we call the next case please a prosecution for murder when the commission of the murder involves criminal sexual assault then language is necessary now if you read the plain language even if you try to piggyback it based on section one fifteen dash seven point three which is in there bethany of the statute because the plain language in both a and b would actually tell it seems to indicate that the victim is ruben even if you with the defendant is denied then you look at section eight it says in prosecutions for battery inactivated battery when the commission of the offense and gross sexual penetration or sexual conduct the way in which prosecutions for murder prosecutions for murder when the murder was committed in the in the commission of a sexual assault but if you look at seven point three because the statutory scheme has to repeat you have to look at it in the whole and the legislature and the governor paragraph actually and page or on page one fifty one fifty seven the state says one fifteen at the bottom of the page point three was expanded in two thousand and eight by the legislature to include crimes of first degree murder and matter well is that the real just principle a lot of your sense here is that it order to present the defense here this was one of those pieces where he defended needed to show there was sexual activity with others you were geared to show that someone else committed this then that was his defense he didn't commit somebody else did it and so he wanted to introduce the other evidence a second late hippity so he could present in fact he wanted to present the fact that the three men who lived on the south wallace address larry mays michael mays and jeffrey miles they were all roommates they were all dealing drugs and they had done it over a period of time and there were was there evidence of recent sexual activity with any one of was not raised to the trial judge one of the reasons that we expect and require air to be preserved is so that the trial judge can make a meaningful review of the issue and therefore later we can make a say well it's not silent i say well look at the whole statutory scheme and if you say well this is silent but we can read into it then you have to respect the way just for a sure it was government consing of repose can governor and a democratic legislature that went across the aisle and bipartisan support create the rape shield which circumvented the jury's rules of evidence and what i'm saying is the way it's in bring us if you go stand into the thompson the third the second district a third district which i would say wasn't really addressed that even the trial attorney and the appellate attorney in people versus johnson never raised the issue as to whether this statute applies for prosecutions for murder when the murder was committed in the commission of an alleged criminal sexual assault and remember now he was found not guilty this evidence was very close and there's no overwhelming evidence that mr sanford committed this you know get into the plane  even if it's for drugs over a period of time and she said sex with what the defense was i q was two men in the house she goons and intimacy and understanding of a criminal operation we we just reject that is a relevant proposition that it's only relevant to the rape we have a murder prosecution i'm sorry but you have the rights a fundamental substantial fundamental right of the living and the state is saying a public policy standard for it to the murder what's interesting about that testimony is if you look at it and you look at the reports and the reports are attached to the motion for new trial and i realize they're not certified they're no but the analysts do testify off the paper of his report he never said there was a match between the six lowside that were he found and when he compare remember all it can indicate is the gender of the amalie gender and that there's a male and a female there is even said there's up to five you could actually have up to five contributors again because yesterday it's on procedural grounds but in the footnotes of the a c l u came in on and on behalf of the deceit and the murder rape victim i'm to argue she had privacy rights and interests of course in illinois you wanted to hear no that that's my problem because i'm not reading john's as well then what is your understanding of the permission in the spirit you it says that it can be i think this case is that the courts have a route in the prior sexual conduct and reputation to sustain to iraq and using the balancing test of davis versus alaska in purely a sexual assault i mean didn't that you're essentially hear that they had said something isn't that pretty much the clear inference that they would have drawn she needed she want to correct cocaine he demanded money she still have money and they went back into a bedroom for along came out she had crack cocaine one was infringed because the court is saying that yes there's a murder but we're not letting you get into the sexual aspect of that what was clearly a barter for sex and he did not present them because of the court's ruling that he couldn't really a listed to contradict that mase yes he was excluded but he could have had all the sex he could have used a condom doesn't counsel just so i understand this so if you're argument is that at the jury knowing that these two different people jeff and larry i think are going to have engaged in intercourse in the past with a victim that would make me better alternative was sex for drugs i mean you know purposely trying to get an out was trying to explain why different his d n a would be on her and yet he would be claiming that he had no idea who she w this let's say i mean if we were to agree with your arguments wouldn't there have to be some proper offer proof that within at least a couple of days they speculation remoteness you need an offer of proof when you're going to present a defense now my question to you is that what kind of a time frame are you suggest we use just the scientific approach