the jury and i ask you one question about let me just step step you back to the argument you you were just making which is that if the due process claim had been in the trial you could have gotten more evidence and and that could have helped you in the retaliation claim if you assume what i think to be the premise of the argument is that with an extra claim you could have admitted additional evidence that otherwise would not have been admissible aren't you effectively advocating for what in other contexts is called spillover prejudice evidence that would not have been admissible to support the retaliation claim would have come in for another purpose and you could have leveraged it to be admissible for them to retaliate and claim and i ask that really basically to say you know that that seems to be a problematic argument to make whereas i would understand a stronger argument i think is simply that all of that should have come in on the retaliation claim as admissible evidence and that th i ask you and i know you're overtime and i'd like to ask you this question could you explain to us how we could rule in your favor on the rule twenty five issue in light of our previous  unicorn basically wouldn't you be a lot better off if you were in the one circuit right now but you're not and you have a unicorn so could you explain how how that affects your argument certainly or so i would start with the rule twenty again i am conscious of time constraints so how do you answer any more questions and let me follow up on that and i think it's a very interesting textual argument you're making and again one of my questions is whether it's not affectively for closed by a unicorn immuno corn we said that you need not identify the successor whether the estate or the administrator of the executor whoever well doesn't that mean that by definition in unicorn because they had not identified who that successor would be they didn't serve that party and therefore aren't wasn't the court in uniform really effectively facing the same situation where here if they need not identify them at all then how can they be bound or required to serve them so your honor we believe part of the purpose behind twenty five dollars a three is essentially giving notice to in a state or a successor of the possibility of a motion erred in the manner in which it conducted the trial our brief lays out some of the troubling evidence rulings that the trial judge made which we think collectively warrants a new trial but i'd like to focus particular attention in my limited time to the error that occurred after the close of evidence from the trial judge improperly introduce new evidence into the case as you know the district court received two factual questions from the jury that went directly to mr collins credibility and the court erred by giving factual answers at least one of which was an accurate and which led to the jury's verdict last than twenty minutes later when i call nowhere and tell me are you talking about whether he could have objected and the answer with an accurate to that well even aside from whether he was given a reasonable opportunity to object the provision of extra record information to the jury is itself an error to mental error case law says it's a fundamental error that kerman could complain because the prosecution stressed that in their closing statement quite a bit didn't say they said here you saw him he didn't say a word it must be because they knew there was a weapon there and so it was on the well the the court assumed just based on hands from defense counsel that a prisoner could ask why they're being detained without any reference the docs rules which are important context on the docks rules which we cite in our brief say that prisoners are not to virtually interfere with prison staff and that there are supposed to obey orders without argument that was important context because as you said the trial came down essentially to the relatives credibility of the parties evidence from outside of the record and even if it were a legal instruction that they didn't give mr cotler an opportunity to object and that they didn't follow this court's procedures and columns i think you have to part of the analysis as to whether extra record information should be provided to the jury you know and bit actually in most of the cases the information is provided outside of the record from the court and otherwise is actually probably accurate and so that's never been a part of the analysis but i think it is important just to emphasize why it's an important why it's important and why this court in the supreme court is that it's important to make sure that the information that the jury consider is comes into the records through the normal process and within normal protections their rule of evidence and the adversarial process is there is there some additional overlay to or namely that we defendant's forfeiture argument there's certainly something that should be taken into account and that this for his sake into account in the past is that if you're going to this strictly hold the defendant to forfeiture or a party to forfeiture that at minimum should be you know made it a bit more lenient to her pro se parties because it's less likely that the forfeiture is strategic so yes i think it is important that he was pro se and that he made a good faith that we think it's inaccurate because the docs regulations say that a prisoner has to comply with orders without argument and that they can virtually interfere with the prison officials duties and some but more to the point i think what really what the jury was asking was why didn't he say anything if he if the weapon had been planted why didn't he say anything when he was detained and the court's answer suggested that while he put aside something but he didn't rob a conclusion you will from not where i think the real answer is he didn't say anything because regulations topknot two and that was an important context that the jury should have heard in which should've comment on the record  secure our i will begin with the abandonment issue it's our position that the due process claims were in fact abandoned because over the course of two separate appeals there was never any addressing of those claims on the merits now we heard in my adversaries argument that there could have been raised the entire disciplinary hearing transcript and that that was independent of the retaliation claims this is the st time that we are hearing the characterization of the claims in this matter but if that was assumed to be true that would only reinforce the need to have raised a separate argument in the briefs because  that case there would be both factual and legal distinctions all we had was a passing reference to due process when describing the clinic the claims as raised in the complaint let's let's assume just for the sake argument relates in what mr cotler braised in actuality so he and he says in his brief you can find it on pages thirty through thirty two dollars due process is based on the hearing officer participating in the scheme persisting up with the weapon so any evidence that he could have raised in support of the