would be you know left the rest if you could not give last we have a very easy with the clock this particular panel so i don't know how that happened but feel free to take twenty minutes you know we may have even a few more questions for you yes let me ask you if i could to answer a question about the cause and prejudice that the church doubled ways found existed and excused t procedural default which this court implied might have existed one such a case back in two thousand and three just above weise says in effect  well maybe that's not a waiver the state said yeah golly i guess that isn't a waiver and then you got sent back to the state court when it was back here indeed the case had been presented to dr tucker issue which i understand you've been leading up to the or the vitreous passim level issue had been presented as a matter of state law that is this is our act this is an expert and they ought to have this expert testimony admitted don't worry there's a question in here somewhere so here is that question what does the state later decision to change its mind about waiving any procedural default or whether there was exhaustion apologize their decision say well because austin exists that have to do with mr dreyer's trial council's decision to attack this on state grounds and the state then and i think we all know that procedural background so if you're smiling i'm trying to i'm having a a problem with the logic of the judge step of what he says conclusion and don't don't get me wrong i think he doesn't need to hear me say and i guess nobody else does either but he's a remarkably wonderful judge thoughtful careful to depict the opinion he gave the folks on the first go around this was so thoroughly careful but c before him that things that happened after the decisions were made about how to present this the trial level somehow constitute cause of prejudice in other words as a technical matter if you had a constitutional due process claim about whether that evidence from dr tucker was properly admitted that that should been presented on direct appeal shouldn't got the language right and an external impediment preventing counsel from constructing a race in the claim what external impediment prevented trial counsel from posing this as a have will certainly tactical reason that one can think of for not releasing it and that's what the new jersey court said right because jersey court says it appears that this was a tactical i last stood before a different era of this court trying to get to the merits of a case where i contend an innocent man has be convicted why don't you get to the merits of the issue that you michel we started but time impossible for mr period or have committed this murder there are eight million variation body temperature such as what was the temperature in the basement was that he was a healing factor that it before he came to his conclusion on  assume for the sake of discussion that we agree with you that it did and we agreed with judge step of ways that this wouldn't have made it in as evidence in a federal court what's the what's the has to be my position here when i contend that judge general lace when he applied barefoot hired over to rigorously read it for more than what it stands for that says that this error with respect to the vitreous potassium is unconstitutional i mean that's that's the difficulty with that test is that perhaps if if if we read it that way so there has to be a next step and found that any error would be harmless given the other the means by which tucker identified the delightfully time of bar on cause and prejudice because this statement is made as judge perry just quoted to you that this was one of four factors and in fact they go on to say in that very same passage she was quoting from moreover tucker made it clear that the time of death was only an estimate and that it was stayed within a given range of several hours in other words they seemed to be saying look this was one of several things and there was still a broad range of the jury concluded ok we're going to put it in there in a timeframe based on that that makes him a person who could do it in other words undercuts the alibi that was up to them and that's ok how do you get to prejudice on that as i'm not make it clear i'm trying to figure out what the prejudice is of you not get to argue this if the new jersey court says it doesn't make a difference tucker doesn't the big victories passing stuff doesn't make any difference because there were three other things here and he stated excuse me this in a very broad way and so mr dreyer was was go kormos constitutional court analysis in this case because it would easily from our perspective as race not appeal he felt himself constrained by barefoot against his staff from reaching the question of matter how how for wolf the more it doesn't get much further wolf the more than the evidence in this case is i really did not prejudice the defendant in a meaningful way all right if that if we accept the data with which you agree that under cause and prejudice you have failed to show talk about in this before you do that and i want to hear your arguments on those but i would ask you to argue those again under the the end because standard because you fourth i mean these were all matters that if i'm not incorrect were basis of state court factual findings so to do we not have to give deference to those state court factual findings so if you could just keep that in mind cause great skepticism about some of those some of those findings and did not take the next step to say he disagreed with those particular findings which is why we're here i mean we for one seventy one seventy five if you know the interesting is out at seven and i just picked this up last night it's one of those little kernels that you think you're going blind but you actually find something that's kind of interesting gets it is car at nine fifteen am now if you're going to alter if you're going to alter a page they wouldn't want nine fifteen in there they'd want nine thirty five when  a little thing but it sometimes little  the police department all