opposing counsel, it's not as though we sort of like count up while you have how many aggravating factors and how many mitigating factors and whichever one you have like the numerical most of. [00:37:01] Speaker 04: that's the way you go. [00:37:02] Speaker 04: That's not how this works, right? [00:37:03] Speaker 04: It is a weighing, it's sort of a holistic, we look at all the things. [00:37:08] Speaker 04: So why isn't Judge Fletcher's questions, why isn't he correct about if we take one of the aggravating out, even though there are remaining aggravatings, how do we know what the sentencing court would do? [00:37:21] Speaker 04: Why isn't that a winning argument? [00:37:23] Speaker 00: Because the sentencing court expressly stated that even considering all of the mitigation [00:37:30] Speaker 00: presented by Dorr. [00:37:32] Speaker 00: Given the heinousness, depravity, and cruelty Dorr inflicted during this murder, that it would be insufficient to warrant leniency, because Dorr's murder was far and above the norm of a first degree murder. [00:37:48] Speaker 00: This goes to the Brecht analysis, showing that even if all of the mitigation was considered, it didn't have any impact on [00:37:59] Speaker 00: Doar's sentencing based on the aggravation and the minimal mitigating weight of the mitigating, of the mitigators in this case. [00:38:10] Speaker 00: This court has held in Hooper that an abusive and dysfunctional childhood is given lesser mitigating value when the defendant is 35 years old when he commits the crime. [00:38:23] Speaker 00: Doar was 35 years old when he committed this crime. [00:38:25] Speaker 00: He, as the [00:38:27] Speaker 00: Arizona Supreme Court, mirroring the trial court, stated the door did not have any contact with his family for 20 years. [00:38:38] Speaker 00: He left when he was about 15. [00:38:40] Speaker 00: He had no contact with them. [00:38:44] Speaker 00: And so because [00:38:46] Speaker 00: Although it is a mitigating circumstance, it's entitled to minimal mitigating weight. [00:38:51] Speaker 03: The problem is that, as Judge Fletcher pointed out, some of these cases that are cited by the Arizona Supreme Court are not cases in which the court gave just minimal weight, but said it's just irrelevant. [00:39:05] Speaker 03: There's no weight entitled to be given to these factors. [00:39:08] Speaker 03: Even if one agrees that 20 years, it's a longer time than in some other cases, is that really entitled to no weight whatsoever? [00:39:15] Speaker 00: Well, I'm arguing that under the Brecht analysis, there wouldn't be any impact on the verdict or the sentence because the courts can consider and Arizona has clarified that although it does not require a causal nexus for the evidence to be considered, [00:39:37] Speaker 00: it is relevant for the mitigating weight. [00:39:40] Speaker 01: Well, it has now, sure. [00:39:42] Speaker 01: That's the rule now. [00:39:43] Speaker 01: That's what the court does now in the wake of McKinney. [00:39:47] Speaker 00: Correct. [00:39:47] Speaker 01: But that analysis still... Well, we're looking at this case, which was decided before McKinney, of course. [00:39:54] Speaker 00: Correct. [00:39:55] Speaker 00: But in this court's de novo review of the grant of habeas relief, as the court stated in de jure, I don't know if I'm saying that correctly, but the court must [00:40:06] Speaker 00: reweigh the mitigating factors that were alleged not to have been considered by the trial court against the aggravation in this case. [00:40:14] Speaker 00: And so we have the cruelty factor, but we also have the heinous or depravity, which shows the moral corruption of the defendant [00:40:22] Speaker 00: and that the murder was shockingly evil. [00:40:26] Speaker 01: This is a horrible, horrible repulsive crime. [00:40:30] Speaker 01: Nobody can look at this crime and say this is just garden variety of first degree murder. [00:40:38] Speaker 01: I totally grant you that. [00:40:40] Speaker 00: And that is what the trial court found, that even if all of the mitigation had been proven, that it would not warrant a life sentence given the heinous and cruelty of the murder. [00:40:56] Speaker 01: The horrible childhood did not seem to enter in any serious way into the calculation and it did not do so because of the way the court treated non-causally connected factors. [00:41:13] Speaker 01: Why should we, I mean, I've got serious doubt. [00:41:20] Speaker 01: I don't know, of course I can't know. [00:41:22] Speaker 01: I've got serious doubt as to what the court would have done had it given its full attention to the horrible childhood that Dorr had. [00:41:34] Speaker 01: You say, well, he left the family at 15. [00:41:38] Speaker 01: Well, as the twig is bent, so grows the tree. [00:41:42] Speaker 01: You can damage someone pretty severely, and he was damaged pretty severely by the age of 15. [00:41:49] Speaker 01: And as I understand it, what happens if we