due process claim could have already been put forward at the trial on retaliation juber was a witness he was asked questions to the effect of whether he had knowledge that these chargers were false who did he talk to when did he talk to them and unless unless c heard to be amending his complaint for the st time a trial something that he never moved to do then every shred of evidence that would have went to the retaliation claim or gone to the due process claim they were interchangeable in essence is factual presentation and other than the entirety of the transcript cutler has not identified anything that he would have put forward and he hasn't explained why the entirety of the argument that there was ice in the hearing that the hearing was fundamentally unfair separate and apart from the search of the self or the web why argument because we understand that two reasons your honor want that is not how we understand that to be raised in the complaint and that's not how mr cutler has couched it in his brief seat is couched or being part of the conspiracy to that evidence would still require some knowledge of mr or knowledge on mr juber art that he was a proceed they would have tried to marshal of this well and our point your honor is that they were already able to marshal this evidence there is nothing that they could not have put forward to prove that point that would have already wouldn't have already been relevant to the claim for retaliation on or if there is some sort of evidence of bias that would run independently from the alleged retaliatory scheme perhaps bias that would have been apparent on the face of the brain that is something that arguably would have been foreclosed by the rd department's decision in the earlier state appeal that found that the hearing was conducted in a fair manner that would have been adjudicated under the same standard that this court would have applied well apparently the excludes these tapes of the disciplinary hearing because they were doing was no longer an issue as a result of the fact that there was no due process why isn't that something that we should consider in determining whether the presentation on the part of cotler as to what they would have sought to show by reference to those transcripts the only thing the kotler has ever tried to show is that  this charge knowing that he was actually innocent because he was either part of the retaliatory scheme or somebody higher up told him you have to find him guilty and any evidence that was in the transcript that could have conceivably be relevant to that has already been admitted we know the portions of the transcript were made it and if copier was trying to make the case on that point any particular excerpt from the transcript could have been admitted because it was recognized th was part of the case and for that reason there's no presentation here in rebuttal to harmless error of what kotler could have done differently or what kind of outcome could have conceivably been different by allowing a due process claim you'll agree with me that it was totally extra record no your honor because and clarification on the law exists independently of from the record under that reasoning the court would have needed to introduce potential structural that's correct your honor that would fall into the analysis governing supplemental instructions and this happens with with some level of frequency and in the analysis for supplemental he answered the question not based on the record the the judge answered the question based on the law your honor and it's our position that while that might have been in the permissible range of choice for the judge to decline to answer the question it was not an error let alone a fundamental error for the court to do so i would note that the judge did hold a conference call or answered a question in the affirmative about something that is indisput fact laden and hadn't been injured gerald ford was going to sleep that you're referring to whether there was a camera in his to correct that's correct your honor there had no problem volunteer ing an affirmative answer to that question judge could have posed to the jury but i would not agree that that is the only permissible answer under these circumstances particularly when trying to put yourself in everybody's shoes in real time the court proposes i think the answer is say that it wasn't necessarily correct right there on her even if in response to my question it wasn't necessarily correct who said can i feel this may i ask a question a follow up on judge poolers question  is you're taking the position that this is a legal issue correct about whether or not as a legal matter mr cutler here had a right to either respond or not respond or say something you're not right you're taking the position that was a legal matter right that's correct your honor and innovates his rights under new york law so in that event if this had come up at trial when the parties not have been precluded from putting in facts because one generally can't put evidence about what one believes the law to be what it would have been left to the district court to decide what the law was i mean that would be like saying whether the defendant had a miranda right is something that you would have competing testimony about you would not normally have a police officer saying you know miranda under these circumstances did not allow the defendant to remain silent and then a defense witness to say no no under miranda he had he did have a right to remain silent that would have been simply a question for the court to determine because it was a legal matter in other words would have been inappropriate to develop as a factual matter that's correct your honor if i could if i could try and explain how i think it would have gone in the appropriate fashion you could have a situation where cobblers on the stand he testifies and says i didn't ask any questions because i couldn't then we would have objected and there would have been a conference in front of the judge in all likelihood with the jury hears from the room where the parties would put in their their what they understand new york law to be and the judge would make a ruling on what new york law is and then we were going to review whether what the district court instructed about the law is correct or not correct so for example if the court had instructed the jury there is no such thing as miranda rights and that when someone is arrested they have no right not to respond onto a police officer we on appeal would be in a position to review that sort of instruction i know that's not that particular issue an issue here but we would be in a position to review that and if the court had misstated the law and missing struck to the jury we could correct that error right absolutely because it's a question of law and to the extent that this court wants to scour new york law if this if this instruction was transparently inaccurate under new york law then that's something that this court can question about a conference basically what happened here is the equivalent of the conference that you described had it happened at an earlier stage of the trial so had an objection