should issue on the answer to fight claims that are raised in the briefing the factual scenario in this case is pretty unique we have a situation where  there is a presumption that applies to the prosecution that you know it's not murder it's not caused by the assaultive behavior he'd already at the time of the autopsy neuropathologist a special evaluation or being convicted of the actual act that would be the act in the murder case and the brief of her saying you know there's all these things wrong with him let's send this brain that looks on its face to be perfectly normal for a specialized evaluation looking at that i mean i think without that i have a little trouble on this autopsy confrontation clause issue given what some of the cases of said that if we sort of put williams aside since it doesn't have a single  but i'm just curious because i really do that's a really good reason but no i don't think that's why because if i that's a good reason is what i was going to do great reason but it's not why it's not a good reason no i mean it would not it's a better reason than the fact that i don't know why it's not in there it's at least a reason no i mean i it's obviously in done though it's in my client's c c a case i have notes that talk about it i do not know why it was nice house is that it seems to me that's your entire that williams kind of whatever had been settled gothic kind of got unsettled to the point now where i don't think it's fair for us to say to a state court that you you know basically you idiots what can you understand about what the supreme court has told you now and i understand that your honor and the coas issued in this case you know post williams and you know i briefed it to the best of my ability and i do sincerely apologize to the court that williams is only discussed in my reply brief the opposing counsel very appropriately pointed out that i had failed to discuss it but taking williams with it divergent approaches i mean either we say williams standing alone as a decision that can't reach a conclusion with regard to how we're going to treat d n a you know a report on d n a and whether we're going to require the person at cellmark who you know ran the test to come and testify or not and we have you know four and four and one in different parts a lot of the analysis for instance the primary purpose analysis williams is not in the prior cases in terms of why they hold that the you know cocaine certification and the dui blood alcohol level certification is testimonial i mean if you look at that canon of cases and ignore williams not because showed it but because it doesn't have a consistent clearly established holding it aren't those cases different because in both the cocaine case without the report from the crime lab you can't be convicted of cocaine is simply white potter and without the breathalyzer result you don't have a blood alcohol reading going to those cases for different cases in this it is a step removed but it is no less a critical fact that supported the important fact in this case which is cause of death when we have a presumption that it didn't cause the death so for a moment let's say you can show there is a confrontation cause error and we have to think about harmlessness yes so this what you're go what you're just speaking about i think goes as harmless as question i guess i'm not sure i'd like to ask you more about this because if the coma was caused by the attack and he's in a coma for four years it seems like at the end of the four years the coma is part  the cause of death which goes back to the attack i have a little bit of trouble understanding how even if there's a heart failure or something else it's not somehow caused by the coma which was caused by the attack and so i guess i'm not totally sure that this testimony is so critical  understand that and i mean i don't want to get into the uncertified issues but they answer that question well how do they could then well the uncertified issues has to do with the two reports by dr strucken dr his wrote where the heat they their opinion their opinion is that the death was unrelated but it was it was heart failure i didn't know that it was totally unrelated to the coma i just thought it was unrelated to the trauma on the brain because  the coma is caused it's one of them i'll look it up your honor and i apologize for not having that exact page in my head but one of them said he would have died anyway even if he had not been assaulted i merely triple check but i believe at least one of the two experts has a pretty clear opinion that says you know even without that it would he would have died so if that's the case then this this that the government's theory was that the victim contracted pneumonia as a result of an infection from the breathing tube but that was their theory not by kurt disease or whatever but ammonia contract  got is the syrian i will say that both giuliana and singh honea and if you know that i'm pronouncing them wrong feel free to correct me but i'm doing the best i can with those names both of them talked about how it was you know multisystem and there were lots of pieces and this was a not see why why was the da i diagnosis so critical to the causal chain well the da i am diagnosis is what tells us that the coma was caused by the assault as opposed to some other cause he was lucid and away when the paramedics showed up and talked to them and then