SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - JAMES ERIN McKINNEY, Petitioner, v. ) ) ) No. 18-1109 ARIZONA, ) Respondent. ) - - - - - - - - - - - - - - - - - - Pages: 1 through 69 Place: Washington, D.C. Date: December 11, 2019 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com Official - Subject to Final Review 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - - 3 JAMES ERIN McKINNEY, 4 Petitioner, 5 6 v. ) Respondent. ) - - - - - - - - - - - - - - - - - - 9 10 ) ) No. 18-1109 ARIZONA, 7 8 ) Washington, D.C. Wednesday, December 11, 2019 11 12 The above-entitled matter came on for 13 oral argument before the Supreme Court of the 14 United States at 11:11 a.m. 15 16 APPEARANCES: 17 18 19 20 21 NEAL K. KATYAL, ESQ., Washington, D.C.; on behalf of the Petitioner. ORAMEL H. SKINNER, Solicitor General, Phoenix, Arizona; on behalf of the Respondent. 22 23 24 25 Heritage Reporting Corporation Official - Subject to Final Review 2 1 C O N T E N T S 2 ORAL ARGUMENT OF: 3 NEAL K. KATYAL, ESQ. 4 On behalf of the Petitioner 5 ORAL ARGUMENT OF: 6 ORAMEL H. SKINNER, ESQ. 7 On behalf of the Respondent 8 REBUTTAL ARGUMENT OF: 9 NEAL K. KATYAL, ESQ. 10 On behalf of the Petitioner 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation PAGE: 3 32 64 Official - Subject to Final Review 3 1 P R O C E E D I N G S 2 (11:11 a.m.) 3 CHIEF JUSTICE ROBERTS: We'll hear 4 argument next in Case 18-1109, McKinney versus 5 Arizona. 6 Mr. Katyal. 7 ORAL ARGUMENT OF NEAL K. KATYAL 8 ON BEHALF OF THE PETITIONER 9 10 MR. KATYAL: Thank you, Mr. Chief Justice, and may it please the Court: 11 The State seeks to put James McKinney 12 to death even though he's never once had a 13 sentencing proceeding that complies with current 14 law. 15 to win. 16 Arizona Supreme Court reopened McKinney's 17 sentencing proceeding. 18 earlier granted a conditional writ of habeas 19 corpus and gave the State the option of either 20 imposing a life sentence or seeking the death 21 penalty again. 22 There are two separate paths for McKinney The path in question 1 argues that the The Ninth Circuit had The State chose the latter, which 23 required brand new state action in the form of 24 new sentencing. 25 did everything itself just as it had in 1996. The Arizona Supreme Court then Heritage Reporting Corporation Official - Subject to Final Review 4 1 That was wrong. 2 and Hurst require a jury sentencing. 3 McKinney were sentenced today, no one doubts 4 he'd be entitled to a jury trial. 5 This Court's decisions in Ring If The State claims this would open the 6 floodgates. 7 Ring retroactively as a sword to challenge his 8 earlier proceedings. 9 when the State conducts a new proceeding, that 10 But McKinney is not seeking to use Rather, he's saying that sentencing must comply with current law. 11 Otherwise, the implications would be 12 frightening. 13 re-sentencing today in 2019 with a pre-Batson 14 jury, with race-based jury strikes. 15 be right. 16 For example, a state could run a That can't And the second path, set out in 17 question 2, is for this Court to simply say that 18 the Eddings violation in this case requires a 19 remand to the trial court for sentencing and 20 that the appellate court was wrong to perform 21 that delicate task itself. 22 ground. 23 separate occasions since the 1982 Eddings 24 decision, ordered resentencing for Eddings 25 violations. This breaks no new Indeed, this Court has, on five Heritage Reporting Corporation Official - Subject to Final Review 5 1 Both paths get McKinney to the same 2 destination, but they are separate. 3 is limited to the small universe of Eddings 4 violations and how to fix them. 5 by contrast, is about when sentencing 6 proceedings lose their finality and are 7 reopened. 8 9 Question 2 And question 1, I'm fine waiving the rest of my time if there are questions. 10 JUSTICE KAVANAUGH: Well, what -- what 11 about Clemons? 12 of this Court that says that the appellate court 13 can do reweighing. 14 15 Because Clemons is a precedent Is that still good law? MR. KATYAL: So we're on question 2. And -- 16 JUSTICE KAVANAUGH: 17 MR. KATYAL: Yes. -- and with respect to 18 question 2, Clemons is not an Eddings case at 19 all. 20 aggravating circumstance can be subtracted from 21 -- in a -- in a resentencing proceeding. 22 a much easier case than what the -- 23 Clemons is a case about whether or not an JUSTICE KAVANAUGH: Right. That's You say in 24 your brief, erroneously including an invalid 25 aggravating circumstance is fundamentally Heritage Reporting Corporation Official - Subject to Final Review 6 1 different from erroneously excluding a relevant 2 mitigating circumstance. 3 understand that. 4 MR. KATYAL: Why? I don't Because what the Arizona 5 Supreme Court task had to deal with here was a 6 full-blown reweighing of everything, mitigating 7 and aggravating circumstances, whereas 8 subtracting one element is very different. 9 And, indeed, we know this from Clemons 10 itself, Justice Kavanaugh, because the very end 11 of Clemons actually brackets this case. 12 says, in a circumstance in which the -- there -- 13 in which the appellate court is asked for the 14 first time to weigh and determine evidence, 15 that's different. 16 there? 17 Caldwell. 18 It And what case do they cite They cite this Court's decision in And in Caldwell, there's language 19 after language saying appellate courts are ill 20 suited to making these determinations about a 21 defendant and whether mercy should be given. 22 They want to see the defendant in person. 23 JUSTICE KAVANAUGH: That's a lot of 24 the argument that Justice Blackmun raised in 25 dissent in Clemons, of course, that the Heritage Reporting Corporation Official - Subject to Final Review 7 1 appellate court wasn't well suited to do this, 2 that this was really a mistake. 3 MR. KATYAL: Correct. And our point 4 to you is twofold. 5 take Clemons as existing law. 6 -- my second point is that it's undercut by Ring 7 and Hurst, but just it may be existing law, but 8 it's only existing law with respect to the 9 subtraction of one aggravating circumstance, and 10 11 Number one, you can just I do think it's Clemons itself, as I say, brackets this. And then the second thing is -- is 12 this Court, I think, has really changed the 13 rules since Clemons because of Ring and Hurst. 14 And we're not saying that Ring and Hurst 15 overrule Clemons. 16 just that I don't think it should be extended 17 any further than its facts and that's what -- That's not our position. 18 JUSTICE SOTOMAYOR: 19 JUSTICE ALITO: 20 JUSTICE SOTOMAYOR: But Mr. Katyal -- Let me give you a --- the -- the 21 court below only reached your first issue, 22 whether this was a new proceeding or not. 23 didn't reach the second. 24 it have to do? 25 that second question? It If it had, what does Shouldn't we be remanding for Heritage Reporting Corporation Official - Subject to Final Review 8 1 MR. KATYAL: 2 JUSTICE SOTOMAYOR: We -You -- you have 3 presumed that it would have to do Ring, but my 4 colleague, Justice Kavanaugh, has raised a 5 question of why not. Shouldn't we be letting 6 that be aired below? Shouldn't we just reach 7 the first question and leave the second open and 8 let it be completely aired? 9 I mean, there is at least one Arizona 10 case, Styles, where the court, following 11 Clemons, basically said it's only the appellate 12 process that was at issue in the decision below; 13 we can redo the appellate process without 14 applying Ring and Hurst. 15 I don't know if it would choose to do 16 that again with new argument, but shouldn't we 17 give it an opportunity to do that? 18 MR. KATYAL: Justice Sotomayor, I 19 don't think you have to here. 20 way, whether you viewed question 2 or question 21 1, the result would be a jury trial because 22 Arizona law -- 23 JUSTICE SOTOMAYOR: I mean, either Well, that's your 24 argument. 25 appellate court make that decision? I'm just saying, shouldn't we let the Heritage Reporting Corporation Official - Subject to Final Review 9 1 MR. KATYAL: Well, I think the 2 appellate court here has pronounced on question 3 1 and said -- 4 JUSTICE SOTOMAYOR: No, if we disavow 5 it over that pronouncement. 6 argument, as I did in your brief, that finality 7 is not up to the state court or reopening -- 8 finality is not up to the state court, that it's 9 up to federal law. 10 11 I -- I take your We have to define it for everybody. And if we told it to go through a new 12 procedure, I don't know how that can't be a 13 reopening. 14 say we said, and I take your argument is broader 15 than that, but assuming I accept their position 16 that what they were told to do was to reopen the 17 appellate process, then they were wrong. We told it -- the only thing they 18 MR. KATYAL: 19 JUSTICE SOTOMAYOR: 20 that's your argument, right? 21 22 23 MR. KATYAL: So, Justice Sotomayor -And we -- that -- Absolutely. Justice Sotomayor -JUSTICE SOTOMAYOR: That it was a new 24 proceeding. 25 them to decide what new law they apply, if any? So now shouldn't we remand it for Heritage Reporting Corporation Official - Subject to Final Review 10 1 2 Or what law -MR. KATYAL: If you want to rule for 3 us on question 1, we're obviously not going to 4 be opposed to that. 5 rule on question 1 and not reach question 2 6 because the Arizona Supreme Court here did make 7 a decision on question 2. 8 9 I don't think you have to Indeed, there was a whole dispute between us about what should the Arizona Supreme 10 Court do, and briefs were filed. 11 Appendix pages 385 to 89. 12 brief on this saying: 13 Supreme Court. 14 There's Joint You have the State's Do this in the Arizona And what we said is no, Eddings 15 requires, under Caldwell, Clemons, all of those 16 cases, a resentencing -- 17 JUSTICE SOTOMAYOR: But they decided 18 the question on a narrow ground that this was 19 not a new procedure. 20 this was not a reopening. 21 belief of that, then shouldn't we get an answer 22 to the question they left open? 23 MR. KATYAL: If we disavow them -- that If we disavow their I'm not sure that they 24 left it open, Your Honor. 25 arrogate to themselves the power to conduct this What they did was Heritage Reporting Corporation Official - Subject to Final Review 11 1 2 resentencing proceeding -JUSTICE ALITO: Well, at what stage of 3 the -- of the direct appeal was there an error 4 according to the Ninth Circuit? 5 MR. KATYAL: The -- there was an error 6 -- if we're talking about -- there was an error 7 both at the trial court and at the Arizona 8 Supreme Court. 9 10 JUSTICE ALITO: But the Arizona Supreme Court conducted de novo review -- 11 MR. KATYAL: 12 JUSTICE ALITO: Correct. -- was it not? So 13 wasn't the error identified by the Ninth Circuit 14 an error committed by the Arizona Supreme Court? 15 MR. KATYAL: And more. So there's 16 four answers here, Justice Alito. 17 my friend has made this argument in the red 18 brief at page 38 that this is the Arizona 19 Supreme Court's error only. 20 argument in the brief in opposition. 21 not sure 15.2 allows them to make the argument 22 when it wasn't in the brief in opposition. 23 that's particularly true here because they told 24 you in this -- 2016, when they filed a cert 25 petition from the Ninth Circuit, at page 30, First, I know That's not the Heritage Reporting Corporation And I'm And Official - Subject to Final Review 12 1 they said that the error was actually in the 2 trial court. 3 JUSTICE ALITO: All right. Well, I 4 mean, put -- put aside these preservation 5 issues, which we can sort out for -- for 6 ourselves. 7 If the Arizona Supreme Court in the 8 decision on direct appeal had made it clear, if 9 it did not already, but assuming that the Ninth 10 Circuit majority was right, if they -- if they 11 had made it clear that they were taking into 12 account the mitigation evidence, irrespective of 13 whether there was a causal connection with the 14 commission of the offense, would there have been 15 an error? 16 MR. KATYAL: If there were no trial 17 court error on Eddings, we wouldn't be here. 18 Our position is -- 19 JUSTICE ALITO: What if there was -- 20 all right. 21 error, but the Ninth Circuit said we're 22 conducting de novo review, and we're going to do 23 it the right way, and we take the mitigation 24 evidence into account in the way that Eddings 25 allow -- requires us to do. Assume there was a trial court Heritage Reporting Corporation Official - Subject to Final Review 13 1 MR. KATYAL: And I don't think this 2 Court's precedents allow the appellate court to 3 fix the trial court error. 4 Caldwell say that that's a decision for the 5 sentencer at the trial court where they can see 6 the defendant, confront the witnesses. 7 cases like Arizona, there's a double circuit 8 breaker function served by the scheme because 9 they have to win both no death sentence -- they 10 have to win a death sentence both at the trial 11 court and at the Arizona Supreme Court. 12 Decisions like And in And what they're seeking to do here is 13 fuse that into one thing. 14 can be fixed on appeal, that's enough. 15 decisions like Caldwell say is, uh-uh, for 16 juries -- sorry, for Cald -- for Eddings errors, 17 you need to have a trial court consideration of 18 that. Just as long as it And what 19 JUSTICE BREYER: 20 have the facts wrong, but -- maybe. 21 there are -- the trial court says, a long time 22 ago, there are two aggravating factors, A and B. 23 Why -- maybe I must But, look, And then it looks at the mitigation, 24 and the mitigation is he had a terrible 25 childhood. And the trial court says, well, that Heritage Reporting Corporation Official - Subject to Final Review 14 1 only counts if it's causally connected. 2 a mistake. 3 That's Then it goes to Arizona Supreme Court, 4 and they say the same thing. 