regarding the presence of semen you know it's going to be granny after five days what was that proof that was let let's just let's make it time for him we need relevant time frame we can't have a year we can't have six months but if we have a couple of days even if just if we have a couple of days or a week or something what was the offer proof who was going to testify  tivoli which they've been doing over a period of weeks and jeffrey miles testified and her sister says she would disappear on the weeks weekends and marines and drawing indicated so this woman was doing drugs in exchange for sex with the jury really know no because i think they infer they could have been for it but i don't think that was the reason why they found h guilty of the sex the problem was there was no sign of weakness in the sax and the again the medical examiner said it could last up to five days under certain conditions optional optimal conditions is seventy two hours but again here's the thing mike groom milly's punched or there was evidence and i think even under when you go back what the coach of the root is under for three and all the relevant evidence may be excluded if it's probative value is substantially outweighed by the danger of unfair prejudice confusion of the issues or misleading the jury by considerations of i'm going to lay waste of time or needless presentation of cumulative evidence but that's what i'm saying the judge should have done yeah any one of the big problems with this case is  is that this kind of argument you know about the rape shield staging and that this should have all come in because this woman is dead and so the rape shield statute doesn't really serve to protect her or have anything to do with relevance or anything else is that you know i know you read this motion for the new trial but this argument about well let's let it in because she's dad was never presented to the trial judge  and that's really a very significant problem here because nobody wants the judge to do this had someone made this request then the judge could've reviewed it it would be an evidentiary matter perhaps might have been a question of l but we don't have any any information about this issue regarding what happened because no one actually raised this argument and now it's being raised to us for the first time because it really wasn't race now we can look at the motion for the new trial but i really think we're going to have a problem here and we do have a problem because the trial judge was never confronted with the issue and one of the reasons we we confront the trial judge with these issues is so that that she had had to attack her credibility as a witness or competency is a witness it was absolutely fair game and there was a there was a judgment made by your general somebody but also by joel subways across the country and by our  statute apply in that situation just to a murder case on anything i want to so court could reasonably perhaps conclude that if someone wanted to say well she had sex with this other guy a month before that suggest that was evidence that that shortly in rebuttal i want to address some of what i would call mischaracterization of what the evidence was behind us on south normal twenty six was where the bodies found the house that his mother owned was thirty would think that the state was doing rugs that you know it was euphoric sex and then he had read the victim and it was sex gone bad and he strangled her and that was the theory because remember now in the put it in time he's being interrogated by police most johns don't know the name of the prostitutes that they are having consensual sex with so it's explained that way the jury found him guilty of could be a combination of the fact that the defense was handicapped in presenting their defense may i ask you about this mister connor's suggest be negated when the purpose behind the statute is about the victim and in the actually there were many many reasons why the legislature in acted the rape shield and we don't need to get into it here now but what is your response to his point that the overarching purpose of it is directed at the victim and what difference does it make if she's dead or alive because the statute doesn't permit the interrogation of the victim about prior sexual contact so why should we concern ourselves with the fact that the language doesn't include to the private privacy interests the deceased today at any of the relevancy interests no and that's why even if you look at four o three again before it should have done for three it trial not only were there witnesses present and alive and well and willing to testify it was substantial evidence that was kept out but here in the rich office of proof about additional evidence here don't you have to have an offer of proof to show us what he actually was pretty prevented from coming in even if we forget about the east she was deceased i agree on it but at this point i also concede that the defense attorney it but trial attorney didn't even consider the plain language of the statute in many ways committed ineffective assistance of counsel because he assumed he asked the judge at the motion in limine a we talkin about the rape shield ok and even though he objects to it in his motion a new trial and he specifically refers to sam jeffrey miles and the baron of his testimony which meant when you look at the totality of the record he also had one of the maids is under subpoena and he didn't present it and so here's the thing you're talking about the constitutional right to present a defense but clearly the defense attorney like many defense attorneys throughout the state have never forfeit we have two jurisdictions the johnson decision this case in the right of what's going on in new hampshire is going to hear again might a week this all the issue ruan it i understand you're looking or accident and i'm saying let the judiciary rule right on rules of evidence instead a condom out an exception in a statutory enacted legislation when i'm saying this do not