morning and it was may please the court my name is quinn denver represent mr gaines your question about why you submitted a twenty j letter listing cases that had been reversed by the supreme court can't throw cases that isn't expect to shuffle around in the books you're supposed to say under twenty a j what these cases stand for and how they relate to the case i'm sorry i did they did they address the whole chambers to process claim the basic pin sites now statement about what they related to and two of them were reversed and you really caused me a lot of work well i'm sorry i totally apologize that i put that together how does this happen quickly how does this happen try to address that there's actually two statements it's that mr wright made one is that is that mr gaines was was able to he walked in whenever he felt like it and he had been there three days earlier now the whole case turned on the d n a this case was a cold case for thirty some years until the d a and the fact that he had been there previously is completely consistent with his being there at the time of the murder there was no testimony to rebut where it was said that he well the there never been there but there was no the only suggestion that he had been there earlier was a statement he made to the police when he was first interviewed but i'm saying is there's no evidence to the murder scene there's no reason to think that that person would and would normally frequent that scene and i think that's that's what he had and then he said originally i had been there seven days earlier and then when he became a suspect he denied it so  this would have given him an independent third party statement that would have given an eck possible explanation that the jury was very concerned about this the jury is a seven day trial eight days of deliberation but right also had some things to say that were not helpful know correct about his attraction to young girls and so on and so forth but but your honor that would be if that was came up in the question of whether wright was going to be given immunity that would be hearsay and could not have been introduced that would be to level hearsay well what did right say that was and that was inculpatory but you may have the one statement that he always was there and walking wherever you wanted to i mean that's a lot of speculation and opinion and requiring somebody to draw inferences from it that's not even close to chambers and the other cases that you rely on well you're going right say he was smoking when he was standing in the door that he went and did not say that but but but there is there is a there's inference is the be drawn there thing is this is essential to the defense without that without that information what you have is his d n a and cigarettes in the apartment and the night this girl is killed what the jury is going to say what in the world how can that be you're some some guy who lives somewhere in the area you're married and everything and and you got your d n a in that murder scene like one i'm sorry i'm sorry i thought you were well i was  take go back to your statement that anything right would have said what i've been here say because his statement was that it was mr gaines who told him that he would like to have sexual relations this individual and that he paid close attention to young girls and compounds and to write about how he you know wanted them so why would that be hearsay it's the defendant's own statements or observations made by mr wright well observations obviously are different thing but in any case around or that would be something that mr gaines could decide was it more valuable to have some possible explanation for it for the linchpin of the case or to have that plus that might have been kept out under three fifty two which is the four hundred three in california and the thing that's important about this is which makes it different from some other cases like the christian cases there's there's no reason not to think that right statements are trustworthy that gives me no reason not to think that right stay out to think that they're that they are on trust you not to think they're every reason think they are trustworthy why i mean this guy was a suspect and he's throwing a blame on somebody else and now he's taking the fifth amendment what do you mean there's no reason to think there yeah there are a trustworthy he was a suspect these statements throw the blame on somebody else and he's taken the fifth amendment your honor because he was not a suspect the time he made the prosecution didn't where did the defense try to bring the statement in and in the trial court when they made this dual requests that either it would mean a duel request i didn't read it as a dual request it was a request to have immunity granted that this man has taken the fifth amendment what language do you point to that says it was a duel request and in the alternative to admit the statement your honor what i rely on is that is the state appellate court's finding there was a question raised by the by the just by the attorney general they claimed it had not been offered and evidence right the defense says it had been ok and the state appellate court resolved that by deciding that there had  been no error and not admitting it now that is a factual finding implied as seem funny that they alighted over the first issue and said so what because there's no nowhere anyway so we don't know they didn't get to that issue they just decided issue number two well they wouldn't get to that issue would would have been already happily that have all the time we do that all the time we say irrespective of whether this issue is important or not there isn't any prejudice so we're not going to go there but you say irrespective of what they did say that at all there was there was a dispute made but you're playing a procedural default aren't and was aren't you up against a factual finding in this case that this was not raised in the state court in the factual findings by the magistrate judge yes and we explain why why we are not bound by that one is this was a pro per who said please reconsider the findings he had been the night counsel for time one of the district courts about this the district court say about they just adopted the findings and recommendations and that finding the finding that you're referring to said the court of appeal explicitly found that the evidence had not been offered that is totally wrong i mean you can read the opinion that's that's no one defends that that is wrong that is totally wrong that's totally wrong and i agree with you and i don't think the cord should say that this man who's who's trying to do it best he can trying to get counsel he contacted six law offices he asked the court for times when he said please reconsider the findings that therefore he didn't say specifically this factual and he should then be barred from challenging it unless he was told  the statement from you and i could read it to you that's that's that's where it spelled out thirty seven eighty seven of the of the transcript of the transcript and what page of the record of the excerpt of record of the supplemental seventy seven yeah i don't know you don't know i think mike judge graber this case comes down to me as to whether this was evidence was crucial and i guess the court of appeals decided it was not crucial and  i think it's not well i agree with the earlier comment that it is only potentially exculpatory and in fact i think it's it falls on the other side because the statement that he stood at the door isn't really consistent at all with