1.         Rule 9.7 (A)(5) provides that in capital post-conviction proceedings “[t]he Court may direct the Respondent [the State] to file an answer brief if it deems one necessary to the resolution of the issues raised in the petitioner’s application and brief.  The Court’s prevailing custom and practice, at least since the 1995 amendments to 22 O.S. 1089 mandated that capital post-conviction applications be filed in this Court in the first instance, has been to exempt the State from filing any response to capital post-conviction applications, with two known exceptions.  The Court did order the Attorney General to file a written response to the post-conviction applications filed in McGregor v. State, 1997 OK CR 10, 933 P.2d 334 (1997) and Slaughter v. State, 1998 OK CR 63, 969 P.2d 990 (1998).  The Court refused to order the State to respond in Gilbert v. State, 1998 OK CR 17, 955 P.2d 727, 733 (1998) and Charm v. State, 1998 OK CR 2, 953 P.2d 47, 51 (1998).

   2.     Pursuant to Rule 3.5 (C)(3), a copy of West v. Gibson is attached to the Motion, and counsel hereby  makes the certification required by the Court’s rule. 

3. Neither Fisher v. Ward or Stouffer v. Reynolds are binding on this Court, and neither are cited for legal authority but rather to establish  the fact of the decision being made.  Pursuant to Rule 3.5 (C)(3), copies of these unpublished opinions have not been attached to this motion.
4. To his credit, Judge Chapel, concurring in Neill’s result, termed the majority’s rule requiring direct appeal counsel to argue his own ineffectiveness or waive the issue “absurd.”  Neill, supra.  (Opinion of Chapel, J., concurring in result).
5. “Whenever the accused in an adversarial trial is not represented by counsel, English and sometimes American judges have developed the practice of acting as counsel for the accused. They inform the accused of his right to cross_examine and to present evidence for the defense. They help the accused in the examination of witnesses. They advise the accused that he can give evidence, and they exclude on their own motion inadmissible evidence introduced by the prosecution.” Joachim Herrmann, Models For The Reform of The Criminal Trial in Eastern Europe: A Comparative Perspective, St. Louis_Warsaw Transatlantic L.J. 127, 142 (1996)
6. The “insurmountable burden” of “patently frivolous” claims which the Court lamented in Berget is typical hyperbole of judicial adversarialism.  Berget is the only published post-conviction capital case in the last ten years where the Court used to terms “frivolous” or  “patently frivolous” to describe a post-conviction claim.  In Berget, the Court appeared to be speaking of other cases rather than any specific issue then before the Court.  Counsel for Mr. Bland was unable to locate any published capital post-conviction case since 1989 in which this Court described a claim as either “frivolous” or “patently frivolous.”  However, in that same time period, the Court did label several claims in both capital and non-capital direct appeals either “frivolous or “patently frivolous.”  Al-Mosawi v. State, 1998 OK CR 59, 929 P.2d 270, 282 (1997); Romano v. State, 1995 OK CR 74, 909 P.2d 92, 121 (1996)(argument “borders on frivolous”); Sellers v. State, 1991 OK CR 41, 809 P.2d 676, 688 (1991) (argument “patently frivolous”) (capital cases).  See also Scott v. State, 1991 OK CR 31, 808 P.2d 73, 79 (1991); Davenport v. State, 1991 OK CR 14, 806 P.2d 655, 660 (1991) (argument was “patently frivolous”) (non-capital cases).  The Court was never heard to complain in those cases that the burden of such claims was “insurmountable.”
7. Pursuant to Rule 3.5 (C)(3), a copy of Mollett v. State is attached to the Motion, and counsel hereby  makes the certification required by the Court’s rule.
8. The Court has twice quoted with approval Professor Kershen’s statement that appellate lawyers who fail to “winnow” away weaker arguments may find that the “attitude of the appellate court” is one of “anger” because the attorney “has failed to do his job and ...is wasting the court's time with meaningless verbiage” Banks v. State, 1991 OK CR 51, 810 P.2d 1286, 1290 (1991), citing Cartwright v. State, 1985 OK CR 136, 708 P.2d 592, 594 (1985), both quoting from  Kershen, The Written Brief for Criminal Cases in Oklahoma, 35 Okl.L.Rev. 499 (1982).  But the Court’s “attitude” of anger is altogether unjustified when applied to death penalty advocates who must discern which claims to leave out and which ones to leave in.  The reality of capital lawyering is fraught with deadly uncertainties, and courts–including this one-- give no safe harbor to the condemned prisoner whose lawyer has misapprehended a particular claim’s chances for appellate success.  “In a field as fast-moving as death penalty law, it is sometimes difficult to distinguish today’s ‘good faith argument’ from tomorrow’s ‘frivolous’ argument, and vice versa.  What today seems absurd may persuade a judge tomorrow or another judge down the corridor today.” Wollen, Representing the Death Row Inmate:  The Ethics of Advocacy, Collateral Style in Facing the Death Penalty: Essays on a Cruel and Unusual Punishment (Michael Radelet, ed., 1989),  at 92, 104.   The Supreme Court has led the way in ignoring the fatal consequences of appellate attorney error.  In Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 2666 (1986), the Supreme Court addressed whether counsel’s deliberate, but incorrect, failure to present a federal constitutional claim in state court was sufficient to show “cause” for the resulting procedural default.  The Court found counsel’s decision, even if incorrect, failed to excuse his procedural default:

Our cases...leave no doubt that a deliberate, tactical decision not to pursue a particular claim is the very antithesis of the kind of circumstance that would warrant excusing a defendant’s failure to adhere to a State’s legitimate rules for the fair and orderly disposition of its criminal cases...[Defense counsel] consciously elected not to pursue that claim before the Supreme Court of Virginia.  The basis for that decision was counsel’s perception that the claim had little chance of success in the Virginia courts...[P]etitioner’s counsel...now contends that this perception proved to be incorrect.  Even assuming that to be the case, however, a State’s subsequent acceptance of an argument deliberately abandoned on direct appeal is irrelevant to the question of whether the default should be excused on federal habeas.  Indeed it is the very prospect that a state court may decide, upon reflection, that the contention is valid that undergirds the established rule that “perceived futility alone cannot constitute cause” for “allowing criminal defendants to deprive the state courts of the opportunity” to reconsider previously rejected constitutional claims (emphasis added, internal cites omitted). 

See also R. Coyne & L. Entzeroth, “Fatal Consequences of Attorney Error,” Capital Punishment and the Judicial Process 465-468 (Carolina Academic Press 1994), citing Machetti v. Linahan, 679 F.2d 236 (11^th Cir. 1982) and Smith v. Kemp, 715 F.2d 1459 (11^th Cir. 1983) (pair of Georgia capital cases in which two co-defendants are found guilty of the same murder but appointed different counsel; in one case, the lawyer timely raises a constitutional error and gets a life sentence for the client, the other fails to raise the issue in a timely manner and the client gets electrocuted, although his conviction was obtained in the same unconstitutional manner).

