you judge me please the court but a defendant is not entitled to an error free trial and of course the funny and fun of course is they can convict somebody soley on circumstantial evidence but of their status to convict somebody of a serious felony much less a death penalty case the scales a just a strip club to an error free trial then rather one riddled with one this case riddled with errors because at the middle of the failure of the trial court to admit amanda box videotaped statement and the in appropriate colloquy concerning defendants waiver of counsel in the penalty phase this video statement of amanda bup is a critical piece of evidence so so ordinarily though mr friedman a statement like that could be best for refreshment of recollection it we wouldn't come in as a substantive piece of evidence on on its own and in any ordinary situation would i think under chambers it i believe it but it should but only under chambers not not under the ordinary rules of evidence would it i'm not so sure about past recollection recorded i'm not so sure that that's a documented i think it would cut the size of it i'm trying to find where it any point does amanda box say this is a truthful statement in any form like an oath but i think i think that's where the principals the chambers and all the cases that flow under it come into play and what's what's makes this actually an interesting issue we know what she said there's a videotape just just to tie off one other thing callie get into chambers and what she said i understand that it's not contested that she is in fact the did raise an interesting question that when the the police take this statement four days after after the the crimes were committed and it's quite a detailed statement at home mothers also present the statement so it's actually an interview point is that she does speak at the end verifies what amanda saying is true and she remembers only that aaron was in the yard she didn't remember seeing brick my recollection is yes that's what it is and she sees it during that time frame and then also talk specifically yes this is the friday and i went to the bank it was was amanda's mother monica is it was she questioned about having seen aaron in the yard and so forth she at trial and i know you know all that what happened in a trial was somewhat hearsay statements by the the police saying we contacted her first i think it was officer reilley said we contacted her i think three days later and they don't we said are you sure about the day and then it first went to you actually had series of telephone tags they get a hold of her they got a hold of her examined at trial is does no she's not exam she doesn't even testify no no but she could have been called and impeached with the content of that i believe she would have and then i guess that could be with a layer of ineffect our unusual prong lish would attack here is that the statement she simply should have gotten in the chambers in those cases in the form of the videotape in the form of the videotape and then substantively and substantive evidence would with the law of any state allow evidence you know i mean that's that's an interesting question because and i don't you know what i don't want to at one point indiana law did allow statements like that or what the patterson case wasn't called patterson case where you would as long as the witness was there for cross examination introduce a prior statement i'm uncertain if you promise you correct i mean long i was i think i was back when i studied for the bar it was sobering and but i think what's interesting here is that there's serious policy considerations i mean that the court would be more skeptical about a written statement the somebody takes down and somebody says and then the witnesses i don't recall it and i really don't know if i made that statement even though i signed it but th the special policy consideration here is but it's a videotape so let me suggest maybe in line with the comments of my two experts in indiana last time i shared this panel that maybe we could at least discuss this for a few minutes on the assumption that the ordinary evidence rules that apply in indiana courts would not have let this come in for the substance but that chambers overrides the operation in certain circumstances of these ordinary rules and maybe let you talk for a few minutes i think you're correct i think that the most successful way for the defendant to get the document is under the principles of chambers and i think what the when the rules were written and we have people the more familiar with the indiana lore is that they what they were viewing statements that were in videotapes i mean i think it's special that it's a videotape because there's no dispute the statement was made i mean even with other statements that are written and the witnesses i don't remember this still that murky part of it that maybe i didn't make that statement exactly the same way it's an interesting observation so obviously we have the technology with the better record the same thing would apply though to to say a videotape of somebody is direct examination without an opportunity for cross with me no no but but but the but the but put the state also has an opportunity once the video is in to explain it away people see it that's what i wonder you know if the video had come in then the state of course was prepared to introduce the testimony of  simply misremembered that that it was thursday and i imagine there might have been a response that no you know monica you get paid on fridays and you deposit your check on friday here's a bank robbery in me all sorts of things they could never have and because the tape never came in that it seems to me there and of course amanda was there and of available had there and now that you've seen the tape is your but the problem i've got a problem i have with it is at no point do i see amanda being questioned about the seriousness of the subject that she's talking about or that she that she's providing the truth to this police officer or something was she asked at trial whether she spoke truthfully when she talked to the officers back and well i think it should be assumptions that when she spoke to to the officer on the twenty second that thirty one i'm sure it's thirty one twenty two mr during who's the prosecutor judge i'm not sure just to make the record clear i hope i'm not being redundant man deepak was present and permitted to review the and it seems to me that i guess i'm one concerned that the chambers is not that hard to distinguish here because the  paul's opinion for the court goes through all the corroborating circumstances and he's dealing with a well recognized exception to hearsay in the emily statements against penal interest and he was available in the court