been raised or could have said in response of the jury no no i couldn't have objected these docs regulations don't allow me to object the argument that he's raising now we then would have had an opportunity to put in our synopsis it your honor a lynch pin of cutler's argument here is his belief that he was on able to ask why he was being detained that was uniquely within his knowledge what he believed and cobbler had no problem volunteering a yes answer to the st question about the camera now of cotler didn't believe that he could have asked why he was being detained he was right there at the conference the conference was being transcribed all it would have taken now i don't know how it now i'm confused because i thought you were making an argument about the pure a legal issue before about his rights that seems to me to be sort of a mix question of law and fact and then we stray into the extra record or record issues that your adversaries have been warning us kopper should be held responsible for his failure to object so the way that this would have gone in proper fashion is that cutler would have been able to say no i couldn't have have asked why i was being detained then we would have said yes you could have because new york law allows you to there would be an exchange about that and the court would have issued a ruling i'm sorry with your indulgence just pull the mass a question to go back to the process  well with the court's permission there are two reasons st is that when when your honor is remained a case for a trial it's incumbent on the district court it has the right if not the obligation to the lack of this crystal clarity in your to the benefit of the claimant so before you find a claim and don't you want to make absolutely sure that it's been abandoned the case law that we've had uncovered during our research seems to show that it goes the other way i would direct this court's attention to script that that is the rd circuit case and the  circuit says that if a claim is not in front of the court of appeals and there is no it's just not addressed it cannot be remembered just as a logical matter the failure to brief the claim principle that this court has announced i know we're talking about a situation where the district court had had found a claim to be abandoned in trying to determine what was teed up for trial but it's our understanding that the court was simply applying a principle that a claim that could have been raised in a prior appeal that was not raised is no longer at issue and for that principle we would direct this court to it that if i could just get on to the record that we reserve all rights with respect to the rule twenty five issue we believe that to know it was properly reserve is missed from the case are that the district court gave to the question of whether there's a way it was an accurate answer ron or we think it was not an accurate answer and as i think judge loci a and you know got to his question is that it's not st of all it wasn't clear that the jury was asking a legal question they asked can prisoners ask why they're being detained and even if it sounded like a legal question at all to milly it was not a question about the law it wasn't a question about the law that they were charged for the flying to a specific set of facts it was a question of when ultimately to should we believe mr kopper was there reason that damned if but if the question is the question posed by the jury let's just add one little thing that's question it would be a legal question it would be a factual question masquerading as a legal question well there are all sorts of jury is of course are interested a lot of different things but they can masquerade them as legal questions but that the that should prevent the district court judge ronnie from answering them legal question art i'm not even sure that i understand when you say it's a factual question masquerading as a legal question if the answer is a legal answer then why isn't that the story well because the juries wasn't asking how should we apply the what exactly is the law that we should be and what they were asking was should we believe mr cotler or shouldn't we and that was the ultimate issue in the case especially given the defendants were unable to produce the physical evidence at all came down to credibility and so they were essentially asking through this question why was mr collier why did he not protest his detention if the weapon had been planted and the corpse answer was simply yes he could have asked where the proper answer would have well the proper answer would have been to say there isn't no information in the record to answer that and the judge if necessary could have reopened the record if the judge had responded under new york law d t b have the following rights and are prohibited from doing the following with that have been extra record in the way that were raised these structural error issues without a been appropriate it would have been inappropriate for the same reason and i think this underscores why the procedures that this court laid down are so important what the judge should have done even assuming it wasn't a factual question and assuming it was a relevant legal question him to do it part i'm sorry i see my time to lapse may i briefly answer or think what the judge should have done was given counsel an opportunity to suggest an answer which he did not do in a meaningful way and then bring the jury back into the courtroom read onto the record what the question that they post was and gives  opportunity to elaborate on it or correct it especially given that it's you know might be an open question what exactly they were getting at that would have been the appropriate procedure but that's not what the court did that's what this court has required and it's precedent that's not what the district court here did so even if the answer were accurate even if the answer were inappropriate statement of the law the procedural violation itself would make it reversible even under the clean air  statement that there's nothing that's been decided on this question and i think that's because it would be quite a remarkable outcome for the court of appeals to defer to the district court and chirping what we think is quite a clear mandate from the co really wasn't a question about whether this was abandoned until a few days before the trial took place and if i could just with the court's indulgence just address the prejudiced area yeah that's what i was going to ask you about that he aring you know over that show it's unclear to me i think i think really the core way that this prejudice mr palmer was a due process claim is easier to prove at least in this circumstance than a retaliation claim so  keller wouldn't have to prove that in a due process claim and so he could theoretically have won against mr juber and due process without proving that he had a retaliatory motive and the jury only decided the st question and it's verdict form whether or not these defendants including mr hubert retaliated against mr copper that was the only question they answered when they reached their verdict they did not answer any question that goes