5 two, aggravating, and now we independently say 6 this causal thing. They say one and 7 MR. KATYAL: 8 JUSTICE BREYER: 9 the causal, says the Ninth Circuit. 10 Supreme Court. 11 our reweighing. 12 Yeah. You're wrong about Back to the Supreme Court says we will redo We will now not use causal. Why does it have to go back to the -- 13 if their law really is -- if it really is the 14 Supreme Court can do this way, why does it have 15 to go back to the trial court? 16 MR. KATYAL: Because, in Eddings cases 17 and in particularly Caldwell, this Court has 18 said the trial court has to confront all this in 19 the first place. 20 At page 331, for example, you said: 21 Whatever intangibles a jury might consider in 22 its sentencing determination, few can be gleaned 23 from an appellate record. 24 made directly to the sentencer. 25 appellate mercy -- The mercy plea is There is no Heritage Reporting Corporation Official - Subject to Final Review 15 1 JUSTICE BREYER: Well, in Arizona, the 2 sentencer is the appellate court. You could say 3 there's something wrong with that. It does say 4 the sentencer is the appellate court. 5 6 MR. KATYAL: And what this Court's decisions -- 7 JUSTICE BREYER: 8 MR. KATYAL: 9 Can't do that -- -- from Eddings on have said, no, you've got to remand to the trial 10 court for a determination and not to the 11 appellate court. 12 13 And, by the way -- JUSTICE BREYER: Okay. I -- I got that point. 14 MR. KATYAL: And, Justice Breyer, in 15 Arizona, State versus Bible says appellate 16 courts can't take evidence and can't assess that 17 kind of stuff. 18 equipped to do that. 19 They're not institutionally JUSTICE BREYER: All right. Okay. 20 But we don't have to send it back because of 21 Ring. 22 current law that applies, can they do this. 23 they say, yes, it applies, correct, correct, but 24 not to the aggravating part because the 25 aggravating part was done correctly under old Is that true? I mean, Ring, if it's now Heritage Reporting Corporation Can Official - Subject to Final Review 16 1 law -- 2 MR. KATYAL: 3 JUSTICE BREYER: 4 what's at issue. 5 issue. So -- Only the mitigating part is at 6 MR. KATYAL: 7 JUSTICE BREYER: 8 MR. KATYAL: 9 -- and that's not So our -Can they say that? -- position on question 1 -- 10 JUSTICE BREYER: 11 MR. KATYAL: Yeah. -- is that they've 12 conducted a brand new sentencing proceeding and, 13 therefore, current law applies. 14 applies. 15 16 That means Ring And Ring -JUSTICE BREYER: Well, Ring would make you say that. 17 MR. KATYAL: And they haven't really 18 gotten into, except for just saying, oh, there's 19 no Ring violation, what the possible violations 20 are. 21 22 Our brief at pages 30 to 34 does outline that -- 23 JUSTICE ALITO: 24 MR. KATYAL: 25 Counsel, why -- -- and says, you know, the weighing and the mitigating circumstance and Heritage Reporting Corporation Official - Subject to Final Review 17 1 the taking of an aggravating circumstance 2 without a jury determination, any of those are 3 separate Ring problems. 4 JUSTICE KAGAN: So, on question 1, why 5 would Ring apply? 6 issue is, is the defendant getting a kind of 7 windfall if Ring applies? 8 9 I mean, I guess the -- the The error here has nothing to do with Ring. And Ring only comes into the picture 10 because the -- the court is trying to create -- 11 is trying to correct a different error. 12 Why is it that, you know, a -- a 13 non-retroactive rule should all of a sudden pop 14 up and the defendant get the benefit of that 15 rule? 16 MR. KATYAL: We -- we don't think that 17 there's a windfall here, and I'll explain why, 18 but, if you do, that would just push you in the 19 direction of question 2, in which you don't have 20 that feature. 21 22 23 But, with respect to a windfall, I don't think that exists here. All our argument is, is that the State 24 is conducting a brand new proceeding, and that 25 new proceeding has to comply with current law. Heritage Reporting Corporation Official - Subject to Final Review 18 1 So we're not trying -- trying to use 2 the flaw, the Eddings flaw, to reopen old 3 grievances and say, oh, there was this problem 4 in the trial or that problem in the trial. 5 just that the fact after the Ninth Circuit 6 granted the conditional writ, the State 7 affirmatively, you need a brand new state action 8 in order to sentence McKinney to death. 9 It's And our problem is with that brand new 10 action, not with something that happened back 11 before in 1993 -- 12 13 JUSTICE KAVANAUGH: -- 14 15 16 You're requiring MR. KATYAL: -- but with what happened later. JUSTICE KAVANAUGH: -- you're 17 requiring a new jury sentencing 28 years after 18 the murders and after the victims' families have 19 been through this for three decades. 20 not required by Clemons, I take your point on 21 that, but the whole point of Clemons -- and I -- 22 I understand your argument -- was the appellate 23 court can do this. 24 25 And that's And there was a passionate dissent, you've read it, by Justice Blackmun saying this Heritage Reporting Corporation Official - Subject to Final Review 19 1 was really quite wrong to allow the appellate 2 court to do this. 3 But the Arizona Supreme Court, 4 presumably aware of that law, did it itself. 5 And why -- why go back to a jury resentencing 28 6 years later? 7 MR. KATYAL: Justice Kavanaugh, I 8 think in many of the Eddings cases you have done 9 exactly that. In cases in which there's a doubt 10 as to whether or not the jury consider -- or the 11 trial court considered mitigating evidence, 12 you've sent it back to the trial court for a 13 resentencing and, indeed, for a jury 14 determination. 15 You did it in Eddings itself. 16 it in Penry. 17 case, that is the result of this Court's 18 precedents. 19 You did it in Mills. You did Case after And I think it's right because we're 20 not talking about some technical violation here 21 or something. 22 what capital punishment sentencing is all about, 23 the weighing of mitigating and aggravating 24 circumstances. 25 We're talking about the heart of JUSTICE KAVANAUGH: Well, that was Heritage Reporting Corporation Official - Subject to Final Review 20 1 true in Clemons, correct? 2 MR. KATYAL: Correct. And, again, but 3 in Clemons, it was just the subtraction of that 4 one factor. 5 JUSTICE KAVANAUGH: 6 MR. KATYAL: 7 And, indeed, they bracketed that. 8 9 I know. JUSTICE KAVANAUGH: But the big point of the dissent in Clemons was, look, this is 10 something a fact finder should do, the jury -- 11 the fact finder, the trial court should do, 12 which is hear all the evidence and do that 13 weighing. 14 MR. KATYAL: 15 JUSTICE KAVANAUGH: Right. And that seems 16 quite similar, and I still take your point, but 17 quite similar. 18 MR. KATYAL: Right. I -- I think it's 19 still different because it's just a much more 20 limited question on appeal in that circumstance. 21 Here, you are asking -- and Arizona 22 has a de novo, brand new, you know, full 23 reweighing procedure -- you're asking them in 24 that circumstance to -- to -- to decide 25 something that a jury has never seen or a trial Heritage Reporting Corporation Official - Subject to Final Review 21 1 2 court's never seen. And, you know, cases like Caldwell 3 say, for mitigating evidence, mercy is really 4 important. 5 court decide this really fundamental question 6 without even having the defendant before it, 7 without having the witnesses, you know, that's 8 -- that's something, I think, that's new. 9 At least in Cald -- at least in And, you know, to have the appellate 10 Clemons -- I should have said this, Justice 11 Kavanaugh -- at least in Clemons there was a 12 trial court determination at some point of the 13 mitigating and aggravating circumstances. 14 JUSTICE SOTOMAYOR: 15 JUSTICE ALITO: But the problem -- Why are you really -- 16 why are you not asking for a windfall? 17 maybe a double windfall. 18 getting retroactive application of Ring, which 19 is not retroactively applicable to anybody else. 20 Indeed, You are effectively And not only that, what you really 21 want, I gather, is a jury -- is -- is not the 22 correction of a Ring error. 23 another shot at convincing a jury to hold that 24 somebody who is going to be found death-eligible 25 in all likelihood should, nevertheless, not get It is the -- it is Heritage Reporting Corporation Official - Subject to Final Review 22 1 the death penalty. 2 MR. KATYAL: So it's a limited 3 correction to -- because the Ninth Circuit's 4 invalidated this -- this sentence. 5 requires a new sentencing if they want the death 6 penalty. So it 7 It doesn't allow us to, for a 8 windfall, for example, reopen guilt or innocence 9 or anything like that. That was not touched by 10 it. 11 sense, Justice -- Justice Alito, it's kind of 12 like when the Court decides an ineffective 13 assistance of counsel claim in a capital case. 14 Yes, in one sense, I guess it's a windfall 15 because lots of issues are reopened there, not 16 just one. 17 So it's limited to that. And in that But that is, I think, the result of a 18 precedent that says, hey, you need a full 19 resentencing. 20 JUSTICE ALITO: No, but, I mean, there 21 the ineffective assistance of counsel can have 22 all kinds of effects. 23 -- you have an entirely formalistic argument, 24 and maybe it's right, but why don't you just 25 admit it's entirely formalistic. I mean, you have a very You want a Heritage Reporting Corporation Official - Subject to Final Review 23 1 retroactive -- you want effectively a 2 retroactive application of Ring and your real 3 beef is not with a -- the -- the lack of a jury 4 finding on -- on -- on eligibility. 5 the actual sentence that the jury decided to 6 impose. 7 MR. KATYAL: It's with I -- I couldn't disagree 8 more profoundly with that. 9 we're not seeking here is not formalistic; what 10 we're saying is that there is new state action 11 as a result of the Ninth Circuit's decision. 12 We're not saying Ring allows you to reopen, for 13 example, the jury trial rights on guilt and 14 innocence or anything like that. 15 That is, that what It's simply that they need it to come 16 in and have affirmative state action. 17 wanted to have a death sentence, if they wanted 18 to have a final judgment, they needed to come in 19 and do a new proceeding -- 20 JUSTICE GORSUCH: 21 MR. KATYAL: 22 23 If they Mr. Katyal -- -- in 2016. And our problem is with the new 2016 proceeding. JUSTICE GORSUCH: At the risk of a 24 formalistic question, normally, states are the 25 definers of their own procedures, their own Heritage Reporting Corporation Official - Subject to Final Review 24 1 state law. 2 normally at least, a state gets to define when 3 its proceedings are final, for state law 4 purposes at least. 5 And I would have thought that, What federal law and what standard of 6 review would apply to determine whether that 7 state law violates the federal Constitution? 8 9 MR. KATYAL: big answers here. So, Justice Gorsuch, two One is we're not in that 10 circumstance because Arizona borrows from 11 federal law. 12 There's no state law -- JUSTICE GORSUCH: Let's -- let's just 13 say we are, okay? 14 hypothetical, if you don't mind. 15 Let -- let's -- stick with my MR. KATYAL: Sure. Okay. And with 16 respect to your hypothetical, I think this Court 17 has said from Richfield Oil on in 1946 that it 18 is -- it is a federal question, not a state 19 question. 20 you don't want to have state-by-state 21 definitions -- In cases like Gonzalez, you've said 22 JUSTICE GORSUCH: 23 MR. KATYAL: 24 JUSTICE GORSUCH: 25 I -- I accept -- -- of finality. -- that there could be a federal rule of decision for vindicating Heritage Reporting Corporation Official - Subject to Final Review 25 1 some federal constitutional principle, but what 2 would be that federal constitutional principle? 3 And wouldn't, whatever it is -- you're going to 4 say due process or -- I -- I'm looking forward 5 to that. 6 thought that it would have been a pretty 7 deferential standard of review by this Court to 8 -- to maybe assess whether there are efforts to 9 evade a federal interest. 10 But whatever it is, I would have MR. KATYAL: I think this Court has 11 said that the -- that -- that it is purely a 12 federal question and hasn't deferred in all of 13 these different cases. 14 15 16 17 18 19 JUSTICE GORSUCH: law? Is it federal common I mean, I'm -- what's your source of law? MR. KATYAL: I think -- it's Article III in the Supremacy Clause because -JUSTICE GORSUCH: Well, the Supremacy Clause vindicates -- 20 MR. KATYAL: 21 JUSTICE GORSUCH: 22 MR. KATYAL: 23 JUSTICE GORSUCH: 24 MR. KATYAL: 25 JUSTICE GORSUCH: Exactly, but --- other -- Right, but if I could --- federal laws. Right. And so I'm -- I'm Heritage Reporting Corporation Official - Subject to Final Review 26 1 still waiting for what that other federal law 2 is. 3 MR. KATYAL: It is that, if you allow 4 state-by-state definitions of finality, allow 5 them to define around the problem, then you 6 have, for example, Batson problems and a return 7 to the Linkletter world where Justice Harlan was 8 so worried about the idea that you could just 9 pick and choose when a state could apply current 10 law and when they could say, oh, no, it's much 11 more -- 12 13 JUSTICE GORSUCH: that one. 14 Right. I give up on How about the standard of review? MR. KATYAL: So we -- you know, we 15 don't have a beef really with the standard of 16 review. 17 any deference. 18 deference in this case, you'd be giving 19 deference to actually a state using a federal 20 definition because they never cite -- the 21 Arizona Supreme Court when they say -- I don't think this Court has ever given But even if you were to give 22 JUSTICE GORSUCH: 23 MR. KATYAL: 24 JUSTICE GORSUCH: 25 Well, they say -- -- this is a final --- it's an independent procedure and that that's different Heritage Reporting Corporation Official - Subject to Final Review 27 1 -- 2 MR. KATYAL: 3 JUSTICE GORSUCH: 4 Citing --- in Arizona, and it's kind of an unusual procedure. 