any event if you make if we would make that determination do we then half you determine whether it was the error was harmless or prejudicial are no well we have the burden of showing the air itself significant enough to affect the jury's decision making process he's once we establish that it's on the burden is again on the state to show harmlessness are you sure are  same as plain error because the basis for different plain error is a dress by the court specifically because of the superior a certain type of error and the type of effect that it's likely to have on the jury's verdict or upon a fundamental if you have a biased judge if you like a would be like having a biased juror which then would not be subject to harmless  i think your honor i mean it is obviously you know any potential bias on part of the jury is very significant and i don't think that you know that should be overlooked i think that this if this were infinitely sprinkled auction would be a potential playing error situation me that that what occurred in this case you each put forth your in your briefs the overlapping but different  quotes from from the transcript which is not unusual sometimes troubling but not unusual and if you read especially the brief the state pages twenty seven and twenty eight  where the defense lawyer continues i'm going undeterred to ask you you know appropriate questions making the same error over and over and over again and then you look in your brief where you have the reactions of those things the real total picture is that the lawyer was continuing to do things that would cause a reasonable judge to be annoyed to some degree at least internally and the question is whether the judge's reaction to those questions was appropriate and affect the fairness of the entire trial yes well that's because only one of the questions in this case runner it's not the only case as you know sometimes the trial judge's objections were warranted there were a lot of times when they that's not what happened here what we're talking about here is actually two different sets of error and there's no necessary a logical relationship between them in terms of the trial their goods and it's one of the most prominent things in the record the fact that defense counsel kept asking over and over again questions about whether witnesses could asking witnesses questions about what other witnesses could see not appropriate question although in this case there is no testimony that anybody you know was well lying  ask for a standing judge or what have you well piped up does that give you a license necessarily to persist any more so then you would head off ah if  but in the situation you're talking about here in situations where it was not permitted to refresh recollection and ask questions about whether or not somebody recollection been refresh before trial counsel simply gave up on right but he was it working her through her testimony in the order that she gave starting out asking questions about time when she was looking at somebody who she later identified as mr lopez from across the street yeah it's important you know it's the credibility of restored that  you know her memory be consistent with the fact the first she saw across the street what he looked like then then he apparently you know smirking in the depths of the stairwell comes up and winds up right next what you read recognize that at trial there is or you can be you might as well as a precinct interrogator ask the same question four or five times in the hopes that a witness will break or vary but you can't do that in the  a trial at least not when the judge doesn't want you to do that because it's appropriate at some point for the judge to say and sustaining an objection it's a badger about sprinkle and you know mclaurin it and that in terms of reviewing but in your opening brief how did you attack the you know numerous rulings was it under play here or did you simply not it could happen now the cases though the talk about this you know when the court deprives the defendant of the fear trial because of their continuing you know interference so to speak creates an exception but talk about why you think that this falls within the sprinkling stuff well a couple of reasons first of all i mean it's simply within the very eventually objected to the bias time limits being imposed it or a large one sued because twenty pages of the record in which defense counsel and the trial judge play a cat and mouse as the trial judge again and again tends to put as much pressure on the defense counsel as possible while backing off at any point that he says you know he's made his record and he's going to you know be able to raise that issue on appeal if defense counsel had made these objections doubtful that the trial court defense was not intimidated i was not deterred in being eight forceful advocate by the reaction of the judge to his examinations and the judge's ruling but can stand there i'm his own two feet and raise has air on things that he thinks are oh yes and doesn't that relieve them highlight the failure to do it in the other cont underlying this question assumption that sprinkled doctrine is designed to work in situations where a defense counsel for some reason is like psychologically unable to object the objection role in the first place is there for a reason not to just arbitrarily deprive defendants of the ability to assert air bases it's there so that the trial judge will have the opportunity to correct error in the first instance and in a case like should even where the air is not sort of you know perfectly correctable or instantly correctable the point is to give the trial judge a first crack at evaluating any potential air make any sort of correction that's possible including if necessary judge carte blanche to sustain all the objects of what some