were to [00:41:57] Speaker 01: rule against you on the McKinney ground, it goes back to sentencing to the Arizona Supreme Court on the existing record. [00:42:06] Speaker 01: So the Arizona Supreme Court can take another look at it and can decide the sentence. [00:42:12] Speaker 01: We don't go to a jury under a ring. [00:42:14] Speaker 01: We just send it back to the Arizona Supreme Court. [00:42:16] Speaker 01: It now looks at all the evidence without the distorting effect of the Eddings violation and away we go. [00:42:27] Speaker 01: Why shouldn't we allow the Arizona Supreme Court to have another look? [00:42:31] Speaker 00: Because, Your Honor, the sentence in court stated that all the mitigation wouldn't have affected its verdict and the... Well, we're actually reviewing [00:42:45] Speaker 01: what the Arizona Supreme Court did. [00:42:47] Speaker 01: We do a de novo review of what the Arizona Court did. [00:42:50] Speaker 01: And of course, the Arizona Supreme Court, and I read some of the language, says after it cites the cases that we know violate Eddings, it then says, and the trial court did not err in giving it minimal weight. [00:43:04] Speaker 01: So I'm looking at what the Arizona Supreme Court did. [00:43:08] Speaker 00: And so, but reweighing the mitigation, or reconsidering the mitigation versus the aggravation in this case, you're right, if this court grants relief, it would go back to the Arizona Supreme Court to redetermine. [00:43:25] Speaker 00: And as you stated previously, the Arizona court has corrected the, has clarified the causal nexus requirement. [00:43:35] Speaker 00: And so they will still apply a causal nexus [00:43:38] Speaker 00: But this will not be used to determine whether the evidence is to be considered, but what weight should be given to that evidence. [00:43:51] Speaker 00: And the weight that would be given to this evidence would remain minimal, as the Arizona Supreme Court stated that [00:43:57] Speaker 01: it correct the trial court correctly gave the abusive family well it would be going back to the arizona spring court saying to the arizona spring court those two cases that you cited in your discussion of this evidence those cases were wrong and you're now supposed to give without this causal nexus test at all you're supposed to give whatever weight you think appropriate [00:44:21] Speaker 01: That's going to be something different from what the Arizona Supreme Court has done already in this case. [00:44:26] Speaker 01: We will be asking them to perform a task different from the one that, on the face of it, they performed. [00:44:33] Speaker 01: Take out those citations and then decide the case. [00:44:40] Speaker 00: Again, as you have stated, this murder is horrific. [00:44:48] Speaker 00: mitigating circumstance of an abusive family childhood is there, but it should be given minimal weight, or the weight that it's given will not outweigh the especially weighty aggravating circumstance in this case. [00:45:04] Speaker 00: And further, this is one of the few mitigating circumstances that the court found had been proven. [00:45:11] Speaker 00: The intellectual, or the brain damage, the court rejected DOORS experts [00:45:18] Speaker 00: and accepted the testimony of the state's expert, who found that Doar's mechanical aptitude, his ability to learn quickly, and his right grip strength indicated that he did not have brain damage. [00:45:36] Speaker 00: And so in considering this mitigating circumstance, the court weighed the conflicting testimonies [00:45:45] Speaker 00: of Doar's experts versus the state's expert and found the state's expert more credible. [00:45:50] Speaker 00: And so the other mitigating circumstance that the court found was his alcoholism. [00:45:57] Speaker 00: This alone should be entitled to minimal mitigating weight, especially given the testimony that when Doar drank too much, he would tend to pass out and would be able to sleep through jackhammering around him. [00:46:11] Speaker 00: And given that there was no objective evidence outside his self-serving testimony that he had been drinking, the blood alcohol level was zero. [00:46:23] Speaker 00: The officers who responded to the scene stated that he was coherent and didn't smell of alcohol. [00:46:30] Speaker 00: And so just having an alcoholism means very minimal mitigating weight. [00:46:43] Speaker 00: I also want to address this court's questions about the Rosales testimony. [00:46:48] Speaker 00: And so the Rosales testimony involving that he, Dor, enjoyed playing with blood, defense counsel thoroughly impeached Rosales. [00:47:00] Speaker 00: He presented testimony that the day that the state investigators went to meet with him, that it was the same day that he entered into a plea agreement. [00:47:11] Speaker 00: The state clarified that [00:47:13] Speaker 00: He, I believe, he pled guilty and then met with the state investigators. [00:47:20] Speaker 01: Let me make sure I understand