fell into a coma and he's an eighty one year old man who has multiple problems i mean i don't know that we can accept it is just one hundred percent a given especially you know in a case a murder so that it was it was one hundred percent for sure the assault that caused the coma ok but until we have the autopsy so why does the d a i diagnose and show that it was the assault that comes to come da i diagnosis says that there was some type of blunt force trauma that caused this separation of the nucleus from you know i probably won't try to explain it as a math major not a scientist and that at that point your brain basically ceases to function and you are in a coma so the da i diagnosis tells you that once he had that happen to him he's in a coma so that's a piece of it and then from the coma the theory that they have is that and then you are a breathing tube and you develop monia and it's no monia that is the cause of death suppose the doctor they didn't have doctor and his opinion and all and the the corner deputy coroner they give their opinion research on d a i out there but that would be that on her part that would be speculation right i mean be enough based on her experience as an expert i mean that i don't i don't know that as a scientist she would have said i've been informed that he was assaulted i a profile you would really would have any profile to match you know william's d n a to what they find so this seems like an easier case of williams and yet you're stuck with williams the confusion and that led to the coma that led to the breathing tube that led to the alleged pneumonia going back to my own certified issues you know their reports don't say that they would have been able to do that without dr andrews finding evidence but i don't see an ineffective assistance claim in the petition maybe he was asking to amend the petition but when the magistrate judge rules you can't basically because you didn't make any explanation of why you didn't do the sooner he doesn't object to the magistrate's order saying well here's why and so at this point i'm not sure how what we're left with that allows us to say there's even an icy claim really in this case at this point so he says in his objection to the reports and judge says there's this newly discovered evidence that we don't know why it wasn't given earlier he doesn't say well i didn't have it or know it just happened or someone lied to me about it or the government hid it or anything like that no he doesn't say anything he responds not at all other than asking for a lawyer so how is it an abuse of i think we'd have to say it's an abuse of discretion for the district judge not to have lodging to amend even despite the lack of explanation i mean how do we get this claim even into the case so because it's not in the petition that's true and if the lawyer had been appointed at that stage the lawyer would have filed an amended position raise the i o c claim raised a brady claim and raised all of that moved to stay on and gone back either you know on a ryan state to exhaust or would have argued the martinez versus ryan you know excuse the exhaustion or delo excuse the exhaustion and they would have litigated it and so a lawyer would have known what to do he clearly he not only didn't know what to do how to respond to the judge and my argument in the uncertified issues has to do with both obviously he needs evidence because the judge has said hey you know you were dilatory and he's got that you know received ten fifteen on it which if that's true i not super dilatory because he filed it like two weeks later and he needs to do discovery to prove up his appellate lawyer didn't turn it over to him and before then he didn't have a copy of it he didn't know about it i mean those are all things i mean is that at this point a second successive petition that needs to be brought i mean i'm just struggling with how this case has this issue in it at this point two reasons one is rule six requires appointment of counsel under the habeas rules if necessary for the effective utilization of discovery he asked for a lawyer a liberal you know pro se liberal interpretation would be he asked for a lawyer to help him respond to the things the judge said including you haven't given me a good enough reason to rely on this evidence number one and number two is the fact that i've argued they mishandled the newly discovered evidence entirely there's no ruling you know by the district court judge on the request for counsel so no one ever ruled on the request for counsel so i do think there are at least three ways laid out in the briefing where this court can get to a point where it says we're going to reverse an re manned and ask the court to appoint counsel and then at that point it's not a successive petition it's an amended petition with some procedural hurdles but they're all handleable including obtaining a copy of dr andrews report which would answer some of the question as to where you want to go do we have to say it was an abuse of discretion to not allow him to amend at the time no the district court judge would do all of that i mean what what this court needs to do is either say that it was erroneous for the court to treat the newly discovered evidence the way it did that the meaning of what was erroneous about it was an abuse of discretion  an amendment or what is a as abuse or discretion to not liberally interpret his like