see he could never overrule the objection still of being correct because it really call for a lay opinion in an area where a lawyer and go back but i was trying to get stuffed the judge is properly sustaining an objection whether he will warners asking a witness whether she could see what somebody else gets and and but then later when the judge perhaps the judge would not have listened i mean well and so i'm not sure i can accept that this was deaf ears i think that you know there was no effort to even suggest that maybe this ruling was incorrect away from the jury when counsel could have made a suggestion about a particular ruling with a citation or treatise or something to suggest that you know yeah you know you're right about the i'm not supposed to be asking at the end of the day is it is it enough to simply say the evidence was closely palace because the state put on witnesses and the defendant would i'm with this is is that enough to say the evidence was the balance that you're saying it was strictly a contest of believability but is that really the test for whether the evidence will sit down obviously it's more complicated it in this case i think if you actually look at the stories told by the two with  sets of witnesses i mean both of them had a lot of incredible details and you know as the states observed on the lopez it was definitely have been smarter to you know not pull over when somebody is harassing you in traffic i mean there's plenty of stories about people getting you know rob down the highways when that sort of thing occurs and they getting out of the car and running through the alley if you had not gotten out of the car you would've been able to drive instead again you know i'm not smart and generally people try to behave in a smart fashion i mean the other side of the ledger you were kind of strange details in the testimony of the complaining witness and runkle jose there's a testimony that's lopez's masterbating openly on the street apparently in the side of some woman who just walks by him it's unclear whether she's reacting whether she's herself suspicious he then disappears the complaining witness walks into the very gangway by which he's just disappeared again as i said before you know there is there is one basic difference aside from a number of other variables could explain the one difference is that the with regard to the fun we have a clear motive or it sounds to come up with an alternate version of the facts as opposed to the complaining witness who in the absence of common sense that the worst of this act to be something drastically austin or to encourage or to provoke are that kind of invention fabric and  it's something that there is for the jury to decide well the i think the side against you but this woman you know the taste and you know just even limited experience with reading cases and getting familiar with offenses that occur it's really hard to suggest that this is sort of you know an unbelievable scenario that someone would do what he did up in the alleyway on any given day in this city and the other city what have you and that the other act where he approaches her at the doorway and sexually assaults her i mean i i i think it's hard for any of us to swallow that this is you know kind of up and out their story it's really it happens but the fact is she bre x she's crying two different relatives and they are related respond  chase the guy so he senses that something has happened and then her own cult whose answering the back door are all self described so and that that kind of description has been allowed for a long has to be ruling in an unfavorable way for some good reasons and then apparently is ruling improperly for other reasons and it was you know from the beginning to be here so the question is if that in the end like course the defense had also attacked lee alice interrogation the two witnesses as well bring out information that he had actually let the names of the streets lead the differences and some of the details were mind was about where somebody was meeting with an edge or near honor i don't think so i mean when it's when testimony is like you know literally unbelievable as they say you know of your contrary to human experience nobody would ever do that that you know there's no possible serious possibility of a witness credit first but i don't think we have that here the idea that that part of the question do we have it or don't we have that car in the yellow you know he has two possible you can drop two possible things from you know right either that was there that's how he got there he did and then he was out on the alleyway where she's right to walk that's where he's decided to sap when these where these people supposedly work you know going to attack him or this was where he parked because he was the person that had just attacked or sexually assaulted this woman there and had earlier you know whether the jury's going to how it's going when target the physical evidence in light of the you know the witnesses testimony of the demeanor on the stand and also bring up this issue of closely balanced evidence that's not the size lee what we have to show  working under the sprinkle dr knot the close we got seven that's all you have to i think is just this court was saying that at some point you're going to have to determine whether this materially affected the outcome and when the evidence if you can call it overwhelming discussed this is not an issue that the defendant raised either at trial or in his post from over on the other hand the contention is that the one of the main utilitarian functions of the  argued the the curtail the potential curtailment of the closing arguments issue any included that in this post from oh so that's the other thing while on the other hand that ruling was a rather unique and stood out from