the transcripts the text of the case as it relates to the petitioners contention that he was denied a fair trial and due process because the trial court judge pierced the veil of impartiality and i recognize that both sides did delve into the transcripts i would submit that the defense to the petitioner did so in a straightforward manner without any type of summaries but i think it's important to look at it the court  for significant occasions interposed interjected on the first occasion the court stopped the prosecutor in midstream question the defendant during his testimony and asked if he could explain how he could get the identification of the complainant and his wife mixed up she asked how could she have felt somebody kissing you in this case she said the victim in this matter weighed about how much during the time he answers i have no idea she then asked the judge but probably less than your wife is that correct and he says probably she says well was she a little shorter than your wife and then later says she is much smaller than your wife is that correct i submit that those types of questions were leading only the prosecutor could ask leading questions the defense can suggest those kind of answers in the tone of the questions is beyond that which one would consider an unbiased judge asking and they were just what was the background to those questions that the judge might have been attempting to clarify was the testimony that to the fact that the defendant should've known who he was kissing because the person that got in bed was on top of film when he was on top of that person how was it that way the weight of the person was germinating and i mean you know when you say that the judge was doing something that same something that was reflected pasi ality you're not really providing any context yes i agree that the judge was inquiring about the difference between the complainant potentially and the wife the diff the defense was that he didn't know who this person was and i recognize she was asking those questions but i think it's also important note she didn't ask about how was the lighting are you have knackered you have an echo lab see you have all these other problems with sleep disorders she asked any of those questions she focused really on questions that really weren't questions and they weren't really asked as the court of appeals in michigan suggested they were asked by the attorneys the it wasn't the post the questions were from the court and while it may have some marginal value in terms of its significance it's the questions that were important in terms of the how it that the jury perceived it the second time that the court imposed gana says wait a minute wait a minute you know you didn't feel that you thought it was that it was a tinge of suggestion of disbelief by the judge but those questions are the types of questions that you would see a prosecutor ask you didn't you but you didn't you felt that kiss it was not really a question was rhetorical it was obviously  rhetorical you can't really answer the question you didn't feel that you know why i provided an opportunity to yes i mean in and of themselves those questions don't all that terribly  prejudicial because they were listing information about us at that well you know it's sort of like when did you stop beating your wife type of question i guess you could have an opportunity to ask you to answer that but the michigan supreme court in the form of the way a prosecutor would do and even the court of appeals when he said it's with disbelief in a in a case where the question is veracity who do you believe when the judge is taking a side by asking those questions in the not just on one occasion or two but in the third occasion when there's questions about protective service worker and the judge interjects and says well didn't you tell her whether or not you put your penis in her the respondent suggests that the that the judge never enter into pose regarding any type of sexual contact in this manner but she's clearly did and then her question is because you believed that if you put your penis in a child that there was something wrong with that right that's not a question that's a statement that's argument that is clearly going beyond just controlling the truck trial or letting the allowing the trier of fact to make a decision and allowing the process to go along fairly and then yet again soon the judge intervenes and he always with the same kind of questions wait a minute wait a minute but didn't you tell your boss previously that your wife told you about the complain hand on your penis that's taking a former statement cross examining him on an impeachment and then two seconds later she says it wasn't it a prosecutor asked it wasn't until after you were charged that you were told your wife case that you well the the case law requires that the standard is the jokes but try courts judges intervention must be significant must be adverse to the defendant to a substantial degree i'm not sure  that directly answer your question i mean you have to course ignore it when you give deference to the trial court of course you do there they have the right in the truck to trial and we do have to do that but you know when a trial court exhibits disbelief of a witness and intentionally or denied leave the federal judge denied they gave us but almost immediately after that the michigan supreme court came out with a case of people versus stevens and our submission that the court of appeals when they decided this case in the in the state court they misapplied the standard the standard is not a harmless error standard that the respondent never even addresses the case of people versus stevens it's a michigan supreme court case it came out directly addressed issues it came up in july of two thousand and fifteen and that's on him is we're trying to figure out whether in fact what the michigan courts held in this case are in on reasonable application of the united states supreme court law without regard to how the state of michigan might view it both the government and i get knowledge that there's no real supreme court precedent in this area except as a relates to the issues of still focuses on the due process arguments and whether as you mentioned whether there's been an objectively unreasonable application country to clear established supreme court precedent which all i was mentioning as relates the michigan supreme conduct would have reached a significant extent and be adverse to the defendant in a substantial degree so it could still apply in this case you can still take the entire totality of the circumstances transcripts and still apply federal precedent it still find that to a significant extent that it has was ever to this petitioner substantial rights i mean in the end we want to just give him an opportunity to have a fair shot with the jury and let them make a decision as to the credibility and i would submit that jurors are extremely impressionable by the money conduct of the trial court judge there's a saying that if you