jury that a reasonable doubt was equivalent to doubts they may have had about getting married or buying a house this unconstitutionally reduced the state's burden of proof and violated sullivan what do we do with the fact that there was no objection and the judge gave an appropriate instruction and what's what supreme court case tells us under those circumstances when the prosecutor has misbehaved and i believe the prosecutor in this case issue on the merits and the install it's it's it's not my my problem is not a way for one my problem is sullivan is a case where there's a problem with the instruction correct so i'm trying to find a case in which the prosecutor made a bad argument the instruction was ok and the supreme court or our court on the west granted if you agree that in sullivan the jury instruction was unconstitutional correct  here the jury instruction even though the prosecutor made those arguments consistent with the prior instruction that had been viewed as problematic and changed the instruction was not the same one that they caved in and that's correct your honor the principle in sullivan was that you can't apply harmless error when we can't be sets and that the jury verdict was rendered beyond a reasonable doubt in improper instruction correct and since we presume the juries follow instructions i think that the structural error point flows from that here we start out with the presumption that the jury is told by the judge the lawyers are just arguing i'm telling you about the law here is the law so what are we doing to that circumstance you're on to that in a typical circumstance if the judges instruction conflicts with what the prosecutor says argument as the instruction will control a presume to follow the court's instruction here at the prosecutor's argument came after the instruction and did not conflict with that instruction doesn't that make this case more and line with boyd versus california it seems like that's a better framework for analyzing mr escobar some claim here but even under that framework it appears that mr escobar would need to demonstrate that there is a reasonable likelihood that the jury applied the challenge instruction in a way that deprived him of his constitutional rights so can you maybe speak to that and your best argument as to why boyd standard was may have been met in this case yes your honor i mean the jurors when they get their understanding was not that they needed to prove beyond a reasonable doubt in the way  that we understand that to mean they were their belief was that they only needed to have the same level of doubt they might have about getting married or buying a house and those that essence that leaps of faith and we can't convict people beyond a reasonable doubt on a leap of faith and that is the problem here and that's why it falls within sullivan i would say well what if you don't have structural or what if there's yes it doesn't fall within the soul of it and we have to misconduct but either way we're looking at this under the bright thomas the standard and this did have a substantial and injurious effect on the jury escobar was charged with open murder and he pleaded self defense the state's case involved inconsistent witness statements there were credibility problems the instructions here were all dependent on reasonable doubt it was reasonable doubt that would lower a charge of a verdict  you respond to the argument that the government of the state makes and it's really the prosecutor's comments and this case were not likely to influence the jury because it was rambling and confusing which is y all accounts from the transcript it was a year out it may have been rambling in some respects but the message was very clear it's very clear from reading it that the prosecutor tells the jurors i'm going to  what the judge's instructions mean that we've all encountered situations where we've had doubts and then it's very clear they're saying it's reasonable doubt is like buying a house and that's your realtor and then they're in that shows the problem with the courts with the prosecutors comment it's it's a reasonable doubt is like buying a house and that's your realtor and that's not a weighty decision in life it's getting married and that's your johnny carson and then it's not a weighty in the absence of the objection a trial would have to be plainer so tell me while i was in nevada supreme court's decision which said look you shouldn't have done it but given the judge's instructions we could fine pla a reasonable application of federal law because of all of the problems that i've identified identified these are the in this case why reasonable doubt was so central to everything that was conflicting escobar testified quite clearly that he shot in response to having a gun placed at his head and that the head of his friend that was very strong evidence of self defense the government's case was not clear cut h and it's reasonable doubt that goes to the heart of everything so even under the plane air or even looking at brake harmlessness escobar should prevail here the nevada supreme court's opinion was simply unreasonable when we don't know that this was a verdict rendered beyond a reasonable doubt we can't be confident of that you know reasonable application for lauren and reasonable determination of the facts i would say it's an unreasonable application of dod and but also  to the extent obviously even about a supreme court to say very much about the facts in this case but applying appropriate deference if we're looking at this under a prosecutorial misconduct claim i would say it's an unreasonable determination of the facts to look at those facts and say that this did not have an impact on the verdict when you had such strong evidence in support self defense i would say that it was an unreasonable application of  law and an unreasonable application of facts the facts in this case if you're relying on the facts that were there multiple individuals who testified that contrary to what your client the version of your client your hon the individuals that testify contrary in many respects testify can system lea with mr escobar initially and then changed th between the statements and the preliminary hearing carlos court says cruz was impeached all over the place everybody else impeached carlos quote says cruz he didn't know anybody he didn't see anything that gun was never in his waist the victim the surviving victims that the gun was in his waistband there was serious credibility issues here and the jurors were responsible for filtering through this and deciding who to believe all right thank you very much he in his testimony it made it that when he shot sixteen rounds from a nine millimeter handgun at will freedom sanchez he intended to kill him although he did so i'm trying to understand how that relates to your argument in this case is it your position that anything that the prosecutor did couldn't possibly have affected the verdict i believe this fits into what your honour's were already getting which is that this is a matter of the prosecutor statements versus the jury instructions the jury instructions are the definitive statements of law as we know from i'm sorry now i get you let's start off in the proposition that the prosecutor statement was in this case ok why why when where is the dividing line how i supposed to know why this case falls on your side when we're looking at the case the whole as a whole which is what what the supreme court is a instructed us to do we're not supposed to view the statements in a