here's a newly discovered evidence please consider it as requesting that the court you know consider that as either a claim or not or enquire but the i think the more the stronger argument frankly your honor is that when he asked for a lawyer he should have been given a lawyer so you'd say we re manda just on an error that they didn't appoint counts yes and then let counsel deal on the documents and so there is at least an inference available in the record that he was diligent because if that received date that's on those copies that were obviously faxed to his appellate lawyer much earlier cording the fact stamp that received it is cracked he was diligent and it was appropriately submitted newly discovered evidence that's incredibly relevant in terms of what it says about the reliability of the testimony that convicted him and put him in prison for  unreasonable in the application there of the court of appeal had a set of facts that was similar to what was that you see in the williams case with an expert testifying at trial and relying upon the report of a non testifying expert just like in williams and the williams court though in a four one four kind of decision said that that's not a confrontation clause violation the court of appeal concluded we don't have a confrontation clause violation here and that cannot be an reasonable under the emphasis on the fact that that was a bench trial right and so the i mean the mental gymnastics that one is asked to do in this kind of case don't take the test find experts you know reporters for the truth just somehow rely upon it and evaluating the weight to give the test to find i mean that's a kind of a crazy thing to ask anyone to do even a judge but but right right and but and the court was willing to kind of engage in that because it just said a judge could handle that  seems reasonable to say maybe jurors why why in the world would we think jurors could do that effectively so that would be one and then the number two would be just that what seemed to give the court some comfort in williams was that when the non testifying expert created that profile there wasn't any suspect that one could kind of have any motive to fabricate the results of that right because you don't even know who might match up to rest here when dr andrews is asked to give this opinion they very much know what it's going to be used for right so anyway those are just two obvious distinctions but you tell me why they sure i think with respect to the first distinction whether it's a judge or a jury i agree judge waffer that the mental gymnastics are virtually impossible in fact the california supreme court recently has said no when experts testify and they rely upon other experts ike expertise and things that is offered for the truth of the matter is sort of the people versus sanchez  case so the california state courts recognize that it is offered for the truth of the matter but whether something is offered for the truth of the now matter doesn't answer whether it's testimonial and so even though that there's that mental gymnastics there's still the question is it actually testimonial only if it's testimonial do you run into the confrontation clause violation and here we don't have it's not necessarily testimonial but why i mean so you have a specific suspect here right and it's a formal signed report so it seems like can't you piece together the opinions in williams and actually say that i would disagree with that because first we have to look at dr andrus there's no evidence in this record that dr andrews who was a consultant for just the brain that he knows any of the facts as to this case there's no evidence that he was provided anything other than here's a brain please tell us what you can find in that there we have nothing suggesting that he's looking for anything that he we don't even know that whether he offered a cause of death we don't know anything about it is another factor that the u supreme court hasn't talked about i mean it this idea that is there a specific defendant we have maybe i'm just forgetting that part of the opinion but i don't remember this idea that you don't know that any suspect is there when you're doing a d n a test really went through like objective lee whether the person doing it knew there might be a suspect or not well no i don't i don't think it's quite quite that fine as far as you know you have to know that there's an identifiable suspect but the primary purpose is that it's for a criminal investigation and the statements at issue the person offering those statements needs to understand that it's for the purposes of a criminal investigation and when we deal with autopsies in california there for a whole myriad of different reasons and when we have a person that's removed from the actual autopsy a person who's a consultant who's been brought in to take once they think there's blunt force trauma then don't they think maybe this is criminal and they write a report and they sign it and it's formal i mean at that point it's not testimony that would be that would be the people conducting the autopsy but that's not necessarily true of the person being consulted with a brain here's a brain tell us what's what you can find in it we don't know what he was told you don't know that he was given any information beyond here is a brain please use your expertise as a neuro typical the thing that somebody who looks at analysis