room to be example that is to declare he seems to the detailed account of the reasons the court is allowing saying that testimony was required to be allowed seem to distinguish this case from i actually think it's actually and another view is that it's stronger one as i said there is a videotape it's pretty detailed and the prop the prosecutor for saying it was ok to keep it out that was you know i didn't see a mark on my client's not a sympathetic character people suspect in the ultimate was convicted of the crime that he was guilty and there's even one statement three i mean the saying well mr gooch didn't like aaron you know and i think that they were really changing the testimony because they were not sympathetic to the defendant and that's that's a risk i'm not letting  reaction the jury may have been persuaded by the mother in the grandfather or they may have thought this is just you know unreliable in other ways that you would have to argue those in the way you know the admissibility and and i think one of the factors just make it that much is egregious well that if if two of the victims were seen at their own home approximately three thirty in the afternoon arrant happened within five minutes you know he stated both of them he shot both of them you know there was blood he washed he cleaned up and got out of there and that's that so i'm not saying that the state can present their case i can get a conviction but it's not a strong case and then when you add that mix when you add the mix of this videotape it makes the whole scenario fall apart but the state courts  strong case about my misreading they stated a circumstantial case i mean i i don't think that i mean that's what i can see that from the very beginning yes you can prove by circumstantial evidence but but but the but the fact is it really certainly don't don't we have to give it deferential huge toward how the state courts i you waited the strength of that evidence not now when you look at the evidence that's excluded when you when you look at the whole basis of all the evidence the whole mix of the evidence you have to you know you have to find that it was an unfair trial without him in the box i mean a lot of a lot of this testimony well when i mean i'm going  with with that if if there were no then the back take you look at the evidence the state reviews it a couple of times there are three of you know the life insurance policy and you look at the evidence of you know is this an unreasonable application trainers and could you address for example the supreme court's comment on its own case in montana against a go off calling chamber simply an unusual case but doesn't stand for this broader proposition that says in essence we're going to forget about hearsay rules when the defense is offering the evidence and and  indiana supreme court couldn't look at chambers in light of nine ten and come to the conclusion that the bar for finding the chambers violations higher than what was presented you have to explain why because the case was close to him you listed a lot of the witnesses i mean the basically think the basic theory of the case he killed killed them to get out of credit card debt and get out when he could have sold the property and he tells the wife and then the other to come in and come in  and it's oh the killing of the two is is very weak within the timeframe with that and the type of evidence we've already talked about and norman's testimony but then you had the testimony from nichols which is really questionable too he's confused i mean all the evidence is murky and then the actual piece of evidence that can explain away the defense when you balance the type of flexibility that the state had should th present a statement a videotaped statement from a nine year old implicating mr cooper and it was detailed and so on that that would be a clear violation of the sixth the well maybe not on the drop of but but the point is under the principles of of the rule of the of the rules of evidence they would have gotten it and i think that that's the problem i mean this is the type of circumstantial evidence case the only basic way to ultimately give a mr coote a fair trial is to let that the evidence in a determine whether they really did prove the circumstantial evidence case and the strongest suit us supreme court authority requiring that result has i would i would look at the three the three cases would be chambers crane and all and the homes there's the south carolina i think those those scenarios are the most sympathetic cobb and and and they when you look at the montana case to look at the reason you can exclude that evidence if the rule is is rational they can get and i believe not excluding a ctual videotape so so let's understand what rule it is you're advocating ok is it because it's a videotape is it because of her age is it because of the level of detail i mean how how would we rule and i would do what i wanted to the level of detail which is consistent with the other facts in the case and then ultimately it is a videotape and then when they came in with another scenario in march of two thousand the whole scenario changed so are you relying at all on the fact that we have on the one hand a stipulation that it that it is problem and so there have been we have the hearsay rule you know and so we don't normally just pop videotapes in unless there's a recognized right and there was an opportunity for the state to confront that stick statement and have a have the jury discern the credibility of  forever was violated here because he didn't want to point out the danger to disadvantage of the self representation but to discourage such representation here they could actually incur ridged he actually he actually said troops at this point wants you to be contesting his that's correct conviction sentence right so there's come some time after the penalty phase and the present day where he changes his mind that's great and i think that that's the first trial that's peor by three sixty two to dash eighty one and do you see what appropriate colloquy he has he said do you really want to do this even if you're going to be censored that this is not good for you good for you it's not because let me is it correct that in the judge the judge in the trial court in the post conviction proceeding you know if i understood her opinion correctly cooper was still telling her he stood by his decision to waive counsel i mean so right yes but but but he was unstable and he could you keep he can be talked out of that he was talked out of can post conviction he let himself be examined by other experts he didn't really want to do that when i  need to go on on this issue i need to ask you essentially a parallel question ok about why we can argue whether this was a source whether the judge