on hearsay testimony that was admitted in violation of the united states constitution sixth amendment confrontation clause the facts that are relevant to the confrontation issue are that there were three co defendants in the case first was linda chris the wife of the target victim may or chris who purportedly sought to have her husband killed the second case of course it is our position that he should not have been convicted of these crimes of the three co defendants linda chris was tried first mrs chris testified in her trial that there was no agreement to kill her husband she had never asked anyone to kill her husband she never asked to kill her husband and she never paid east and he money to kill her husband and her trial i'm sorry miles the shooter third codefendant also testified important in his testimony is the fact that he said that he never spoke to bonny and joshua willis witnesses that will arise again shortly in the description of mr isa's case the second case to be tried was mr isa's case in that case andrea miles that purported shooter was called he had been granted an immunity agreement by the state to come in and testify unknown to the people in the court room and to mr miles attorneys that immunity agreement had been withdrawn the day before when mr miles took the stand he refused to testify caught the facts around that are fairly complicated i'll give you the short version which is that he was the state's witness there had been a subpoena issued he was in jail on it and he was brought over by cop to the jail by the prosecutor and placed on the stand when mr e s when mr miles refused to testify the judge told him he had a duty to testify and mention the fact that he had been subpoenaed the judge never ordered him to testify the judge never hears just contempt powers or any of the powers of the court to enforce the subpoena or secure the testimony and the state never asked the judge to do that in stead the state went forward and asked the court to allow them to use hearsay statements purportedly made by mister miles in place of his actual testimony the judge granted that request immediately and mr miles was excused the prosecution then called that detective felt houses his name who began to talk about mr miles confession to apparent very quickly that in fact miles had not implicated mr isa in that confession that the plan moved forward to two people who were mentioned earlier joshua and bonnie willis who was seventeen joshua was twenty mr miles had formerly lived with them and they had maintained a friendship they had told detective field house that miles told them that isa had asked him to had hired him to shoot mayor chris on behalf of linda chris the court decided to let them testify so  the hearsay testimony is the commentary is that right the hearsay testimony is the statement that they say miles made to them that is the only link between mr isa and the crime against mayor chris there's nothing else as you'll see in the record there are some i wonder and we've questioned in the brief whether it's fair even to call it circumstantial there are some surrounding situations that make it possible you know opportunity was available but there's nothing that links him to the crime but what i wonder about is where is the c violation in terms of the developing law the confrontation clause between when your trial occurred and when this issue is being decided under crawford for instance crafter and it is of course not applicable to the case the united states supreme court has ruled that it's not retroactive and proffered has no application here the law that the court was so are you saying then that we don't need to consider crawford's at all i think that's correct your honor that is robert the case that we should roberts ohio the roberts is the case it was the standard at the time and it was the standard  required to be applied and that was not so it was it was the purported statements by miles to bonnie and joshua it was a single  came to their house situation where he made the statements and that's what's at issue before we leave this question isn't there a sixth circuit case just which says that we can't apply roberts if under crawford the item isn't testimonial your honor i'm do not i'm not aware of that case but if that case says that i believe that it would be incorrect in this circumstance because in this case and that shortly i think without regard to either crawford or roberts this case falls under the kind of parameters that are set out douglass versus alabama in that case if the court will recall there were two defendants one who already been convicted and was called to testify in the second defendant's trial even though that person had already been convicted he was refusing to testify and the court allowed the solicitor general general to have him sworn in and he took the testimony or the statements by this defendant who had already been convicted and was on the stand read them to him and periodically said did you make that statement and in every instance he said he refused to answer the question so that what happened was that the whole statement got read the jury heard it all the jury never knew whether or not the statement had been made and there was no way to test whether the statement had been made you recall when i was talking about linda chris's trial miles testified under oath in that case that he never spoke to the willis's so even if it were to move into the situation where we were not required to apply roberts i think that the douglas vs alabama case resolves the question it was such a denial and it's in the considerations in douglas that the court cited are very close to the considerations in this case and i think i have a quick quote that might be useful to the court the court specifically rejected the idea that cross examination of lloyd sitting on the stand using that old statement was valuable it said or that cross examination of others who had been present when they