that the prosecutor repeatedly committed agree just miss conduct it right sanity trial this court only needs to assess the prejudicial impact of them is conduct and in doing so this court normally looks at three factors to of which the stake is already conceded ways in wri but before a talk about why the rd factor also ways in this favor i want to make sure that we don't we side of the forced because typically a behaviors case this court when is assessing prejudice applies brecht and it asked didn't air are substantially influence a jury's verdict but the verdict a rises from a unique context unique contex from a sanity tripe where the burden of proof was on the defendant but the standard of proof was just a preponderance of the evidence and so i think that properly conceptualized what this chord is trying to ascertain brecht is the is this what impacted the prosecute toot did the prosecutorial misconduct have on rights ability to prove his defense by and mere preponderance of the evidence and that impact had to be huge your honour's right miranda indications were a central part of the sanity trial because of the prosecutorial misconduct during his opening statement the prosecutor encouraged the jury to draw an inference of sanity from wright's miranda invocations and then the prosecutor featured these invocations throughout the case in chief throughout his examination of all three sanity phase witnesses and then to top it all off in his closing argument the prosecutor stressed to the jury that the miranda implications and of themselves the sufficient basis for finding right sane so almost ten not sure it matters but there was no objection was there to any that does not matter to the merits analysis of this claim it doesn't matter to whether this crime is procedur the fault which is a different issue which the district court didn't reach the disk or did not reach that so as i was saying almost ten different times during this two day sanity trial the prosecutor in do miranda invocations with great significance i think it's difficult to fathom how this misconduct could not have substantially influenced the jury's verdict now going to that rd factor that i mention in my opening remarks that factor asked was there overwhelming evidence of sanity and there was not your honour's as one of the prosecutors own trial experts testified he said that when you are trying to evaluate a person sanity you are quote looking for the mental state of the person  philip right starts acting very agitated and the staff report that he started pacing back and forth a radically and then they started witnessing some of the telltale signs of manic behavior that they had seen in him before his eyes got really big he started  wildly and then he was not responsive to verbal cues meant to reorient and redirect himself when in the past he had responded to those very same cues and then on top of this is staff report that he was displaying disorganized thinking and delusional thought processes these are all the hallmarks signs of someone who's mental state is rapidly deteriorating and then his a staff member and is immediately thrown up against a wall and then put in five point better strains and staff reported that at that moment he was still very delusional those are the facts that matter your honor counsel i'd like to hear your argument on why the california court of appeal decision was unreasonable on the harm lost so if as this court has done in several different cases if we can establish that the defendant petitioner suffered actual practice under brecht it necessarily means that the state court decision was unreasonable but sometimes this court will actually do a separate two thousand and fifty four d analysis and we can offer the court to easy ways of showing that the state court decision was unreasonable the st is that in his appellate briefs right emphasized to the court that the prosecutor argued in closing as i mentioned that the miranda invocations in and of themselves were sufficient basis for finding him sane and the state court purported purported to review the entire record and the state court said that that did not happen and to bolster that conclusion it pointed to a different part of the trial the prosecutor's opening statement your honor i've been lawyer for ten years that is as unreasonable determination of fact as i've ever seen right so something happened at the trial the state court said it did not when it undeniably did now alternatively if you court is looking for another way of getting around twenty t dollars it's this the steak or cannot properly assess the prejudicial in fact of the prosecutorial misconduct in this case because that did not understand the gravity and the extent of that misconduct well i mean but the state court wasn't required to know it's opinion all of the instances of the doorway or in order for us to conclude that the court understood the gravity of the misconduct right i agree with you on that point but we know that they missed at least two instances of  the st of the closing argument which is possibly one of the most egregious instances in this kind of because that's when the prosecutor is really trying to shape the case for the jury for their deliberations and the very fact that you mentioned before that even the state agree that it's the conduct or near the time of the underlying assault that is the mental state at that time that is most critical and so the prosecutor was in effect saying ladies and gentlemen regardless of what happened later or before you can you know that he was sane because very shortly after the event he invokes his miranda rights so it it on the prosecution's own theory of what is the critical tone him this was the most important evidence yes that was the most salient evidence for the prosecutor which is why they emphasized that time and time again throughout their case in  chief i don't know if i finish answering your question your honor i don't remember well this is what i want to say so they don't have to identify every single instance of misconduct i agree with you about that they should be pointed out i would think the most salient examples they pointed to with dr phenols testimony which is when the prosecutor's expert's the most benign example of the misconduct and then additionally another time that they missed and instance of the oil air is with respect to the defense