5 MR. KATYAL: No, no, no. They cite, 6 Justice Gorsuch, this Court's decision in 7 Griffith and federal law entirely through and 8 through. 9 Arizona. 10 11 There is no cite to anything in JUSTICE GORSUCH: All right. Well, let's -- 12 MR. KATYAL: 13 JUSTICE GORSUCH: Michigan versus Long. Just suppose I 14 disagree with you on that for a moment. 15 still want to win, right? 16 review would you have this Court apply in these 17 circumstances? 18 MR. KATYAL: 19 JUSTICE GORSUCH: 20 21 You So what standard of Well, we would say -Something stronger than rational basis review? MR. KATYAL: We -- we would say that 22 it doesn't -- that there is no reason for it to 23 be deferential because you are talking about 24 federal constitutional commands. 25 just apply, you know, a de novo standard. So you would Heritage Reporting Corporation But, Official - Subject to Final Review 28 1 even if you wanted deferential, rational 2 basis -- 3 JUSTICE GORSUCH: 4 MR. KATYAL: Right. -- whatever it is, here, 5 this is met. 6 sentencing proceeding, the heart of what capital 7 sentencing is all about -- Here, they are having a brand-new 8 CHIEF JUSTICE ROBERTS: 9 MR. KATYAL: 10 Mr. Katyal -- -- weighing the -- CHIEF JUSTICE ROBERTS: -- in a lot of 11 your -- your argument, you've talked -- you've 12 talked about ineffective assistance examples, 13 Batson examples, but not every violation of 14 federal law cuts across the entire proceeding, 15 as ineffective assistance or Batson. 16 MR. KATYAL: 17 CHIEF JUSTICE ROBERTS: Correct. Do you have a 18 line to draw between those that do and those 19 that don't? 20 MR. KATYAL: Our -- our line, Mr. 21 Chief Justice, is -- is, if the new proceeding 22 violates current law, in that circumstance and 23 in that circumstance only is there a 24 constitutional -- our argument is limited to 25 that. So you can be -- Heritage Reporting Corporation Official - Subject to Final Review 29 1 CHIEF JUSTICE ROBERTS: So there's no 2 difference between sort of a surgical mistake 3 that could be corrected and an entirely 4 comprehensive mistake that infects the whole 5 proceeding? 6 MR. KATYAL: 7 kind of safeguard against their 8 open-the-floodgates argument, because, as 9 Justice Sotomayor, when she was on the Second No. That's a separate 10 Circuit, said in Burrell and many other courts, 11 like the Florida Supreme Court, have said, if 12 it's just a technical correction, if it's 13 ministerial, then you're not reopening the final 14 judgment. 15 16 We absolutely agree with that. This is the polar opposite. 17 CHIEF JUSTICE ROBERTS: 18 somewhere between ministerial and entirely 19 comprehensive, there are things that are 20 discrete and focused -- 21 MR. KATYAL: 22 CHIEF JUSTICE ROBERTS: Well, but Yes. -- that 23 suggest that a -- the -- the new -- new 24 proceeding, to give you the benefit of that, is 25 not one that can't be -- is one that can be Heritage Reporting Corporation Official - Subject to Final Review 30 1 cured relatively easily. 2 MR. KATYAL: Right, and our point, the 3 line is -- and this is what Burrell and other 4 cases say -- if the new proceeding requires an 5 exercise of discretion, then current law applies 6 to that new proceeding. 7 agree, you know, that there can be difficult 8 cases in the middle, but this is the outlier. 9 This is a brand-new full-blown, 100 percent redo 10 And, yes, you know, I -- 11 JUSTICE KAVANAUGH: 12 MR. KATYAL: 13 Can I -- -- of what happened in 1996. 14 JUSTICE KAVANAUGH: So the part of 15 Clemons that you say may still be good law, 16 suppose that the appellate reweighing occurred 17 not on direct review but on state habeas in the 18 state supreme court. 19 your view? 20 MR. KATYAL: Is that a possibility in So we don't think 21 anything turns on the label state habeas or 22 direct review or anything. 23 substantive question, what's going on. 24 if -- 25 JUSTICE KAVANAUGH: It's fundamentally a And Could -- could Heritage Reporting Corporation Official - Subject to Final Review 31 1 they do that, though, the Clemons reweighing, in 2 -- in the state habeas proceeding? 3 MR. KATYAL: If -- if they did the 4 same thing here but called it collateral or 5 habeas, it would make no difference whatsoever 6 because, ultimately -- 7 8 JUSTICE KAVANAUGH: answer is no, they couldn't do that. 9 10 MR. KATYAL: It's ultimately a substantive test. 11 12 So I think your JUSTICE KAVANAUGH: not? And why -- why Why can't a state do it in that fashion? 13 MR. KATYAL: Because then you'd give 14 the state the power to relabel something 15 collateral and evade Batson and things like 16 that. 17 allowing different and dis- -- disuniformity 18 between cases. 19 think the -- this Court's finality jurisprudence 20 in Jimenez is all about trying to avoid. And that's a return to Linkletter and And that's fundamentally what I 21 I reserve. 22 CHIEF JUSTICE ROBERTS: 23 24 Thank you, counsel. General Skinner. 25 Heritage Reporting Corporation Official - Subject to Final Review 32 1 ORAL ARGUMENT OF ORAMEL H. SKINNER 2 ON BEHALF OF THE RESPONDENT 3 4 MR. SKINNER: Mr. Chief Justice, and may it please the Court: 5 I believe there's actually only one 6 path forward here for Petitioner. 7 QP 1 resolves the resolution of this case no 8 matter which way it goes. 9 retroactive application of Ring and Hurst and Effectively, If there's 10 all current law applies, Arizona does not 11 contend that we have Ring-compliant aggravators 12 here, and this would be a case that we would 13 take back to the trial court. 14 To the extent that there is no 15 retroactive application, Clemons is the 16 governing law, and what Arizona did fits 17 entirely within Clemons. 18 involving trial court remands under Eddings from 19 this Court the Petitioner has cited predate 20 Clemons. 21 them do. 22 All of the cases Caldwell predates Clemons. All of And there is no difference -- to pick 23 up on something that Justice Kavanaugh 24 mentioned, we don't believe that where the 25 record is built, which is critical here, where Heritage Reporting Corporation Official - Subject to Final Review 33 1 the record is built, credibility determinations 2 have been made, the expert for the defendant has 3 been credited in the trial court over the 4 State's expert, that there would be any problem 5 with the trial -- with the appeals court 6 conducting its own independent review. 7 Caldwell and these cases discuss some 8 sort of new evidence that was never heard. 9 counsel keeps mentioning things as if never And 10 seen, the evidence was never seen, the evidence 11 has never been heard. 12 testimony was credited. 13 has been credited. 14 that have been made, and the only allegation 15 coming out of the Ninth Circuit is that there 16 was an error of law in how those facts and 17 evidence were treated. 18 But the PTSD expert The existence of PTSD These are determinations Turning to Question Presented 1, the 19 language of the writ that was issued is critical 20 here. 21 require vacating the sentence. 22 horribles that comes forward out of Petitioner 23 and amici really turns on the idea that somehow 24 a state could -- could -- all of them are 25 answered by the idea that we admit, if a It is a conditional writ that does not The parade of Heritage Reporting Corporation Official - Subject to Final Review 34 1 sentence is vacated, that undoes the final 2 judgment in a criminal case. 3 touchstone of what a criminal case is. That is the 4 Petitioner keeps mentioning that he 5 doesn't want to challenge anything earlier in 6 the case, but yet he cites cases in which this 7 Court has held that the sentence is the judgment 8 and that if you undo the sentence, then you undo 9 the finality. 10 JUSTICE SOTOMAYOR: So, if the Court 11 had done this proceeding -- it says it's not a 12 reopening of the judgment, but if it had done 13 this proceeding and changed its mind and said, 14 you know, it wasn't causally connected and we 15 were following our old rule, but it was fairly 16 powerful evidence and we think he shouldn't be 17 subjected to death, could they, unless they 18 reopened the judgment, have modified the 19 judgment? 20 MR. SKINNER: They can -- they can 21 modify the judgment in the same manner that a 22 2255 court can modify a judgment, which, you 23 know, even in -- 24 25 JUSTICE SOTOMAYOR: How? open it to modify it, don't you? You have to You have to Heritage Reporting Corporation Official - Subject to Final Review 35 1 undo it to change it. 2 changing a judgment by not undoing it first. 3 MR. SKINNER: I've never heard of There are -- Petitioner 4 cites, for example, the Burrell case out of the 5 Second Circuit, and that's an example where this 6 Court has recognized that even in the context of 7 a direct appeal, where you are making a change 8 and it's the only change that can be made, and, 9 here, there's only two sentences available, we 10 believe that if the Arizona Supreme Court had 11 decided that the mitigation was sufficiently 12 substantial -- 13 JUSTICE SOTOMAYOR: But it -- it used 14 a well-known exception in the law, a ministerial 15 exception, and defined ministerial as being -- 16 since I wrote it, I know what I said -- it 17 defined ministerial as being with no discretion. 18 You know, you enter the wrong date or you 19 accidentally enter the wrong amount. 20 If you had no choice but to enter X as 21 opposed to Y, that's ministerial. 22 never heard of changing a judgment that's 23 substantive unless you've reopened a proceeding. 24 25 MR. SKINNER: But I've have The 2255 context has cases that discuss -- the 2255 court is tasked Heritage Reporting Corporation Official - Subject to Final Review 36 1 with correcting a sentence and may well correct 2 a sentence in connection with a collateral 3 proceeding. 4 5 JUSTICE SOTOMAYOR: supercedes the old one, right? 6 7 But that MR. SKINNER: supersede. We agree that it would I don't know -- 8 JUSTICE SOTOMAYOR: 9 -- let's go to the ultimate question. All right. So let You can't 10 -- if something can be modified, if a judgment 11 can be modified, it seems like more than 12 semantics to say I didn't reopen it for 13 reconsideration. 14 won't change. 15 You can't reconsider what I MR. SKINNER: That -- that standard 16 would change 2255 proceedings into direct 17 proceedings for purposes of retroactivity. 18 in a 2255 proceeding, a sentence can be 19 modified. 20 And And yet this Court has been very clear 21 that a 2255 proceeding doesn't include 22 application of current law. 23 retroactive rules aren't applicable. 24 a -- this is a -- an aspect that requires 25 balancing the technical and the reality but it It is -- Heritage Reporting Corporation So this is Official - Subject to Final Review 37 1 is pretty clear that in charting modern 2 retroactivity -- 3 JUSTICE SOTOMAYOR: Could you go to my 4 -- another question? 5 Assuming that we say that this was a reopening 6 of the appellate procedure, do you lose 7 automatically? 8 9 10 MR. SKINNER: 13 To the extent that this is a reopening of the direct appeal, we believe -- 11 12 It will be my last of you. JUSTICE SOTOMAYOR: Of the direct appeal. MR. SKINNER: Of the direct appeal, 14 then we would be back on direct appeal, and the 15 Court would be overturning the State's 16 conclusion about the nature of the proceedings, 17 but that would place us into the realm of what 18 this Court discussed potentially in Jimenez. 19 -- but that would require looking past what the 20 State has said about its own proceedings and 21 even, as this Court has said in cases like Wall, 22 the entire definition of what is collateral is a 23 judicial reexamination of something. 24 JUSTICE GINSBURG: 25 So But -- but General Skinner, the Ninth Circuit found that the Heritage Reporting Corporation Official - Subject to Final Review 38 1 Arizona Supreme Court erred on direct review of 2 the trial court judgment. 3 on direct review, how can that error be cured 4 without reopening the direct review? 5 If they made an error And they said you did the direct 6 review wrong, do the direct review over. 7 think that one of the -- was it Justice Hurwitz 8 who said it was a do over. 9 direct review. 10 I It was a do over of There was nothing collateral about it. 11 It was -- it was an error on direct 12 review, so we sent it back for a new direct 13 review. 14 MR. SKINNER: Two examples that come 15 to mind, Justice Ginsburg, of where a collateral 16 proceeding can resolve a constitutional 17 violation. 18 that the Ninth Circuit en banc engaged in 19 harmless error analysis as to the Eddings error, 20 we recognize that they did not hold it to be 21 harmless, but to the extent that they did that, 22 if they had reached the opposite conclusion, 23 that is a resolution, it's an identification of 24 a constitutional violation and a resolution of 25 that violation in an entirely collateral Here, for example, to the extent Heritage Reporting Corporation Official - Subject to Final Review 39 1 proceeding. 2 Similarly, when there's appellate 3 ineffective assistance of counsel brought up in 4 a collateral proceeding, the second -- 5 JUSTICE GINSBURG: I don't understand 6 how it's collateral when the Ninth Circuit said 7 you erred not in a collateral proceeding, you 8 erred in direct review, so do direct review 9 over. 10 MR. SKINNER: So they didn't say do 11 direct review over, but my point was that the 12 Ninth Circuit in engaging in harmless error 13 analysis is, itself, attempting to resolve a 14 constitutional violation in a collateral 15 proceeding. 16 The Ninth Circuit is sitting in 17 habeas. 