trial comments to mr crater here reflect a prejudgment of guilt on the part of the trial judge the trial judge said you're going to be found guilty of first degree murder you're going to be found guilty of everything that the offer being extended to you asked you to plead to you will not leave prison except in a pine box unless you take this offer i know everything that happened that night it would be a stupid decision to reject this all i know and i've read the whole thing and it's clear to me that among other things mr what's his name craters lawyer was standing in there while all this happened yes she has been did she object first of all to the meeting she did not  object to anything that the judge was saying during the meeting she did not a matter of fact the judge kept referring to her you know i sat through a thousand of these things you don't do an incredible corporate you do it in state court and this was all to try to get this guy to help himself and the judge was actually helping the lawyer it's clear to me the lawyer wanted him to take this deal and what they do is they secure the judge's assistants who judge you know talk to the sky and then when it didn't work then they changed their strategy but this is not a month was not an uncommon s state courts that the judge nelson showing by he was trying to save this guy from the possibility of special circumstances i agree with you to an extent the magistrate judge recognized as much when he said in a footnote in his findings and recommendations maybe th at the behest of defense counsel asking the judge a judge will you take this guy to the woodshed sure it was a wrestler defense attorney would have been jumping up and down but then why your honor a day or two later defense counsel knew to have the judge disqualified based on the nature of the remarks made during the dollar short the de lay didn't work well we better get this guy out of here and try somebody else shifting tactics i think you made it you made a decision it didn't work well let's try plan b well we've got nothing to lose let's try get rid get rid of this judge and get somebody else regardless of defense counsel's motives regardless of how this conversation began the fact of the matter is we have these statements and i  help you out and the state court took a look at this and they found no actual bias and implied bias doesn't work with what's the problem with that with the deferential standard of review that we have to use in looking at the state court so i certainly don't quibble and i've not argued and objective person that looks at discussion between a man in a robe and a man sitting in orange as they do in sacramento county jail telling him you're going to be found guilty i know what happened that night because i  over the previous trial if you do not take that decision you're making a stupid decision i mean that's the magistrate judge in this case is an experienced well respected judge and he said there's just it's obvious that what that is  client yes here it seems to me that the defense attorney and listening the judge can try to back up that that assessment was already given to him and he wouldn't go for it let's get the judge to see if he can't convince them i don't think that changes the analysis though your honor it's the problem is the appearance here where you have the judge who's presiding over the trial and the of parents too society at large we have a record of this i think alex don't let's not forget that this all occurred in chambers a settlement conference will never go right and you're right if you're if you're right you should never be a judge in a room in a settlement conference but that's not what the law is and what he's trying to comment he was saying this is what i think the jury's going to find i saw them last year e and he says to me and if you let me tell you where you are if you lose your only argument the special circumstance you're going to end up right where we are today with the same with the same sense and let me tell you what the law says in what i'm going to sentence you now what's wrong with that he's telling him the truth now he was lying to him or skewing it around between what the jury thought the jury's going to do observing when he told them what the law was he called the home is going to happen if you lost a special circumstances now if that's wrong for a guy in black to do underlying facts of those which you do is you taking general statements about bias and trying to make this one of those general bias things what did the judge do he commented on what did you he thought the jury was going to do he didn't say i'm going to make sure you go guilty i'm going to make sure i think the jury's going to find you guilty but that's not what he said he i think that's kind of what the district court tried to say but i don't believe we're going to have your words right and i'm quoting his words to you you're going to be found obviously the jury i mean the judge isn't going to make the decision that that's if the judge and the cases that i've cited the law review articles i've cited recognize that if you have a judge who has expressly pre determined the individual guilt then how is that person going to get a fair trial is there anything in the case itself the way it was tried that suggests that there was a bias that was functioning against the family court not at all and that's why there is the proof of the p always in the eating i mean you're saying the guy was biased will you look at the behavior during the trial there's no evidence of that at all i'm not saying he was was stronger i'm not saying that all i'm saying but these unfortunate remarks cannot be fairly construed in any manner other than as to reflect that hate the judge has pre determined this guy's guilty if he doesn't take it but if there's no if there's no actual bias what good is the appearance of the appearance is a false appearance i think then you i would respectfully say