should have tried to do more to discourage  we've got the supreme court in iowa against tovar saying there's no script that's required here and in fact the information that you need to provide is going to depend on a whole lot of case pacific considerations  indiana supreme court reviewed in considerable detail how is this isn't really an unreasonable application of a u s supreme court case because the spirit of parada the actual principle is discovered the spirit of forever is to discover suspect the autonomy of a even a foolish defendant that's correct but also to try to discourage him from doing that and that's not what happened here and that and that's the that's the distinction i'm making today he did he mean when you have you record that he was trying to discover and it and just by coincidence i mean it's in the it's in the record it happened once before and was and was discovered that there's anything else you can save  this court should affirm the denial of federal hevia sort of the five the issue that's been raised by the petitioner here with respect to the exclusion of hearsay has to do with what is at bottom not a very remarkable and appropriate eviden federal constitution requires some attention you know the supreme court has talked about it the hearsay rules keep out evidence that people rely on in their day to day life and i would say the thing that's very troublesome about this case is that given the other things that everybody seems to agree about which includes that if the victims were seen at their own home at three thirty in the afternoon whoever killed them wasn't mr cooper so if that were contested that would be a whole different case in my view and this strange amnesia that manti buck suffers from the second trial which which i consider very strange since you know for a nine year old have to go to the police station and talk to the police that watch the whole video if you know she's a smart young girl and and quite observant and gives a lot of details and this actually gets to you know it's the worst kind of death penalty appeal whereas if what she said is that video is true he didn't kill them and yet they're going to execute him and that seems very troublesome to me when you're our eyes and not to make a overly obvious point but hearsay is in itself unreliable we say that in the common law but it actually isn't you know some times it is more reliable than other times that's why for example the hearsay rules themselves have an exception for a whole host of categories including some categories where you know if if if  manti had been hit by a car and killed maybe we would have let this videotape in because she would have been unavailable she had been dead herself there i don't know well kinds of things and again i alluding to some comments that your honor made a moment ago that was at issue and it involved statements against people interest though and the point i was simply trying to make your honor with respect to the rules and constitutional requirements is that the record of recollection rule requires accurately reflects the witnesses knowledge so it doesn't say you have to ask the witness about that video maybe accurately reflect it is you know was interpreted the accurately reflecting the witnesses knowledge not as you know as your own has pointed out authenticity was not an issue here but that can often be the case with any manner of recorded a few hearsay statement how do you say although i have forgotten that accurately reflects my knowledge what a strange statement who'd heard statements from a disgruntled veteran that that he was going to come down and kill them if he didn't get a hundred percent benefit and the way that got admitted is a record recollect he was the witness said yes i can look at this stuff that i wrote you know that's one step removed and apparently nobody asks amanda to say if i said it and that's what i meant then that's all i mean that's of way less difficult thing to do than say even though i don't recall well enough to testify i can tell you whether that's what i knew at the time that's contradictory surely the law doesn't require that your honor i think the record makes it very clear and  chambers talks about as this court has observed in prior holdings is that a mechanistic application of a state evidentiary rule that excludes critical hearsay wouldn't comport with the constitution on that and that's what we're here talking about whether the indiana supreme court in saying that what you just articulated it's not meant here was an unreasonable application of chambers everybody understand no one thinks they know chambers is out there well there was nothing mechanistic about the application of the r of rote dry application that doesn't provide the defendant with any reasonable means of putting this information the reliable testimony in front of the jury here we have two witnesses that are present and could testify but  witnesses i mean i am so unimpressed by the state's argument that just because the mother and the grandfather said she misremembered that seems to me absolutely to go to the weight because it's my personal view that somebody could have looked at the bank records and figured out which day market deposited her check and if she deposited her check on friday then your whole argument falls apart that didn't happen you know but whatever i don't see why that's not a weight matter rather than a miss ability matter well i mean i a point soundly four days later you know and she was in a position to observe she's right across the street you know all of the other kinds of reliability factors are well meant well i mean these are being urged as things that make the statement knew that there was going to be a field trip on the weekend going to be in her group in error and didn't show up and it was the next day it's clear and there's evidence in the record your honor the monica buck also thought that she had seen those things as and i think in terms of the whatever exculpatory value if this evidence had been reliable and truthful it would have had that that distinction wouldn't have mattered if one or either were still alive and that still would have been an alibi  great but you are i mean i want to get back to the point that you just raised which is that you were talking about actually doing a further check up on the circumstances and presenting something more his attorneys to bring monica and amanda back the following day when this from when it was first first broached in testimony and up and have her look at the tape and as we know from the record that did brief was that the purpose of that was to then have amanda either outside the hearing of the jury or in front of the jury give some testimony about the circumstances under which she gave that statement they would not do