heard the statement made was a valuable cross examination of them as to its genuineness could not substitute for cross examination of lloyd to test the truth of the statement itself so the fact that lloyd could not be cross examined a on the question of whether the statement made be on the truthfulness of it was critical in that decision i'll mention also to the court that even though  evans is a different circumstance one of the factors the court noted inductance was that was the very fact that evans was not deprived of any right of confrontation on the issue of whether williams actually made the statement in this case the question about whether the statement was ever made was critical there was already sworn testimony from the witness in the linda chris trial that the statement had not been made the state knowing that came forward and to its benefit withdrew an immunity and immunity agreement got the hearsay at mid and it was the only link the actually thought about crawford in this context and i think and my answer to crawford is i don't think it should apply but if it would apply i think the circumstances here are such that the same considerations that underlie crawford are at issue here and that is that what crawford is really about is going back to first principles when those affidavits and other documents were created for being used in court by the government and the person never got to confront them this is that case only this time they just used a live witness instead of a piece of paper because it was the state's contriv that brought this hearsay evidence and that was a in question as to whether it had ever actually been said be the only link between the client and the crime and see with an absolute inability to ever test whether it was made and whether or not it was truthful so i think the crawford because this came about through the state s activities would in fact based on the principle set out in crawford even exclude this testimony i also want to refer the court to mote we've cited in our brief moats versus united states that case said long before crawford or ohio here roberts that when the state is responsible whether it's negligent or not for a witness not appearing you don't fact and actually it wasn't really in most either most who was there he was in the hallway outside the courtroom i don't know if the court reconnaissance circumstances but that there'd been some unusual treatment of the witness and how he was cared for and watched over just before testimony and then when he was actually called he did not appear because he had been let to stay in a hotel because his care had been entrusted not to one of the marshals but to  i believe it was another witness your honor but i would that someone not a marshall the courts that this was negligence it's not the fault of the defendant that he's not there it's because of actions taken by the state and therefore this testimony will not be admitted as hearsay so i think that regardless of which of the cases you choose your honors i believe that mr isa was deprived completely of his right to confrontation i also think one of the questions that is a critical risk in this case is before the confrontation clause was applied to the states the united states supreme court recognized repeatedly that they were right to confrontation the right to cross examination is a critical aspect of a fair trial and a fair trial and due process are hand in hand and mr isa did not get that because he has been convicted on hears ay that he never had an opportunity to confront the reality of which whether had ever been said was at issue and the state knew it with a last minute withdrawal of immunity that kept the witness from being available for confrontation now i had some other things i want to talk about assuming we were pi roberts and i would just say we've covered everything in the brief i hope thoroughly but i think what they are how supreme court did in terms of deciding on availability fails for confrontation clause purposes regardless of any of the other considerations the court may have this witness was not constitutionally unavailable he was there he had already confess to the police he had already testified once there was no real risk of any kind of self incrimination there was no effort made by the court or the prosecuting attorney who was offering the witness to secure his testimony and he going to question is supposed to be answered is the witness is supposed to take the stand be sworn in it's a question by question determination as to whether or not there's any real chance of further incrimination and that didn't happen he was just let go so even if that possibility existed the mechanisms that are in place and that our judicial system and our legal system require to be used we're not use i they did not know that linda chris was acquitted they did not know that she had said that isa was not involved in any way and there was no scheme for hire but one of the issues that we do have race in here is not only the fact that these the inner actions of the trials resulted in an unfair trial for isa but the huge disparity in sentencing linda chris who supposedly was as you said the one who is behind all of it sorry miles who is the one who pulled the trigger got a life sentence and isa who was the go between ends up on death row so we have a push analogy issue with regard to that that is brief  know in fact your honor our second assignment of error in this case is the fact that counsel was ineffective for failing to have linda chris testify we have argued that because the defense counsel knew that she had been acquitted b that she had specifically said that mr east that was not involved in any way there was no money there was no plan nothing that she should have been called there's really no way to apply strickland in this case and not find that the counsel was ineffective this is a murder trial with the death penalty on the table her testimony defeats the death