9. Pursuant to Rule 3.5 (C)(3), a copy of Howell v. State is attached to the Motion, and counsel hereby  makes the certification required by the Court’s rule.
10. One-sided fact-finding procedures used in capital post-conviction cases encourage the Court’s factual and legal adversarialism toward  the post-conviction petitioner.  “Advocates are restrained not only by their professional obligations, but by the knowledge that their assertions will be contested by their adversaries in open court.” Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 2914 (1978).  The lack of any State pleading to controvert the post-conviction petitioner’s allegations is one of the procedural forces that propels the Court intellectually into the role ordinarily reserved for the petitioner’s natural adversary.  A case in point is the Court’s recent unpublished opinion in the capital post-conviction case of Salazar v. State, No. PC-98-633, wherein Judge Johnson’s opinion for the Court concluded that trial and appellate counsel’s failure to raise a reversible legal error “may well have been trial strategy,” in the teeth of sworn affidavits from all three attorneys involved stating that the failure to raise the question “was not the result of any strategic decision” and that appellate counsel “did not, and would not, withhold this issue for any strategic or tactical reason in the direct appeal.”  Without directly accusing the  three attorneys of perjuring themselves, the Court did not even attempt to explain why it resolved an important factual question of attorney strategy by resort to unsupported speculation rather than the sworn testimony of those involved.  The Court concluded its analysis with the altogether incomprehensible statement that these attorneys “should not be allowed to create error and then profit from it,” again neglecting to explain how their malpractice should profit them in any way.   As usual, the Court also denied Salazar’s request for a hearing to address the issue.  Salazar, slip op. 9-11.  See also, Salazar v. State, PC-98-633 Court of Criminal Appeals Case File, Volume II, Appendix of Exhibits to Original Application for Post-Conviction Relief and Request For Evidentiary Hearing, Exhibits 11, 12, 13 (Affidavits of Attorneys Steve Hess, Mark Barrett and William Luker, respectively).  Pursuant to Rule 3.5 (C)(3), a copy of the Salazar opinion is attached and counsel makes the certification required by the rule.
11. Scholars have documented other historical instances of powerful judicial adversarialism.  In his treatment of  British labor history, Michael Klarman documented the British courts' anti_ union animus and traced its causes to both "ideology" (the adherence of the courts to nineteenth_century individualist ideas) and "materialism" (the class bias of the judges). Klarman concludes that the judiciary was indeed wedded to a philosophy of unfettered individualism and that the adverse legal decisions also reflected at least the judges' unconscious class prejudices and possibly also a conscious desire to curb perceived threats to the established order. Michael J. Klarman, The Judges Versus the Unions: The Development of British Labor Law, 1867_1913, 75 Va. L. Rev. 1487, 1574_75 (1989).
12. The Supreme Court’s judicial bias jurisprudence supports the proposition that “a judge’s personal embroilment with a party can, in extreme cases, result in a due process violation.  Moreover, the Supreme Court has never expressly required a showing of actual bias in order to find a due process violation.”  Friedman, Don’t I Know You From Somewhere?:  Why Due Process Should Bar Judges From Presiding Over Cases When They Have Previously Prosecuted the Defendant, 88 J. Crim. L. and Criminology 683, 692 (Winter 1998), citing In Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623  (1955).  Professor Friedman also points out how the Supreme Court’s emphasis on financial bias tends to obscure judicial bias arising from less tangible sources, including the desire to avoid embarrassment from judicial mistakes.  “The political ramifications of having twice allowed a defendant to ‘get off’ are presumably ominous enough to tempt many reasonable people into biased decision making.”  Id., at 702, fn. 119.
13. The Court conceded in a footnote to the Walker decison that “[u]nder the previous capital post_conviction statutes, we could have applied our decision in  Flores to this collateral appeal on the ground that the decision constituted an intervening change in the law.”  Id., at 344, fn. 42.
14. The Court of Criminal Appeals specifically noted in Valdez v. State, 1997 OK CR 12, 933 P.2d 931 (1997), that a Cooper claim would have constituted an intervening change in the law under prior capital post-conviction statutes. Id. at 933, fn. 7. A third doctrinal innovation which the Court would use to procedurally bar a great many subsequent post-conviction claims was the Court’s interpretation of the phrase “factfinding outside the direct appeal record” found in 22 O.S. 1089 (D)(4)(b)(1).  By limiting that phrase to facts which direct appeal counsel could not have possibly discovered during direct appeal, the Court greatly expanded its ability to procedurally bar review of traditional post-conviction claims based on facts which were not physically part of the appellate record or the evidence produced at trial. Conover v. State, 1997 OK CR 39, 942 P.2d 229, 234 (1997) (Lane, J., dissenting) (finding majority’s interpretation of factfinding outside the record “does not take into consideration whether or not the necessary facts to sustain the allegation of error are contained in the direct appeal record or whether the facts must come from some source outside the record”).
15. It is indeed a spectacle to see the Attorney General’s Assistants attempt to explain the Walker system of procedural defaults to a circumspect and sometimes nonplussed panel of the Tenth Circuit Court of Appeals.  Although eager to raise the defense of “procedural bar” in habeas court, the Attorney General’s Assistants are sometimes at a loss to explain a procedural bar, especially one announced and applied by the state court after the alleged default occurred.  Ironically, the State’s passive role in formulating and implementing the post-conviction statutes renders its own counsel less effective in defending or explaining the procedural bars applied by this Court in later habeas proceedings.
16. It is not idle speculation to suggest that the current forms of procedural degradation of the capital post-conviction petitioner place the Court on a collision course with catastrophic moral and legal error.  In an interesting examination of “serious moral error” in judicial decision-making, including the Supreme Court’s almost universally condemned decisions in Dred Scott v. Sanford, 60 U.S. 393 (1856) (denying citizenship to American-born black), Bradwell v. Illinois, 83 U.S. 130 (1872) (upholding exclusion of women from practice of law), Plessey v. Ferguson, 163 U.S. 537 (1895) (upholding racial segregation as “separate but equal”), Buck v. Bell, 274 U.S. 200 (1927) (upholding involuntary sterilization of mentally retarded), and Korematsu v. United States, 323 U.S. 214 (1944) (upholding internment of Japanese Americans in time of war), the authors concluded that “most serious judicial mistakes result from the judge’s inability to empathize with the litigants or their circumstances.”  R. Delgado & J. Stefancic, Norms and Narratives: Can Judges Avoid Serious Moral Error?  69 Tex. L. Rev. 1929, 1952 (June 1991).