in their equipment it was completely contradicted by the expert that the trial court in the state would not allow to testify that not only was there no document of a similar type friess prepared  question then the answer is the root of who knows that's what it was what we do know is that she was anything but stable in the mid eighty's well i've never seen terrorism effective death penalty act that established the standards to strike a balance between the federal courts responsibility to ensure that state core convictions are appropriately obtained percent to the federal constitution but also recognize that the state courts findings in their decisions were entitled to some greater deference than it appeared had been given leading up to it's inaccurate and here you have mr dreier being convicted by a jury twice and morris county the appellate division and their own words undertaking an exhaustive review the trial records of the new jersey supreme court on two separate occasions the nine discretionary review and well deciding mr dreyer in fact received a fair trial and that his conviction was appropriately attained one of their mistakes made and where there are things that perhaps in hindsight should not have been done absolutely specifically the concession at the time of the original where it was filed it's been described as an ambush it's been described as a bait and switch the state made a mistake and you know it and is that a mistake that the it yes and i think the other two judges of the panel indicate that expressway will require the state to be the mistake brought to our attention and that we would express they say we don't care we want to go forward anyway by this court after all argument so i again i think you know the good faith aspect of it i think has to be taken into consideration as to whether or not the state should bear the burden of a mistake placed upon is relief in the first instance so the mistake that was made was still made in the context of the form that he officially chose and as for what's wrong with judge debra which this reasoning did but for you were forward in this form but for that they would have been back in state court and making their argument and in a fashion that would not have presented them with the procedural bar i think ultimately the question becomes where does the speculation and where you just deal with what actually occurred and that argument has lost its own merit not saying that it's not a argument that has to be viewed but in the context of this case that it assumes that they would have gone back to seek post conviction relief which we now know will happen so they did and when they have a chance and if there's anything you can say about this case i think you can say that mr dreariest been fighting at every point i coal indicating that the federal plane should have been raised on direct appeal and had not raised on direct appeal that in itself was a procedural bar to post conviction relief so but that's an interesting point and i want to ask you about that  what is the consequence of this court one consequence of if any is there this court not pointing that out in two thousand and three i think that there is a consequence of that because i do think that at the time it was dismissed as a mix petition again they were addressing the exhaustion issue that it was never squarely presented as to whether it was exhausted we indicate division affirmed now when they're written opinion they do indicate they also speak about the statue of limitations issue but they made clear in their decision that they were firm in the trial court on all grounds in the trial court imposed conviction relief clearly found that the federal money should have been brought as on direct appeal and in fact one of the other claims as shown by the record below is that there was an ineffective assistance of a regarding the failure to raise the federal claim on appeal and the trial court denied that saying no in the context of this case new jersey's evidentiary rules regarding dr tucker's testimony since we are uncross dr tucker's direct examination on the vitreous potassium issue took covered all of four transcript pages just about the same as his direct testimony on body temperature and and lividity and rigor mortis but on cross examination hundreds of you would have thought that picture his potassium was the sole basis for his conclusion that the prediction that his prediction of the time of death and he was shelled on cross examination shell as to his methodology it might you know i'm not sure at the end of the day his credibility wasn't hurt as to the other potassium to to establish a time of death become junk science or is it only dr tucker's methodology that is the junk in junk science trial was actually based upon a study from one nine hundred sixty three subsequent to that dr coles has been modified or it's been suggested the literature should be modified but but the state didn't contest as i understand the record that dr tucker within a range and therefore that made sure that it was just crossed for the jury mill and it was a quest for the jury no barefoot is satisfied i hear you say and it certainly did as you noted it got a it got a distance between itself and dr tucker on my right i think the term discretionary decision was has been used many times and this case i would like to say that as a discretionary call the call it's up to me i may have made a different decision but the state has with  record live with the choices that were made sixteen seventeen years ago at the time of the trial however more fundamentally it doesn't call into question the birth of which i'm here discussing because the jury had a chance to hear savage cross examination on this issue they have been savaged cross examination in secret and i don't think that we can overlook that me and secret is also a factor in the time of death because she says she's present when it occurred and provides a time frame but at the end of the day vitreous potassium is an issue that was corroborated with someone else's testimony it was a factory jury to consider along with any other fact to