that afternoon your honors it is my honor to introduce to mall students from the university of tunis sees appellate litigation clinic who will be arguing the case today elizabeth c harwood and avid they've been working on afternoon may it please the court as mistral said my name is elizabeth harwood and i argued on behalf of mr sterling i'll be splitting my time with my co counsel and then wrote the who will argue the public trial issue summary of cross examination of the prosecution's star witness the only witness connecting the defendant to the crime is harmful johnson was the only thread tying mr  case without johnson there can be no conviction because there is no evidence of a key element of the crime the identity of the assailant the key link that johnson provides between mr made a phone call from jail and in that phone call what he's doing is contemplating the inability to be able to cross examine this witness should something happen to him before trial that's that's not evidence of trial he's contemplating what could happen to the key witness in this case and that's that's why this witness is so important mr sterling recognizes that and is concerned about his ability to cross examine this witness and  this testimony from johnson is uncorroborated there's no gun recovered in the end keast involving the shooting and that this one statement made by bait made by mr johnson is just one of upwards of five statements that he made that seems hopeful to your client what we see at trial is johnson skirting a line he is he's under coercive pressure by the government to testify consistently with this preliminary examination testimony to testify favorably we see this in the pretrial testimony that he gives where johnson is dragged into court by officers he does not want to testify the prosecutor states that she's threatened him and that she's going to lock him up this is in the record  and so what we see in that in that pretrial testimony is that he's also stated that he no longer wants to identify mr stalling so what he's doing in this testimony is skirting this line between facing perjury charges for permit failing to point the finger at mr sterling and his stated intention that he no longer wishes to do so and you can see stallings lawyer did not commit ineffective assistance in not objecting when the judge cut a cause and prejudice to get around the default here so that's why i would have said it seems like a concession that it wasn't in effect systems in a minimum it's not argued i'm right about that it's not argued on our pre so we have to assume it was effective assistance of counsel not to object how can that lead to a constitutional problem there though there is no procedural default here without that objection this steven identif prejudice is apparent because this preclusion affected the verdict and we see that because the prosecution was able to offer evidence of bias they were able to explain why mr sterling pardon me why i johnson would testify more favorably to mr sterling they introduced evidence of threats by third parties the defense was not able to do the same and offer its own evidence of bias toward the pro which would go to explain why we see mr johnson waffling if the defense was able to provide an explanation from the jury as to why johnson did not render testimony that was more favorable to mr stalling then the jury would have the constitutionally sufficient information to judge both sides of johnson's testimony and that was absent here and the failure to object to that was made honor michigan rule of evidence one three eight two provides that you don't need to make an offer of proof if it's apparent from the context and the context here is is it starts in the record at page  page eighty three seventy eight which is that pretrial testimony and the prosecutor telling the judge that she's had to send police officers out to bring isaac johnson into court has threatened to lock him up that johnson states in front of the judge outside the presence of the jury that he does not want to testify and no longer wishes to point the finger at mr stalling there it's on the record that the prosecutor as having several private conversations with the officer so this is the context of what the environment and the pretrial testimony that provides the context that makes the objection unnecessary thank you  yes your honor may please the court i'll be addressing the violation of mr stone's public trial right as well as touching on procedural default this court emphasizing drummond we help that waller versus georgia city the general rule that applies to any type of of closure such as that violates a defendant's right to a public trial as a matter of course isn't there a procedural befall the issue here is well yes your honor counsel did not contemporaneously object to the closure however preventing counsel from objecting and there was parm in suing from that failure to object as well as the analysis of the last reviewing state court did not rest on an adequate an independent state grounds turning first the cause of prejudice here we have interference by the judge there is no motion by the prosecution for closure of the courtroom this is a sou a spot to closure the court did announce that there would be no movement in the courtroom during statements but there was no mention of locking the door during any preliminary discussions your honor the the circumstances in which the closure occurred again is an unusual waller it indicates that there should be a motion there should be findings of fact that predicate closure instead we have instantaneous decision by the judge to walk the courtroom immediately prior to opening statements and again during closing arguments trial counsel did not have the ability or the benefit of that clearly established federal law to understand that a closure was indeed occurring at that point it was ineffective assistance is that the cause and predators your honor we would argue that primarily because it was a interference by the judge the aggressive decision by the judge to close the courtroom without emotion your honor i would also contend that  it was going to be the same as it was during the openings your honor again the record reflects that trial counsel was unaware both during opening and closing statements that a locking their closure had fully occurred she testifies during the ineffective assistance counsel hearing at the state level that she believed that it was just instruction to those in the courtroom not to move during the course of argument she was unaware that a closure had occurred at that point in turning to harm while this would be a structural  v booker that actual prejudice must be shown in the case of the procedural default and again here we have air or excuse me prejudice in suing from this closure supreme court has reiterated that the policy be time to public trial right is to ensure that both the judge in the prosecutor carry out their responsibilities in appropriate manner to ensure that the in a septic eye of the public is on the proceedings as they are almost all the cases though they don't involve the courtroom already being filled with people and those people being allowed to stay or they the press or wherever they may be in this case is quite a bit different factually than most of the cases you  your honor there are some factual differences