after she got back up so she did not actually testify that he fled but the district court interpreted it like that that she that that's what she does but a fair minded jurors could have a different interpretation of her much i think judge livingston made an important point and the point is that it is difficult when evidence of a defense is excluded to really calculate how it may have affected the jury's consideration of the case however this court is is not without guidance for example this court has has said several times one of the cases of which we side the pool of versus new york the prosecution knows intimately the strengths and weaknesses of its case and its exploitation of error is therefore a relevant consideration in determining prejudice so what we have here is a prosecutor who understood that the defense both during the cross examination of the people's witnesses and during the testimony of the defendant himself was using a frame of the defense to show motive for the witnesses to lie yet knowing that and understanding the relevance of that she argued for sypher sleep keep it out saying really what you're only trying to do is dirty up this police officer and she got the court to go along with her arguments and having done that she cynically exploited it during summation so you can see exactly how important she thought it was so she told the jury during summation at page five hundred and ninety nine dollars now defendant did give an opening statement he opened with  wild and wacky story about drugs and drag racing all kinds of stuff and some fantastic close relationship and he didn't support it with a single shred of anise of evidence then or home page five hundred and ninety nine dollars remember this claim that there is a frame up so what does that what does the defendant rely on and then on page six thousand and twenty three pages later spencer was quote the only person who isn't interested witness as a matter of law unquote and then on pa and thirty one page later he has a motive the lie that no one else has in this case and then on page six hundred and four why on god's green earth would they frame him it was an extraordinarily cynical strategy that the people pursued in this case and then it got the benefit of both the ring from the court the jury instructions where the court instructed the jury as i previously instructed you arguments made by counsel during their openings during summation are not evidence and then the court instructed how do you assess the witnesses credibility well that the witness have a bias or hostility that was evident in the manner in which they testify did they have a motive to why as your adver client drew a gun we have an independent witness who saw the event doesn't identify your client but testified to the same chronology and your client testimony at the end of your brief if i'm understanding police officer later when the other police arrived shortly the st with regard to the people's witnesses this is the total the total testimony of mr hanks concerning her narrative of the events and i can i can read it in ten seconds i saw a gentleman go over jump out of a truck go over to my neighbor punch him in the face and then i saw a gun and then i duck down that's on page two hundred and twenty seven that is the entirety of her testimony we don't know how she got there we don't know what else she saw nobody else talks about her whatsoever it has every appearance of being a being a look st piece of testimony now is a is a jury allowed to consider it of course the jury allowed to consider it but that's not the issue here the issue is when you totally remove a defendant's right to present an overarching defense and that's what this what because this defense of believed would have explained everything in the people's case and the people point to the nine hundred and eleven evidence where where the police officer's wife talks about a bribe on the nine hundred and eleven there's no bribe money in the case where's the money you have missed a black man who claims he's watching the entire scene unfold the entire scene unfold and he sees no bribe money and then you have a police officer come who dusts the car of the defendant for fingerprints but he's not asked he's not asked by this officer  dust to dust the gun for fingerprints so you have no dusting of the gun for fingerprints even though it was the obvious a logical thing to do and the cops with their to dusting for fingerprints you have have absolutely no money although there's a claim of a bribe supposedly just went into the wind mistakes is testimony in the court for testimony of all of three lines long to love it isn't the standard a real problem for you though because  say perhaps that a reasonable jurist could find that this was not harmless why is it not also fair to say that a reasonable jurors could find that was harmless it's all about what's right but what's reasonable  about two things st st let's talk about the standard very briefly and what this court has said on numerous occasions in discussing the standard on the head this is that although the increment of error must be higher than it generally would be on direct appeal increment need not be great because otherwise hey vs relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence so we're not talking here about an insurmountable standard we're talking about a standard certainly which is higher but it's not an insurmountable one and in fact in numerous of this court cases which we sides are pulling was one of them brown vs keen was was another one of them would versus air call was a rd all of which we cite this court undertook exactly the same kind of analysis that judge hogan did and came to exactly the same conclusion that the errors that occurred in those cases were not harmless under the hey be a standard so yes i agree with you it's a heightened standard but it's not an impossible standard and when you were when you were describing all the things that the prosecutor said about self serving and not a shred of evidence and no one should believe this guy with the story tells it's fantastic wouldn't she have said the exact same things if he were allowed to testify since he was the only evidence of the st it wasn't just his testimony it was also an attempt to do a search in cross examination of officer  palmer and this trip like this and she was precluded doing that as well so we're not just talking about his direct testimony we're talking about cross examination which is what trials about after all cross examination of the people's witnesses as well and  defense counsel was precluded from doing that it is extraordinary that that the people can so cynically exploit an error that they created and they got away with it in the state court but they shouldn't get away with it in the federal is the testimony of the various witnesses were contradictory in very material respects material it was material that that that there was a claim that money was was literally taken out of my client pocket and scattered all over the ground and talked about on the nine hundred and eleven dollars and this the black man didn't even see it it is your contention that the standard is we have a reasonable jurist and unreasonable jurists but we don't have to reach incompetent  so what's an unreasonable church why do we know something is unreasonable because you have here a case where a defendant was denied the right to present a defense which if believed by the jury would have resulted in acquittal it's a simple as that and as judge livingston said we'll never know for sure but the only reason we'll never know for sure is because everybody acknowledges that he was denied his right to present a defense so not only did the people expose their cynical strategy here but now they're arguing that because we couldn't present a defense this court should just assume therefore that reasonable people can differ on and in a jurist may have said reasonably that that this was not prejudicial under the a t p a standard not withstanding that this court in several of the care in several of the cases has done a similar analysis no stronger for the for the hideous petitioner frankly and yet found that that those petitioners were denied their constitutional rights and were granted a new trial this level or we do about the ineffective assistance of counsel argument well i hope nothing your honor because i hope that what you do you sh petition which principle is the ineffectiveness of counsel you don't have to have made an alternative argument to us having made it before the district court i'm sorry or you do not have to have made that as an alternative argument having already know because it all the evidence this case as well as to the fans proper testimony and they determine that the error was harmless and i would submit that a fair minded jurist could agree with that determination that as long as a fair managers could agree  answer any questions in this court otherwise thank you very much as i said earlier jordan versus united health group incorporating our last case is not submission so i will ask the clerk please