specification which would have taken the death penalty off the your honor we agree with you that's why we have our second the simon our second error is the fact that linda chris wasn't called included in that is the fact that they failed to ask that her testimony be included i have to say that the actual issue of judicial notice of the indictment and outcome is not the specific issue that's been involved in the case but by virtue of bringing her in and putting on the record her testimony and the fact that she it was being charged with that's true your honor they did not know that and they didn't know that she had specifically testified under oath that he had nothing to do with any plan to kill her husband there was no plan to kill her husband he was given oh my none of that was before the jury and we think that that second issue and that cannot be a reasonable decision under strickland because counsel can't look at a case where i'm sorry writer there is in the state post conviction i believe some reference i believe that mr isa has an affidavit that says that one of his lawyers told him that such a deal had been made we have nothing else for that it's definitely not in the record other than through that so and i can't imagine your honor making a deal with the prosecution not to call a witness who can say with certainty that the death specification simply didn't happen and acquitted witness who can say that their murder for hire plan never existed i mean she's been believed by one jury how can you not call her how can that be a reasonable strategic choice i see your time is expired i did have just one question and maybe you just want to leave this to the briefs but you raised the issue of ineffective assistance of counsel in failing to says mother and brother were not sufficiently were given sufficient notice that they were going to provide medication testimony that they didn't find out until fifteen minutes beforehand or something to that effect but i want you really to address just very quickly is the supreme court has spoken now several times on the issue of mitigation evidence that is viewed as a cumulative and why isn't much of this really just cumulative evidence it's family members and friends honor one of the important factors here is as you have obviously recognized mr isa is a jordanian citizen he did not spend his youth growing up in the united states but in jordan and some time in kuwait and most of his family is still in other countries and as a result of that what little mitigation was offered came through an interpreter that was not terribly good  we think that there was a defect because of the mitigation preparation that meant that what little was offered was not offered in a way that was understandable or readily digestible by the jury so to the extent that that is correct and the fact that it happened and the testimony as it existed is on the record bringing those things in wouldn't be cumulative under any circumstance but the other thing is is that a broader picture was painted because those were picked those were family members these were not necessarily family members there were more there was an employer who was available to testify and would have done so there was a former wife there were former in laws there were people not immediate family blood relatives who knew him and could say things about his qualities as a human being his value as a human being that simply didn't come through through the little very limited last minute testimony that honor as judge moore you indicated this court did decide the decide case and that directly does apply to this case because even if you would find that there was a roberts violation roberts has been overruled would get a new trial he would get a new trial under the crawford standard not under the roberts standard and under crawford this testimony is non testimonial and because it's not  testimonial probably confrontation clause doesn't even apply so even if you would brandt the writ on this issue he's in the exact same position that he's at right now w is this testimony is admissible is there a case that says that crawford doesn't apply retroactively your honor yes there is i'm not certain that i have that  citation for which one says it doesn't apply retroactively but it doesn't apply retroactively to the defendant's benefit and seems ironic if if i'm right that there's a case that says it doesn't apply retroactive your honor it's much like the t v ruling where as that is one of the few rulings that are to the state's benefit where there's a state cannot and they cannot benefit from a new role however the state if the new rule over rules the old rule if the benefit if the result would be the person would be retried under the new rule then it's completely futile to send it back so it does make sense because if in this case again if isa is granted the writ he goes back to state court for a new trial these statements come in because they're not testimonial so they don't even have to go through the the hearsay things because it's a non testimonial statement though is there any fundamental constitutional principle that would apply like due process or something like that no i don't believe your is there is your  did well your honor i did still do not believe that expos fast facto provision would bar the use of the statement and the reason i don't believe that is because in this case the factors under roberts are met and because the factors under roberts are met the witness is unavailable he comes in he  refuses to testify the state courts were completely reasonable in saying that because his trial was coming up that the fifth amendment was implicated and that content powers would not have done anything now again the standard of review in the hague his case is not whether you would agree with this decision whether if this case was a federal case coming up on direct appeal whether you would overturn it the situation that this court has to make is