figures out there secondly throughout this the organ which is the scarring and there's the diffuse actual injury and then he sends back a report saying this is what i found it's for then the testifying witnesses the autopsy the person conducted the autopsy doctor possible but the thing is that when dr when dr andrews first does his examination of the brain we don't have any evidence that he knows anything about this brain other than here's a brain study it when he finds what he finds and writes a report and says here is what i found it's not for the purpose of anything other than to inform what he found it's not for the purpose of criminal prosecutions not for the purpose of anything other than what he's been asked and contracted to do which is to advise the persons that ha  they don't know until they've tested it and they're just they're out yeah you know i can see i can see your point i can see your point but i mean it's and this is what in this is why the williams case is a difficult is a difficult decision because it doesn't it doesn't provide any real clarity in this area of the law and that's why i mean how what was the kind of four new court of appeals supposed to do with a decision like williams in light of offered melendez vs bull coming and williams can't ignore williams it's just as applying the law as it stands and what was unreasonable about that there was nothing unreasonable so yeah we can take a step back and we can start looking at primary purposes there's nothing in this record suggesting that dr andrews primary purpose in allies in this brain is anything other than just making observations and then as far as formality and solemnity autopsy reports have not ever been held to be the formal solemnity kind of documents like certified at lab analysis certificates at issue  is these are my observations of this organ take it for what it's worth and then we have dr singh on ias testimony where she said yeah i got these observations from dr andrews and they were consistent with my observations she testifies to that and then dr jubilant and basically doing the same thing yeah these are the this is what i was told that he had d n a i that this brain had and he is the one who ultimately explained what the  and he's the one who ultimately explained what it can cause and then ultimately rendered it opinion as to cause of death so dr andrews this is of stuff is different from what dr ehsan dr j offered because it's not an the reason i don't agree with it is because of the facts of this case we have here a man who is seventy some years old who is punched in the face and kicked in the head and then within a matter of a few hours slips into a coma the doctors who did the autopsy they could have rendered an opinion in much the same way that judge fisher suggested that look here we have an old gentleman who was punched kicked in the head he slips into a coma he's in a coma for four years clearly that coma resulted from the fact that he was pinned punched and kicked in the head and then later when he's on the feeding them feeding the breathing tube that's what gets infected and that's what ultimately causes the b which is the ultimate contributing factor to death so i think that yeah doctors ass and jake could have rendered an opinion without relying upon the expert dr andrus observation he would just say based on common sense it stands to reason that someone who could i think he was working that day right that's correct he was there for his landscaping job and so it just stands to reason that somebody who had this kind of trauma inflicted and within this period of time falls in the coma there's  got to be a connection that's kind of what they would that's exactly right and that actually also then goes towards our are harmless error analysis and that under breath we're looking for substantial injuries affect on the jury verdict and that's just not here under the facts of this kind of a case even if this was testimonial if you know if this should have been excluded under the law of the controlling laws of the supreme court it's not the kind of error that would have resulted in a substantial injurious effect on the jury the jury would reach the same conclusion so i would ask the court for some type of opportunity to get dr andrews report and the evidence in the lower court and i'm not going to tell you what it says but i really would like an opportunity because it's not in the record and if it were in the record that would be helpful for you or yours just i can't you're saying you do haven't but i can't give it to you and i understand that but i would really as a officer of the court like an opportunity to get this into the record which i could do if it were reminded on any basis that the court could come up with also i just want to note i didn't say this in my opening remarks there's an argument about our reasonable factual findings diagnosis versus observations and of course we don't need clearly established federal law for that and that's a very complicated issue i'm not going to address that rebuttal and the williams crowd to talk about primary purpose and that's not in the other cases and so the application of done go is not necessarily on all fours appointment i would do the work or grant the coa and let's have an opportunity to really brief those issues with the full engagement of the parties thank you very much because charges will be submitted we are your