a labyrinth of complexity have it we're looking at monster and it's a nightmare of a law school exam hypothetical and hopefully today i can clarify and simple file a number of those issues for the  court because i do think there are some shortcuts on the path that all lead to a full review on the merits by this court but i thought i'd start by going right to the nub of the case stripped down at its core this case is about two sets of straightforward and really stunning constitutional errors the first relates to the denial of cross examination into the pending felony charges of the prosecution's key witness and then the second set all relate to the trial court's eroni as instruction that there were no fingerprints found on the knife used in the incident in here's why both of those sets were so devastating to mr brown's defense first with respect to weigel testimony that the housemate with the pending c s e charges he was the centerpiece of their case specifically as a relates to premeditation and one piece of testimony in particular was a new piece of testimony at trial and it was devastating to brown and that was that brown was supposedly wearing a trigger release when he saw him in the house and the obvious implication there was if he took the time to put on a trigger release th n you know it is wasn't a heat of the moment act of self defense in the prosecution hammered that during closing in rebuttal they mentioned it twenty one times went back and counted those up including the very if you will at this trial where they had mr brown try on the trigger release and it took him up to thirty seconds to try it on so well o j moment well but really how much more time would it take to shoot someone with the bow and arrow using a trigger release as opposed to without one if the boat is in another room somewhere and you've got to go in there and close the door pull pull the arrow out of the quill i mean i mean how much what's the marginal increase in time for premeditation if again what mr brown if again what mr brown testified was that the three hundred pound randy party picked up the knife off the shelf mr brown sprinted back to the back of the house where they were in this utility room the bone i was there he turned and fired i mean i mediate quickly but the put the point of the the point of going into all of this is that this was significantly damaging testimony couldn't that be used as an inference that the at the initial acts were premeditated i'm talking about running after mr party and breaking down the door and that sort of thing i mean if  consistent with the evidence in the case and so the jury had to sort of make a determination and the way the prosecution presented it back with him but i'm sorry your honor what was the other question was whether brett mr brown subsequent of could be used to infer premeditation the prosecution certainly tried to use it to paint that picture of but i don't think that's the inquiry here i mean the there is we assume the full damaging potential of the cross examination that mr brown didn't get to do and so we assume that the jury the jury's inference was the reason for all this new testimony in the trigger  release sharpening the knife before hand elaboration by why gold was that he was trying to curry favor with the prosecutors he thought that he would he should say anything he could to get himself off that's what van arsdale tells us t involves a situation where not only had a benefit had already been given and that can be admitted into evidence correct and don't expect any favorable treatment from the prosecutor but certainly there is less probity value attached to the to a benefit that is not than the jury deciding that they disbelieved weikel and van arsdale instructions because there was a clear violation of van arsdale davis elford that we don't sort of have to go i'm not really asking about man are still i'm of it here would have been the jury the potentiality that the jury might disbelieve mr why go on that point is that right not might but but arthel tells us we're to assume that it that that landed that he that the reason he's slanting his testimony against brown coming up with new facts is because he hoped for favorable treatment down van arsdale does deal with that but it also deals with the benefit already green and davis and what are the other alford no benefit already granted in those cases your honors and so when the question here is is what was the actual prejudice in this case and we know that the prosecution relied heavily on brian weigel he was the key witness in this testimony about the trigger release that's the only place he got it from so his testimony i don't i submit it can't be deemed harmless expressed about this being a confrontation clause claim in the trial court can you address that yes your honor that was a the question of the sufficiency of his objection to preserve a constitutional argument like a confrontation clause  arsdale argument is itself a federal question and the rule there is that it just has to be an apple and timely objection and there is no magic words requirement the  say the words van arsdale or confrontation clause or as i understand it the stick words of michigan view this as a critical requirement under their law in terms of the nature of the objection that has to be found so you're saying we as a federal court ignore that or what yes it's not that question is not independent of the federal question of whether he waived that by failing to make a timely objection and his objection there by the way i mean you it said everything that you'd wanted to in substance that he was in there was an entire colloquy on this there was a board here on this and he said in this is a twenty three dash nine page one thousand nine this is as to whether there's any motivation for bias in his testimony if he's been offered a deal promised leniency to touch as i've talked to him about that that's clearly biased so in substance he made the objection preserved it and then the michigan court of appeals one charge was dismissed the others the prosecution