the standard of review which is whether the state court was reasonable and in this case the state court was reasonable it was a reasonable decision to find that miles was unavailable it was a reasonable decision for the statements to come in they had sufficient disha of reliability so under the roberts test this court is bound by  every view because the state courts decided the case on the merits so under this court's then precedent of decide crawford absolutely would bar this and must be considered kept saying that these statements are the only evidence against isa and that is incorrect there are other in for other things that other pieces of evidence in this case other than just this hearsay statement are these hearsay statements people saw mr isa with the same rifle he ammunition consistent with that rifle were found in his apartment he told a friend of his to tell the police if they talked to him again to say that they were together all night both his mother in her post conviction excuse me and her post conviction affidavit and the friend state that he was gone for approximately thirty minutes now i believe mom s post conviction affidavit says fifteen to thirty and the friend's testimony was thirty to thirty five but still he was gone away from everybody at with access to have acted as  up and bring and get him to come to work but people saw miles waiting for hours for isa to arrive that night people also saw after the murders  and not coming in first of all there was an evidentiary hearing heard on this case prepared holsters so the court correctly decided that they could not use it but even if the court could have used y hearing that she indeed did consider calling chris however she talked to chris's attorneys or i'm sorry talk to the prosecutors in the christmas case had read the transcripts had talked to people who had talked to the jurors had talked to people who had been in the court room when chris was testifying and described her as a loose cannon in fact one of her things that we should consider th again this isn't he b s this is not on direct or if you are one number two inconsistent sentences are perfectly constitutional and this court and every other court that has looked at that has said that just because o standpoint and there's a double layer of deference it ineffective assistance of counsel in haiti as claims so if there is no in fact of assistance then this issue doesn't doesn't even come up and the fact of the matter is there is no ineffective assistance of counsel here because one under ohio evidence rules i don't know that this would even be permitted to be admitted to the jury because it is a separate trial of a  codefendant i do not believe that it would make any difference because quite honestly the testimony that we have from linda that is in our record is only an excerpt it is not her entire testimony it is  believe just part of her direct it is not the cross is not the redirect and i don't believe it's even the entire direct so if they they had put in only the excerpt that they had attached to the post conviction the state certainly could have brought in everything else as well because that's not in the record we don't know if the other parts of that testimony was more damaging to then be a limited portion that was placed in front of the state courts and in front of this court so it's very hard to say that it was ineffective assistance of counsel to not call her to not put this testimony in without knowing what the rest of the testimony is because it's certainly reasonable that  the rest of the testimony that mr isa's attorneys and state court chose not to provide in the appellate record was actually damaging because if it was beneficial to him they certainly would have put in all of it and so that's a completely you're bound to you're bound to that deferential standard and it's a double deference because an attorney is presumed to be competent you don't presume that they are incompetent you presume that they are competent so you have that layer of deference then you have the layer of deference to the state court decision under the at so under record you know you have to to defer in effect of assistance of counsel cases and things number one number two you because you have isa who is then hiring miles you still have the murder for hire specification even take linda out of the us if miles miles doesn't just go and shoot  kris's you know because he feels like it isa hires him to do it so linda hires isa isa then arguably is even more culpable because not only that he's doing this purely for money he's getting the money and he's keeping  try to get in the acquittal of linda i don't believe that they tried to get in the acquittal no and you are saying that ohio law evidence law would prevent that from being introduced your honor it's been quite a while since i've actually done trial work but i don't i cannot recall a rule of evidence that would allow me as a trial attorney to bring in that a codefendant tried separately had a different result i mean that's one of the reasons you have separate trials so i don't i cannot think of any way under ohio law that that would have come in anyway so then there would be a question if that's been by ohio law as a matter of ohio evidence law is there a constitutional issue now robbed in depriving you of its right to have the full set of facts in front of the jury no your honor because again the theory was chris linda hired a hired vinyls so even if you take the crisp part out you still have a murder for hire so and that's what the specification was it wasn't you know this grand you know scheme it was murder for hire well whether linda was the one who instigated this or each was the one that instigated it it doesn't matter he says still hired miles to do the factors for sentencing the sac the factors for mitigation are particular to isa i mean that's the whole point of individual life sentencing is the mitigation is centered on the traits of