expert the prosecutor brought up the miranda implications on cross examination of the defense expert and that the california court of appeal said that was proper and it was not the oil and where right say that a prosecutor cannot use miranda indications  jones that is in reference of the citation to jones yes so they were applying a state case that says which is true that if you want to rebut a defendant who is in doubt the silence with some sort of significance you can do that under glass not what happened is not what happened here the defense expert and the defense never brought up the miranda indications themselves in their case in chief so i think that those are two different ways of showing that the state court decision is unreasonable alternatively if this court looks at all three good morning please a court kind of burn on behalf of respondent napoli with respect to counsel's observation about the california court of appeal making a mistake about the in and of itself comment and saying that it didn't happen took me awhile to figure this just why if the court in doing its harmless error analysis did not have in mind the proper construction of the record below why wouldn't why in the world would we give any deference to its harmlessness determination because it relied on the balance briefing you're they certainly could have they obviously didn't and even assuming that they made the mistake they did because the appellant had a typographical her they nevertheless made the mistake so what  problem is with the state's case i find the prosecutor's actual argument as a fact matter compelling that the invocation of the miranda rights in and of itself demonstrate that he wasn't insane the problem is of course that that compelling argument is forbidden by the constitution but if the prosecutor thought that's a silence was important enough to tell the jury that this one fact means that the defendant is not insane how can we view that as as harmless i mean again this strikes me as a compelling factual argument but for the fact that it's have been made i don't deny it can't justify it should have been made in and of itself comment but when you look at the experts the opening brief says that the miranda indication was the main or primary reason that supported the prosecution alice and he testified for a number of pages regarding his opinion about why the defendant knew the difference between right and wrong and he went into a whole bunch of different things he talked about the activities that the defendant did that day how the crime was committed and so on he didn't even bring up and had to be reminded of by the prosecutor i don't think so i don't think that's a fair reading of the record now when you look at dr final status the money dr fennell i think was the kind of more impressive isn't the question though not lewis in the doctor's mine but whether a jury would have been materially impacted in a prejudicial way by  repeated references to this throughout the record there says something like ten different times it comes up in the course of the trial it's featured in opening statement it's featured very firmly in sum so the jury is being told and the prosecution's doctors are great it's a big thing it's not that so the fact that it wasn't the only thing on which he hinged his opinion doesn't seem to me to be the legal issue well here i would respectfully disagree i think that given that the california court of appeal analyze this issue and applied the broad standard the chapman standard the question is in all with all due respect t court the question isn't whether this court agrees with an analysis it's whether it's on reasonable well that's right and the court of appeal went over all the different factors all the different things the defendant did that day the fact he played ping pong he did legal research he feel that one thing that i'm having trouble understanding is at the bottom of page six to the top of page seven of the court of appeal opinion this discussion of jones i don't understand it i and i mean it seems to me that they're saying that the miranda invocation by the prosecution was used for something that it wasn't used for i mean why else are they citing jones and why else  are they having this extensive quote from jones about being used to or about recent fabrication i mean what is what does this mean here in the in the government's view i don't know think that's a that's a fair answer the district courts you know the district court of knowledge that language and said look you know the ultimate issue that the court of appeal analyzed is going to prejudice so it's not like the court of appeal thought there was no you frame your argument as as though you're entitled to and at the deference or the court of appeals decision is entitle to at the deference i guess i'm sort of not with you on that and i'd like to give you another chance to persuade me otherwise the way i view  this is that both because of the error that judge bennett just referenced and because of the air with respect to the closing argument the court of appeal did not have in mind the full record you know by which to engage in the harmless that's true it seems to me at the deference goes out the window and we are just left to do this to know though using our own circuit precedent which i think is quite unfavorable actually to the state we might not be able to rely upon that if at the deference did apply but that the deference is out the window it seems to me you have a very tough time standing so it seems to me at least where i'm at if you're intitled up or down at the deference perhaps you win if you're not though i think you lose so why why do you think that at the deference still  argument they obviously missed that in of itself language i don't think and so that let's say that that was wrong let's say that that was a mistake and let's say you have this kind of you know joan citation that appears to be there for no apparent reason but i don't think that really affects the overall  the opinion the issue that the court analyzed was based on the record as a whole was the era prejudicial and i don't think that just because there's one or two mistakes that therefore that means we can't rely on the state but if the court though i mean again i agree with you that the court doesn't have to refer to you know every agree with your position of course does not refer