your argument is with the supreme court and the aetna case where it's sad that appearances matter it's not it's we're not going to limit federal law allows state judges to participate in this stuff it's probably better policy the way we have it in federal what are you looking at earl should never assume why should i settle if i'm going to get off on a jury's going to let me go so he's going to say something i agree that when you have a settlement conference and the role of the settlement judge may be to take the parties  separately and point out the weaknesses of their respective cases but here what you have is not just that you have a judge saying you were going to be found guilty i know what happened that you don't take this deal you're stupid  understand your time has expired thank you thank you we'll hear from the government good morning your honor just fine means deputy attorney general the half of the state i agree with the first is when there's actual bias it's all agreed among the parties there is not actual bias in this case at least that's what the other category the second category is presumed bias that's when the judge has an actual substantial and tracked influence by some other source that there's some incentive defined for a party one way or the other supreme court and the court and the third case is when the court functions as both an adjudicator and an investigator neither of those three circumstances are present here therefore clearly established law does not support they also scribed to the idea that the us supreme court has dictated that presume bias requires that the judge have an actual substantial and direct interest in the case some specific motivation to courts of appeal the second and third circuit have specifically answered the question presented here and said that the mere appearance of bias is not clearly established  constitutional standard aside from putting a t p overlay on top of that is that it must be found that it was impossible impossible to seat an impartial jury the supreme court said this is a rare circumstances and publicity immediately preceding trial the second one is whether they're factual or editorial in nature if we look at the nature of the media publications particularly the print media national articles began to appear toward the last half of one nine hundred ninety five from october ninety five to early one nine hundred ninety seven there were only nine ticket section buried in the paper that will be a benefit at the pantages theater or some very general reference to the victim these were not stories about crime and about half a dozen articles appeared in the paper two years have passed from the initial articles that were published including editorials that's to the extent there was any sense of prejudice early on which i don't think there probably was but even to th extent there was the nearly two years lapse would have been more than sufficient to undo that prejudice was there was a change of venue motion renewed after the jury was selected it was deemed to be continuing your hon the the prejudicial aspect i think also deserves attention in this particular case there was no dispute robinson was the shooter there was no dispute that mr crater was p bettor virtually nothing and the publicity was relevant to that issue this wasn't a who's who done it ok sorry you know if you're going to finish up that point i want to ask you one other question i'm finished counsel has raised the question of the constitutionality of  your response very briefly your honor the u s supreme court has been applying a d p a for some ten years now some are just a hint that there's a problem with that indeed about the sentencing guidelines i think that's a different situation your honor the applying for twenty five years well think tank that i think the difference here would be an unwillingness versus taylor the supreme court had the opportunity and in fact the dissent in that opinion had indicated that to deprive the federal judiciary of its independence would be unconstitutional under article three the majority implicitly but undeniably rejected that approach in applying the objective reasonable man standard to twenty two fifty four fifty two now this is even before us it wasn't raised in the trial court was it was raised for the first either withdrawn the issue or simply isn't going to proceed to decide that issue this panel could and the question i have is do we need to say anything more than we've said and do sharma versus  haim i believe so your honor there was a little bit of a difference in the way the issue was presented there that had to do with the nature of the authority that the court would look to more specifically that they could not look to lower court circuit  constitutionality issue so far as the ninth circuit is concerned i don't believe that squarely addresses the issue that's raised here although other circuits have so we're we're talking the difference between separation of powers issues and the substantive rules of the  prescribing to substitute rules of the station by which the federal courts must decide constitutional questions so that's one of the issues in other words can we go down to a state justice court grab the cases that's going to be the decision constitutional on skis well that's not so under yet so apparently they've invited that question by that order the party should consider whether under the separation of powers doctrine or any other reason involving const through this court she does why declined to of authority and whether that violates article three part one rock part two is why believe that they're raising and arguing here correct me if i'm mistaken that the use of an reliance have explicitly rejected that and i think the supreme court and one versus taylor implicitly rejected that i don't think went far enough to get to that precise point thank you notes and your time  expired the case just argued will be submitted for decision