the statement that he came inside and could have said there's two different statements well he did he does say that he came over all the time but i should be really clear the d n a on the cigarette didn't show that he was there that night it showed that he was there it certainly is what focused the police on to him but the jury could've relied on that to show that he was there come any people to that witness identify i think what was more than one i don't remember exactly how many well that's not the greatest of evidence is that it's not my point your honor is that the d n a is not a place in there that night so whatever focus is on the d n a but placed in there and i was the what was one witness who couldn't get her identification straight also his lawyer and also the his what also the fact he lied about his whereabouts that night here on so we have we do know he was there at some point the d n a shows that we have a witness that placed him there that night even if the way this has been inconsistent it's seems plain enough the jury credited that witness and he did lie but i was never in that apartment that i know he i think at one point he did say that but he at one point said he was home all night with his kids at one point he said no i wasn't home with them i went out later he himself is demonstrating his own it first of all wasn't particularly helpful in fact it is inconsistent with an argument that it is inconsistent with a factual recitation that not only was he there but he entered because if you take the when this is statement or a ricky statement is not a witness he stood at the door and that was it that he was over there all the time would give indication that he was there on the night that ricky was there but there's no argument and there's no suggestion whatsoever that  time your honor if i may the question isn't entirely whether the evidence was crucial because underneath that of the jackson the supreme court's made clear it hasn't had it hasn't made any rule that somehow if you got crucial evidence you're entitled to admitted only one step removed from that anyway because what we're really reviewing is whether the california courts decision that it wasn't erroneous or unconstitutional  is reasonable under supreme court precedent so we're not really reviewing it on our own hook anywhere i fully agree and and i think once you once you read the valerie jackson it becomes clear that a number of prior cases including changes in mississippi don't nearly as broad a rule as has been previously thought the supreme court made clear that what it has it has rejected categorical rules that make no sense it is never said that it allows federal close scrutiny of a state court ruling a discretionary ruling in the individual case but rather broad categorical rules chambers with mississippi which is of third party guilt if the prosecution is introduced forensic evidence that it believes strongly supports a guilty verdict again that's not a specific case willing that is a broad war which didn't make any sense in creme de kentucky the  plausible argument the state court here applied the rule and the rules here say by the way they didn't apply that mechanically at all if they had this would been a much shorter opinion because they would have said this is hearsay into store instead they walked through the constitutional this may be very careful recent opinion and whether or not one might think there's a better argument to be made there is no supreme court case allowing it to be second guessed under it but now let me go back again to what the evidence was of this defend say couldn't identify him yes did she say at the trial that's the person i do not remember if it was at the trial i know that i think i can if you give me a moment  who then was taken into a venue with two hundred people and she said that's the person you want or we are not looking at the wrong right she certainly did but someone else yes at some point yes but so you have come on and you have d n a which puts him in the apartment who knows when you may be in the human maybe maybe you haven't he and he said we have his apartment all night we have found you know we have been inconsistent about what he did that night which should you know i was a prosecutor for twenty three years and you say at the trial i don't recall which he said well you called it the trial i don't recall that either you don't know that either no and here's where you record in this case i don't know what is perhaps as well as i should your honor but the fact is this case isn't about independently how strong the evidence was because the jury found a specific event and there's an argument to do this work of it ok what do we do with the state court we look at whether any determination of facts was on reasonable that's a court the state courts say this was no big deal so well there would be a factual finding at all your honor that would be an analysis ok but the state court said it wasn't it wasn't a big deal right they said the evidence had some tendency to help and that's in some way it tended to hurt i met somebody didn't intend to do anything so he was an officer doesn't write isn't mr denver right that you could easily make a motion to sever that part of the evidence that hurt the beyond weak i have a feeling as i give you the right word i can't agree but that's also simply not the issue before this court but the issue before this court isn't whether was a particularly strong case it is whether a piece of evidence he wanted in on a case where there's no dispute after the sufficiency of the evidence and therefore no present to take task to task the jury who made that call the question is well under the constitution he had a right so we look at the evidence that we're talking about and what do we measure that against you don't mean really measure against anything because this was not a categorical exclusion your honor you are asking how did you overlook the state court micromanage with that this evidence had some tendency theoretically to help there was there was a downside to it because something else could have come in and another area was vaguely neutral so they didn't it they did the state court did not necessarily have to look at the case itself a man of the revive eyewitnesses and it was on a surveillance camera that might play well this is week doesn't make any difference but don't they necessarily have to look at the strength of the case i'm not aware of actually so they  this in a vacuum they were certainly aware of the facts yonder and i'm sure that in evaluating whether this tended to disprove anything that the speech showed they consider that whether they were marked under not but the the apartment part of the night of the murder what they then said though ever was it only corroborated his own statement and the court in london or longer versus heartbeat has said that the statement by an independent witness is much different than what state what statement did it corroborate the defendant what state most of the defendants statement that he had been he'd been in our earlier and the other thing they said so they're saying that it was only  was really important because there been two statements by the defendant and this would corroborated the one that would give the innocence explanation the other thing they said was that it was but it wasn't only two it's a bunch different kind of evidence coming from a third party than from the defendant and even in chambers where there was a statement by macdonald that he made one and in court they kept out three the court said never the less it was those three