dropped he ultimately no time for any of this even though he was facing twenty years plus what you don't have and it had been pending for two years at the time of the trial  so it would appear to have been a fairly weak case is that a fair characterization well the other characterization would be that you know it's pending a long time and they're going to use mister mr weigel i put it simply is that post conviction counsel has never developed significant information and that's the support the somewhat in co it or i'm not going to say speculative suggestion that use of this evidence at trial would have would have redounded significantly to the benefit of mr brown under the supreme court's cases that's not understand that but i'm asking you about the the post conviction so obviously did a lot of good work in this case and including you sir frankly but but but apparently nothing's been ever no one's ever been able to do the p l o a secret deal or implicit understanding or anything of the  just charges the abuse of a minor that been pending for two years and ultimately the prosecution fails or is dismissed that's correct and it's not dispositive on her and ours  because the it's the it's the it's he's a i understand that i'm simply pokus the state of the record post conviction as far if i could briefly address the second set of errors and that's the no fingerprints instruction why that was so devastating and i hope it's it least somewhat obvious but it's it's not often we get such a clear window into the jury's actual the liberations in a case when we do a harmless error analysis sometimes we have to guess about what's important the jury here we don't have to guess the jury told us through a series of questions during their deliberations that this issue of whether randi parties the deceit and fingerprints were on the knife was a crucial issue to them perhaps the crucial issue to them in deciding guilt or innocence they asked the first question the judge said that there was no reporter reporting the record they went back into liberated for three and a half and then they came back with the second round of questions where they were asking it again were ready parties was there evidence about randy parties fingerprints on the on the knife and the judge eroni asli instructed that there were no fingerprints asked was there testimony about randy parties fingerprints on the knife and the responses there were no fingerprints profound on the knife the judge is telling the jury that randy parties fingerprints were not on the knife which is obviously an important issue to them  in deciding whether he was the aggressor or not so i don't think we're ever going to have a clear indication the jury is going to draw the distinction that you just drew i don't think there's any fine distinction at all the question was were any parties fingerprints on the knife the judge said there were no fingerprints found on the knife i mean that's i don't know what other implication whatever other  inference that you know maybe he wiped down the the knife or something like that i mean there's no there were no fingerprints on the knife right either bram or party there or there was no testimony or evidence either way whether there were fingerprints on the knife or not and so when the judge tells the jury a fund to fully there were no fingerprints found on the knife that's suggesting that it was tested they looked for randi parties fingerprints on it and they weren't there the submitted an affidavit in postcondition proceedings that he did not in fact stipulate to it and what happened was at an off the record sidebar the judge ruled and he said you know the judge had ruled and so i initial the instruction but even if i asked some where ray had i can't remember where in the greece or wherever somewhere i read that he felt somehow coerced by that situation or i mean that may not have been the word he said was he felt overpowered that the judge made his call and that was it but even if we accept that trial counsel did stipulate or fail to object to that that's about as clear a case of ineffective assistance  denied that remedy to petition or the state ask this court to affirm the denial there were a number of issues certified on appeal in this case and it doesn't belong procedural history and i'd like to focus primarily on the two that opposing counsel mentioned petitioners confrontation claim with respect to brian why gold and the stipulated two response to the jury question that the trial court gave as i noted in my brief the confrontation claim with respect to why gold is defaulted in this court could deny relief on that basis the state also believes as indicated in the briefing that the michigan court of appeals did not unreasonably find that there was no confrontation clause violation but even if there was a confrontation clause violation in this case the district court correctly found that any error was harmless the evidence in this case was truly overwhelming it showed that the victim randy party w unarmed when he left why go into a room it showed that seconds after he left why go to that room he was shot with an arrow and then showed that petitioner then immediately ran toward the victim with a knife stabbed him once in the side as he was leaning against the doorway there was evidence that there were no aggressive moves or words by the victim after he was stabbed by the arrow there was evidence that mr y gold at one point grabbed the petitioner in attempt to stop him from continuing the attack and the gold who was also on armed there was evidence that the victim ran to the bathroom barricaded himself inside and the petitioner kicked the door down stabbed him again this time in the chest after the attack there as evidence that petitioner threw the knife in the bathroom garbage there was no evidence of a struggle between the victim and petitioner after the victim accident white gold bedroom and there was blood drop  evidence indicating that the victim was moving backward after he was struck with the arrow in addition to all this there was petitioners conduct