the rest of the rulings i mean it's it are uncommon for a judge to maintain a time delineation between the defendant the facts and prosecution in my experience you know i'm not necessarily going to take judicial notice of it but it does stand out as being a rather u brought up decision on the part of the judge which also is up of a very distinct one measurable of half hour versus forty five minutes object whether the time was at where they get the case because in point of fact we know that one case took very four minutes and the other case took a few minutes long forty minutes or whatever that it wasn't a matter of the adequa and the question is whether that has been well whether or not it if it reflects a bias you have to revert to look at who the bias has to be imparted to it's the jury that has not if the jury is we don't have a judge being paid extra for a guilty versus last for a not guilty of like we had in that case you would have a structural error if you hadn't actually biased judge but i don't think that from the comments here you can you can show that bias and i also don't think what's really been argued in this case was that there was the the appearance of bias was transferred to the jury even though of course we know that the jury was instructed that the things that i say here you know shouldn't be taken as favoring you would still have the same material factor that that would be vests was this judge biased or not but i think you'd have to go a lot further to show bias than some some making the parties follow the rules of evidence he did you didn't have a defense attorney i fancy i mean where he could he could have ignored if he was asleep ignore the problem if you have a defense attorney that is continuing to do things as the prosecutor or prosecutor absolutely who is continuing to do things that then you have to step in and there were a couple instances here where the judge knocked down the prosecutors told them to stop it you'll recall th complaining witnesses or one of the complaining witnesses testimony the judge had to step in and straight out which uncle was which and he says ok fine you know i guess that's a straight is ever going to are going to get it there was a time when the state's attorney was trying to sort of picture just you don't have to do it that way this is how you do it i mean that this treasure this is a stickler i mean he was a he was a tough judge who mandated that the parties follow the rules of evidence clearly as we pointed out in the briefs and as it mentioned here today there were numerous times where counsel was not following the rules about vns and the judge politely politely and then more sternly and then in chambers said stop doing it and then counsel came back out and started with the same question again and again and again and it's some point that the judge does have a duty to take control of the proceedings and also remember what was going on here that this is not an identification this this defendant was there he admits being there he doesn't admit fondling the young lady but  although i don't know how you can say that that's what the defense was well yes and no i mean well he admits running into a person in that dang way yeah he admitted being on the scene right but that doesn't mean it's no longer an i i don't know how you can say it was an identification that's what the theory was this is not the person somebody else i don't think so i think their theory was really good but the girls making up the part about the sex acts and that he was the guy you know that  there's a second guy who matches the same description wearing the same clothes who's chased down the same alley says i'm sorry i'm sorry but i just i don't take it as an identification he didn't deny the i i'm so sorry i'm sorry i'm sorry incident which presumably took place while the defendant was ten feet in front of jose who was pursuing him where the defendant then turned around and said i'm sorry i'm sorry i don't know how many seconds that consumes if any a but that whole say that he could not apprehend them are catching up with them that is a story that the requires some degree of there and as we've argued throughout that the fence entire story of of the gang bang the story is bizarre pulling off into the only where he knows he's going to have a confrontation as opposed to calling someone the story of  continuing going down the street looking at his car coming back going down the street looking his car and then calling a friend a company miles from outside chicago to come down as someone pointed to take him to a car that he had just been to a bunch of times i made it  because this defendant did not argue it first while at trial and there's no reason not to put it in the post promotion for whatever reason about whether or not you're going to argue it contemporaneously whether or not you still put it in the post i don't know how do you respond that they have whole line of cases they are designed to allow the court look at errors when the judge gets contact is what is on the line and that's really what's absolute is the heart of this whole thing  issues as an argument over the over the time limits shows he vehemently argued that issue he also vehemently argue the issue where he was trying to get in through the back door but he wasn't allowed to the front door if you remember there was a motion  to keep the defendant's statements out we all know the defense statements are hearsay offered by the defendant he tried to use the guise of respect kind of responding to recent this defense counsel did not feel intimidated by the trial court did not feel he couldn't raise these issues and so his failure to do it on the other ones is significant and again i would point to the fact that it's not in the post from motion if you swimmer pointed out if he had said wait a