denied him his fundamental right to present a complete defense to the charges in addition he was also denied his sixth amendment right to effective assistance of counsel due to his trial attorneys failure to explain why the significant evidence that was excluded should not have been excluded you want as the defense in this case was simple and obvious john kane the only eyewitness murdered the victim ms williams because she could not pay him for the drugs that he had supplied her with misty cain's d n a his fingerprints were found at the crime scene on the other hand no physical of forensic evidence  screamo to the crime scene where we covered cain lied to the police when he was initially questioned by them denied having been with the victim miss williams on the night of the murder only told the police that mr screamo had murdered miss williams when the police later confronted him a few weeks after that and told him that he'd been seen earlier by several witnesses at a club with miss williams williams the victim perform oral sex on him on five prior occasions and then on the very night of the murder just shortly before the murder was committed she had performed unconsummated oral sex she recognized him arguing with a woman outside of her apartment that night late late in the evening for yes the morning yes and what about the seven eleven ploy who testified it was pretty compelling she's going to want to smoke these cigarettes must be it must be for her it is but don't tell my wife that i want to go back there it's pretty compelling to well there was consciousness of guilt evidence i think that's what the court is really talking about but yes that there was other testimony of the cain's testimony that put him in the apartment and and set him back after the seven eleven with the beer and the cigarettes right i mean yes and but again when you're talking about of having gone to the seven eleven or purchase beer or cigarettes that's really consciousness of guilt which is generally considered weak evidence in terms of proving a defendant about to i worked at seven eleven to testify he recognized because he did have nearby came in almost every day came in the four o'clock in the morning bought a case of beer and cigarettes for himself or that maybe for cane but also her particular cigarettes and then the clerk also gave him an item to increase his they were going to have sex right that was that was the store clerks idea that was not something that was requested by mr screamo it was kind of thrown in to the testimony and at this stage obviously we're not contending that mr screamo didn't go to the seven eleven didn't purchase beer and cigarettes the question is really what did he then do with them did he go back to the apartment and then kill ms williams would it be simply get them because  cain had asked them to do so delivered them to him and then left and went home there was really no evidence other than cain's testimony that vista screamo had ever even been inside the victim's apartment or you know in any event you're you're not disputing that are you oh no there's no issue before this court regarding sufficiency of the evidence and that's what what we're submitting is the verdict very likely would have been different and by that of talking about the sixth amendment right to present a complete defense but how convincing were just the evidence would have been bring on another witness to show that he was a drug dealer yes he had sold to williams in the past and one time he choked the parents choked one and because of a dispute over payment yes how compelling is that that he killed her rather than i mean the choking the similarity between what happened to the victim miss williams and what you need to choke in order to show that that's your m o when you don't like the way a customer is treating you you choke are so whether it was a day before or two years before i think the jury would have been impressed with that type of evidence say to themselves hey this is a guy who chokes women who buy drugs from him i don't think that's something that the jury would have ignored he was cross examined about that all right and he just couldn't bring another witness to i mean i mean ca obviously denied he said i'm not a drug dealer i don't troll women fine of course he's going to deny these things but the fence counsel had witnesses who were prepared to come in and say look this is what he does this is how we support themselves he sells cocaine that's why he hops from bar to bar this is his reputation we know this he's been thrown out of a bar for the drug dealing and for choking a woman and defense counsel really didn't articulate these things properly to the trial where that's all the merits what so far you haven't said a word that i've heard about the procedural default issues which is why you lost in the trial court well i think  when this court issued this it if we could have people ability it recognize that some of the claims that mr screamo has now brought before this court were not fully exhausted but because he is presenting a credible claim of innocence this court can excuse those defaults and i think it should does he have to show that it's look it's likely he would have been acquitted or that no reasonable jury could fail to find him guilty what's the standard well i  believe and i could be mistaken i think it's a reasonable probability that you think that's sufficient i believe so and i think had the jury heard this evidence that the trial would have excluded eroni asli case what do you rely on for that standard as far as that it's only reasonable probability to excuse that i can't give the court a specific site i think all of the supreme court precedent indicates that where there's a sixth amendment violation of the right of confrontation and the right to present evidence of a complete defense i think that that