vacuum we view it in the entirety of the case in this matter we're talking about multiple individuals testifying that a single a single individual carlos escobar shot and killed daniel ever get out again and shot and wounded wolf radio sanchez the prosecutor statements though perhaps objectionable do not overrule the instructions of the court the court's instructions are the definitive statements of the law a prosecutor statements whether improper whether under darden if they they can be objectionable they can be a they can be objectionable they can be universally condemned but unless they so infect the trial with unfairness and to view it as a deprivation of due process they simply don't rise to the level of structural error or error in this matter w trying to figure out the sleep you know whether there was a constitutional violation in this case especially where and i've identified five items that i'd like for you to address as a whole here this court has already noted that the nevada's instruction is susceptible to an erroneous interpretation specifically because of the way the affairs language do you acknowledge that yes ok here are the prosecutor comments exacerbated this concern would you acknowledge that yes i couldn't ok and the nevada supreme court has found a reversible error under seems like similar circumstances in acknowledge that i would disagree with that of so many in homes the state the nevada supreme court was assessing the previously unconstitutional jury instruction not the jury instruction that was provided in this matter but the language the concern was that the prosecutor use was consistent with that prior language that the court overturned in homes did not it was similar language yes ok the jury instruction was still on constitute and although we presume that the jury followed the court's reasonable doubt instruction the prosecutor's entire argument was specifically aimed at explaining that instruction and the  explanation didn't contradict or comp flicked with the instruction and here i guess what also seems to add on is that the prosecutor statement were the last thing that the jury heard before beginning deliberations so why in light of your acknowledgement of many who think all of that maybe possibly one why isn't that rise to the level of a constitutional violation in this case because not only was there reasonable doubt instruction given by the knew by then about a supreme court that this circuit has deemed constitutional for this purpose they also gave instruction number forty eight which is that the record in one thousand nine hundred whatever counsel may say you will bear in mind is your duty to be governed in your deliberation by the law as given to you in these instructions i believe to find that the prosecutor statements rose to a rose to a harmful level to override a verdict would actually elevate the prosecutor that prosecutors misstatements never require a b s relief if appropriate instructions are given you agree with that yes your honor and so judgment gave you sort of  the outline of this case why under those circumstances don't tease fall on the other side of the line here i would point to darden where the court actually considered whether the comments manipulated or misstatement misstated evidence how pervasive it was the evidence at trial and here we're talking about limited statements eleven dollars portion of a closing argument which was instructed which as the court instructed the jury were arguments not evidence it was rambling it was i think the district court actually did classify it correctly as confusing rather than misleading however it wasn't so pervasive to be damaging it at that it would rise to undermine the jury's verdict assuming i'm curious saying for a moment that there was a constitutional violation with respect to the prosecutor statements here regarding this whole reasonable doubt are you arguing that this would not be structural because how is that a supportable position in light of sullivan i would in light of as your honour's already pointed out sullivan does have sullivan involves the use of a constitutionally improper jury instruction in this case we have a constitutionally valid jury instruction i believe the still falls under harmless error even if the prosecutor statements were improper i this is still a case of whether it in fact to the trial with unfairness to deprive due process or whether it had a substantial injurious effect on the verdict even if there we deemed that this was a constitutional violation you think we should we don't find structural air if the prosecutor statements were a constitutional violation then your honour's could find structural there tell me what cases i'm sorry tell me i don't i mean i was hoping the other side had a case but maybe you do tell me what question i'm not sure i could wear it at poland which is a strange and mysterious place but we're supposed to try to find a supreme court case that tells us that what happened was clearly unconstitutional and i'm searching for one it would not be my position that we should find that we should raise the structural or i don't believe it falls in that it's up to your honor's obviously but when it comes to a prosecutor statements vs correct statements of the court the court is the definitive statement of the law governing the case can i ask you about where twenty years after the mirrors and we're still getting these cases now i understand this was a trial in nine hundred and ninety eight but it was after people there had not fully absorbed ramirez but this is still something that's regularly happening in nevada criminal trials than it's concerning i understand your honor unfortunately for escobar in this matter he testified in front of the jury that he intended to kill the victim and it's reasonable for a jury to listen to that and find beyond a reasonable doubt that he's guilty of murder which is what happened and i want to ask you a question and i'm going to ask your friend across the aisle here in this next segment but under look evaluating all of the facts here  at trial and in fact the evidence the evidence collected by law enforcement demonstrated that the only shell casings at the scene were from the gun that mr escobar himself admitted to shooting thank you thank you testimony that mr sanchez was armed and held a gun to his head because i didn't see a trial you're on a rocky progress told the police this initially and then changed his statement but initially he said escobar came to me right able to find a case that says prosecutors arguments in this situation is structural but your honor arizona versus fulminant talked about structural errors as to whether or not they cause a defect in the framework of the trial and trial errors errors that happened within an otherwise constitutional trial whereas here under sullivan we can't be confident that the trial itself was constitutional it's not appropriate in this instance to look at the prosecutorial misconduct for harmless error we already do that in the datsun context batson is prosecute misconduct that's reviewed for structural era the same would be the same if the prosecutor what's a lock the door of the court house and deprive the defendant of his right to a public trial that would be structural or if the prosecutor were to bribe the judge or a juror we would review the presence for a structural of a biased fact find so where is he at the prosecutor presentations here today the case of carlos escobar versus brian williams attorney general for the state you know that i submitted