after the killing where he threw as i mentioned earlier the knife in the garbage  doesn't isn't the question of whether why gold had an incentive to develop the evidence or live about the evidence so critically important to protecting the confrontation clause rights of the defendant a lot of the evidence does come from why gold but there was physical evidence to that that supported the prosecution's theory and petitioner's own conduct after after the killing where he tried to discard the bow in the arrow and everything that he used where he tried to dump the knife where he warns why gold to keep his mouth shut where he flees to georgia and a car with an amount of money where he discards his bloody clothing he buys new clothes so there's more than just the the the the testimony of why gold and the fact the council was precluded from questioning him about an issue these pending charges were there was no absolutely no evidentiary support for them it was purely speculative and there were there were danger and there were pending that's correct there were pending charges and deny the request counsel was able to question why gold outside of the presence of the jury whether or not he had ever talked to the prosecutor about the charges whether he ever had a hope of expectation of getting any to me about the cases that mr hudson referred to the cases that he referred to  davis v alaska that case didn't involve pending charges that was a case where the defense counsel is precluded from asking a juvenile delinquent who was on probation  about whether or not he had a bias to avoid like revocation of probation and he was also he also felt like he was perhaps a suspect in the case so there was some basis for the questioning in that case that case believe it's alford and that is a direct appeal case by the supreme court and in that case i think the problem that the supreme court had there was that there was a summary denial by the trial court it was never established whether there was any kind of like discussion or whether the the witness had any type of hope of a deal or anything it was a very summary denial in this case the trial court didn't summarily deny didn't summarily deny the request allowed counsel to put on the record to try to establish a basis for asking about these charges and there simply was no basis didn't testify that there was any any hope any type of discussion and also the prosecutor in this case as an officer of the court stated that there was absolutely no talk whatsoever between the prosecutor's office or the police and why gold regarding these pending charges accurate statement t the only thing from which the jury could arguably draw any inference at all about this is if they chose not to believe one i'm sorry can you repeat well i mean they could disbelieve point they were free to does that whether he was telling the truth but there wouldn't really be any evidence in the record and so it's kind of arguable in math and whether the preclusion of that sort of circumstance it can't be said that what the state court did here in the michigan court of appeals was contrary to any clearly established prima court precedent but whether or not we're applying the contrary to or a reasonable determination test under twenty two fifty four de theory that there was a merits determination by the state court of appeals but the state court of appeals reviewed only for plane air right it's our position that they did also in the context of addressing the claim that they did a merits adjudication they talked about van aren't at all they did a law in michigan in terms of whether or not the confrontation clause claim was adequately preserved by the mechanism that this trial defen lawyer used in other words was there a procedural default according to the michigan court of appeals or not and why the michigan court of appeals found that there was a default because he counsel didn't didn't specifically claim confrontation violation it wasn't necessarily clear that that's what the claim was and in order to preserve be other than a confrontation clause cl well it could be it could be air under the rules of evidence it could be it needs to be specified you need to specify the basis for the objection to the magic words confrontation clause i mean the defense lawyers that i want to cross examine we go to find out his bias is why isn't that enough to invoke the confrontation clause in michigan but i don't i don't know that it was unreasonable for the court of appeals to find that that it wasn't it would have been very easy to a said confrontation trial counsel didn't a bit the people are all lawyers the you know the trial judge the court of appeals judges the defense counsel are all lawyers they it sounds to me that you're saying that michigan magic words are critical and then your opponent here today has said well it's of federal constitutional rights we're not bound by state law how would you respond well there was discussion earlier in the record about the rules of evidence and there was a discussion between the prosecution and trial counsel about the rules of evidence and whether or not they were applicable to the objections so i think i think the court of appeals was an unreasonable to find that it wasn't properly preserved but even even if this court disagrees and finds that it in essence was a confrontation objection then we still have the question of harmless error and the court in the district court listed a great deal of evidence against him the evidence was truly overwhelming and the other basis for harmless error that the district court listed was the fact that you know the statements that weigel made were very consistent with the statements that were made to police in the in the nine one one call and they occurred before he could come up with a reason to somehow slant his testimony and try to curry favor with the prosecution so even if he was questioned about these charges the district court correctly found that he could have been easily rehabilitated by the prosecution with the fact that his story didn't change from the beginning