minute here's what the law is for example refreshing recollection you can do it at any time regardless of whether to or witness or or response was i have a right to do it when you have a problem child like this like and it's continuous just on and on is there is there a way that the judge should be paid or can he you know tailor of should always be that he was a or it is rulings as opposed to tough he's a stickler he's you know this and that i mean if he's doing its job then there's a way of always doing it so that you do look there is us very sensible want these a situation from which a judge earns his salary namely through the exercise of control and restraint not briac think excessively not overreacting to do that but just doing what it takes to fish and to maintain the control of his courtroom which can under various circumstances include calling him the constabulary the put the witness in chains if necessary but that doesn't spell prejudicial i'm done if it's not an open overreaction where right and i think to do that you have to see you know that it had a significant factor in the jury verdict and then when you have now and when you're analyzing that you have to get a look at it from the jury's perspective and from the jury's perspective the jury doesn't know whether the may have a juror for example craning his or her neck if the judges reaction could just as easily be interpreted as saying don't worry about it you're going to see all the evidence including this photograph in fact that's our argument in the brief we will take that either is or isn't i think he's talking about a separate but not that indicating quote there's two points i thought well there was a when the judge chimes in and says you'll see those photographs or you'll see those exhibits in the jury was there indicating by the court order not not by what the judge says no not at that particular no that the other one that came later and i was using that to illustrate the kinds of things when the prosecutor was actually talking about the photos but that in context makes more sense and again this is again another point where the defense the defense has a didn't object and then he himself points out you're going to see these pictures and of course the jury was going to see the pictures work and he didn't say these pictures are great didn't say he just said you're going to see why i said that you know i don't know with the record in impressing the bit that one of the statements is that a trial judge is permitted a limited amount of impatience now i'm not sure that i would agree with that general what principle but that's the case think at the wanted stream we have those cases where you know the judge tells the attorney on the record to take out his wallet and you know he imposes a contempt fine or something like that i mean we've got to you we have cases like  well that can be done in chambers here a easily instead of in front of any jury but right but sometimes it isn't and then there are other comments about you know counsel you know better you know on and on but it at some point the judge does have an obligation to step in and  think the judge was correct here when well that's what the limited amount of patience is right but not you know every every other you know objection sustained well if the same question asked again and again and again i don't know what else you're supposed to do i mean either yeah well there you know there's nothing wrong with a plain old objection sustained and that's that's not a problem i think but if it's not one thing what do you do you have to say probably you have to take it in the back and he did questions continue i mean asking profit you know using the the if that television type summarizing all the questions that have come before and then question well then it's not then then then sometimes i think the reaction is that you know the judges is responding with a little more you know like measure discipline each time so that he thinks that this is maybe this'll work you know but that's what he did here well i'm not saying that one way or the other i mean i'm not saying i'm just asking the question whether this was what you would call a limited amount of patients obviously from reading the defendant that's not how you know they've interpreted this as a limited amount of patients you get we're not talking about best practices i think that probably anybody who reads the record probably including the trial judge in this case could think of a better way to have dealt with all of these issues when they arose the question continues to be in my mind whether the impatience shown had a material effect on the fairness of the rot and of course we were arguing that it didn't emerge and you have to look at it through the lens of a player and if this isn't a structural defects and therefore you have to look at it through the closely balanced prong and the evidence in this case was not closely balance the question came up earlier about if the defendant puts on some evidence in the state puts on sometimes does that automatically make it close the balance while it might make it balance you still have a view when you talk about closely balanced you have to have to conduct an examination of yes i mean if the defense witness has come down and said martians did this obviously that's ridiculous and you wouldn't go with there are aspects of this case with the defense story is close to that and therefore we would argue that the reaction of this young girl way though it is that its position is that when you have the conduct of the trial that is so unfair and so unreasonable and pushes this notion to the jury that the judge has taken a sign that lessen our position is that unless the it falls in two ways you can fit it into one of the class for thompson exceptions one of the structural or exceptions and