isa not on the other things that are going on around now you know wow you know in a one could serious question though is if if linda is acquitted and the state's theory was that linda hired you so what on earth would possess to hire miles if linda wasn't involved but your honor motive is not a element of the crime of murder so you know but it but there is the question of whether it's a realistic set of circumstances that you're asking the jury to reach husband being dead and her doing the hiring is nice and isa is the one who provided the gun because he's seen with the gun he is seen with and any mission consistent with the gun is found money is seen trance  but there's medication for the money well it in the running stores and they need to take money to save places and so forth well that was one one argument but again that was i believe contained in the excerpt from linda's trial her testimony that is again not the entire testimony and we don't know what the cross examination on that issue was because he says post conviction counsel chose to not put that into the record so you know you're making assumptions based on not having the rest of the transcript and we can't do that in here b s i mean that is not the providence of the hideous court if the state courts make a decision that is arguably reasonable this court is bound to uphold that could you address at some point in your time the question about i see in developing the mitigation witnesses and the fact that there are just cumulative right or any other issue that you think is important for us to know if we have concern about your to develop the mitigation witnesses sure first of hearing testimony there were domestic violence charges that she had looked at she considered calling the ex wife and there were domestic violence charges then she had testified that she had read those affidavits and thought it would be just too dangerous of testimony or to bring her in again the state court decided this on the merits so it's a reasonable doubt standard and truck or the evidentiary hearing testimony just supports that reasonable notice that the trial attorney didn't just ignore all of this other stuff she examined it and then later was it i thought there was evidence that the mother and brother were not developed in the sense of any thorough exploration or instruction to them as to what kinds of things would be helpful in mitigation but rather there was just a very quick interview by the defense counsel and the mother and brother had me even known that they would be testifying so how do you deal with that being adequate well your honor again those are their affidavits the fact of matter is the attorney started mitigation six plus months before the mitigation hearing they started preparing this their mitigation expert had been in contact with family in jordan had had contact with the set and had been given names of people to talk to in jordan they sought out to a tain and did obtain documentation from jordan and they were you know are absolutely dealing with the language barrier with the jordanian citizens and and the are you know from the the family members they were written in english than transposed into arabic so the district court you know correctly said you know these pose an wouldn't exactly have been very helpful testimony when the state would cross examine him as to be you know relatives of i believe one of the ex wives her affidavit says she was bedridden well how was that testimony going to  happen the fact that he so you know was a nice guy and brought her you know medicine when she needed it well the mom and the brother testified that he was a nice guy and was sending money back to jordan to support them so again that would have been cumulative to you know testimony that was already before the jury would disagree that the mother and brother didn't know what they were coming for i mean they were flown here from jordan you know for the mitigation they had been talked to multiple times you know overseas throughout i believe it was a cousin or sister  been doing the inter breeding so you know any of this additional mitigation would have been cumulative if there are no further questions we will stand on our briefing for the of crawford and i would like to just reiterate that i think that the important thing about crawford if this court decides that is in fact the factor that needs to be the case they should be applied is that  about is first principles it goes back to why the confrontation clause existed and although it makes some specific rulings about prior testimony when it dealt with was depositions and affidavits the had been orchestrated by the government that were then used and deprive the accused of the opportunity to confront the witnesses who had produced those orchestrated materials this case is that case it's just that they used to live witness instead the state orchestrated this the state benefited greatly miles was not going to say just as he didn't when he confessed to detective felt house testify didn't let him be confronted so it was the state's orchestration that produced this confront a bull accusation against isa i know my time is short but i will say it's i did briefly at the beginning those things that are referred to as evidence they are not evidence that links he said to the crime there is evidence that he had a gun like the gun that was used in the crime there's evidence that a bullet was found is an apartment that would have gone into that gun but it's not the same brand of bullets that was used in the murder there is evidence that there was a period of time somewhere between fifteen and thirty five minutes where he is was not with anybody on the evening that the crime took place that's not something that says he did it it just says there was a gap in time none of this links him to the time none of this says he was there he pulled the trigger he had money none of it so there isn't any more evidence that links him the only link