properly the, I guess I'll say the procedural posture of the Rosales testimony with respect to sentencing. [00:47:30] Speaker 01: I gather that Rosales was not brought in to testify during the sentencing proceeding, but that his testimony that he'd given during the guilt phase [00:47:42] Speaker 01: was considered as part of the sentencing decision. [00:47:47] Speaker 01: Do I have that right? [00:47:49] Speaker 00: That is correct, Your Honor. [00:47:50] Speaker 01: So the Rosales testimony, what it meant, how it worked through, is relevant to our understanding of the sentencing. [00:47:59] Speaker 00: So could you clarify? [00:48:02] Speaker 01: Well, I'm just trying to... [00:48:05] Speaker 01: In a sense, everything's relevant to the sentencing. [00:48:07] Speaker 01: Everything that went on in trial was relevant. [00:48:10] Speaker 01: But the Rosales testimony was specifically brought into the sentencing proceeding. [00:48:16] Speaker 01: Not by bringing him in to testify, but the judge was invited to look at the Rosales testimony as he considered the sentence. [00:48:25] Speaker 00: Yes, it was part of the aggravation. [00:48:29] Speaker 04: As Judge Fletcher mentioned, we don't have that. [00:48:33] Speaker 04: Do you have the trial testimony for that witness? [00:48:38] Speaker 00: I believe so, Your Honor. [00:48:39] Speaker 00: I can make a copy available to the court. [00:48:42] Speaker 04: You could file that in a supplemental filing afterwards. [00:48:45] Speaker 04: That might save us some time in trying to access it. [00:48:49] Speaker 01: Thank you. [00:48:49] Speaker 01: Because I came onto this case late, and I made a request through our offices to get the state court record in order to get that. [00:49:00] Speaker 01: I can abandon that request if we can just get it straight from you. [00:49:04] Speaker 00: OK. [00:49:05] Speaker 00: I will try and get that sent to the court. [00:49:08] Speaker 01: Thank you. [00:49:08] Speaker 00: Also, I would just like to highlight for Zollos' testimony that the state presented evidence showing that there was nothing in the police reports showing that Dorr had blood on his hands and that to counter the defense's claim that he received all of this information from the police reports. [00:49:33] Speaker 00: There was also thorough cross-examination about [00:49:36] Speaker 00: how he got this information, the use of the police reports, how he had access to them. [00:49:47] Speaker 00: But there was testimony presented that there wasn't any testimony or anything in the police reports showing that Dorr had blood on his hands to indicate that he played with the blood. [00:50:00] Speaker 03: And even if you said, [00:50:05] Speaker 03: I suppose Rosales' testimony aside altogether, you still have, I mean, there's a lot of aggravation. [00:50:11] Speaker 00: Right. [00:50:11] Speaker 00: Such as the gratuitous violence where the state couldn't prove that the victim was alive when she was violently sodomized in both the rectum and vagina with a metal pipe and a broomstick, that her face was beaten so badly that her family couldn't recognize her. [00:50:30] Speaker 00: the amputation of her left nipple and the attempt to do the same on the right. [00:50:36] Speaker 00: The aggravation in this case is extremely weighty. [00:50:40] Speaker 00: And the mitigation, as the trial court stated, considering all of the mitigating factors in this case, it wouldn't warrant leniency and a life sentence for door. [00:50:59] Speaker 00: Unless the court has any other questions or would like me to address the other claims, I'll sit down. [00:51:26] Speaker 02: I just have a few quick points in rebuttal on the Rines issue. [00:51:32] Speaker 02: Um, it was not a strategic decision for post-conviction counsel to miss this claim. [00:51:38] Speaker 02: I agree. [00:51:39] Speaker 02: The appropriate thing is to let the state court hear this. [00:51:42] Speaker 04: I'm going to ask you what I asked your friend across the aisle. [00:51:45] Speaker 04: Are you aware of any federal decision that says that a Rines stay in abatement is appropriate for a procedurally defaulted claim? [00:51:57] Speaker 02: As I understand it, this is what happened in Martinez. [00:52:02] Speaker 02: The state court heard the claim in a successive PCR, and then it was heard in federal court. [00:52:12] Speaker 02: So because Martinez is still good law, I think that this court, if there was a stay, could still consider that claim, and then, because the evidence is in the state court record now, could consider that evidence after Ramirez. [00:52:27] Speaker 02: I just wanted to point the court to PCR Council's declaration, which is ER 1261, on the point of whether this was strategic to leave out the sentencing claim. [00:52:40] Speaker 02: On the timeliness issue. [00:52:41] Speaker 02: There's also a relevant Arizona case read it's 501 P third 748 and timeliness is not a question of in Arizona law timely