that because if she said she didn't remember it well that might have been and is the testimony anyway i don't know if you remember m m monica but was also available so what we have here is a trial court being asked to offer hearsay when we have live witnesses and a refusal to try to develop any further foundation and even at the time of post conviction relief no one presented any testimony or money a pretty good and he didn't kill these people and he's going to be executed for murders he didn't commit if what she said was impeachable and not true or there's some other theory then there's a lot of circumstantial evidence that he did commit the murders and the state has decreed the death penalty for it well and your honor i mean it let me go to some more evidence that is in the record in the post conviction record i found a little curious when the supreme court made its observation about the impeachment issue because nowhere in the record at trial is there an indication that you wanted to go forward and do impeachment with the state and the trial judge says look you want this for the truth you don't want this just this impeachment i think that's pretty clear and then i post conviction his attorneys give their testimony about the matter they made it in fact a clean clear that they never wanted her to have a word to say about the circumstances of the tape they just one of the tape in a substantive at and i probably would have liked her to testify from her recollection of the events but when that proved not to happen that's then they were thrown into plan b well she may well have been able to testify as to the events that she talked about on the tape but they declined to present her in that fashion and is a point i didn't make your honor which is i mean this is not the state's witness he puts this witness on the stand for the sole purpose of trying to admit this years say as substantive evidence mr martin yes can you get any light on an issue that was  the only thing that we have that's that's relevant and someone in lightning from the post conviction record is that we we do know also this is something that the deputy prosecutor alluded to at the time when this issue arose at trial was  that and we know what the sergeant rials testimony post conviction is that after the tape statement was made and well let me finish that thought before jump something else after this statement was made it was in evidence and then there's no contention that you know the defendant didn't have access to a statement by a witness that would argue only arguably have been an alibi and yet there was nothing done with that she wasn't listed as a witness it wasn't liste exhibit there was no treatment of it at all in the first trial so so what we have to assume here is that those trial lawyers which were different than the trial lawyers that represented him in the second trial in addition to the trial lawyers here in addition to his post conviction lawyers who couldn't present any evidence that would show that this was something that would have been shown to be reliable is completely absent from the record so that's three different stages of review where there's been no record made to show that yes this was a reliable statement and the trial counsel could have shown that or had a way to show that they did but it let me just point out me there i thought i remembered something like this in the transcript of the second trial there's a point on cross examination mr during  as i understand it mandy you did not see aaron at all that day that you can recall he's not talking about the tape here he's just asking is that correct answer i don't really recall you know so they are actually that but i think it was during that exchange or right around that area of the interaction with the witness the chief made the statement that the indian supreme court of luton to work where she said i probably didn't see aaron on that day  and you know to the extent that they could have used the tape to impeach her on that point no attempt was made to do that they didn't want to do that because the rebuttal testimony was still waiting in the wings that they had tried to do that and in the silen your honor if the record is what it is but it's the fact remains this was hearsay chambers to the extent that it can be called a rule it's not i'm talking about a rule that is amenable to routine application to the extent that it is that a clearly established rule of federal law right it's it's a broader one to say the least and we know that the broader own rule is in its application the more difficult it is for a federal court to review to find that a state court has on reasonably applied that rule and i don't think we're anywhere close to it here i just wanted to address behalf if if he had wanted counsel to continue in its representation and he put that on the record what witnesses would be offered it was it was basically the same character of mitigation that was offered as your trial can confirm you wouldn't wish any of those witnesses to testify answer that is correct you would intend to simply present no evidence whatsoever is that correct i've been brief statement that would be pretty much it when they talk about evidence and then how it should be i bring that up only to underscore the fact that mr cooper was a pretty seasons litigant at this stage of his proceedings there was no colorable showing of you can just do it right now your honor ira i would never take deposition i don't think that that's something that our state supreme court would why not if you can just say you know i want the state to kill me anything mr cooper said at trial as being an invitation for the jury to kill him i think what he did was try to use a little rhetorical flourish and urge the jury to consider the fact that it made a mistake in finding him guilty when he so he residual doubt to say i think you made a mistake you wrongly determined that i killed these people and i think he tried to appeal to them on a human level and say my friends and family that know me know i couldn't do this these were terrible terrible things that happened in whoever did those things should be put to death again i think trying to appeal to their sensibilities when he knows they've just convicted him i mean what could be clearer than this group of people think think that was when you look at the whole circumstantial evidence i mean the box a key piece of evidence whether it gets in or not i mean you know it's just an important situation and it removes them from a minimum at the minimum two of the murders and then some non death eligible if it notwithstanding taking the whole scenario collapses and there's reasonable doubt for the beth murder but i just want to bring out that the chambers rule is not a hearsay rule it's it's about a rule