to him is this testimony so again i would urge that even if crawford needs to be applied that this case fits the spirit of the considerations that were taken into account in crawford i believe your honor the case you were acting asking about where they said proffered is not retroactive is worton versus brockton five forty nine us four zero six  next thing about that i'd like to address is linda chris and the fact that she was not called as a witness there is of course under strickland the fact that they're a strategic decision is a strategic decision but even strategic decisions must be reasonable and you cannot look at this case and see it as reasonable not to call the person acquitted what about the problem that there was a hole the fullness of her testimony in the record so we don't know what was omitted from her testimony and we don't know whether she in fact would be a favorable with us well your honor i think that the fact that what she said is there and is not on the record she answers if there's a verbal to you is there but because the full testimony wasn't there we don't know what else she said i think as the court has often said that the court must judge it on the evidence that was before the court below and so whether or not there's something else that might have been or could have been that's not here now doesn't change anything what this court has as what's before it but the other thing is if we're going to indulge in your francis i would say that if there was anything there that was damning it would have been brought in by the state first post conviction and second and federal h and it was not so if we're going to infer anything about that it's the fact that it wasn't helpful to the state so back to the point i was trying to make on linda kristen strickland you've got to remember capital case a death specification acquitted witness no problem with confrontation clause issues no problem with the fifth amendment who can be called and testify that there wasn't a murder for hire plan she specifically says there is not so that's that there was a plan to sort of scare her husband there was a thing that happened in the police department where she made some kind of a statement that at one point implicated or something but she retracted all of that she said that she did did it to cooperate with the police and she talked about all of that at her trial and appear husband things went bad your honor of what i can tell you on that right now is that i believe that is in the record that you have so if it does not overcome you know one of the things that keeps being mentioned is the possibility of something damaging coming out when you are facing a capital crime and death specification even if you look like a bad guy even if you look like a guy who was possibly being and i don't think he does in this but i'm just saying assume for the moment that he made it look like he might have been willing to beat someone up or pay someone to beat someone up nothing negates the incredible value of saying there wasn't a plan there wasn't a plot no money was exchanged nothing can undermine nothing can make it reasonable not to negate that death specification and the basis of the murder charge so once again i think they failed to meet the strickland standard i think that it was not reasonable and that we should see that mr isa's conviction and  reversed based on the ineffective assistance of counsel and not bringing one to chris before the court what is your best argument that the mitigation evidence that you wish had been introduced was simply cumulative well we don't think it was cumulative we think that what happened was that they heard all the ill prepared testimony about childhood matters testimony about things that came through his family and not well organized or prepared fashion and that what was out there was about his american life was about the things that he did in the united states about the many years that he spent doing good things and helping people taking care of children providing money to take care of his brothers back home those kinds of things coming in through  american witnesses through united states citizens as opposed to this last minute practically off the plane putting people on the stand was not cumulative it would have shown a different part of his life it would have shown his american life and so it wasn't cumulative and it would have given them a fuller and more fair picture of who he was the kind of man he was and the value that he has as a human being that either  is mother or brother make reference to his life in america because he went back and forth i think quite a bit and you know i myself in the record was giving his mother and brother a sense of what life was like and united states and fact that the brotherhood is trying to help support family members sending money back to jordan i guess i'm just wondering what what is it about his american life that was not accurately portrayed because we've got a fine prejudice here everything i think one of the most important things about his american life that wasn't accurately portrayed was the fact that he had assimilated and become so much a part of the world within which he was living and within which he was functioning and that he had value in that context i can't your inner eye to the at this moment i'm trying to read through the testimony in my mind and i would not be surprised if his mother didn't mention some things they both did sometimes actually i don't report from about it so she very well may have so i don't want to say that some of that didn't come in but when i can tell you is an organized well presented clearly designed mitigation case that showed who he was and what he was like here and now and at the time that the jury was having to make a decision what's not arguments this afternoon we really do appreciate that the technology worked as intended so we are happy about that case will be submit it will have a decision for you and