is the standard and is the default you're talking about the failure of trial counsel to present the right ground for admission or the failure of appellate counsel to properly pursue the appeal i think both i think but primarily the fault lies on trial counsel shoulders he had ample opportunities to persuade the  examine the prosecution's witnesses i think he omitted the portion of the claim of presenting defense witnesses which trial counsel attempted to do but then was shut down by the basis for the admission of the evidence and at the same time the trial court miss understood that very argument need to really hit the main point was that we need this evidence to show that the only eyewitness who he had the motive to murder this woman not screamo his motive was far more compelling than scream it was was it back to the marriage on the on the default if you're talking about the failure of appellate counsel to do his because appellate counsel had already made the argument in his appellate brief that trial counsel was ineffective he didn't set forth all of the reasons why trial counsel was ineffective so to then come back to the to the division in state court and say i missed one of the reasons i had that would been a waste of time it would have why would it be a waste if that's the very nature of the ineffectiveness argued the wrong reason well no i mean appell did he didn't give them all is what i'm saying there will be more that he could have addressed the reason he gave wasn't the winning reason well it could have been but it just wasn't everything that he could have presented and that's why i just wonder why you're so sure a state court if given the proper remedy would have said it's a loser when you're telling us here that it's really a winner well because i know from experience that generally when a claim has been raised when when an ineffective trial counsel argument has been made on direct appeal in new york state you give all the reasons why he was ineffective which he was ineffective if you then don't cover them all and later on the defendant let's say in a pro se motion for quorum nobis relief or hires a new counsel to make this argument the appellate division going to look at it and the people are going to respond say he's already made an ineffective trial counsel argument all he's doing is ineffectiveness of appellate counsel then does he does that show cause here for the procedural default well i think it could i think it could but i think needs to for you to prevail know but i think that a claim of a credible claim of actual innocence excuse is the default in any event that's our position in this court and if if the standard is not just some evidence to put it in issue but just enough evidence that it is a reasonable jury could not fail to find him innocent then do you have a cause for the fall good morning your honour's may please the court my name is kristen connell i'm an assistant district attorney in nassau county and i represent william lee judge newman two two draw my attention immediately to your line of  judge in his news well that effective assistance of counsel which when you're talking about of course judge ineffective assistance of counsel has been raised before as defense counsel acknowledged but never on these grounds these grounds have never been made before nor were established or a credible and compelling claim of actual innocence that is not what is before the court today that is not the kind of extraordinary remedy that there are the extraordinary evidence that is before the  court it's extremely distinguishable from the evidence that was say before the supreme court in house me about and house v bell the supreme court noted what kind of extraordinary evidence would be necessary the court said you need to look for x things like exculpatory scientific evidence reliable witness testimony critical physical evidence that was new that was never introduced before that's not your adversary says the standard is it is a little lower than that as i understood  simply whether the excluded evidence would have put the issue of guilt fairly in question well your honor what the standard that i'm referring to is the standard for procedurally barred claim to be to be reviewed because of an actual innocence claim the standard which you were discussing before with counsel for a claim like this for ripper levy if if if evidence has been unfairly excluded first of all there is a requirement this court has recognized in wade that the decision below can't just be wrong it needs to be unconstitutionally wrong and that it wasn't the the trial court's ruling basically a denial of this man's times cane so why would the judge assume that these witnesses are just being offered to show that the cane is a bad guy not that cain actually committed the murder to take your points and turn your honor first council today has at with regard to the in effect this is of counsel claim counsel today said his defense was simple and obvious before the jury so if the claim is well defense counsel didn't advance his arguments clearly enough so the trial court could understand what he was doing that's disproven by the fact that everybody understood what he was doing how it's assumed that everybody understood what he was doing absolutely what that would wasn't really in effect advanced and allowed to be advanced by defense counsel throughout the trial with these witnesses aside he was able to extensively cross examine all of the different witnesses including the police witnesses such as detective mr kane who who've course would deny it i mean it's our elementary it's how they were meant well your honor the court did however follow new york evidentiary rules by discounting this evidence it was an evidence even if we were to allow even if the jury had heard those three witnesses as judge johnnie pointed out earlier the woman