however this is somewhat analogous to presley versus george in that circumstance a single individual that was observing the proceedings during board year was removed from the courtroom however during that proceeding there were also ferdi forty two potential jurors that were present it is notable that the supreme court did not note that the presence of those jurors that would not of benchley be selected would have a curative effect and so under this circuit's total versus partial closure precedent we're distinction it is not recognized that the supreme court that would have constituted both a total and a partial closure of the jurors that that in that case at that time their part of the proceedings the potential jurors there and that you're not just the public at large at that time that even though there are subtle differences and i would contend that that still falls under the circuits partial closure jurisprudence that this court has repeatedly held in her view warrant that it is not just the factual analog cases from the supreme good afternoon your honour's may please the court system attorney general scotchman to securing on behalf of respondent warden sherry burt petitioner sterling is not entitled to federal habeas relief in this case for two specific reasons first because the confrontation claim was harmless given that regardless of any alleged advisement of perjury charges from the prosecutor the victim did not testify consistently with his preliminary examination testimony no it is true it is inconsistency you could say or not quite consistency could say what the prejudice but it's still pretty damning right he's still saying it's him or the brother right that's great certainly he didn't go all the way to the other end of the spectrum so why isn't it still pretty you know darn prejudicial it's harmless you are because there were other facts in the case that implicated mr sterling as the sugar and not his brother we have victim the defendant fled from the police when he was going to be arrested before the preliminary examination the defendant told the victim himself the defending himself told the victim he won't make it to testify  twenty nine the victim was also offered three thousand dollars not to testify again before the preliminary examination by defendant stallings family or his friend and furthermore as your honor pointing out there is the defendant's jail call where he's talking about waiving his preliminary examination not because he's afraid of not being able to cross examine the victim but because he wants to prevent the victim from having any testimony on the record that they can later use or trial should he not appear because he was somebody who was like mr starr yes that testimony did appear in fact mr sterling presenting an alibi as well the jury had plenty of information on both sides of the spectrum here and they believed as i point out my impactor it doesn't mitigate the harmless error analysis here because there was plenty of evidence to show that this was stalling and not his brother the jury just didn't believe stallings defense essentially they didn't believe his alibi they didn't believe this this neighbor or maybe they thought the neighbor was mistaking his description i think what they believed is that the victim was truthful in his preliminary examination testimony when he had only been threatened in bribes but if that's right then why determined that that wasn't fact in the air but that it was harmless so we're not saying that the eternal shouldn't have been allowed to ask that question we're just saying the preclusion of a single question from a fifty page cross examination where the defense attorney was otherwise allowed to fully suppose that's true but at least based on the record that we have it appears that it was going to be that question because it was it was along the lines of the rest of the questioning of why the victim was reluctant to testify and then that was going to be just another piece of that puzzle but otherwise the defense attorney was able to ask everything else he wanted he got the victim to say the defense attorney asked a specific question can you tell this jury to a certainty that it was mr sterling that did this to  victim answered and he quickly the defense attorney was able to get the victim to say that he identified the defendant at first because he was angry and the victim also said that the victim was me the defendant and his brother looked like twins this was a very effective cross examination this was only a single question that was precluded from a very lengthy and thorough cross examination therefore this error was harm there's a prejudice analysis involved in that and we would contend that prejudice analysis for why this was harmless but also applied to why there can't be prejudice for procedural default so that the error was harmless so there certainly was procedural default in the first issue it just seems that as the district court did they went right to the merits of the issue that's what we did as well but with the second issue we do believe this procedural fall is even stronger than the first issue because in the second issue with the courtroom closure as your honour's point out defense counsel certainly could object here the appellant has made the argument that well the attorney wasn't aware that the court was going to lock the doors but the the record but eyes that claim on page eighty three ninety eight the trial court says specifically before that the opening statement the courtroom is going to be locked because of the configuration of the jury box the defense attorney was sitting right there heard the court say that and did not object same thing before the closing arguments the court said we're going to go ahead and lock the door so the parties can deliver their closing statements again the attorney did not object and because the attorney did not object we must engage in ineffective assistance analysis here and whether it was deficient performance or not to object the fact of the matter is mr sterling cannot prove precious he cannot demonstrate precious from the closure of the court room for a total of less than seventy four minutes over the course of a two day trial and as judge guy pointing out there were other people in the courtroom the core pointing out each time the court addressed the room as ladies and gentleman presumably talking to more people than just the attorneys the defendant so we know there were people in the room and many people do this lock the doors during openings and closings never heard of that information i know i apologize your honor i don't have i ever heard of it before i know mr starling in his brief to this court pointing out one other case where this judge has done that but i would also note that in that case the district court cited the same as it did here that was not an error it was the ideas safety or is the idea interruption during the closing openings as the court put on the record in this case rather it's that they from what i understand the configuration of the courtroom is such that the jury box faces the doors and so the court wants to prevent distraction to the jury during the opening closing statements and so they it would appear they locked the door during openings and closings of a question and so much or other rather peculiar actions on the part of the judge