pleased court gave your broderick of the federal defenders office on behalf of mr coleman i'm going to attempt to save two minutes for a bottle in mr coleman's case at page eighteen of the excerpts the jury was told to consider each instruction and not ignore any instructions so when the jury got to the court's elements instructions they said only quote the following elements must be proved the jury had to determine from that who bore the burden of proving each element and what that burden was now in examining all the instructions as they were told to do the jury encountered two types of burden instructions or ponderous and beyond a reasonable doubt there were no instructions at all on how to reconcile these two just for it burdens of proof well except the court told the speaking for a unanimous supreme court it can't get more settled than the unanimous supreme court stated that if an instructional error consists of a mr action of the burden of proof that is not subject to harmless error analysis and middleton versions of neil told us despite our i might say brilliant way of dealing with the case in the first place told us you there's anything arcane theoretical or even ambiguous in the actual preponderance instruction it's fairly clear it says how you examine evidence by a preponderance and the jury was given absolutely no a disposition and that goes on to tell you what preponderance means and a disposition but then every time it talks about what you need to prove on your honor i clearly can't dispute i don't speak at all that the in the jury instructions the jury was given instructions on reasonable doubt pages and factor your honor that reasonable doubt is mentioned are twenty twenty six twenty seven thirty three thirty five thirty seven thirty eight thirty nine so let's mention the no question is mention what do you do then a west left fairly long standing principle that judge fernandez mentioned which is you do when we get to mr rector the burden of proof is directions and everybody agrees that preponderance of the evidence is a burden of proof instruction when we get to a mr record burden of proof instruction you don't go farther because you don't know and it honor saying that because they weren't given a road map to go down the unconstitutional road they must not have done that and there's nothing to suggest that's not that's correct they weren't told in gibson that this is the road map to get to the unconstitutional results but there's not a single thing in the jury instructions that prevents a jury from doing that sure is the jury was told specifically you must find the elements of the crime beyond a reasonable doubt he was told that specifically it was not we're allowing prior offenses to show disposition correct usually use them to show impeachment that kind of but it's clear that that wouldn't if they used it that way that wouldn't be a problem and they are never ever specifically the people must prove beyond a reasonable doubt every essential element of that absolutely couldn't tell and more specifically the yeah right you couldn't tell more specifically but the problem is your honor when you they're ok but when you have something on the burden of proof you are totally speculating you have to on what the jury did with that i'll say the rest of all thank you jury instruction regarding part of preponderance of the evidence which is apparently untethered to anything at all and it was very reasonable in this case for the for the california courts to determine that there was no reasonable likelihood that this instruction misled the jury in an and unconstitutional manner with respect to the supreme court on that point when you address that they had to find that the circumstance it's circumstantial evidence all have to add up to prove beyond a reasonable doubt in fact the jury jury here was beaten over the head with the principle of reasonable doubt the instructions here predominate that the very least reasonable if the court has no further questions it that's it that's if you touch that rail it's over and it's exactly what i'm talking about that's the difference between sullivan and boyd and all the rest of the cases if you look at all those cases and i do mean  franklin instruction on the burden of proof reversed sullivan gage versus louisiana instructions involving the burden of proof reverse make an error and i agree with your honor that everything else if i didn't how if that preponderance instruction was not in mr coleman's case he loses period he loses it's the existence of that error that we don't know what the jury did with that error or that thing isn't the test whether it was reasonable whether judges could reasonably read it the way they did oh i don't i don't dispute your honor that the state court of appeal reasonably read the boy standard they just misapplied that standard to the facts of this case they don't mention the solve an issue at all in the california court of appeal opinion they don't talk about it at all and that was post boyd that was specifically to address the issue that came up in this type of case is when we have an ear on standard of proof do we