blink in the wrong way they could read it and it's you know it's possible for a court did to bribe a party of a fair trial without intending to do so if the manner in which the judge conducts the case gives a plain exhibition to the jury of his own his or her own o pinions and so it's really a constitutional issue of looking at all the factors reading the transcripts specifically and in one after another set question after question the way the questions were and i know you know that the court of appeals said it doesn't or necessarily make the petitioners version of the offense appear untrue it it it clearly shows that the judge is not asking questions to find out facts that could be exculpatory inquire about things like what was going on the room how your your condition to have taken the affect on the situation and it was asking questions that were already with a sense of bias attended with a suggestion of disbelief in more than that it was it was it could clearly lead to a situation that you partiality should not be considered just harmless  subject to just a suggestion that it was not significant and that it's prejudice is significant and clearly denied him a fair trial violated his right for due process and i good morning or honest assisting attorney general scotch and piss on behalf of the respondent warden catherine bond this court should affirm the district court's denial of habeas relief for three reasons first because judge play as you mentioned this case does fall under ed in there is no clearly established federal law that a trial court's routine interventions during witness testimony demonstrate judicial bias such that they violate due process second under the broad parameters of due process a reasonable jurist could determine that there was no judicial bias in this case because the judge the trial judge clarified testimony from both prosecution and defense witnesses rendering this a fundamentally fair trial third even if the judge's questions were to mr ellis on the we're taking with disbelief as the michigan court of appeals said for one of the four or five instances where here discussing today any error was harmless in light of the strength of the evidence the focus of the judge's questions to mr l's hondo as well as the curative jury instructions so going to that first point that there is no clearly established federal law on the specific point in this case that is fatal to mr ellis on those arguments the u s supreme court has never held they trial judges questioning of the defendant when he elects to testify violates due process because it shows an appearance of impropriety this court as recently as two thousand and eight found that there is no such clearly or more importantly found at the supreme court to have held that mere appearance of bias is sufficient without something more that's exactly what we have in this case there are two essentially categories of judicial court questioned him during his testimony but there's no clearly established federal law on that point and as i mentioned that alone is fatal to mr ellis on those claim because in that case there was no clearly establish federal law for the michigan court of appeals to misapply or find country to to the second point that this trial was truly fundamentally fair a review of the record in total as due process requires us to do due process requires this court to look at the trial as a whole  under wants to focus on the court's questioning to him but looking at the record as a whole we see that this was a very interactive judge a judge that was going to clarify testimony from any witness if it seemed unfair to the jury starting our brief no fewer than almost a dozen instances where the trial court interjected for prosecution witnesses and those appear on page id's four zero six four zero nine four twenty three four forty nine four fifty eight four fifty nine four seventy five and it goes on from there for example counsel brought up the trial court asking the defendant a yes or no question well the trial court did the same thing for a prosecution witness at one point the witness said ok to one of the questions in the court interposed and said does it help yes or no ma'am and the witness a fair trial finally to the third point that any error in this case was harmless because the strength of the evidence was there the focus of the trial court's questions had nothing to do with the central issue in this case which was whether there was penetration finally the jury received curative instructions the same the evidence was strong here unlike a lot of criminal sexual conduct cases eye witness in this case mr ellis and those wife walked in on him while he was assaulting this eleven year old girl furthermore he making from meeting statements to no fewer than four people and he made a full confession to the child protective services worker in this case it making that he both touched and found all this eleven year old girl and penetrate her furthermore the courts questions had nothing to do with penetration the courts questions tried to clarify places where mr elizondo was unclear trial court never asked about penetration never directly asked yes or no m finally the jury instructions here were curative the jury receive instructions as they often do both prior to testimony and after all testimony was concluded and in both instances the trick the jury was told by the trial judge if you think i have an opinion about this case ignore that if you think my questions reflect any opinion of this case ignore that questions are not evidence only their answers are just like to briefly note in a bottle that the only supreme court precedent that i think is of any value is goes back to nine hundred twenty seven and subsequently it's the turn of verses ohio case and i think there is no dispute the right to an impartial judges are right whose deprivation committee be complained of in a federal havey is proceeding and that while the judges have while wide latitude as i was asked during our argument they must preserve in an attitude  impartiality and scrupulously avoid giving the jury the impression that the judge believes the defendant is guilty the respondent notes that the judge's questions did not focus were also asked in other witnesses but i submit it was not with the same veracity and it certainly did not have the same significance when you're specifically asking the defendant when he's testifying questions as relates to questions specifically about penetration the judge did ask maybe wasn't even a question maybe that's why the respondent feels it wasn't asked but they asked the judge yes because you believe that if you put your penis in a child there was something wrong with that right maybe that's not a question maybe that's the the crux of my entire argument those aren't really questions those are statements by a judge and in the end it's not really the weight of the evidence it's whether mr alexander received a fair trial and that's the issue thank you counsel the case will be submitted to kirk recall the next case