18 identified an error in the direct proceedings, 19 but they are demonstrating that in certain 20 circumstances this Court and other courts will 21 -- 22 It's not a direct proceeding. JUSTICE KAGAN: They've Well, just on the same 23 line, General, I mean, yes, it's a federal 24 habeas proceeding, but federal habeas courts 25 only have authority over state direct Heritage Reporting Corporation Official - Subject to Final Review 40 1 proceedings. 2 state collateral proceedings. They don't have authority over 3 They were reviewing a state direct 4 appeal, and they said the sentencing was not 5 done right. 6 again. So which sentencing are we talking 7 about? We're talking about the sentencing in 8 the state's direct appeal. 9 You have to do the sentencing So whatever you call it, you know, 10 people have talked about formalism, whatever you 11 call it, you're redoing, aren't you, the state 12 direct appeal sentencing? 13 MR. SKINNER: So there's a couple of 14 responses to that. 15 out is to the extent that the Ninth Circuit 16 believed that a new direct proceeding had to be 17 engaged in, and the state instead engaged in a 18 more narrow -- which I will get to -- and 19 collateral proceeding, the answer wouldn't be 20 that that proceeding has now become direct for 21 purposes of retroactivity. The first one I would point 22 The answer would be, just as occurred 23 in the Styers case, for Petitioner to return to 24 the habeas court and say the conditional habeas 25 writ was not complied with. You asked them to Heritage Reporting Corporation Official - Subject to Final Review 41 1 do X, and they only did Y, which is inadequate. 2 It doesn't change the nature of the proceeding 3 in the -- 4 5 JUSTICE KAVANAUGH: The Ninth Circuit allowed that, right? 6 MR. SKINNER: The Ninth Circuit 7 allowed that, exactly, in Styers. 8 Styers returned. 9 Ninth Circuit both said this is a valid Petitioner in The District of Arizona, the 10 correction. 11 believe contravenes the conditional writ. 12 that was in 2011. 13 exact procedure here. 14 This is not something that we And And Arizona followed the CHIEF JUSTICE ROBERTS: Well, you're 15 -- you've mentioned the language of the writ 16 several times. 17 that would be a focus of litigation, exactly 18 what the language of the writ was going to be? 19 Under your approach, I suppose MR. SKINNER: Indeed it was in Styers. 20 Petitioner returned to the District of Arizona 21 and said you said these words in your 22 conditional writ -- the exact words here, I 23 might add -- and that was inadequate to satisfy 24 the writ. 25 unconditional writ granted. And so I need to have an Heritage Reporting Corporation Official - Subject to Final Review 42 1 2 And that is exactly -- if there is a concern that the Ninth Circuit demanded -- 3 JUSTICE KAVANAUGH: But just -- sorry 4 to interrupt. 5 that went to the Ninth Circuit, right? 6 7 8 9 10 11 But to be clear, and then the -- MR. SKINNER: Correct, and it was affirmed. JUSTICE KAVANAUGH: And the Ninth Circuit said that it was not a violation of the conditional writ? MR. SKINNER: Correct. Correct. So 12 that is -- that, again, just goes to if there is 13 a concern about correcting a direct -- an error 14 that occurred in the direct appeals process 15 through the collateral process, first the 16 existence of harmless error analysis for 17 questions like Eddings in the habeas court 18 acknowledges that there is some resolution and 19 ineffective assistance in the Strickland 20 prejudice prong. 21 So that's -- JUSTICE SOTOMAYOR: Sorry, so are you 22 arguing that we should DIG this case, that we 23 granted cert when we shouldn't have, that they 24 should have done what they did in Styers and 25 gone back to the Ninth Circuit to find out if Heritage Reporting Corporation Official - Subject to Final Review 43 1 there was a violation first and that we 2 shouldn't be deciding that ourselves? 3 MR. SKINNER: The Court certainly is 4 in a position to dismiss the case as 5 improvidently granted. 6 granting cert here, the Court has jurisdiction 7 over post-collateral -- post-conviction 8 proceedings, but I do believe that that is an 9 inherent problem here. 10 I should note that by Well, I think that is at a basis for 11 why this Court must accept the collateral -- the 12 holding by the Arizona courts that the 13 proceedings here were collateral. 14 that there is a concern that a collateral 15 proceeding is insufficient, that is not a 16 question that is properly before the court. 17 To the extent The Court can't use that to 18 second-guess the Arizona state court's 19 conclusion. 20 JUSTICE KAGAN: When you say that the 21 proceedings were collateral, and putting aside 22 the question of whether that gets you out of the 23 obligation to apply new rules of constitutional 24 law, is the labeling collateral, does that make 25 a difference in terms of what the State Supreme Heritage Reporting Corporation Official - Subject to Final Review 44 1 Court actually does? 2 MR. SKINNER: It does, Your Honor. 3 The -- 4 differences. 5 mitigation analysis itself, the collateral 6 second independent review is very different. 7 there are two chief categories of First, as to the aggravation and In the first independent review, the 8 Arizona Supreme Court engages in a searching 9 analysis as to the basis of the aggravators and 10 the mitigators. 11 Styers case, and in the consolidated opinion 12 here, for the Hedlund -- 13 JUSTICE KAGAN: That leads, for example, in the That may be -- I think 14 you're answering a question I didn't ask. 15 Assume that this had gone back to the state 16 appeals court on direct review. 17 it had gone up, the Ninth Circuit said that 18 there was a mistake, the appeals court says: 19 Okay, we have to correct our mistake. 20 21 22 In other words, Would it look any different if you labeled it "direct" as opposed to "collateral"? MR. SKINNER: I think -- I think I'm 23 trying to get at that, which is on direct, the 24 Court would look through and has in multiple 25 cases, in the Styers case, in the consolidated Heritage Reporting Corporation Official - Subject to Final Review 45 1 opinion here, will reject an aggravator and will 2 go through and -- and make differences in terms 3 of what is the aggravation and mitigation coming 4 out of the trial court. 5 But on the second time around, it has 6 been very clear in Styers and in the Hedlund 7 opinion and here, there is no revisiting of the 8 aggravation and mitigation. 9 out that here -- 10 JUSTICE KAGAN: And I will point I guess I'm -- I'm 11 asking you to do it the second time around both 12 ways. 13 Circuit has said: 14 Ninth Circuit has said you have to reopen the 15 direct proceedings. 16 In other words, it's gone up. It's in error. The Ninth One way the On that reopening, the direct 17 proceedings, after the finding of error, would 18 you go through the entire analysis all over 19 again or would you just make the correction in 20 the exact same way that you made it in the 21 collateral proceedings? 22 MR. SKINNER: I -- we don't have an 23 example of that. 24 when independent review is done in the context 25 of direct, there's a searching analysis, All I can tell you is that Heritage Reporting Corporation Official - Subject to Final Review 46 1 aggravators will be rejected. 2 cases in which a collateral independent review 3 has been used, the court has been clear that 4 they will not revisit aggravators and 5 mitigators, even when they are challenged. 6 And in the three Here, Petitioner challenged the 7 existing aggravators, and the court said we're 8 not going there. 9 JUSTICE KAGAN: I guess the intent of 10 my question is to suggest that the -- the 11 correction -- the -- the analysis by which you 12 say, okay, we have to correct the error and now 13 that we correct the error, we have to decide 14 whether that does or does not mean that we need 15 to change the sentence, that you would -- you 16 just have to do that either way. 17 And the label is not what makes a 18 difference, that you're essentially redoing what 19 the direct -- what the state supreme court did 20 on direct with the error corrected. 21 MR. SKINNER: So I -- I'm trying to 22 get at the idea that in -- in a first direct 23 independent review, there is much more done -- 24 JUSTICE KAGAN: 25 MR. SKINNER: I know. I -- I -- I -- Heritage Reporting Corporation Official - Subject to Final Review 47 1 2 JUSTICE KAGAN: But the question is not the first one. 3 MR. SKINNER: 4 JUSTICE KAGAN: Yeah. The question is what 5 happens after the Ninth Circuit says go correct 6 the error. 7 this supposedly collateral review is correcting 8 the error as any other state supreme court would 9 do when they're told to go correct their mistake 10 on -- in -- in -- in the direct appeal, then the 11 fact that you label it collateral does not seem 12 to make all that much of a difference. 13 Okay? And if all you're doing in MR. SKINNER: If the court had -- if 14 the court were to engage in the type of specific 15 correction that occurred here and they said that 16 it was really indirect, it's possible they would 17 do that. 18 practice, if the Arizona Supreme Court believes 19 that they are engaging in a full, direct, 20 independent review as they would the first time 21 around, then they will do -- they will go in a 22 far more searching analysis. 23 arguments that weren't even raised in the 24 Hedlund companion case, here in the consolidated 25 opinion, an aggravator was struck for not even I do think that, based on past They will address Heritage Reporting Corporation Official - Subject to Final Review 48 1 the reason that the Petitioner -- that that 2 defendant had identified. 3 It's possible that they could just go 4 back and say we're going to do a narrow 5 correction, but we're going to do it in the 6 direct context. 7 -- I don't know that that's necessarily how they 8 would approach it. 9 redoing from start to finish the independent 10 We've never seen that. They would view it as review with all of the steps -- 11 JUSTICE KAVANAUGH: 12 MR. SKINNER: 13 14 And I Could -- -- including going to the aggravators -JUSTICE KAVANAUGH: -- could I ask, I 15 think, maybe the same question? 16 come up on -- to this -- this Court on direct, 17 we'd said what the Ninth Circuit said, Eddings 18 error, and sent it back to the Arizona Supreme 19 Court, would that remand proceeding at the 20 Arizona Supreme Court have looked different, I 21 think, from the collateral proceeding that 22 occurred here? 23 MR. SKINNER: 24 JUSTICE KAVANAUGH: 25 But if this had I -I think that's getting at the question as well. Heritage Reporting Corporation Official - Subject to Final Review 49 1 2 MR. SKINNER: Yeah. And -- and this -- this is a -- 3 JUSTICE KAVANAUGH: 4 MR. SKINNER: Same answer? It's a hard one. I 5 think it's the same answer. 6 believe the State's position would be that that 7 would require a full-blown independent review of 8 all the steps -- 9 10 JUSTICE KAGAN: I believe -- we But why -- why would that be? 11 JUSTICE KAVANAUGH: 12 JUSTICE KAGAN: Why? I mean, usually, when 13 we say go correct your error, we just mean go 14 correct that error. 15 do everything else. 16 We don't mean you have to MR. SKINNER: I think it partly stems 17 from the idea that there would have never been a 18 -- it's possible that they would have done a 19 more narrow analysis, but just because of how 20 many steps Arizona has put in place as 21 safeguards in the death penalty context, an 22 independent review the first time around will 23 address issues not even raised. 24 If a defendant stands -- counsel 25 stands up and says there are no sentencing Heritage Reporting Corporation Official - Subject to Final Review 50 1 issues, there will still be an analysis. 2 suspect that's what they would do because there 3 would have been no finality. 4 I just If it comes up on direct and this 5 Court finds an error and it goes back down, I 6 think they would have felt very much like there 7 was no finality that needed to be deferred to, 8 there was no aspect of the case that would have 9 -- would have counseled toward a more narrow 10 aspect of correcting the error. 11 returned 20 years later, it's different. Here, when it 12 JUSTICE BREYER: 13 Clemons, trying to figure this out. 14 it, I'm imagining we have two scale pans, all 15 right? 16 bunch of aggravators, and over here in the B pan 17 are a whole bunch of mitigators. 18 Still back at As I see And over here in the A pan are a whole And now does the law in Arizona 19 imagine that this weighing can take place in the 20 Supreme Court of Arizona, period. 21 Suppose that's the law. 22 they make a mistake about the B pan. 23 some mistake which is found out later. 24 25 Okay? It's all fine. So it's sent back to them. But There's And you say, well, they can do the weighing anyway under Heritage Reporting Corporation Official - Subject to Final Review 51 1 -- under Arizona law. 2 have to redo it. 3 new constitutional principle has been announced. 4 And the new one is, when you see what's in the A 5 pan, that has to be found with a lawyer present. 6 You see what's in the B pan? 7 present. 8 9 That's it. They just But wait, in the meantime, a A lawyer has to be And, lo and behold, this person had no lawyer at sentencing. Wouldn't it be obvious in 10 that case that you can't do the weighing in the 11 Supreme Court of Arizona without sending it back 12 for a hearing where there's a lawyer? 13 MR. SKINNER: 14 JUSTICE BREYER: 15 That -You see where I'm going? 16 MR. SKINNER: I see where you're -- it 17 begins with the question of whether the new rule 18 that's announced applies. 19 disputed -- 20 JUSTICE BREYER: If -- we have not The new rule that is 21 announced is that the A pan factors and the B 22 pan factors have to be found with a lawyer 23 present. 24 25 All right? I mean, a lawyer has to -- you understand what I'm saying. Gideon v. Heritage Reporting Corporation Official - Subject to Final Review 52 1 Wainwright, step 2 or something. 