not less is not just a question of passage of time. [00:52:57] Speaker 02: The court ways. [00:52:58] Speaker 02: the substantial consequences of hearing the claim or not hearing the claim, and especially where someone is, again, intellectually disabled and has a PCR counsel who thinks it's a direct appeal and never even meets them, the Arizona courts could find those circumstances enough to hear the merits of the claim. [00:53:17] Speaker 02: I wanted to briefly address the aggravation and reiterate the JERF standard that you review the aggravators proven [00:53:28] Speaker 02: and ask whether the consideration of the improperly ignored evidence would have a substantial impact on the sentencer. [00:53:35] Speaker 02: And I would never stand here and say that the crime here is not terrible, but I would ask the court to compare it to sprites and poison, which in both cases had difficult crimes, but particularly weighty mitigation. [00:53:51] Speaker 04: The one thing that I'm struggling with in this context is, [00:53:58] Speaker 04: If we say that the causal nexus analysis is improper in determining what things you weigh, what things you put into the calculus, but it is not improper to think about causal connection in the actual weighing once you have identified all the things that should be weighed. [00:54:17] Speaker 04: It seems in that context that the harmless error analysis is complicated in that [00:54:25] Speaker 04: it would be easier, it would be cleaner if the error was you considered something that you shouldn't consider for any purposes. [00:54:31] Speaker 04: So now we have to go back and think how would you think about this taking off this consideration that shouldn't have even come in at all. [00:54:39] Speaker 04: Here it's different because it's the consideration has to be used in one way but can't be used in another way. [00:54:44] Speaker 04: It's not that it's completely off the table. [00:54:46] Speaker 04: And so because we do have the state courts sort of talking about this issue and how they think about it and how compelling they think it is, doesn't that [00:54:55] Speaker 04: lend itself to a conclusion of harmless error? [00:54:57] Speaker 02: I don't think you have to import the Arizona court's causal nexus requirement. [00:55:05] Speaker 02: I think the question is prejudice underbrecht, which is whether this would have a substantial impact on the censor. [00:55:11] Speaker 02: I'm using the wrong language. [00:55:12] Speaker 02: You're right. [00:55:12] Speaker 02: I'm sorry. [00:55:13] Speaker 04: It's the prejudice, not a harmlessness label. [00:55:17] Speaker 04: Isn't it harder to conclude that the outcome would have been different? [00:55:24] Speaker 04: had they just considered this issue a different way than they did? [00:55:28] Speaker 02: I think that what's important, what helps with that is to go through each of the mitigators and see how they've been treated in cases where this causal connection wasn't required. [00:55:42] Speaker 02: For example, Tenard, the low IQ was particularly compelling there. [00:55:50] Speaker 02: So I think for each of these aggravators, there are things that courts have found [00:55:54] Speaker 02: particularly compelling, and you can find that excluding that had a substantial impact. [00:56:02] Speaker 02: I only have a few moments left, but I just wanted to address the point that there's no evidence of alcoholism. [00:56:09] Speaker 02: I think there is evidence of alcoholism in the record. [00:56:12] Speaker 02: In the ISIS records he begins drinking at 15 or 16. [00:56:15] Speaker 02: He calls himself a longtime alcoholic They note when he's 17. [00:56:21] Speaker 02: He's having money management issues and he makes big deposits and spends them and he's seen on under the influence of alcohol and [00:56:30] Speaker 02: on the orphanage grounds. [00:56:32] Speaker 02: At 29, there's the hospital records, which are attached to the defense's sentencing memo, where he's thrown 30 feet from a car, and the hospital records is 12 ER 3272 and 3292. [00:56:45] Speaker 02: note him to be extremely intoxicated and uncooperative. [00:56:49] Speaker 02: And then there's the statement from his sister that he often gets drunk on payday, gets very violent. [00:56:56] Speaker 02: And so there's plenty of evidence in the record of his alcoholism that's not related to his intoxication on that night. [00:57:04] Speaker 02: And most importantly, that is all interrelated to the sadistic, awful childhood he had, his functioning issues, [00:57:14] Speaker 02: None of those things can be separated from his plea for life and what a sentencer might find mitigating if it was permitted to consider that evidence. [00:57:25] Speaker 02: Thank you. [00:57:26] Speaker 04: All right, thank you to both counsel for your helpful argument in this difficult case. [00:57:29] Speaker 04: We will take the matter of Dorr versus Shin under submission. [00:57:36] Speaker 03: All rise.