i guess you're kind of challenged to decide whether you're going to go with the michigan court of appeals or with the district court of this case well it's far worse than that and i correct  with a little weird but but i don't read that as procedural default the michigan court of appeals in well i guess my question is is the analysis or is the outcome or the impeachment the denied impeachment any different whether you you apply beyond a reasonable on the confrontation claim the district court in this case did not address the default with respect to that confrontation claim it's our position that the district court was wrong to find that there was a confrontation violation to begin with ok that was wrong but the district court's finding with respect to harmless error was totally on point and exactly right there was overwhelming evidence of guilt in this case and at the very least the district court's finding of a harmless  should be should be affirmed would would you say the same thing if the standard is beyond a reasonable doubt as opposed to but the district court yes the standard is is bracton collateral now it's whether or not there was a substantial injurious impact on the jury's verdict but that the district court did apply the correct standard there was a suggestion that the district court somehow applied an iranian standard but the district court sided brack the district court was also well aware of an style that was cited in the opinion courts are presumed to know and follow the law and the district court did did everything right here in its analysis of harmless error i do want to just briefly comment on the other point opposing counsel wants this court to consider trial counsels and the question is whether or not trial counsel was ineffective for stipulating to the response the michigan court of appeals addressed that question recently said no petitioner wants the court to consider the affidavit from nearly seven years after the trial to suggest that somehow this wasn't a strategy the district court properly did not consider that affidavit because it wasn't part of the state court record underpinned holster the trial trial attorney indicated that somehow he felt overpowered in the bar that was referred to by your theory is that in the record it is not no it is not that whatever discussion took place in the sidebar discussion in which would lead counsel say he felt overboard is not in the record that is not in the record but his claim that he was overpowered and i see my time is up it may finish my response his claim that he felt overpowered is entirely inconsistent with what is on the record there is no evidence that he was pressured on the record this was an experience trial attorney he vigorously defended petitioner he knew the facts he was prepared he wasn't afraid to object to other issues that came up throughout a trial before trial and his own suggestion years after the fact that he was somehow deficient appeals was entirely reasonable in finding that there was no one effect of assistance for that stipulation thank you direct appeal and i think there were some of them were the state concedes that they were all raised in the first sixty five hundred motion the first motion for post conviction relief and the michigan supreme court's ultimately  decision denying those claims said that it was because the defendants motion for relief from judgment is prohibited by mc or six point five zero two g which relates to successive motions for post conviction relief so the michigan supr relies upon its own rule of procedural default the claim is not barred and the result is a dyno review here on all of those claims relating to the supplemental instruction that's also the case with the your question about what the jury was was what we assume that the jury inferred from would have inferred from why gold's pending convictions and what those three could supreme court cases tell us is that even if there's no deal employees why hold on sitting there on the stand is thinking to himself i have these pending charges with twenty years over my head i'm going to say i'm going to tailor my statements here to the prosecution's case i'm going to give them what they need and because i'm hoping down the road that they'll cut me a break and that's what these cases that my understanding i mean it was just that and that's  us isn't whether they can sort of string together some other evidence that might amount to a conviction on a retrial the question here is whether on this divert on this jury what had a substantial injuries of fact on them they told us with respect to the jury instruction the no franker prince instruction that that was a crucial issue to them on the wide old issue than ours the instructs us that we're supposed to assume the full damag potential of cross examination so we assume that the jury would have said oh i don't believe that guy because he was just trying to cut himself a deal down the road so we have those two errors we have the presumption from van arsdale that this is a key witness here and he was lying about his testimony clued in about the trigger release calling about sharpening the knife including about all of this that we assume sitting here we don't have to parse to think about what they might have accepted what they might have accepted tha us the jury we assume the jury would have fully discounted his testimony not found him credible so with those two errors i mean we have to i submit glaring errors and we're never going to for the no fingerprints instruction i don't think we're ever going to have a clear indication from the mouth from the pen of the jury itself that this was a crucial crucial fact for tha proving beyond a reasonable doubt that mr brown did not act in self defense and so that meant they had to prove that his lack of justification and that's why these issues were so important because one instructed the jury essentially this the to see never touched the knife and the other you know the jury would have been able to infer that this trigger released testimony was that it was fabricated so with