will promote the public interest in truth and fairness when there is no adversarial testing the result must be deemed unreliable as a matter of law polk county versus dawson united states versus chronic in this case mr joseph was denied his constitutional rights to present a defense in a fair trial because of the instruction where's that occurred before i  my client used profanity flipped off the victim who then broke from his friends and attacked my client and in the process my client went to the ground was being kicked and punched was in fear of his life he drew a knife and stabbed him prior to that even warned this individual lima long now the problem with the case is the jury was instructed that self defense or imperfect self defense  available if the defense if the defendant was guilty of wrongful conduct and also the court failed to instruct the battery cannot be justified because someone used bad words or profanity so because of those errors my client was deprived of his right to present the fact that he was acting in self defense for imperfect self defense and i think the pri prevented from presenting the defense if the ins if the instructions were improper and what good is the evidence if there's no instruction and that's what happened here i think a pretty much covered it in my briefs well earlier to this didn't your when he was standing and then the victim fell to the ground and he then stared at him several times while he was lying on the ground yes that's trigger arm but he also testified differently so i mean that's something for the  but that's a lot different story from what you tell us he was the one on the ground being attacked right well he was attacked and he did go to the ground and that's what the district judg on top of the victim's very well you know if you have no right just if you used excessive force then we're we're talking about manslaughter here and really that's really what this case was about at the worst i mean this was a sudden  properly instructed and they could have been confused and in fact they were and then it was some months or to fight issues that are kind of important to that have not been addressed and those deal with the fact that the jury was told and they basically they were left with the impression that they could not consider my client's state of mind with reference to malice in the form of him self was having trouble finding malice and then there was another problem some juror had already made up his mind before even deliberating before deliberations began so there's a lot of problems with this case and then the cumulative impact of all of this really deprive mr joseph is of his rights to a fair trial and present a defense and so basically i have nothing good morning your honor so identity of california deputy attorney general allen tate on behalf of the warden in this case i just like to respond briefly petitioner's counsel claims it was absolutely no adversarial testing in this case the defendant testified in his own defense eight different people however he admitted on cross examination that he told the police officer shortly after his arrest that he was only fighting with the victim that he knew nobody there had any weapons and that he stabbed the victim  proximately two times then slammed into the ground and then stabbed him a couple more times there was never any suggestion by the prosecution that they were merely relying on any gestures or expletives by the defendant in this case that justified any kind of attack by the victim in this case in fact the defendant also testified at trial that before there was ever any physical contact any kicking show any alleged kicking choking anything else that he had already brought his knife out had been waving around threatening people to stay back there actually i think a series of at least verbal confrontations between the various parties involved in this case so before there was ever any physical yes and to point out i mean clearly the instructions that were given both on the full instructions on self defense and imperfect self defense that were given there's never been any claim that they were incorrect they're just claiming that the court should have also of sixteen point one for two states neither provocative act which does not amount to a threat or an intent to inflict physical injury nor words were targets of how offensive or exasperating sufficient to justify a battery and there's no california story or federal authority that i found that requires you know a court to give that instructions to a sparky and i think it brings us back to more of a fundamental issue here i think the u s supreme court essentially made it clear that a defendant has a constitutional right an absolute right to present witnesses for evidence in their defense but when it comes to instructions i don't think there's any u s supreme court authority that requires every instruction on every aspect of the defense and in this case to really has no question that the defendants expressed offenses in this case were instructed on what standard instructions and there's never any claim that they were incorrect at most they were possibly incomplete but beyond that did the you know i think sixteen point one four two can cut both ways it's primarily a i think instruction is required by the prosecution and in this case with both people may have been using expletives it may have actually hurt the defendant to have this instruction given but anyway the defense counsel during closing argument did argue the s given while in california the jurors are told to ignore what the attorneys say about the law the jurors are told to ignore anything the attorneys say about the law that is inconsistent with the instructions given like a sixteen point one four two could've possibly benefit of the defendant also have hurt them it could have applied equally to the victim in this case in there and they're specially mutual arguments leading up to it what happened is that instruction was a minute and the defense counsel was able to argue that same theory or that same principle but only as it as it benefited the defendant in this case and i think that also goes to the i c claim why the instruction might not have been given and generally i think this is an instruction it would be requested by the prosecution this was kind of an unusual sort of circumstance in this case with which might suggest defendant could have wanted it but i but again i think what we have to go back to i don't think there you know the whole question here is whether the california courts rejection of this plane is inconsistent with u s supreme court authority and again to the extent that even the u s supreme court a says there is a constitutional right to jury instructions on defenses and i think that's really not clear there's absolutely no u s supreme court authority that requires pinpoint jury instructions on every aspect of a defense especially when the instructions given were correct when there was no limitation on the evidence presented on the witnesses called and no limitation on the arguments made so i think for all those reasons i don't believe there's constitutional error here i don't believe the extent there is because of the instructions given that had been considered by the jury it could not have constantly harm and i think for all the reasons that i've argued previously there could not have been any prejudice as a result of not either only was the decision by the state court in error constitutionally but the contrary clearly established supreme court decision how the court can be convinced that it did not because it's basically he's there's went to his defense counsel there's no state court decision we still have to determine whether or not the decision was  it is and there is plenty of supreme court law supporting the position that the defendant has a right to instructions on his defense and that's where with where the problem is he was not a problem you have with that is that the jury what instructed on fel supreme court case law that says that a jury must be adequately instructed and that wasn't what happened here the jury was not adequately instructed because of the confusion that occurred on this wrongful conduct now the celtic instruction that could've should've been modified have basic principle there is that words are gestures provocative conduct cannot justify an attack and the jury wasn't told that so those are pretty substantially in areas of the law that the jury was not instructed on and therefore the adversarial just and broke down and that's what the problem of the cases and there's plenty of cases that deal with that so i mean the judge has a duty due process requires  this the right to present a defense requires this and it didn't happen and it was confusion and so this is really an unfair verdict here in this court should not be convinced that those instructional errors d