who was in an altercation with cain at the bar that took place three years before the murder another witness proposed witness was merely going to testify about a drug sale that took place two years before the murder these are all regarding his cain's bad reputation in the community the third was going to originally in the first offer of proof defense counsel said she was going to testify about the fact that cain sold her drugs and she used them with the victim  unspecified time and then the second offer of proof that that cain had sold drugs to the victim however judge the you haven't is the evidence as you point out was not all that compelling but the prosecution's evidence was arguably even weaker he had a mother meant to be had pinking shears that would be the same thing somebody something how to cut the rope but no one testify that it was  short judge however there was other evidence in this case first of all mr screamo those d n a could not be excluded from the beer bottle that was found in the apartment so i don't call that overwhelming i mean you almost can't either well i think i think it might was he was there it does and he admitted later to the police here he wants to put in evidence that he didn't however this evidence wouldn't of wouldn't have established that he didn't kill her judge the evidence would have  the only other person in the world who might have committed this crime that's what it would have shown and it would have shown judge that kaine was perhaps a drug dealer that doesn't make someone a murderer there were other pieces of evidence that were and we agree that one of these two people killed this woman it's likely she has likely that's they were both they're both they're yeah yes the evidence was stronger that it was the defense and all of the evidence but point we don't believe it does no judge doesn't point to note judge this woman was strangled yes and there was evidence that this person is a drug dealer who has previously a woman who will on a drug deal you think that points to his guilt not that he did not strangle another woman to death he reached out and if the witness had testified to what she the offer proof was that he reached out in anger and grabbed her by the throat three years before the murder took place that's not enough in new york you know under mala no evidence of a of motive needs to be specific it needs to for evidence of extraneous crimes to be held competent in new york under the evidentially law it needs to involve the specific motive underlying the crime charged or motive common to all crimes there was a showing here that in the past he had taken you know wire and strangled numerous women to death or that anything else to show that there was any animist or between the victim and what reason did scream to kill this woman well there is testimony that he was attempting to kiss her in the bar and she said no you're you're married he then he clearly it was a test you know intended to go back to that apartment he took a condom when offered from the seven eleven clerk that judge johnny reference before he said don't tell my wife he was seen arguing with the victim he was the only seem clinton one of the witnesses who knew them from the bar community testified that she saw him she recognized the defendant by his build she had just seen him in the bar and she said that she saw him not cane defend then he she didn't initially identify him that might be what your honor is referring to she if she knew him all that well and didn't initially identify him then that would that that would see did initially identify him in a lineup in which she later said that all of the looked the same to her they were all very similar i've seen the picture they looked very similar these are all very interesting arguments that you may get to present if this matter is sent back for retrial but that's really not our question our question any procedural downfall that prevents this person from from giving you that chance to make those wonderful arguments that you'll make to the next jury that's the question is there a procedural defaults to argue that that that should that should be excused on this record and on this showing that at least evidence innocence is an issue it's not a frivolous claim of innocence surely when the only other man in the world who could have done it is right there and as triangle the previous drug customer before that's not frivolous evidence your honor we would still argue that this doesn't meet the threshold established by the supreme court for the kind of evidence needed to make a show amber had a case where the only two people of the world who might have committed the crime were in the same room but there's nothing your honor and i'm sorry i don't mean to interrupt but there is nothing here at that's new all of the arguments that are being made with regard to whether or not this evidence should have come in they were made before they were made in the trial court they were made in new york state court they were made before judge donnelly in the eastern district of realty that's what the lawyers said the lawyer did it terrible job can't you agree to that i would not agree to that judge because he did a good job spent he is he explicitly said to the court this isn't an issue of credibility this is about the relationship between cain and the victim he said it repeatedly he said it and that's how you argue that cain killed her it's about the relationship noting murderer the victim not the relationship well according to defense counsel his defense was it was a it was the simple and obvious everybody knew what the defense was and so if he came before the judge and everyone we've discussed earlier knows what the defense is it's that it's kane not my client it's and this is especially not relevant judge this was especially collateral evidence there were no drugs found