2 MR. SKINNER: I don't know. If Ring and Hurst apply 3 to this case, we do not dispute -- 4 JUSTICE BREYER: 5 MR. SKINNER: -- that we don't have reasonable parameters -- 8 9 I know, and now I'm saying -- 6 7 All right. JUSTICE BREYER: name wouldn't they? -- but why in heavens I mean, of course, that's 10 going to be the next thing I'd ask. 11 if I take your view that they don't apply, it 12 sounds as if we'll -- I'm trying to make it as 13 basic as I can. 14 And, by the way, when you do that reweighing, 15 you're going to reweigh factors that were found 16 without a lawyer. 17 But -- but Hey, you have to have a lawyer. And I think it's obvious you couldn't 18 do that. 19 that, Ring says about the same thing. 20 Hurst. 21 present, but it does say a jury has to find 22 those bits that are there in the A pan, and -- 23 and -- you see that's -- that -- and I -- and I 24 want you to -- you don't want me to reason that 25 way, and so I want you to tell me why not. And if it's obvious you couldn't do And It doesn't say you have to have a lawyer Heritage Reporting Corporation Official - Subject to Final Review 53 1 MR. SKINNER: A critical component 2 here is the idea of what the Ninth Circuit 3 identified, what the Ninth Circuit asked Arizona 4 to do. 5 habeas writ that did not require vacating the 6 sentence, that allowed the sentence to stand, 7 engaged in new proceedings exactly as were done 8 in Styers and were -- were found to be 9 acceptable by the federal courts at the District 10 Arizona followed from a conditional of Arizona and the Ninth Circuit. 11 And, here, when the Arizona Supreme 12 Court says that the error correction process 13 we're engaging in is collateral in nature, the 14 Court here, federal courts don't get to 15 second-guess that. 16 from that. 17 18 There may be consequences JUSTICE BREYER: if it's Gideon v. Wainwright? 19 MR. SKINNER: 20 JUSTICE BREYER: 21 MR. SKINNER: 22 23 24 25 And that's still true There may be -Ahh, I see -- There is an exception to the -JUSTICE BREYER: -- you're a little pushed there. MR. SKINNER: -- there's a -- there's Heritage Reporting Corporation Official - Subject to Final Review 54 1 -- 2 CHIEF JUSTICE ROBERTS: Well, I 3 suppose it depends on the underlying 4 determination whether those new rules are 5 retroactive or not. 6 JUSTICE BREYER: 7 CHIEF JUSTICE ROBERTS: Yeah. In the one 8 circumstance, you -- you would be evading the 9 rule against -- or the -- your friend would be 10 evading the rule against retroactivity, and in 11 the other situation, I assume the State would 12 not. 13 MR. SKINNER: Yeah, to the -- yes. 14 Going back to the Gideon versus Wainwright 15 example, there is an exception to the modern 16 retroactivity framework for certain rules that 17 may be so essential. 18 aside, the-- there may be consequences from the 19 State of Arizona, the Arizona Supreme Court, 20 labeling the procedure as collateral. And -- and setting that 21 JUSTICE BREYER: 22 MR. SKINNER: Yeah. It may be that that is 23 insufficient to satisfy the court that granted 24 the habeas writ. 25 JUSTICE BREYER: All right. Heritage Reporting Corporation So that's Official - Subject to Final Review 55 1 why you say -- I think -- look, I'm -- I'm 2 getting this much better. 3 the Gideon v. Wainwright example I thought 4 distinguishes Clemons because Clemons, there was 5 no intervening rule that said the things in the 6 two pans had to be found in a certain way. 7 I mean, I thought -- But there is here. But maybe this new 8 thing doesn't apply in collateral. 9 that's the -- 10 MR. SKINNER: 11 JUSTICE BREYER: 12 MR. SKINNER: 13 JUSTICE BREYER: 14 MR. SKINNER: I think Well, 100 percent. So that's why you -- Yeah. I mean -- All right. Like going to Ring. 15 Ring is not retroactive. 16 we are in a collateral proceeding, which we are, 17 then it doesn't apply. 18 apply in a 2255. 19 other issues that arise from us using a 20 collateral proceeding. If we are -- if -- if Just like it doesn't There may be -- there may be 21 JUSTICE BREYER: 22 MR. SKINNER: Uh-huh. That -- any of those 23 issues are properly before other courts and 24 don't allow this Court to second-guess the 25 nature of Arizona's proceedings. Heritage Reporting Corporation Official - Subject to Final Review 56 1 JUSTICE KAGAN: 2 JUSTICE KAVANAUGH: 3 JUSTICE KAGAN: I guess -I think that -- -- General Skinner, 4 that the real question that Justice Breyer is 5 asking is, call it reopening, call it redoing, 6 call it whatever you want, but you're correcting 7 what happened on direct appeal, and we -- and -- 8 and -- and you're doing that now. 9 do it now. 10 You have to And now we know that Ring would apply, 11 and it's -- it's a -- it's a little bit strange 12 to have a new proceeding where a rule that's 13 been around for 20 years is not being applied. 14 MR. SKINNER: I -- going back to the 15 harmless error, had the Ninth Circuit remanded 16 to the Arizona Supreme Court for harmless error 17 analysis, it is not obvious to me at all that 18 that would be an inadequate resolution of a 19 non-structural constitutional violation and that 20 you couldn't engage in a collateral harmless 21 error analysis and -- and thereby correct the 22 problem. 23 It is -- again, this goes -JUSTICE KAGAN: Well, possible, but 24 maybe the reason that you're going to the 25 harmless error case instead of your own case is Heritage Reporting Corporation Official - Subject to Final Review 57 1 that, in your own case, the error had to do with 2 the fundamental question of sentencing, which is 3 weighing the aggravating and mitigating 4 circumstances and coming up with the right 5 sentence. 6 And that you're having to do again 7 because the initial inquiry had a constitutional 8 defect. 9 it in a collateral proceeding or you say that And whether you say that you're doing 10 you're doing it in a direct proceeding, I mean, 11 essentially you're -- you're having a new 12 proceeding to correct the constitutional error, 13 and you're having it in the year 2019, when Ring 14 would apply to any other new proceeding. 15 16 And the question is, why does your new proceeding not also have to comply with Ring? 17 MR. SKINNER: It would apply to any 18 new proceeding that is part of a direct review 19 process. 20 fourth, fifth state post-conviction motion, to 21 the extent that there is a long pending -- as 22 this occurred here -- many years in the District 23 of Arizona and the Ninth Circuit, collateral 24 proceeding, Ring wouldn't apply to any 25 reanalysis or reexamination. To the extent that there was a third, Heritage Reporting Corporation Official - Subject to Final Review 58 1 JUSTICE KAGAN: Yes, but it's a 2 reanalysis of an analysis that was done in the 3 direct proceeding. 4 proceeding. 5 it's a redo of the direct proceeding. 6 So it's a redo of the direct Whatever you want to call that, MR. SKINNER: I -- I -- the -- any -- 7 the -- as this Court noted in Wall, any 8 collateral proceeding is going to invariably 9 entail a reexamination of something that 10 11 12 13 occurred in a direct proceeding. JUSTICE KAVANAUGH: On the -- on the harm -- keep going, I'm sorry. MR. SKINNER: And so -- and then 14 crucially here, once -- our position is once a 15 case is final on direct review, as this was 23 16 years ago, the touchstone for how you would undo 17 that finality is to vacate the sentence. 18 The Ninth Circuit in the District of 19 Arizona knew exactly how to tell us that we had 20 to vacate the sentence -- 21 JUSTICE KAVANAUGH: On -- on the 22 harmless error point, to pick up on Justice 23 Kagan's question, I think you were saying that 24 harmless error could have been done by the Ninth 25 Circuit on habeas, and so, too, a state habeas Heritage Reporting Corporation Official - Subject to Final Review 59 1 court could do the harmless error analysis. 2 Is that correct so far? 3 MR. SKINNER: 4 JUSTICE KAVANAUGH: Yes. Okay. And then I 5 think Justice Kagan's point gets at the question 6 of what's -- is this different in essence on 7 some fundamental way from harmless error 8 analysis. 9 you -- if that's true, can you explain that? 10 I think your answer is no. MR. SKINNER: And can I think it is different 11 to the extent that we are providing additional 12 process to the defendant, and in -- in 13 particular, but I think as a matter of type. 14 the extent that a harmless -- 15 JUSTICE KAVANAUGH: It's very similar, 16 I think, is what you're arguing. 17 MR. SKINNER: Yes. To As a type it is 18 very similar, but I would never say that what we 19 did was -- 20 21 JUSTICE KAVANAUGH: In -- in Clemons, they -- they are analyzed back to back. 22 MR. SKINNER: Yes. Both options were 23 left open by the court as available paths for 24 appellate correction of trial court error in 25 Clemons. And we believe -- Heritage Reporting Corporation Official - Subject to Final Review 60 1 JUSTICE GINSBURG: 2 JUSTICE SOTOMAYOR: 3 4 May -I'm sorry, could -JUSTICE GINSBURG: May I ask you a 5 question about the -- the -- the error wasn't 6 saying we won't count this mitigator, because 7 there was no causal connection. 8 Arizona Supreme Court says the causal connection 9 still counts. And then the It doesn't mean you can't 10 consider the evidence. 11 weight because there's no causal connection. 12 But it gets very little They're not taking the causal 13 connection out of it. 14 mitigator is affected by the absence of causal 15 -- causal connection is still playing a factor. 16 MR. SKINNER: They're saying this Yes. And -- and this 17 goes to what Eddings does and doesn't require. 18 Eddings specifically says that minimal weight or 19 low weight can be given, that the court was not 20 saying how much weight needed to be given, but 21 that something must be considered. 22 And -- and that's -- and that we 23 believe is entirely satisfied by the second 24 independent review here. 25 There's no standalone new Eddings Heritage Reporting Corporation Official - Subject to Final Review 61 1 error. 2 JUSTICE SOTOMAYOR: Could you -- you 3 resisted Justice Kavanaugh a little bit when he 4 was trying to equate the harmless error to this. 5 And I think you started to say this was 6 something more than harmless error review. 7 that correct? 8 9 MR. SKINNER: Is My argument was that it was -- this is -- we believe this gives more 10 process than harmless error review, but that as 11 a type this is very similar to harmless error, 12 and to the extent that harmless error is an 13 available correction -- 14 15 JUSTICE SOTOMAYOR: process? 16 MR. SKINNER: 17 JUSTICE SOTOMAYOR: 18 19 So what's the more The -What's your definition of "more process"? MR. SKINNER: The more process is not 20 analyzing, as a part of harmless error, not 21 analyzing what would an imaginary person have -- 22 have done -- what would an imaginary set of 23 judges or a jury done if this evidence had been 24 considered but, instead, allow briefing and say 25 we're going to now look at the evidence and make Heritage Reporting Corporation Official - Subject to Final Review 62 1 our determination. 2 JUSTICE SOTOMAYOR: And that's what 3 happened. 4 have differed from the original appeal? So it was a whole -- how would it 5 MR. SKINNER: 6 JUSTICE SOTOMAYOR: 7 MR. SKINNER: In an original appeal -- Yeah. In a direct -In -- in 8 independent review on direct, there is two 9 significant categories of differences. The 10 first one that I didn't get to earlier is the 11 scope of the sentencing issues that will be 12 addressed in independent review. 13 In the initial independent review 14 here, the Petitioner challenged the nature of 15 the special verdict, that it was read instead of 16 written. 17 And the second independent review, the 18 Petitioner brought up a new standalone Eighth 19 Amendment claim. 20 that's not revisited because the only analysis 21 goes to the narrow aggravation and mitigation 22 issue. 23 That second time around, The aggravators are still accepted, 24 for example, for the co-defendant, the striking 25 of the existing aggravator before stays, and all Heritage Reporting Corporation Official - Subject to Final Review 63 1 that's done is a -- 2 JUSTICE SOTOMAYOR: How would the 3 process have differed for the issue that was 4 identified as an error? 5 MR. SKINNER: If you focus down all 6 the way on the consideration of the mitigation, 7 there is a consideration of the mitigation in 8 the same manner as the first time around, but 9 that's zooming in past all the rest of the 10 independent review and acknowledging that when 11 you get down, that means we fixed it. 12 We went back and looked at the thing 13 that was identified as a problem, conducted the 14 analysis without a causal nexus, and corrected 15 the identified problem that the Ninth Circuit 16 had said occurred in the Arizona Supreme Court. 17 It's an appellate court correcting an 18 appellate error on a built record. 19 never been an allegation of something that was 20 excluded from the record that might make this 21 case very different. 22 There has And this is, we think, a 23 straightforward application of Clemons and that 24 this entire case is driven by question presented 25 one. Heritage Reporting Corporation Official - Subject to Final Review 64 1 And I would point out that Petitioner 2 has offered no grounding principle for what 3 would replace direct versus collateral as the 4 measure for retroactivity, if this Court were to 5 upend modern retroactivity. 6 He has cited the phrase "any time 7 something is again subject to modification," but 8 I don't think that's a fair statement of the 9 Court's opinion in Jiminez. 10 But, more importantly, it would turn 11 any 2255 proceeding, in which a sentence was 12 again at risk, could again be corrected or 13 vacated into a direct proceeding for 14 retroactivity purposes. 15 16 CHIEF JUSTICE ROBERTS: Thank you, counsel. 17 Five minutes, Mr. Katyal. 