and mr mackintosh whenever you're ready we'll hear from you excuse me thank your honor may it please the court michael mcintosh  criminal trial was fundamentally broken by a legion of due process the trial court art from introducing the piece of evidence most fundamental to the fence d n a recovered from semen found in the eleven year old the queen's bedroom that didn't match hester and if the same time the trial court cuts usually admitted highly prejudicial and graphic evidence of juvenile offenses committed by as for more than a decade were trial evidence that as the prosecutor acknowledged during closing argument might well have made the difference between guilt and an acquittal and to top it all off the trial court refused to allow hester's public defender to withdraw from the case based on multiple disabling conflicts of interest as recognized by the west virginia state bar virginia juvenile student that act expressly ours any evidence or records offered or are that come out of juvenile proceedings and why does that matter and is there no exception even to west virginia law because it seems to me th of the authority would be the child welfare act itself which refers to evidence offered in the juvenile proceeding inserted the testimony offered in a cd which would be well it's not been offered that say that transcript has not been offered this to trouble understanding how your full faith and prayer are going about records which is that far but i think the so if i could step back i think the equal protection argument based on the way in which the west virginia statute reaches the testimony but transcript the documents and everything else that it introduced in that proceeding but that can't be construed to say witnesses in later years can't testify in a trial to their own experience subject to cross examination i mean that's that would be an extraordinary interpretation because it's not the evidence in that case oh yes your honor i think the the intent of the west virginia legislature was to reach that far but i do so under the full faith and credit law because that only allows a state to give effect to official acts of other states the full faith and credit law doesn't weaken official acts of other states making credit based upon the witnesses that based upon the records being entered into the trial but on the witness's testimony you don't win on the full faith in credit and yes if it's based solely on the witness's testimony but the witness is also wreck yes that's correct that's that's exactly right and on that score of that the state first of all the amp it's important to note at the outset the state has never explained either in state court state court federal court how it obtained the records or the names of the victims to identify them and solicit them to testify for the state and that informs the constitutional analysis here because it's clear that the trial court's decision to admit the juvenile evidence of instant unconstitutional policy of only about records from the juvenile proceedings which is where your argument seems to be centered i'm not sure that the exception in d c in ohio would not allow law enforcement to use it that's why you're right there is a possibility had and the bigger question is whether west virginia has to accord its own rules of evidence have and rule that west virginia courts do not apply you're in favor of a rule that outrigger not only standard west virginia practice but also a lot this year in ohio and if i may proceed to the due process organ if there are no further questions on the juvenile with there were so many other possibilities that could have apparently for the same instant given the number of people who use that who the fact that court holmes said that just because the prosecution's evidence it credited provided strong support for the defendant's guilt doesn't mean that evidence of third party guilt there's no but there's no there's no direct tie to third party to a possible third party well third party committed the crime and not and and what was the advocate supporting that is what it was some of the evidence cannot be presented because of the conflict of interest which is the third claim whatever what i'm focusing on is the evidence of the victim  affirmative link it takes you that leads us to believe that there would be something relevant about yes your honor i believe so because i don't think you know if i may spawn of the question i don't think that a court can si c and ohio assaults would have been excluded and west virginia there is west virginia law that provides that records and testimony derivative from those records may be excluded from the case in chief and a later criminal proceeding but this was not testimony derivative from the records of course the victims themselves under when the assault and came and testified in person and for this reason this illustrates that even if there was some sort of problem be or perhaps in each of it i've situation would that be different i do not believe there's anything in west virginia law that draws that distinction with regard to testimony of a victim of an assault by a j there may be a distinction with regard to a testimony derived from records of the typical case i think would be state the rye which has been cited in the briefing there was a fingerprint card and i believe there was testimony about card and so the testimony was derivative from the juvenile record but i'm unaware of any decision in west virginia court that dross that distinction for the purpose of testimony of the victim of a juvenile crime because of course the testimony is not derivative from there and for that reason we think that reason alone would be enough to foreclose the full faith and credit and equal protection client home what  dictates a contrary result on the seaman's than the relevant precedent that has been cited by petitioner in its home speech south carolina home city south carolina sided favorably a west virginia west virginia law that provides you must show a direct line in order to admit to evidence of third party and explained that that issue was not before whether the application of that rule was not before the court and homes of the south carolina instead of homes be kept south carolina dealt with was a narrow imposed by a judge in south carolina that provided when the evidence of guilt was strong enough no evidence a third party could be put on i don't so like to briefly discuss the facts underlying this because one speech south carolina is also a substantially different case on the facts known to be south carolina there was a detailed proffer by the defendant of several witnesses who testified that they could place a third party at the location and there was also a proffer of at least one witness who was going to testify about a third party who had all but confessed to them is the problem you have or there is evidence group yes betty that is correct there was at least one witness and and there was a