in the victim's system there were no drugs found the trial court here specifically cited the new york court of appeals and said if you were going to call witnesses who are going to testify to his lack of credibility or likelihood to fabricate i would allow those witnesses in what you want to do is call these witnesses that are going to testify about the fact that he's a drug dealer that none of them were going to testify about anything having to do with the night in question two of them were going to testify about things that had nothing to do with the victim and again in a situation where there weren't drugs found in the victim system there weren't drugs found at the scene of the crime no one that night they were questioned about it counsel was allowed to question her if she had an overdue for drugs it doesn't necessarily assume that those drugs w in her system but judge that's entirely speculative there was no evidence that she had any overdue debt and in there were two offers of prove the evidence against mrs green is entirely speculative except that ca testified against without cain i don't know what your evidence would judge our evidence of their men to the other man to all his d n a not being exclude in the apartment the fact that he changed his story seven different times the fact that he was seen arguing i do judge i think the evidence was sufficiently compelling that we would have gotten to an evidence to a jury however it shouldn't have been necessary because all of this evidence having to do with kane and his protests and his purported drug activities all of those things were collateral they were properly excluded by the court following its own evidentiary law and this even if this court were to disagree even if we i can respect you certainly you're right to perhaps second guess the judge below it doesn't rise to the level of of the court disproportionately or arbitrarily applying new york state law and that's that's the standard the defendant has to meet today and he has not met it trial  there's no judge because appellate counsel isn't responsible for making every argument possible even non frivolous arguments as as your honor believes that would be that still would not rise to the level of showing that this defendant that his that  that his appeal would have been reversed you know this this claim about the witnesses this claim that this evidence was properly improperly excluded this claim was before the appellate division in new york and the appellate division division said ma made a ruling and said anyway the evidence is overwhelming which really is that was that was their take judge that was their take but but i would also point out the fact that judge donnelly made a similar conclusion and said that in any event this error would have been harmless she had a similar conclusion and your honors it said that the defense was simple and obvious i'm speaking on my own behalf to me you have two men in a room with a victim victim is murdered one of those two men obviously committed the murder it's simple and obvious if i'm representing mrs screamo at his trial i point the finger at cain period and i try to bring in every piece of evidence that i can to show what kind of person this cain really is and what his motive for killing the victim and that my client essentially had no motive whatsoever the motive that's attributed to miss to scream oh is that ms williams insulted his wife's appearance and he just snapped and murdered her and that i mean anything is possible human nature is extremely variable and i understand that weird things happen but it's such as if he was so sensitive lee respectful of his wife i'm not sure what he was doing with me that's that's a terrific question which i won't even begin to respond to but and something judge droney i think had asked me before and i wanted to respond to it and as the prosecutor was arguing i found the reference ms quinn when she viewed mr screamo in the lineup did not identify him she identifies him the next day when his picture appears in the newspaper having been arrested for the murder remember he was in the bar he was in the bar with them too with i did she said i saw him in the bar with her i believe so and i believe there was several other witnesses who may not have identified mr screamo but certainly gave a description that fits his appearance and said that she so it raises the question why she was unable to identify him in the lineup that she viewed the day before she suddenly recognized this photo in the newspaper i want to leave the court with one suggestion i don't know if it's a fair one are not but it is a card to me while i was reviewing this case if mr screamo had gone to the police first and told the police cain murdered ms williams i don't think there's much question that cain would have been arrested he would have been prosecuted and very likely convicted of this murder the fact that cain got the idea in his head first i'm going to tell the police that screamo did it if you just want to reverse the situation i don't think there's any question that cain would have been convicted of this murder and some other attorney maybe myself would be standing here arguing that he wasn't proven guilty or his right he didn't know anything about it wasn't right away he went to the police and said only only after the night  involvement or dollars go it's just like mr screamo did they were in the same position but when cain was confronted by the detectives again and said hey we got your d n a we got your fingerprints and we got witnesses who saw you with ms williams earlier that night that's not enough you have the right to present a complete defense under the sixth amendment cross examination is one component of that presenting witnesses is a second very important component that's what was the night in this case  thank you both will reserve decision