to every single instance there but let's say that we knew it had considered only half of them and had ignored the most critical portion of the record that favored the petitioner right and engage in its harmless error analysis and came out with the result a did i guess i just why would we defer to that right i mean i'm more than willing to give the state the benefit of the doubt the state court the benefit of doubt but only if it's in fact looked at the entire record if it's excluded critical pieces of that record i don't see why i would be compelled to defer to what it did well i think i would respectfully disagree with the premise of the question and i don't think it's fair to say that the court of appeal ignored huge chunks of the record they relied on the situation about the in and of itself comment the citation was erroneous they should have they should have they should have seen it but i think if i could just go back to the doctor's testimony because i think that's court i don't think that the mind indication although it was mentioned and relied upon by both dr been allison dr fennell i don't think it's fair to say that it was the main thing that they relied on or the primary thing that they relied on dr panellist mentioned it once  hypothetically let's take a case different from this so the trial proceeds perfectly fine there's no improper habitants introduced in my hypothetical case on  the government is to the jury the you notice that the defendant did not take the stand that in itself in and of itself is enough to show  his consciousness of guilt he has remained silent because he knows he's guilty as sin and for some reason in my hypothetical maybe the defense counsels distracted or whatever doesn't object but nothing else has occurred during the course of the trial except that in and of itself statement about a constitutional right are you saying that it would be reasonable for a california court appellate court to say well it was just you know one little bad comment and there was nothing at the trial was otherwise perfect the jury probably disregarded it or when that be a blatant ok so where it would be on reasonable for the court  harmless error analysis then i think the answer to the court's question is it would be reasonable if the evidence was strong enough otherwise it would be deemed to be structural or it may be for all i literally been probably ten years since i've had a brief because it doesn't come up of appeal found the error harmless as did both the magistrate judge and the district court judge and you know since i'm putting all my cards on the table respected judge bennett's question this is kind of a close case you know the magistrate judge said i do not reach this decision usually the article three judge judge g when she adopted the report recommendation said constrained by the add to standard i deny relief so this is a close case the court of appeal probably could have decided the case differently but it didn't  i think the reason why is when you look at the doctor's testimony you know and by the way you know it wasn't only the prosecutor the talked about the mind of occasion some of the references were made by defense counsel something that he's kind of glossed over a little bit in the briefing and that's why for example th charge that you know the court of appeal minimize the number of references well the california court of appeal responded to most instances that they raised for the st time in federal court all of a sudden it's these additional times that the fence counsel asked the witnesses about the round indication and i think what happened  long california for twenty nine years i had never had to brief the wainwright issue because i don't think it comes up that often there's not that many n g i trials in california and i don't think there's never been a case i've worked on where there was an injury i trial and the defendant rights and the lawyers commented on either the defendant waived his rights or the lawyers respected it i don't know you're well over time do you have a concluding thought you want to end on i guess what this case comes down to my opinion is that dr selby's opinion the defense expert his opinion just and do the job and i think that's what the district court found his conclusions about sanity we're just conclude three and they and they were so the defendant tells dr selby i know it's wrong people i apologize to the staff for what i did you know and why was it that he was insane at the time that he attacked sandra keller whereas before he'd been doing legal research and playing ping pong and doing all this other a thank you there's just one point even though the miranda indications may not have been the primary or the main piece of evidence in the prosecution's case in chief it was definitely a significant and central part and the miranda indication was the only fact that the prosecutor singled out in his closing argument as a fact that was sufficient in and of itself to reject the defendant's defense so unless the court has any other questions we would ask that the court reverse a district court's judgment and grant relief in this case ok i do have one more question i mean would we even if we agreed with you on the door or would we have to send it back for a determination of the procedural bar issue i think on this record this court can reach the procedural default issue and rule in our favor we've explained in our reply brief that there is causing prejudice to overcome this by finding that there was in fact prejudicial draw at all there that necessarily is wrapped up in prejudice analysis of the cause and prejudice framework as far as cause we've established that trial counsel was ineffective because this is not an instance where trial counsel did not want to make an issue out of prosecutorial misconduct and highlight it for the jury this is an instance where the misconduct occurred time and time again ten different times it occurred and as a state acknowledged it would probably occur because the defense attorney did not realize that this was the law and as the supreme court said in hinton versus alabama when you are unreasonably unaware of the governing law that in and of itself is ineffective assistance of counsel so on this record we think that this court could rule in our favor on causing prejudice all right thank you very much the case just argued is submitted