18 REBUTTAL ARGUMENT OF NEAL K. KATYAL 19 ON BEHALF OF THE PETITIONER 20 MR. KATYAL: Thank you. I would like 21 to begin with Clemons, which is, of course, is 22 only about question 2. 23 question 1 for reasons Justice Sotomayor has 24 said. 25 It doesn't answer So four things about Clemons: Number 1, it's a very limited Heritage Reporting Corporation Official - Subject to Final Review 65 1 decision. 2 factor. 3 this is the opposite. 4 happened. 5 Petition Appendix page 59A, required a 6 resentencing. 7 It's a subtraction of one aggravating As I was saying to Justice Kavanaugh, This is everything The Ninth Circuit, this is at And then the state came in and asked 8 for a full-blown independent review, using that 9 phrase four times. 10 That's at Joint Appendix pages 385 to 89. 11 And that's exactly what the Arizona 12 Supreme Court did. 13 limited proceeding, this and that. 14 not. 15 1996 first independent review when they came 16 back in 2016 and did it. 17 My friend said, oh, it was a Absolutely It was more extensive, actually, than the They considered, for example, the 18 aggravators and weighed them, at Petition 19 Appendix pages 4A and 7A. 20 Now, Justice Kavanaugh, you asked me 21 about Justice Blackmun's dissent, which I had an 22 occasion to look at again just now. 23 Blackmun's dissent is about one thing, which is 24 the consideration of aggravating factors. 25 And Justice And he said that's something that Heritage Reporting Corporation Official - Subject to Final Review 66 1 should be done by the trial court. 2 know, whether he was right or wrong about that, 3 that was only about aggravating factors. 4 Our point to you in all of the And, you 5 decisions are about the consideration at the 6 trial court of mitigating circumstances. 7 So, for example, Mills at page 375 8 says, "because the sentencers' failure to 9 consider all of the mitigating evidence risks 10 erroneous imposition of the death sentence, it's 11 our duty to remand for resentencing." 12 And there is case after case about 13 that. 14 different than a mitigating one? 15 mitigating ones go to mercy, in which this court 16 in Caldwell has said that's the thing in which 17 you need the jury to see, or -- or at least the 18 trial court, to see upfront and personal as 19 opposed to on a cold record. 20 Why is an aggravating circumstance Because And that's why we don't think, you 21 know, you should extend Clemons, particularly 22 given this Court's decisions in Ring and Hurst 23 and Haymond, all of which suggest that really 24 juries have a fundamental role here. 25 Now, with respect to question 1, our Heritage Reporting Corporation Official - Subject to Final Review 67 1 point to you is that resentencing was required 2 by the Ninth Circuit. 3 resentencing. 4 They got a full-blown We're not challenging -- he has some 5 argument about a DIG. 6 the briefs in opposition or below. 7 challenging the Ninth Circuit's determination. 8 We're challenging the Arizona Supreme Court's 9 decision here to not comply with the law of this We're not -- it wasn't in We're not 10 Court, Eddings and Jiminez, which reopened the 11 conviction. 12 Now, if you accept their view, you're 13 going to basically license a state to slap the 14 label of collateral review on and allow them to 15 -- to conduct new sentencing proceedings that 16 will evade Batson, that will undermine 17 everything that Justice Harwin tried to do when 18 he tried to overrule -- when he overruled 19 Linkletter. 20 and say, oh, this time it won't be final. 21 time it will. And they will be able to pick cases That That's a very dangerous thing. 22 I agree there are difficult cases, and 23 my friend ended with this, so there will be some 24 difficult cases in the middle, but this is not 25 that. Eddings is the heart of what capital Heritage Reporting Corporation Official - Subject to Final Review 68 1 sentencing is about. 2 And so, if you allow a reweighing for 3 the first time on an appellate court when 4 there's never been one in the trial court, you 5 are -- you know, you're basically doing 6 everything at that second stage. 7 think, is -- is profoundly -- profoundly against 8 what this Court's precedents are. 9 And that, I He's right to say Jimenez doesn't 10 directly control this case. 11 argument. 12 truism, that when a case is final, as it was in 13 1996 when the Court ruled, it can be reopened by 14 voluntary action by the state. 15 That's not our Our argument is Jimenez states a And, here, that action happened. The 16 state reopened and set the clock back to 1996, 17 and they -- you see when you look at and compare 18 side-by-side the 2016 -- 2018 opinion to the -- 19 to the 1996 one, there's actually more extensive 20 analysis. 21 review and the stuff he was talking about in -- 22 in his remarks. It's the opposite of harmless error 23 If there are any questions. 24 CHIEF JUSTICE ROBERTS: 25 counsel. Thank you, The case is submitted. Heritage Reporting Corporation Official - Subject to Final Review 69 1 2 (Whereupon, 12:11 p.m., the case was submitted.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation 70 Official - Subject to Final Review 1 1 [13] 3:15 5:4 8:21 9:3 10:3,5 16:9 17:4 32:7 33:18 64:23,25 66:25 100 [2] 30:9 55:10 11 [1] 1:10 11:11 [2] 1:14 3:2 12:11 [1] 69:1 15.2 [1] 11:21 18-1109 [1] 3:4 1946 [1] 24:17 1982 [1] 4:23 1993 [1] 18:11 1996 [6] 3:25 30:13 65:15 68:13,16, acknowledges [1] 42:18 acknowledging [1] 63:10 across [1] 28:14 action [7] 3:23 18:7,10 23:10,16 68:14,15 actual [1] 23:5 actually [7] 6:11 12:1 26:19 32:5 44:1 65:14 68:19 Appendix [4] 10:11 65:5,9,19 beef [2] 23:3 26:15 applicable [2] 21:19 36:23 begin [1] 64:21 application [6] 21:18 23:2 32:9,15 begins [1] 51:17 36:22 63:23 behalf [8] 1:18,21 2:4,7,10 3:8 32: applied [1] 56:13 2 64:19 applies [8] 15:22,23 16:13,14 17:7 behold [1] 51:8 30:5 32:10 51:18 belief [1] 10:21 apply [16] 9:25 17:5 24:6 26:9 27: believe [11] 32:5,24 35:10 37:9 41: add [1] 41:23 additional [1] 59:11 address [2] 47:22 49:23 addressed [1] 62:12 admit [2] 22:25 33:25 affected [1] 60:14 19 affirmative [1] 23:16 affirmatively [1] 18:7 2 affirmed [1] 42:7 [10] 2 4:17 5:2,14,18 8:20 10:5,7 17: aggravating [16] 5:20,25 6:7 7:9 19 52:1 64:22 20 [2] 50:11 56:13 2011 [1] 41:12 2016 [5] 11:24 23:21,22 65:16 68: 18 2018 [1] 68:18 2019 [3] 1:10 4:13 57:13 2255 [8] 34:22 35:24,25 36:16,18, 21 55:18 64:11 23 [1] 58:15 28 [2] 18:17 19:5 3 3 [1] 2:4 30 [2] 11:25 16:21 32 [1] 2:7 331 [1] 14:20 34 [1] 16:21 375 [1] 66:7 38 [1] 11:18 385 [2] 10:11 65:10 4 4A [1] 65:19 5 59A [1] 65:5 6 64 [1] 2:10 7 7A [1] 65:19 8 89 [2] 10:11 65:10 A a.m [2] 1:14 3:2 able [1] 67:19 above-entitled [1] 1:12 absence [1] 60:14 Absolutely [3] 9:21 29:15 65:13 accept [4] 9:15 24:22 43:11 67:12 acceptable [1] 53:9 accepted [1] 62:23 accidentally [1] 35:19 according [1] 11:4 account [2] 12:12,24 16,25 43:23 52:2,11 55:8,17,18 56:10 57:14,17,24 applying [1] 8:14 approach [2] 41:16 48:8 aren't [2] 36:23 40:11 argues [1] 3:15 arguing [2] 42:22 59:16 argument [27] 1:13 2:2,5,8 3:4,7 6: 24 8:16,24 9:6,14,20 11:17,20,21 17:23 18:22 22:23 28:11,24 29:8 13:22 14:5 15:24,25 17:1 19:23 32:1 61:8 64:18 67:5 68:11,11 arguments [1] 47:23 21:13 57:3 65:1,24 66:3,13 aggravation [4] 44:4 45:3,8 62:21 arise [1] 55:19 aggravator [3] 45:1 47:25 62:25 ARIZONA [58] 1:6,21 3:5,16,24 6: aggravators [9] 32:11 44:9 46:1,4, 4 8:9,22 10:6,9,12 11:7,9,14,18 7 48:13 50:16 62:23 65:18 12:7 13:7,11 14:3 15:1,15 19:3 20: ago [2] 13:22 58:16 21 24:10 26:21 27:3,9 32:10,16 agree [4] 29:15 30:7 36:6 67:22 35:10 38:1 41:8,12,20 43:12,18 Ahh [1] 53:20 44:8 47:18 48:18,20 49:20 50:18, aired [2] 8:6,8 20 51:1,11 53:3,4,10,11 54:19,19 ALITO [11] 7:19 11:2,9,12,16 12:3, 56:16 57:23 58:19 60:8 63:16 65: 19 16:23 21:15 22:11,20 11 67:8 allegation [2] 33:14 63:19 Arizona's [1] 55:25 allow [10] 12:25 13:2 19:1 22:7 26: around [8] 26:5 45:5,11 47:21 49: 3,4 55:24 61:24 67:14 68:2 22 56:13 62:19 63:8 allowed [3] 41:5,7 53:6 arrogate [1] 10:25 allowing [1] 31:17 Article [1] 25:16 allows [2] 11:21 23:12 aside [3] 12:4 43:21 54:18 already [1] 12:9 aspect [3] 36:24 50:8,10 Amendment [1] 62:19 assess [2] 15:16 25:8 amici [1] 33:23 assistance [6] 22:13,21 28:12,15 39:3 42:19 amount [1] 35:19 analysis [19] 38:19 39:13 42:16 Assume [3] 12:20 44:15 54:11 44:5,9 45:18,25 46:11 47:22 49: assuming [3] 9:15 12:9 37:5 19 50:1 56:17,21 58:2 59:1,8 62: attempting [1] 39:13 20 63:14 68:20 authority [2] 39:25 40:1 analyzed [1] 59:21 automatically [1] 37:7 analyzing [2] 61:20,21 available [3] 35:9 59:23 61:13 announced [3] 51:3,18,21 avoid [1] 31:20 another [2] 21:23 37:4 aware [1] 19:4 answer [8] 10:21 31:8 40:19,22 49: B 3,5 59:8 64:22 [25] Back 14:9,12,15 15:20 18:10 answered [1] 33:25 19:5,12 32:13 37:14 38:12 42:25 answering [1] 44:14 44:15 48:4,18 50:5,12,24 51:11 answers [2] 11:16 24:9 54:14 56:14 59:21,21 63:12 65:16 anybody [1] 21:19 68:16 anyway [1] 50:25 [1] 36:25 balancing [16] appeal 11:3 12:8 13:14 20:20 [1] 38:18 banc 35:7 37:9,12,13,14 40:4,8,12 47: based [1] 47:17 10 56:7 62:4,5 basic [1] 52:13 appeals [4] 33:5 42:14 44:16,18 basically [3] 8:11 67:13 68:5 APPEARANCES [1] 1:16 [4] [27] appellate 4:20 5:12 6:13,19 7: basis 27:20 28:2 43:10 44:9 [5] 1 8:11,13,25 9:2,17 13:2 14:23,25 Batson 26:6 28:13,15 31:15 67: 16 15:2,4,11,15 18:22 19:1 21:4 30: [1] 16 37:6 39:2 59:24 63:17,18 68:3 become 40:20 11 43:8 49:5,6 59:25 60:23 61:9 believed [1] 40:16 believes [1] 47:18 below [4] 7:21 8:6,12 67:6 benefit [2] 17:14 29:24 better [1] 55:2 between [5] 10:9 28:18 29:2,18 31:18 Bible [1] 15:15 big [2] 20:8 24:9 bit [2] 56:11 61:3 bits [1] 52:22 Blackmun [2] 6:24 18:25 Blackmun's [2] 65:21,23 borrows [1] 24:10 Both [7] 5:1 11:7 13:9,10 41:9 45: 11 59:22 bracketed [1] 20:7 brackets [2] 6:11 7:10 brand [6] 3:23 16:12 17:24 18:7,9 20:22 brand-new [2] 28:5 30:9 breaker [1] 13:8 breaks [1] 4:21 BREYER [26] 13:19 14:8 15:1,7,12, 14,19 16:3,7,10,15 50:12 51:14,20 52:4,8 53:17,20,23 54:6,21,25 55: 11,13,21 56:4 brief [7] 5:24 9:6 10:12 11:18,20, 22 16:21 briefing [1] 61:24 briefs [2] 10:10 67:6 broader [1] 9:14 brought [2] 39:3 62:18 built [3] 32:25 33:1 63:18 bunch [2] 50:16,17 Burrell [3] 29:10 30:3 35:4 C Cald Caldwell [2] 13:16 21:9 [10] 6:17,18 10:15 13:4, 15 14:17 21:2 32:20 33:7 66:16 call [6] 40:9,11 56:5,5,6 58:4 called [1] 31:4 came [3] 1:12 65:7,15 capital [4] 19:22 22:13 28:6 67:25 Case [39] 3:4 4:18 5:18,19,22 6:11, 15 8:10 19:16,17 22:13 26:18 32: 7,12 34:2,3,6 35:4 40:23 42:22 43: 4 44:11,25 47:24 50:8 51:10 52:3 56:25,25 57:1 58:15 63:21,24 66: 12,12 68:10,12,25 69:1 cases [21] 10:16 13:7 14:16 19:8,9 21:2 24:19 25:13 30:4,8 31:18 32: 17 33:7 34:6 35:25 37:21 44:25 46:2 67:19,22,24 Heritage Reporting Corporation Sheet 1 1 - cases 71 Official - Subject to Final Review categories [2] 44:3 62:9 common [1] 25:14 causal [11] 12:13 14:6,9,11 60:7,8, companion [1] 47:24 11,12,14,15 63:14 compare [1] 68:17 causally [2] 14:1 34:14 completely [1] 8:8 cert [3] 11:24 42:23 43:6 complied [1] 40:25 certain [3] 39:19 54:16 55:6 complies [1] 3:13 certainly [1] 43:3 comply [4] 4:10 17:25 57:16 67:9 challenge [2] 4:7 34:5 component [1] 53:1 challenged [3] 46:5,6 62:14 comprehensive [2] 29:4,19 challenging [3] 67:4,7,8 concern [3] 42:2,13 43:14 change [7] 35:1,7,8 36:14,16 41:2 conclusion [3] 37:16 38:22 43:19 46:15 conditional [8] 3:18 18:6 33:20 40:24 41:11,22 42:10 53:4 changed [2] 7:12 34:13 changing [2] 35:2,22 conduct [2] 10:25 67:15 charting [1] 37:1 conducted [3] 11:10 16:12 63:13 CHIEF [17] 3:3,9 28:8,10,17,21 29: conducting [3] 12:22 17:24 33:6 1,17,22 31:22 32:3 41:14 44:3 54: conducts [1] 4:9 2,7 64:15 68:24 confront [2] 13:6 14:18 childhood [1] 13:25 connected [2] 14:1 34:14 choice [1] 35:20 connection [7] 12:13 36:2 60:7,8, 11,13,15 choose [2] 8:15 26:9 chose [1] 3:22 consequences [2] 53:15 54:18 Circuit [40] 3:17 11:4,13,25 12:10, consider [4] 14:21 19:10 60:10 66: 21 13:7 14:9 18:5 29:10 33:15 35: 5 37:25 38:18 39:6,12,16 40:15 41:4,6,9 42:2,5,9,25 44:17 45:13, 14 47:5 48:17 53:2,3,10 56:15 57: 23 58:18,25 63:15 65:4 67:2 Circuit's [3] 22:3 23:11 67:7 circumstance [14] 5:20,25 6:2,12 7:9 16:25 17:1 20:20,24 24:10 28: 22,23 54:8 66:13 circumstances [7] 6:7 19:24 21: 13 27:17 39:20 57:4 66:6 cite [5] 6:15,16 26:20 27:5,8 cited [2] 32:19 64:6 cites [2] 34:6 35:4 Citing [1] 27:2 claim [2] 22:13 62:19 claims [1] 4:5 Clause [2] 25:17,19 clear [7] 12:8,11 36:20 37:1 42:4 45:6 46:3 Clemons [35] 5:11,11,18,19 6:9,11, 25 7:5,10,13,15 8:11 10:15 18:20, 21 20:1,3,9 21:10,11 30:15 31:1 32:15,17,20,20 50:13 55:4,4 59: 20,25 63:23 64:21,24 66:21 clock [1] 68:16 co-defendant [1] 62:24 cold [1] 66:19 collateral [37] 31:4,15 36:2 37:22 38:9,15,25 39:4,6,7,14 40:2,19 42: 15 43:11,13,14,21,24 44:5,21 45: 21 46:2 47:7,11 48:21 53:13 54: 20 55:8,16,20 56:20 57:9,23 58:8 64:3 67:14 colleague [1] 8:4 come [4] 23:15,18 38:14 48:16 comes [3] 17:9 33:22 50:4 coming [3] 33:15 45:3 57:4 commands [1] 27:24 commission [1] 12:14 committed [1] 11:14 17,19,20,22 5:12,12 6:5,13 7:1,12, 21 8:10,25 9:2,7,8 10:6,10,13 11: 7,8,10,14 12:2,7,17,20 13:2,3,5,11, 11,17,21,25 14:3,10,10,14,15,17, 18 15:2,4,10,11 17:10 18:23 19:2, 3,11,12 20:11 21:5,12 22:12 24: 16 25:7,10 26:16,21 27:16 29:11 30:18 32:4,13,18,19 33:3,5 34:7, 10,22 35:6,10,25 36:20 37:15,18, 21 38:1,2 39:20 40:24 42:17 43:3, 6,11,16,17 44:1,8,16,18,24 45:4 46:3,7,19 47:8,13,14,18 48:16,19, 20 50:5,20 51:11 53:12,14 54:19, 23 55:24 56:16 58:7 59:1,23,24 60:8,19 63:16,17 64:4 65:12 66:1, 6,15,18 67:10 68:3,4,13 Court's [14] 4:1 6:16 11:19 13:2 15:5 19:17 21:1 27:6 31:19 43:18 64:9 66:22 67:8 68:8 courts [9] 6:19 15:16 29:10 39:20, 24 43:12 53:9,14 55:23 create [1] 17:10 credibility [1] 33:1 credited [3] 33:3,12,13 criminal [2] 34:2,3 critical [3] 32:25 33:19 53:1 crucially [1] 58:14 cured [2] 30:1 38:3 current [10] 3:13 4:10 15:22 16:13 17:25 26:9 28:22 30:5 32:10 36: 22 cuts [1] 28:14 delicate [1] 