witness who also testified that the third party who was the potential other guilty party had made some sort of had discussed some sort of deal with law enforcement in for the first time during his home during trial i believe the defendant testified that he had engaged and sexual acts w him doing this over sucking the defendant who it was with him oh yes your honor the defendant testified to that for the first time during his testimony as an attempt to explain how the child could have given all the these detailed explanation it is evidence that the mother had motive or sexual talk your honor i'm not certain if there was evidence of multiple sexual partners there was a proper made stayed and the child's room and i believe there was a proper that was never challenge that they may have had sexual activity there and there was also a proper that that home pillowcase were huge throughout the household home and i'd like to briefly explain this discusses all of these facts and detail and petitioner has faulted them or not discussing other facts but part of the issue here is through simply no proper as in homes of the south carolina made of any direct link so here the state court discussed all of the evidence that was available home the state trial court did not suggest you can't come forward with more evidence of this if there is a direct link instead the state tr simply said well that's not enough to get us there right now if you have more weekend it suggested at least that if there was more they could revisit that home the state habeas court ultimately concluded that because there were two adult women having sex with multiple partners there was nothing putting anybody else there there was no evidence suggesting that there would have been simple fluid from this assault introduced by any party that this evidence was simply not of the same this evidence was simply would lead to more distraction then it would probative value and this is entirely consistent with west virginia law that requires at least a proffer of some sort of direct link to a specific party in order to home in order to introduce evidence of a third party at trial which holmes from south carolina is why it was not before the court in that decision and for that reason holmes v south carolina cannot establish clearly established law that would go the other way and the deference should apply to the due process on the turn to the just go back to the victim but yes your honor there was some statement made with regard to that in closing argument specifically what happened here was the prosecutor opened with a closing argument that focused heavily on the  victim in this case is testimony and the after the defense attempted to rebut that the prosecutor again ran through all of the events including the victims to money and then finally explained that and explained that it believed this was sufficient to establish beyond a reasonable doubt and then explained that even absent that this evidence of out of state acts what established this and of course the evidence primarily relied on as we were discussing earlier in this case was testimony in fact it's and the record that almost no details about the most similar and most graphic assault the d c assault were not available to the state before the state located the victim specifically after the d victim testified and camera in the state explained that they had some sort of to pay i believe it was a two page form but a partial record it's unclear under what provision of d c law that record may or may not have been govern oem and the state had used that and contacted the university alumni association of the university where the d c victim had been attending in order to locate her during trial and she came and testified and only after that were the broader records that actually provided details about might have provided details about this assault refilled after the petitioner in an attempt to revive this testimony signed a waiver i'd like to briefly address the one argument that the response respondent made which was that state court never said how these records were a tank in fact in footnote nineteen of the state courts the circuit court decision it says that it's unclear when and how the prosecutor obtained the out of state records in order for petitioner to prevail on his claim he's argued that there was some sort of surreptitious activity the record does not suggest that in fact the prosecutor repeated  they had gone through the d c and ohio authorities and explained that if there was a complaint it was with the d c and ohio authorities and and so and under ed put deference in order for petitioner to preval a there must have been evidence before the state court that would have made its decision unreasonable and there simply so the burden in this case was on the petitioner to present evidence to the extent they want you to credit some  s against the state a g s court there were two of us hearings here and that and any record on any on that would allow this court to infer anything against the status or even more would make it unreasonable not to infer against the state has simply not been developed and so on that the state would be entitled to actual deference and the petitioner simply cannot overcome that we if there are no further questions i'll sum up we believe that at the deference applies in full to each of these claims including with hypothetical reasoning with regard to the full faith and credit and equal protection claims and under at and because there was alternative defense other than just pointing to d n a recover from semen that doesn't match hester i think your it's clear that derek nichols had a substantial connection to the crime and a connection that  foreclosed from investigating based on this our representation of nichols nichols was known to frequently visit the home he was dating the victim's mother regularly babysat the children by himself he was at the scene of the crime w  he's responded after the reported sexual assault he led the police to mr hester and identified him and as mentioned before the prosecutor acknowledged that he could be the source of the semen recovered on the victim's bedroom and i think all of that lends color to an alternative defense which would be to present derek nichols who had this intimate connection with the family as the perpetrator of this crime and that gives the d n a evidence outside the workmen's when linked to this potential turn of perpetrator record is clear in the sights of the fight in the brief that state said those records aren't available to them they don't have access to the records they never went to court to obtain the records and it's clear under both these you know iowa law that a prerequisite to obtaining and using the records is obtaining a court order and here it's undisputed that the prosecutors never obtained a court order and so if the panel has no further questions respectfully request the court reverse the judgment of the district