then we back go back to the u s supreme court cases on what strabo their right to basically a fair trial conducted by a fair  definitely structural and so is a fundamental right to have a trial conducted by a judge who is not going overboard now i'm not saying where the up with the touched it but i would think you can argue reached the that this is one of those cases that the combination of everything that occurred if you look at the way the senate is doing it you know twenty twenty it's that's the complaint so you know so i i agree that you know but for both of those at the end the day you do have to decide whether the way it was conducted whether impacted whether it seriously affected yes decision and i would respectfully disagree i would when you start putting in is is really not i mean all the perceived over the top conduct is not to the defendant directly but to the defense attorney in the context of the questions that are being raised at least until we get to the closing argument divergence which is a different issue but the actual allegation that th is judge have a bias against this defendant is in my mind a different issue and if you look at the the record the context as it as it evolves during the course of the trial it becomes pretty clear that it's a reaction to the continuing ignoring of the evidence three rulings by the court that pushed this judge to his  now complained of behavior which is what i call derivative claim of bias because it's not a bias against the defendant himself and again going back to when i was the sat and i agree with this you don't have to decide this issue here but if you look at the structural error cases one of the cases is to move versus ohio of the finder of fact the trier of fact was actually biased because that trier of fact is a judge who got more money for convictions than he got for not guilty or whatever was and while that was looking  biased under you know the two missing and this is again i just want to make sure this is laid out her claims that the trial judge's comments biased rulings in front of the jury caused the jury to have  different from the structural error claim that the judge was actually biased or that you know a biased juror was placed on the jury i think to a degree though the extent to which one might even be tempted to say that kind of reflects the severity of the comments that were made in this case and the other thing i want to point out is that the increasing there is a sort of their life the fundamental right that you have to reach to get to us looking at this under that point there and what is the structural error or whatever sprinkle requires sprinkled doesn't require structure rather it goes so then what is the fundamental right with a fundamental right is the right to be tried by a the jury rather than the you have a right to a jury trial before non biased trip on the evidence presented and under sprinkle that raise vial it where the jury receives inappropriate comments from the judge to reveal a bias the in favor of the sta procedures have to be fall off and it's clear that with the rulings that he has made if the lawyer continually ignores or flouts those rulings is a reasonable jury likely to hold back against two to two to read that as a bias against the defendant and an indication from the court that they should find the defendant guilty regardless of what the evidence is or is the reasonable presumption that jury could make is the judge doesn't think the lawyer is going about the evidence an appropriate way which was the judge's position and i'm sure all the judge intended to communicate to the defense lawyer at that point and if it's not that the jury would take the conclusion that it's so facto a criticism or repeated criticism of the method of inquiry the defense attorney is to be equally good with a suggestion of guilt on the part of the defendant what is the harm a couple things your honor if it first of all that's not precisely the case that we're dealing with here because there was more going on here than just the defense counsel pushing again and again  you know the good another witness sees something and the judge coming back harder and harder as the truth becomes increasingly frustrated in this case he starts coming down on defense counsel in ways that are completely unrelated to what was probably the initial basis for the frustration acar and in addition to that i mean what so there's two points first of all yes they can be a basis for soul and secondly it's important to keep in mind everything  snapping your fingers you know this when you ran into this person in the alleyway was iraqis similar questions was there anything preventing you from calling nine one one to the complaining witness has been denied well again you know as  you know states attorneys know that you know these are within the trial court's discretion but the discretion can't be exercised in a biased fashion it was pretty nakedly biased here by the end of this it's and if that's a response to defense counsel's you know inability to ask appropriate questions to elicit the fact that one witness was in another witness is line of sight it's not every action it's a reaction that eventually just loses any connection to him don't you think  is you know again testily necker all these cases they emphasize the number of times that the trial court you know cross the line of decorum in the court room or otherwise you know made inappropriate couple escalated incident instances are you know as it's been said to some of these cases that limited amounts of impatience i mean judges are held to a high standard but they're nonetheless human in human communication last one hands look as one that or the if there was provocation for each of those reactions and i mean you have to examine the entirety of the case and i think in this case