4:21 demanded [1] 42:2 demonstrating [1] 39:19 depends [1] 54:3 destination [1] 5:2 determination [8] 14:22 15:10 17: 2 19:14 21:12 54:4 62:1 67:7 determinations [3] 6:20 33:1,13 determine [2] 6:14 24:6 differed [2] 62:4 63:3 difference [6] 29:2 31:5 32:22 43: 25 46:18 47:12 differences [3] 44:4 45:2 62:9 different [16] 6:1,8,15 17:11 20:19 25:13 26:25 31:17 44:6,20 48:20 50:11 59:6,10 63:21 66:14 difficult [3] 30:7 67:22,24 DIG [2] 42:22 67:5 direct [57] 11:3 12:8 30:17,22 35:7 36:16 37:9,11,13,14 38:1,3,4,5,6,9, 11,12 39:8,8,11,17,18,25 40:3,8, 12,16,20 42:13,14 44:16,21,23 45: 15,16,25 46:19,20,22 47:10,19 48: 6,16 50:4 56:7 57:10,18 58:3,3,5, 9 10,15 62:6,8 64:3,13 consideration [5] 13:17 63:6,7 65:24 66:5 direction [1] 17:19 considered [4] 19:11 60:21 61:24 directly [2] 14:24 68:10 65:17 dis [1] 31:17 consolidated [3] 44:11,25 47:24 disagree [2] 23:7 27:14 Constitution [1] 24:7 disavow [3] 9:4 10:19,20 constitutional [12] 25:1,2 27:24 discrete [1] 29:20 28:24 38:16,24 39:14 43:23 51:3 discretion [2] 30:5 35:17 56:19 57:7,12 discuss [2] 33:7 35:25 D contend [1] 32:11 discussed [1] 37:18 [2] context [5] 35:6,24 45:24 48:6 49: D.C 1:9,18 dismiss [1] 43:4 dangerous [1] 67:21 21 dispute [2] 10:8 52:3 date [1] 35:18 contrast [1] 5:5 disputed [1] 51:19 de [4] 11:10 12:22 20:22 27:25 contravenes [1] 41:11 dissent [5] 6:25 18:24 20:9 65:21, deal [1] 6:5 23 control [1] 68:10 death [11] 3:12,20 13:9,10 18:8 22: distinguishes [1] 55:4 conviction [1] 67:11 1,5 23:17 34:17 49:21 66:10 convincing [1] 21:23 District [5] 41:8,20 53:9 57:22 58: [1] 21:24 death-eligible [1] 18 corpus 3:19 [1] Correct [23] 7:3 11:11 15:23,23 17: decades 18:19 disuniformity [1] 31:17 December [1] 1:10 11 20:1,2 28:16 36:1 42:6,11,11 doing [5] 47:6 56:8 57:8,10 68:5 decide [4] 9:25 20:24 21:5 46:13 44:19 46:12,13 47:5,9 49:13,14 done [16] 15:25 19:8 34:11,12 40:5 decided [3] 10:17 23:5 35:11 56:21 57:12 59:2 61:7 42:24 45:24 46:23 49:18 53:7 58: [1] 2,24 61:22,23 63:1 66:1 corrected [4] 29:3 46:20 63:14 64: decides 22:12 deciding [1] 43:2 12 double [2] 13:7 21:17 [12] 4:24 6:16 8:12,25 10: correcting [6] 36:1 42:13 47:7 50: decision doubt [1] 19:9 7 12:8 13:4 23:11 24:25 27:6 65:1 doubts [1] 4:3 10 56:6 63:17 67:9 correction [11] 21:22 22:3 29:12 down [3] 50:5 63:5,11 [6] 41:10 45:19 46:11 47:15 48:5 53: decisions 4:1 13:3,15 15:6 66: draw [1] 28:18 5,22 12 59:24 61:13 driven [1] 63:24 defect [1] 57:8 correctly [1] 15:25 due [1] 25:4 [10] 6:21,22 13:6 17:6, couldn't [5] 23:7 31:8 52:17,18 56: defendant duty [1] 66:11 14 21:6 33:2 48:2 49:24 59:12 20 E [3] Counsel [9] 16:23 22:13,21 31:23 deference 26:17,18,19 [4] 3:18 4:8 34:5 62:10 [3] 25:7 27:23 28:1 earlier deferential 33:9 39:3 49:24 64:16 68:25 easier [1] 5:22 deferred [2] 25:12 50:7 counseled [1] 50:9 [3] 9:9 24:2 26:5 easily [1] 30:1 define count [1] 60:6 [2] 35:15,17 Eddings [23] 4:18,23,24 5:3,18 10: defined [2] counts 14:1 60:9 14 12:17,24 13:16 14:16 15:8 18: definers [1] 23:25 couple [1] 40:13 2 19:8,15 32:18 38:19 42:17 48: definition [3] 26:20 37:22 61:18 course [3] 6:25 52:9 64:21 [2] 24:21 26:4 17 60:17,18,25 67:10,25 definitions [138] COURT 1:1,13 3:10,16,24 4: Heritage Reporting Corporation Sheet 2 categories - Eddings 72 Official - Subject to Final Review effectively [3] 21:17 23:1 32:6 effects [1] 22:22 efforts [1] 25:8 Eighth [1] 62:18 either [3] 3:19 8:19 46:16 element [1] 6:8 eligibility [1] 23:4 en [1] 38:18 end [1] 6:10 ended [1] 67:23 engage [2] 47:14 56:20 engaged [4] 38:18 40:17,17 53:7 engages [1] 44:8 engaging [3] 39:12 47:19 53:13 enough [1] 13:14 entail [1] 58:9 enter [3] 35:18,19,20 entire [4] 28:14 37:22 45:18 63:24 entirely [8] 22:23,25 27:7 29:3,18 32:17 38:25 60:23 existence [2] 33:12 42:16 existing [5] 7:5,7,8 46:7 62:25 exists [1] 17:22 expert [3] 33:2,4,11 explain [2] 17:17 59:9 extend [1] 66:21 extended [1] 7:16 extensive [2] 65:14 68:19 extent [11] 32:14 37:8 38:17,21 40: 15 43:13 57:19,21 59:11,14 61:12 F fact [4] 18:5 20:10,11 47:11 factor [3] 20:4 60:15 65:2 factors [6] 13:22 51:21,22 52:15 fourth [1] 57:20 framework [1] 54:16 friend [4] 11:17 54:9 65:12 67:23 frightening [1] 4:12 full [3] 20:22 22:18 47:19 full-blown [5] 6:6 30:9 49:7 65:8 67:2 function [1] 13:8 fundamental [4] 21:5 57:2 59:7 66:24 fundamentally [3] 5:25 30:22 31: 18 further [1] 7:17 fuse [1] 13:13 52:2,20 66:22 G 65:24 66:3 facts [3] 7:17 13:20 33:16 failure [1] 66:8 fair [1] 64:8 fairly [1] 34:15 families [1] 18:18 far [2] 47:22 59:2 fashion [1] 31:12 feature [1] 17:20 federal [21] 9:9 24:5,7,11,18,25 25: Haymond [1] 66:23 hear [2] 3:3 20:12 heard [4] 33:8,11 35:1,22 hearing [1] 51:12 heart [3] 19:21 28:6 67:25 heavens [1] 52:8 Hedlund [3] 44:12 45:6 47:24 held [1] 34:7 hold [2] 21:23 38:20 holding [1] 43:12 Honor [2] 10:24 44:2 horribles [1] 33:22 Hurst [9] 4:2 7:7,13,14 8:14 32:9 gather [1] 21:21 gave [1] 3:19 General [5] 1:20 31:24 37:24 39: 23 56:3 Hurwitz [1] 38:7 hypothetical [2] 24:14,16 I idea [6] 26:8 33:23,25 46:22 49:17 53:2 gets [4] 24:2 43:22 59:5 60:10 identification [1] 38:23 getting [4] 17:6 21:18 48:25 55:2 identified [7] 11:13 39:18 48:2 53: Gideon [4] 51:25 53:18 54:14 55:3 3 63:4,13,15 GINSBURG [5] 37:24 38:15 39:5 III [1] 25:17 60:1,4 ill [1] 6:19 1,2,9,12,14,23 26:1,19 27:7,24 28: give [6] 7:19 8:17 26:12,17 29:24 imaginary [2] 61:21,22 14 39:23,24 53:9,14 31:13 imagine [1] 50:19 felt [1] 50:6 given [5] 6:21 26:16 60:19,20 66: imagining [1] 50:14 22 few [1] 14:22 implications [1] 4:11 15,17,21 13:3 17:8,11 21:22 33: [1] 57:20 [1] 61:9 fifth gives important [1] 21:4 16 38:2,3,11,19,19 39:12,18 42:13, [1] 50:13 [1] 26:18 figure giving importantly [1] 64:10 16 45:13,17 46:12,13,20 47:6,8 [2] 10:10 11:24 [1] 14:22 filed gleaned impose [1] 23:6 48:18 49:13,14 50:5,10 53:12 56: [8] 23:18 24:3 26:23 29:13 34: Gonzalez [1] 24:19 final imposing [1] 3:20 15,16,21,25 57:1,12 58:22,24 59:1, GORSUCH [20] 23:20,23 24:8,12, imposition [1] 66:10 7,24 60:5 61:1,4,6,10,11,12,20 63: 1 58:15 67:20 68:12 22,24 25:14,18,21,23,25 26:12,22, improvidently [1] 43:5 finality [10] 5:6 9:6,8 24:23 26:4 4,18 68:20 24 27:3,6,10,13,19 28:3 31:19 34:9 50:3,7 58:17 inadequate [3] 41:1,23 56:18 [1] errors 13:16 find [2] 42:25 52:21 got [3] 15:9,12 67:2 include [1] 36:21 ESQ [4] 1:18 2:3,6,9 [2] 20:10,11 [1] 16:18 finder gotten including [2] 5:24 48:12 essence [1] 59:6 [2] 23:4 45:17 [1] 32:16 finding governing Indeed [7] 4:22 6:9 10:8 19:13 20: [1] essential 54:17 finds [1] 50:5 granted [6] 3:18 18:6 41:25 42:23 6 21:16 41:19 essentially [2] 46:18 57:11 43:5 54:23 fine [2] 5:8 50:21 independent [19] 26:25 33:6 44:6, evade [3] 25:9 31:15 67:16 [1] 48:9 [1] 43:6 7 45:24 46:2,23 47:20 48:9 49:7, finish granting [2] evading 54:8,10 [19] 6:14 7:21 8:7 11:16 14:19 grievances [1] 18:3 22 60:24 62:8,12,13,17 63:10 65: even [11] 3:12 21:6 26:17 28:1 34: first [1] 27:7 8,15 35:2 40:14 42:15 43:1 44:4,7 46: Griffith 23 35:6 37:21 46:5 47:23,25 49: [2] 4:22 10:18 [1] 14:5 22 47:2,20 49:22 62:10 63:8 65: ground independently 23 [1] 64:2 [1] 47:16 15 68:3 grounding indirect everybody [1] 9:10 [1] guess [5] 17:5 22:14 45:10 46:9 ineffective [6] 22:12,21 28:12,15 everything [6] 3:25 6:6 49:15 65:3 fits 32:16 56:1 39:3 42:19 five [2] 4:22 64:17 67:17 68:6 [2] guilt [2] 22:8 23:13 infects [1] 29:4 evidence [16] 6:14 12:12,24 15:16 fix 5:4 13:3 fixed [2] 13:14 63:11 inherent [1] 43:9 19:11 20:12 21:3 33:8,10,10,17 H flaw [2] 18:2,2 initial [2] 57:7 62:13 34:16 60:10 61:23,25 66:9 habeas [15] 3:18 30:17,21 31:2,5 [1] 4:6 floodgates innocence [2] 22:8 23:14 exact [3] 41:13,22 45:20 39:17,24,24 40:24,24 42:17 53:5 [1] 29:11 Florida inquiry [1] 57:7 [8] exactly 19:9 25:20 41:7,17 42: 54:24 58:25,25 [2] 41:17 63:5 focus instead [4] 40:17 56:25 61:24 62: 1 53:7 58:19 65:11 happened [7] 18:10,14 30:12 56:7 15 [1] 29:20 focused example [15] 4:12 14:20 22:8 23: 62:3 65:4 68:15 [2] institutionally [1] 15:17 13 26:6 35:4,5 38:17 44:10 45:23 followed 41:12 53:4 happens [1] 47:5 [2] 8:10 34:15 following insufficient [2] 43:15 54:23 54:15 55:3 62:24 65:17 66:7 hard [1] 49:4 [1] 3:23 form intangibles [1] 14:21 examples [3] 28:12,13 38:14 Harlan [1] 26:7 formalism [1] 40:10 intent [1] 46:9 except [1] 16:18 harm [1] 58:12 [4] 22:23,25 23:9,24 formalistic interest [1] 25:9 exception [4] 35:14,15 53:21 54: harmless [20] 38:19,21 39:12 42: interrupt [1] 42:4 [3] 25:4 32:6 33:22 forward 15 16 56:15,16,20,25 58:22,24 59:1,7, intervening [1] 55:5 found [8] 21:24 37:25 50:23 51:5, excluded [1] 63:20 14 61:4,6,10,11,12,20 68:20 22 52:15 53:8 55:6 invalid [1] 5:24 excluding [1] 6:1 [1] 67:17 Harwin [3] 11:16 64:24 65:9 four invalidated [1] 22:4 [1] exercise 30:5 entitled [1] 4:4 equate [1] 61:4 equipped [1] 15:18 ERIN [1] 1:3 erred [3] 38:1 39:7,8 erroneous [1] 66:10 erroneously [2] 5:24 6:1 error [59] 11:3,5,6,13,14,19 12:1, Heritage Reporting Corporation Sheet 3 effectively - invalidated 73 Official - Subject to Final Review invariably [1] 58:8 involving [1] 32:18 irrespective [1] 12:12 issue [7] 7:21 8:12 16:4,5 17:6 62: 22 63:3 issued [1] 33:19 issues [7] 12:5 22:15 49:23 50:1 55:19,23 62:11 itself [8] 3:25 4:21 6:10 7:10 19:4, 15 21:11 30:11,14,25 31:7,11 32: 23 41:4 42:3,8 48:11,14,24 49:3, 11 56:2 58:11,21 59:4,15,20 61:3 65:2,20 keep [1] 58:12 keeps [2] 33:9 34:4 kind [5] 15:17 17:6 22:11 27:4 29: 7 kinds [1] 22:22 15 39:13 44:5 J JAMES [2] 1:3 3:11 Jimenez [4] 31:20 37:18 68:9,11 Jiminez [2] 64:9 67:10 Joint [2] 10:10 65:9 judges [1] 61:23 judgment [13] 23:18 29:14 34:2,7, L label 46:17 47:11 67:14 labeled [1] 44:21 labeling [2] 43:24 54:20 lack [1] 23:3 language [5] 6:18,19 33:19 41:15, [4] 30:21 18 last [1] 37:4 12,18,19,21,22 35:2,22 36:10 38:2 later [4] 18:15 19:6 50:11,23 judicial [1] 37:23 latter [1] 3:22 juries [2] 13:16 66:24 law [41] 3:14 4:10 5:13 7:5,7,8 8: 22 9:9,25 10:1 14:13 15:22 16:1, jurisdiction [1] 43:6 13 17:25 19:4 24:1,3,5,7,11,11 25: jurisprudence [1] 31:19 jury [21] 4:2,4,14,14 8:21 14:21 17: 15,15 26:1,10 27:7 28:14,22 30:5, 2 18:17 19:5,10,13 20:10,25 21: 21,23 23:3,5,13 52:21 61:23 66: 17 JUSTICE [169] 3:3,10 5:10,16,23 6: 10,23,24 7:18,19,20 8:2,4,18,23 9: 4,18,19,21,23 10:17 11:2,9,12,16 12:3,19 13:19 14:8 15:1,7,12,14, 19 16:3,7,10,15,23 17:4 18:12,16, 25 19:7,25 20:5,8,15 21:10,14,15 22:11,11,20 23:20,23 24:8,12,22, 24 25:14,18,21,23,25 26:7,12,22, 24 27:3,6,10,13,19 28:3,8,10,17, 21 29:1,9,17,22 30:11,14,25 31:7, 11,22 32:3,23 34:10,24 35:13 36: 4,8 37:3,11,24 38:7,15 39:5,22 41: 4,14 42:3,8,21 43:20 44:13 45:10 46:9,24 47:1,4 48:11,14,24 49:3,9, 11,12 50:12 51:14,20 52:4,8 53: 17,20,23 54:2,6,7,21,25 55:11,13, 21 56:1,2,3,4,23 58:1,11,21,22 59: 4,5,15,20 60:1,2,4 61:2,3,14,17 62: 2,6 63:2 64:15,23 65:2,20,21,22 67:17 68:24 15 32:10,16 33:16 35:14 36:22 43: 24 50:18,21 51:1 67:9 laws [1] 25:23 lawyer [9] 51:5,6,9,12,22,24 52:13, 16,20 leads [1] 44:10 least [7] 8:9 21:9,9,11 24:2,4 66: 17 leave [1] 8:7 left [3] 10:22,24 59:23 letting [1] 8:5 license [1] 67:13 life [1] 3:20 likelihood [1] 21:25 limited [7] 5:3 20:20 22:2,10 28:24 64:25 65:13 line [4] 28:18,20 30:3 39:23 Linkletter [3] 26:7 31:16 67:19 litigation [1] 41:17 little [4] 53:23 56:11 60:10 61:3 lo [1] 51:8 long [4] 13:13,21 27:12 57:21 look [8] 13:20 20:9 44:20,24 55:1 61:25 65:22 68:17 looked [2] 48:20 63:12 looking [2] 25:4 37:19 looks [1] 13:23 lose [2] 5:6 37:6 lot [2] 6:23 28:10 lots [1] 22:15 low [1] 60:19 18 60:25 62:18 67:15 5:1 18:8 McKinney's [1] 3:16 mean [19] 8:9,19 12:4 15:21 17:5 next [2] 3:4 52:10 nexus [1] 63:14 22:20,22 25:15 39:23 46:14 49:12, Ninth [40] 3:17 11:4,13,25 12:9,21 13,14 51:24 52:9 55:2,12 57:10 60:9 means [2] 16:13 63:11 meantime [1] 51:2 measure [1] 64:4 mentioned [2] 32:24 41:15 mentioning [2] 33:9 34:4 mercy [5] 6:21 14:23,25 21:3 66: 15 met [1] 28:5 Michigan [1] 27:12 middle [2] 30:8 67:24 might [3] 14:21 41:23 63:20 Mills [2] 19:16 66:7 mind [3] 24:14 34:13 38:15 minimal [1] 60:18 ministerial [6] 29:13,18 35:14,15, 17,21 minutes [1] 64:17 mistake [9] 7:2 14:2 29:2,4 44:18, 19 47:9 50:22,23 mitigating [13] 6:2,6 16:4,25 19: 11,23 21:3,13 57:3 66:6,9,14,15 mitigation [11] 12:12,23 13:23,24 35:11 44:5 45:3,8 62:21 63:6,7 mitigator [2] 60:6,14 mitigators [3] 44:10 46:5 50:17 modern [3] 37:1 54:15 64:5 modification [1] 64:7 modified [4] 34:18 36:10,11,19 modify [3] 34:21,22,25 moment [1] 27:14 motion [1] 57:20 much [8] 5:22 20:19 26:10 46:23 47:12 50:6 55:2 60:20 multiple [1] 44:24 murders [1] 18:18 must [4] 4:10 13:19 43:11 60:21 N name narrow [1] 52:9 [6] 10:18 40:18 48:4 49:19 50:9 62:21 nature [5] 37:16 41:2 53:13 55:25 K 62:14 KAGAN [15] 17:4 39:22 43:20 44: NEAL [5] 1:18 2:3,9 3:7 64:18 13 45:10 46:9,24 47:1,4 49:9,12 necessarily [1] 48:7 56:1,3,23 58:1 need [7] 13:17 18:7 22:18 23:15 Kagan's [2] 58:23 59:5 41:24 46:14 66:17 KATYAL [77] 1:18 2:3,9 3:6,7,9 5: needed [3] 23:18 50:7 60:20 14,17 6:4 7:3,18 8:1,18 9:1,18,21 never [15] 3:12 20:25 21:1 26:20 10:2,23 11:5,11,15 12:16 13:1 14: 33:8,9,10,11 35:1,22 48:6 49:17 M 7,16 15:5,8,14 16:2,6,8,11,17,24 59:18 63:19 68:4 17:16 18:14 19:7 20:2,6,14,18 22: made [9] 11:17 12:8,11 14:24 33:2, nevertheless [1] 21:25 2 23:7,20,21 24:8,15,23 25:10,16, 14 35:8 38:2 45:20 new [46] 3:23,24 4:9,21 7:22 8:16 20,22,24 26:3,14,23 27:2,5,12,18, majority [1] 12:10 9:11,23,25 10:19 16:12 17:24,25 21 28:4,8,9,16,20 29:6,21 30:2,12, manner [2] 34:21 63:8 18:7,9,17 20:22 21:8 22:5 23:10, 20 31:3,9,13 64:17,18,20 many [4] 19:8 29:10 49:20 57:22 19,22 28:21 29:23,23 30:4,6 33:8 KAVANAUGH [37] 5:10,16,23 6: matter [3] 1:12 32:8 59:13 38:12 40:16 43:23 51:3,4,17,20 10,23 8:4 18:12,16 19:7,25 20:5,8, McKINNEY [8] 1:3 3:4,11,14 4:3,6 53:7 54:4 55:7 56:12 57:11,14,15, 14:9 18:5 22:3 23:11 33:15 37:25 38:18 39:6,12,16 40:15 41:4,6,9 42:2,5,8,25 44:17 45:12,14 47:5 48:17 53:2,3,10 56:15 57:23 58: 18,24 63:15 65:4 67:2,7 non-retroactive [1] 17:13 non-structural [1] 56:19 normally [2] 23:24 24:2 note [1] 43:5 noted [1] 58:7 nothing [2] 17:8 38:9 novo [4] 11:10 12:22 20:22 27:25 