then the question is what were the consequences of it because you can make an argument that  the reasoning behind it the jury is going to be looking at those same doors and if anything nude want them to be if they're going to be distracted and then is they'd be better to have the opening closing statements because they're told the statements of lawyers are in evidence anyway so what you want that you're focusing on is evidence but again the inconsistency in the judge is proceeding in that way  i'm sorry i missed the last say there really isn't an issue in the case so that it makes no sense one versus the other well into the extent that the court need any reasoning here given that this was a partial closure case to which no clearly established federal law applies to even if they'd the court did need a reason the distraction of the jurors was a substantial one and as again as i point out with the with mr stallings no judge perry's doing this before in that district court pace the district court determined that it was a substantial reason to not allow the jurors to something in the wall or presently that even suggest supreme court would agree with that when they're talking about closing the courtroom because there's documents or wire taps or that kind of thing just preventing it distractions even close to that under the wall are factors that might be true where you need more  several reasons for additional reasons or much more substantial reasons but there's a lesser standard it appears to the extent that the the circuit courts the federal circuit courts have come up with a lesser standard for a partial closure that it just need be a substantial reason and there's reason to believe here that the distraction of potential or not the potential jurors excuse me the actual jury you couldn't get away with you couldn't get away with this in a high published city case an opening sounds like the most important part of the case from the perspective of journalists and the public wanting to see what's happening i'm not sure that it would be the most important part or whether it would matter whether it was a high publicity case or not i'm not sure that the jurisprudence makes that distinction per se but this would not be an abuse of discretion in a substantial public interest case to close the doors because of the risk of destruction given the configuration or it might be your honor on director view but because this is collateral review a different set of standards applied because we have had put to contend with in this case as the the court pointing out in was from the michigan court of appeals your honor but the way the opinions came down in this case it's some of a strange procedural posture because the lead opinion found that there was no error but even if there was it was harmless whereas the concurring opinions determined that there was in fact an ear but because playing your review applied they agreed with the league opinion that the and any error in the closing of the doors was harmless so really the majority opinion here is i think we have to reaffirmed i believe just a year or two ago in stewart versus trade wheeler that is it depends on what the plain their theory is for the state court rule other words if they rely on the fourth prodding a plane there that counts as a ruling on the underlying constitutional violation i'm not sure that the cases make a distinction as far as which prong it would be under i guess my contention would be that it doesn't matter which which or the reason for the procedural vote whether it's it's you know that there was error but it wasn't plain or that the you know the rest of the evidence maybe are harmless or on the fourth promise your honor pointing out which is what happened in this case that it didn't affect the the sort of the justice of the proceedings if you will so it didn't apply there excuse me this is a structural claim is personally procedurally defaulted as it is in this case the petitioner must still prove prejudice in the he has not and cannot do that in this case he has not shown any reason to believe there was actual prejudiced stemming from the one thing that's clear is if there is an error it can't be cured if the court of appeals doors are left open during the argument so don't worry about that we're not going to rule on that ground your honor given that i'm limited in time i'd like to focus particularly on the harmfulness of the confrontation clause violation during battle first the state has asserted that this was a harmless error however looking to vent the van arsdale factors is clear that this was in fact a harmful violation first this was the star prosecution witness there is no other evidence that ties mr stalling to the scene of the shooting second this testimony was not cumulative this was coeur to the prosecutor but he did point out other evidence that links the defendant to the crime your honor it does not link mr sterling to the crime the state referenced the jail call allege of threats by some colleagues of mr sterling in an offer of money from the family of mr stol ler of the car yes there's a mention of a color of a car which is inconsistent between the different testimony all these do not corroborate that mr stalin was in fact the shooter on that evening they show an attempt to perhaps encourage him to testify truthfully the number that the state said that there was a police identification however there are two prior police statements that mr johnson made on page eight forty six and eight forty eight the night of the shooting in the day after when mr johnson as the shooter that there's no corroboration there's no physical evidence there's no gun that puts mr sterling there on the evening in fact there's contradictory evidence again is this court pointed out mr may a witness at the scene of the crime testifies it was a larger male almost twice the weight of mr stone with ms allen testifying that he was on a whole other part of the city when the shooting supposedly occurred none of this evidence goes to corroborate mr stallings the shooter in fact all that goes to contradict that he was the shooter and while there was other cross examination what was the cross examination going to be when you were told you better testified truthfully about the prosecutor i mean he had equivocated in trial he had been warned at some point about perjury by the judge train so why what would have been the difference maker with this wider question yes your honor the harm is not only in the fact that mr johnson equivocates in his testimony the harm is that the jury was deprived of key biased testimony ever read it review in court prior this is identified that this was a error as a result the jury was forced to determine the weight of the credibility of mr johnson's testimony only with the prosecution's explanation for that equivocation they were not given the opportunity to dictate that he was threatened by the judge by the prosecutor prior to testifying in blacks in this court emphasized that and thank you for your representation of mr stalling a very impressive my son this is your first argument in a court with or without closed doors and don't you have exams immediately following yes well congratulations great job and we'll look forward to your entering the bar before long so thank you the case will be submitted macwhich may call the next case