Number [2] 7:4 64:25 O obligation obvious [4] 51:9 52:17,18 56:17 obviously [1] 10:3 occasion [1] 65:22 occasions [1] 4:23 occurred [8] 30:16 40:22 42:14 [1] 43:23 47:15 48:22 57:22 58:10 63:16 offense [1] 12:14 offered [1] 64:2 Oil [1] 24:17 Okay [9] 15:12,19 24:13,15 44:19 46:12 47:6 50:20 59:4 old [4] 15:25 18:2 34:15 36:5 once [3] 3:12 58:14,14 one [30] 4:3 6:8 7:4,9 8:9 13:13 14: 4 20:4 22:14,16 24:9 26:13 29:25, 25 32:5 36:5 38:7 40:14 45:13 47: 2 49:4 51:4 54:7 62:10 63:25 65:1, 23 66:14 68:4,19 ones [1] 66:15 only [19] 7:8,21 8:11 9:13 11:19 14: 1 16:4 17:9 21:20 28:23 32:5 33: 14 35:8,9 39:25 41:1 62:20 64:22 66:3 open [6] 4:5 8:7 10:22,24 34:25 59: 23 open-the-floodgates [1] 29:8 opinion [6] 44:11 45:1,7 47:25 64: 9 68:18 opportunity [1] 8:17 opposed [4] 10:4 35:21 44:21 66: 19 opposite [4] 29:16 38:22 65:3 68: 20 opposition [3] 11:20,22 67:6 option [1] 3:19 options [1] 59:22 oral [5] 1:13 2:2,5 3:7 32:1 ORAMEL [3] 1:20 2:6 32:1 order [1] 18:8 ordered [1] 4:24 original [2] 62:4,5 other [12] 25:21 26:1 29:10 30:3 39:20 44:16 45:12 47:8 54:11 55: 19,23 57:14 Heritage Reporting Corporation Sheet 4 invariably - other 74 Official - Subject to Final Review Otherwise [1] 4:11 18 56:23 ourselves [2] 12:6 43:2 post-collateral [1] 43:7 out [14] 4:16 12:5 33:15,22 35:4 40: post-conviction [2] 43:7 57:20 15 42:25 43:22 45:4,9 50:13,23 potentially [1] 37:18 60:13 64:1 power [2] 10:25 31:14 outlier [1] 30:8 powerful [1] 34:16 outline [1] 16:22 practice [1] 47:18 over [13] 9:5 33:3 38:6,8,8 39:9,11, pre-Batson [1] 4:13 25 40:1 43:7 45:18 50:15,16 precedent [2] 5:11 22:18 overrule [2] 7:15 67:18 precedents [3] 13:2 19:18 68:8 overruled [1] 67:18 predate [1] 32:19 overturning [1] 37:15 predates [1] 32:20 own [6] 23:25,25 33:6 37:20 56:25 prejudice [1] 42:20 57:1 present [4] 51:5,7,23 52:21 Presented [2] 33:18 63:24 P preservation [1] 12:4 p.m [1] 69:1 presumably [1] 19:4 PAGE [6] 2:2 11:18,25 14:20 65:5 presumed [1] 8:3 66:7 pretty [2] 25:6 37:1 pages [4] 10:11 16:21 65:10,19 principle [4] 25:1,2 51:3 64:2 pan [8] 50:15,16,22 51:5,6,21,22 problem [11] 18:3,4,9 21:14 23:22 52:22 pans [2] 50:14 55:6 parade [1] 33:21 parameters [1] 52:7 part [6] 15:24,25 16:4 30:14 57:18 61:20 particular [1] 59:13 particularly [3] 11:23 14:17 66:21 partly [1] 49:16 passionate [1] 18:24 past [3] 37:19 47:17 63:9 path [3] 3:15 4:16 32:6 paths [3] 3:14 5:1 59:23 penalty [4] 3:21 22:1,6 49:21 pending [1] 57:21 Penry [1] 19:16 people [1] 40:10 percent [2] 30:9 55:10 perform [1] 4:20 period [1] 50:20 person [3] 6:22 51:8 61:21 personal [1] 66:18 petition [3] 11:25 65:5,18 Petitioner [19] 1:4,19 2:4,10 3:8 26:5 33:4 43:9 56:22 63:13,15 problems [2] 17:3 26:6 procedure [8] 9:12 10:19 20:23 26:25 27:4 37:6 41:13 54:20 procedures [1] 23:25 proceeding [58] 3:13,17 4:9 5:21 7:22 9:24 11:1 16:12 17:24,25 23: 19,22 28:6,14,21 29:5,24 30:4,6 31:2 34:11,13 35:23 36:3,18,21 38:16 39:1,4,7,15,17,24 40:16,19, 20 41:2 43:15 48:19,21 55:16,20 56:12 57:9,10,12,14,16,18,24 58:3, 4,5,8,10 64:11,13 65:13 proceedings [19] 4:8 5:6 24:3 36: 16,17 37:16,20 39:18 40:1,2 43:8, 13,21 45:15,17,21 53:7 55:25 67: 15 process [14] 8:12,13 9:17 25:4 42: 14,15 53:12 57:19 59:12 61:10,15, 18,19 63:3 profoundly [3] 23:8 68:7,7 prong [1] 42:20 pronounced [1] 9:2 pronouncement [1] 9:5 32:6,19 33:22 34:4 35:3 40:23 41: properly [2] 43:16 55:23 7,20 46:6 48:1 62:14,18 64:1,19 providing [1] 59:11 Phoenix [1] 1:20 PTSD [2] 33:11,12 phrase [2] 64:6 65:9 punishment [1] 19:22 pick [4] 26:9 32:22 58:22 67:19 purely [1] 25:11 picture [1] 17:9 purposes [4] 24:4 36:17 40:21 64: place [4] 14:19 37:17 49:20 50:19 14 playing [1] 60:15 push [1] 17:18 plea [1] 14:23 pushed [1] 53:24 please [2] 3:10 32:4 put [4] 3:11 12:4,4 49:20 point [17] 7:3,6 15:13 18:20,21 20: putting [1] 43:21 8,16 21:12 30:2 39:11 40:14 45:8 Q 58:22 59:5 64:1 66:4 67:1 [1] [1] QP 32:7 polar 29:16 question [50] 3:15 4:17 5:2,4,14, pop [1] 17:13 18 7:25 8:5,7,20,20 9:2 10:3,5,5,7, position [7] 7:15 9:15 12:18 16:8 18,22 16:8 17:4,19 20:20 21:5 23: 43:4 49:6 58:14 24 24:18,19 25:12 30:23 33:18 36: possibility [1] 30:18 9 37:4 43:16,22 44:14 46:10 47:1, possible [5] 16:19 47:16 48:3 49: 4 48:15,25 51:17 56:4 57:2,15 58: 23 59:5 60:5 63:24 64:22,23 66: 25 questions [3] 5:9 42:17 68:23 quite [3] 19:1 20:16,17 R race-based [1] 4:14 raised [4] 6:24 8:4 47:23 49:23 Rather [1] 4:8 rational [2] 27:20 28:1 re-sentencing [1] 4:13 reach [3] 7:23 8:6 10:5 reached [2] 7:21 38:22 read [2] 18:25 62:15 real [2] 23:2 56:4 reality [1] 36:25 really [14] 7:2,12 14:13,13 16:17 19:1 21:3,5,15,20 26:15 33:23 47: 16 66:23 realm [1] 37:17 reanalysis [2] 57:25 58:2 reason [4] 27:22 48:1 52:24 56:24 reasonable [1] 52:7 reasons [1] 64:23 REBUTTAL [2] 2:8 64:18 recognize [1] 38:20 recognized [1] 35:6 reconsider [1] 36:13 reconsideration [1] 36:13 record [6] 14:23 32:25 33:1 63:18, 20 66:19 red [1] 11:17 redo [6] 8:13 14:10 30:9 51:2 58:3, 5 redoing [4] 40:11 46:18 48:9 56:5 reexamination [3] 37:23 57:25 58: 9 reject [1] 45:1 rejected [1] 46:1 relabel [1] 31:14 relatively [1] 30:1 relevant [1] 6:1 remand [5] 4:19 9:24 15:9 48:19 66:11 remanded [1] 56:15 remanding [1] 7:24 remands [1] 32:18 remarks [1] 68:22 reopen [6] 9:16 18:2 22:8 23:12 36:12 45:14 reopened [8] 3:16 5:7 22:15 34:18 35:23 67:10 68:13,16 reopening [10] 9:7,13 10:20 29:13 34:12 37:5,9 38:4 45:16 56:5 replace [1] 64:3 require [6] 4:2 33:21 37:19 49:7 53:5 60:17 required [4] 3:23 18:20 65:5 67:1 requires [6] 4:18 10:15 12:25 22:5 30:4 36:24 requiring [2] 18:12,17 resentencing [11] 4:24 5:21 10: 16 11:1 19:5,13 22:19 65:6 66:11 67:1,3 reserve [1] 31:21 resisted [1] 61:3 resolution [5] 32:7 38:23,24 42: 18 56:18 resolve [2] 38:16 39:13 resolves [1] 32:7 respect [5] 5:17 7:8 17:21 24:16 66:25 Respondent [4] 1:7,21 2:7 32:2 responses [1] 40:14 rest [2] 5:8 63:9 result [4] 8:21 19:17 22:17 23:11 retroactive [8] 21:18 23:1,2 32:9, 15 36:23 54:5 55:15 retroactively [2] 4:7 21:19 retroactivity [8] 36:17 37:2 40:21 54:10,16 64:4,5,14 return [3] 26:6 31:16 40:23 returned [3] 41:8,20 50:11 review [47] 11:10 12:22 24:6 25:7 26:13,16 27:16,20 30:17,22 33:6 38:1,3,4,6,6,9,12,13 39:8,8,11 44: 6,7,16 45:24 46:2,23 47:7,20 48: 10 49:7,22 57:18 58:15 60:24 61: 6,10 62:8,12,13,17 63:10 65:8,15 67:14 68:21 reviewing [1] 40:3 revisit [1] 46:4 revisited [1] 62:20 revisiting [1] 45:7 reweigh [1] 52:15 reweighing [8] 5:13 6:6 14:11 20: 23 30:16 31:1 52:14 68:2 Richfield [1] 24:17 rights [1] 23:13 Ring [32] 4:1,7 7:6,13,14 8:3,14 15: 21,21 16:13,14,15,19 17:3,5,7,9,9 21:18,22 23:2,12 32:9 52:2,19 55: 14,15 56:10 57:13,16,24 66:22 Ring-compliant [1] 32:11 risk [2] 23:23 64:12 risks [1] 66:9 ROBERTS [13] 3:3 28:8,10,17 29: 1,17,22 31:22 41:14 54:2,7 64:15 68:24 role [1] 66:24 rule [12] 10:2,5 17:13,15 24:25 34: 15 51:17,20 54:9,10 55:5 56:12 ruled [1] 68:13 rules [5] 7:13 36:23 43:23 54:4,16 run [1] 4:12 S safeguard [1] 29:7 safeguards [1] 49:21 same [11] 5:1 14:4 31:4 34:21 39: 22 45:20 48:15 49:3,5 52:19 63:8 satisfied [1] 60:23 satisfy [2] 41:23 54:23 saying [16] 4:8 6:19 7:14 8:24 10: 12 16:18 18:25 23:10,12 51:25 52: 5 58:23 60:6,13,20 65:2 says [18] 5:12 6:12 13:21,25 14:9, Heritage Reporting Corporation Sheet 5 Otherwise - says 75 Official - Subject to Final Review 10 15:15 16:24 22:18 34:11 44:18 47:5 49:25 52:19 53:12 60:8,18 66:8 scale [1] 50:14 scheme [1] 13:8 scope [1] 62:11 searching [3] 44:8 45:25 47:22 second [16] 4:16 7:6,11,23,25 8:7 29:9 35:5 39:4 44:6 45:5,11 60:23 62:17,19 68:6 second-guess [3] 43:18 53:15 55: 24 see [12] 6:22 13:5 50:13 51:4,6,14, 16 52:23 53:20 66:17,18 68:17 seeking [4] 3:20 4:6 13:12 23:9 seeks [1] 3:11 seem [1] 47:11 seems [2] 20:15 36:11 seen [5] 20:25 21:1 33:10,10 48:6 semantics [1] 36:12 send [1] 15:20 sending [1] 51:11 sense [2] 22:11,14 sent [4] 19:12 38:12 48:18 50:24 sentence [22] 3:20 13:9,10 18:8 22:4 23:5,17 33:21 34:1,7,8 36:1, 2,18 46:15 53:6,6 57:5 58:17,20 64:11 66:10 sentenced [1] 4:3 sentencer [4] 13:5 14:24 15:2,4 sentencers' [1] 66:8 sentences [1] 35:9 sentencing [25] 3:13,17,24 4:2,10, 19 5:5 14:22 16:12 18:17 19:22 22:5 28:6,7 40:4,5,6,7,12 49:25 51:9 57:2 62:11 67:15 68:1 separate [5] 3:14 4:23 5:2 17:3 29: 6 served [1] 13:8 set [3] 4:16 61:22 68:16 setting [1] 54:17 several [1] 41:16 shot [1] 21:23 Shouldn't [10] 7:24 8:5,6,16,24 9: 24 10:21 34:16 42:23 43:2 side-by-side [1] 68:18 significant [1] 62:9 similar [5] 20:16,17 59:15,18 61: 11 Similarly [1] 39:2 simply [2] 4:17 23:15 since [3] 4:23 7:13 35:16 sitting [1] 39:16 situation [1] 54:11 SKINNER [63] 1:20 2:6 31:24 32:1, 3 34:20 35:3,24 36:6,15 37:8,13, 25 38:14 39:10 40:13 41:6,19 42: 6,11 43:3 44:2,22 45:22 46:21,25 47:3,13 48:12,23 49:1,4,16 51:13, 16 52:2,6 53:1,19,21,25 54:13,22 55:10,12,14,22 56:3,14 57:17 58: 6,13 59:3,10,17,22 60:16 61:8,16, 19 62:5,7 63:5 slap [1] 67:13 small [1] 5:3 Solicitor [1] 1:20 somebody [1] 21:24 somehow [1] 33:23 somewhere [1] 29:18 sorry [5] 13:16 42:3,21 58:12 60:2 sort [3] 12:5 29:2 33:8 SOTOMAYOR [29] 7:18,20 8:2,18, sudden [1] 17:13 sufficiently [1] 35:11 suggest [3] 29:23 46:10 66:23 suited [2] 6:20 7:1 supercedes [1] 36:5 supersede [1] 36:7 suppose [5] 27:13 30:16 41:16 50: 23 9:4,18,19,22,23 10:17 21:14 29:9 34:10,24 35:13 36:4,8 37:3, 11 42:21 60:2 61:2,14,17 62:2,6 63:2 64:23 sounds [1] 52:12 source [1] 25:15 special [1] 62:15 specific [1] 47:14 specifically [1] 60:18 stage [2] 11:2 68:6 stand [1] 53:6 standalone [2] 60:25 62:18 standard [7] 24:5 25:7 26:13,15 27:15,25 36:15 stands [2] 49:24,25 start [1] 48:9 started [1] 61:5 State [49] 3:11,19,22,23 4:5,9,12 9: 7,8 15:15 17:23 18:6,7 23:10,16 24:1,2,3,7,11,18 26:9,19 30:17,18, 21 31:2,12,14 33:24 37:20 39:25 40:2,3,11,17 43:18,25 44:15 46: 19 47:8 54:11,19 57:20 58:25 65: 7 67:13 68:14,16 State's [5] 10:11 33:4 37:15 40:8 49:6 state-by-state [2] 24:20 26:4 statement [1] 64:8 STATES [4] 1:1,14 23:24 68:11 stays [1] 62:25 stems [1] 49:16 step [1] 52:1 steps [3] 48:10 49:8,20 stick [1] 24:13 still [12] 5:13 20:16,19 26:1 27:15 30:15 50:1,12 53:17 60:9,15 62: 23 straightforward [1] 63:23 strange [1] 56:11 Strickland [1] 42:19 strikes [1] 4:14 striking [1] 62:24 stronger [1] 27:19 struck [1] 47:25 stuff [2] 15:17 68:21 Styers [9] 40:23 41:7,8,19 42:24 44:11,25 45:6 53:8 Styles [1] 8:10 subject [1] 64:7 subjected [1] 34:17 submitted [2] 68:25 69:2 substantial [1] 35:12 substantive [3] 30:23 31:10 35:23 subtracted [1] 5:20 subtracting [1] 6:8 subtraction [3] 7:9 20:3 65:1 supposedly [1] 47:7 Supremacy [2] 25:17,18 SUPREME [40] 1:1,13 3:16,24 6:5 21 54:3 10:6,9,13 11:8,10,14,19 12:7 13: 11 14:3,10,10,14 19:3 26:21 29: 11 30:18 35:10 38:1 43:25 44:8 46:19 47:8,18 48:18,20 50:20 51: 11 53:11 54:19 56:16 60:8 63:16 65:12 67:8 surgical [1] 29:2 suspect [1] 50:2 sword [1] 4:7 T talked 40:10 task [2] 4:21 6:5 tasked [1] 35:25 technical [3] 19:20 29:12 36:25 terms [2] 43:25 45:2 terrible [1] 13:24 test [1] 31:10 testimony [1] 33:12 themselves [1] 10:25 there's [24] 6:18 10:10 11:15 13:7 [3] 28:11,12 15:3 16:18 17:17 19:9 24:11 29:1 32:5,8 35:9 39:2 40:13 45:25 50: 22 51:12 53:25,25 60:11,25 68:4, 19 thereby [1] 56:21 therefore [1] 16:13 they've [2] 16:11 39:17 third [1] 57:19 though [2] 3:12 31:1 three [2] 18:19 46:1 today [2] 4:3,13 touched [1] 22:9 touchstone [2] 34:3 58:16 toward [1] 50:9 treated [1] 33:17 trial [35] 4:4,19 8:21 11:7 12:2,16, 20 13:3,5,10,17,21,25 14:15,18 15: 9 18:4,4 19:11,12 20:11,25 21:12 23:13 32:13,18 33:3,5 38:2 45:4 59:24 66:1,6,18 68:4 tried [2] 67:17,18 true [5] 11:23 15:21 20:1 53:17 59: 9 truism [1] 68:12 trying [10] 17:10,11 18:1,1 31:20 44:23 46:21 50:13 52:12 61:4 turn [1] 64:10 Turning [1] 33:18 turns [2] 30:21 33:23 two [10] 3:14 13:22 14:5 24:8 35:9 38:14 44:3 50:14 55:6 62:8 twofold [1] 7:4 type [4] 47:14 59:13,17 61:11 U uh-uh [1] 13:15 ultimate [1] 36:9 ultimately [2] 31:6,9 unconditional [1] 41:25 under [6] 10:15 15:25 32:18 41:16 50:25 51:1 undercut [1] 7:6 underlying [1] 54:3 undermine [1] 67:16 understand [4] 6:3 18:22 39:5 51: 25 undo [4] 34:8,8 35:1 58:16 undoes [1] 34:1 undoing [1] 35:2 UNITED [2] 1:1,14 universe [1] 5:3 unless [2] 34:17 35:23 unusual [1] 27:4 up [15] 9:7,8,9 17:14 26:12 32:23 39:3 44:17 45:12 48:16 49:25 50: 4 57:4 58:22 62:18 upend [1] 64:5 upfront [1] 66:18 using [3] 26:19 55:19 65:8 V vacate [2] 58:17,20 vacated [2] 34:1 64:13 vacating [2] 33:21 53:5 valid [1] 41:9 verdict [1] 62:15 versus [5] 3:4 15:15 27:12 54:14 64:3 victims' [1] 18:18 view [4] 30:19 48:8 52:11 67:12 viewed [1] 8:20 vindicates [1] 25:19 vindicating [1] 24:25 violates [2] 24:7 28:22 violation [11] 4:18 16:19 19:20 28: 13 38:17,24,25 39:14 42:9 43:1 56:19 violations [3] 4:25 5:4 16:19 voluntary [1] 68:14 W Wainwright [4] 52:1 53:18 54:14 55:3 wait [1] 51:2 waiting [1] 26:1 waiving [1] 5:8 Wall [2] 37:21 58:7 wanted [3] 23:17,17 28:1 Washington [2] 1:9,18 way [14] 8:20 12:23,24 14:14 15:11 32:8 45:13,20 46:16 52:14,25 55: 6 59:7 63:6 ways [1] 45:12 Wednesday [1] 1:10 weigh [1] 6:14 weighed [1] 65:18 weighing [8] 16:25 19:23 20:13 Heritage Reporting Corporation Sheet 6 says - weighing 76 Official - Subject to Final Review 28:9 50:19,25 51:10 57:3 weight [4] 60:11,18,19,20 well-known [1] 35:14 Whatever [8] 14:21 25:3,5 28:4 40: 9,10 56:6 58:4 whatsoever [1] 31:5 whereas [1] 6:7 Whereupon [1] 69:1 whether [14] 5:19 6:21 7:22 8:20 12:13 19:10 24:6 25:8 43:22 46: 14 51:17 54:4 57:8 66:2 whole [6] 10:8 18:21 29:4 50:15, 17 62:3 will [21] 14:10,11 37:4 39:20 40:18 45:1,1,8 46:1,4 47:21,21,22 49:22 50:1 62:11 67:16,16,19,21,23 win [4] 3:15 13:9,10 27:15 windfall [7] 17:7,17,21 21:16,17 22:8,14 within [1] 32:17 without [8] 8:13 17:2 21:6,7 38:4 51:11 52:16 63:14 witnesses [2] 13:6 21:7 words [4] 41:21,22 44:16 45:12 world [1] 26:7 worried [1] 26:8 writ [14] 3:18 18:6 33:19,20 40:25 41:11,15,18,22,24,25 42:10 53:5 54:24 written [1] 62:16 wrote [1] 35:16 Y year years [6] 18:17 19:6 50:11 56:13 [1] 57:13 57:22 58:16 Z zooming [1] 63:9 Heritage Reporting Corporation Sheet 7 weighing - zooming