give whatever weight it could or decided to and that's the process requires if you read barefoot be read the supreme court's decisions ultimately about due process it's whether or not the trust in the jury system that we automatically give in our system is interfered with sometimes and this is not the type of evidence or evidence that would interfere with the jury making decision what they normally do that their will to make a appropriate decisions overboard or somehow that the evidence is so i don't believe the unfair that you couldn't expect that a reasonable person could set aside you know for example and be brought in context where you know hearing a confession of a codefendant is so small that that you think that it would over palm the normal jury given take vitreous potassium was a minor he was not aware of anyone else who had used his methodology but again on to the question then becomes the factual finding of the state courts on reasonable and based upon the fact that it was a factor amongst many other factors that himself said that it was arranged that the time of death was a critical component of the state's proof but it does not exculpate the defendant to the point where possible for him to have committed the murder between seven and eight o'clock or whatever the time range  foibles that could possibly before come forward enough to house harry came for mr what was cross examining nancy was john kerry the mistress in the state's witness and she was as your honor pointed savagely cross examined i think the district court was absolutely correct in its ruling and stake which actually correct that it was just relatively minor limitations on that cross examination that cannot rise to due process i would like to  established case for the united states supreme court if you look closely at taylor versus kentucky which was the supreme court case cited by the district court they didn't talk about ever but it was in the crop of deciding whether a particular ever was harmless namely that there was an inappropriate burden of proof instruction and they indicated because of all these other errors that in of themselves may not have risen to the level of constitutional error but they found out they corpus really i do recognize however this court has already done so but it is the state's position that under twenty two fifty four d wong that you may wish to me visit that if you if you choose to do so we do raise that in our  that was not unreasonable those findings dealt with whether or not the helen had made it showing that there was either any material evidence that was contained in any of the notes that had been destroyed by the police prior to the final reports and it was a bad thing on the part of the police officers in destroying those notes and the court found that the witnesses that testified especially officer gaskell was credible there was no indication had in conjunction with that draft report in addition captain ramsey had testified as well that those reports were reviewed by superior officers maybe not every single one of the reports as he testified at trial but certainly this directive well i guess i guess the real point is this it doesn't rise to the level of a constitutional violation they have of what it sounds like you tell us is a continuing county get through shredder go on we don't we don't want this coming into the hands of the defense counsel i think ultimately this this situation this aspect of the case could have been handled differently but the fact that it had gone this way in this particular case does not make it on reasonable in the court findings on how this occurred and the idea of benefit i think the core evaluated the case in terms of the fact that they're obviously were notes that were destroyed but there was also notes that were kept those one hundred sixty four of those interview cards that were supplied to defense counsel at the trial level and that evidence kind of gets the argument that this was somehow done in bad faith because there were those additional elements of notes that had been kept even though some of the notes said previously may have been destroyed so i think in that sense it doesn't rise to the level of a bad thing to show it to me the constitutional argument that this is somehow a violation of br material even brady saw i think judge lewis went off on the ramos case and essentially which essentially places the burden on the defendant to come forward with evidence i think in this context and so sir because it might be something that for them to show but i think in this circumstance where you had the opportunity to have a hearing to fully explore the idea there would have been something that was contained in there i believe that in this case the judge found that the circumstances that were incorporated in these reports essentially counsel was indicating that there may have been an interview that occurred on the third or the seventh the judges found both in the district court and in the trial court level but that just simply did not exist there was several witnesses that testified not only police officer witnesses but other lay witnesses including neighbors that cooperate that the first time last in months had spoken with the police was on january fourth as opposed to the third and i think that the reference in the hypnotic summary regarding the interview that may have occurred on january third or seven the courts found that although that document existed that it was intended not to be an official report and that it was intended to be fake and that the there was no intent on the police officers part to withhold information from defense counsel with respect to that issue and that it was just basically carelessly drafted document and the district court agreed with the trial court's findings on that and could not find it to be unreasonable and my of the venture to see that occurred before it counsel would ask this court to rule that there should be an additional eviden hearing on that issue i think in light of the current hearing that happened initially with respect to the hypnotic testimony on top of it coupled with the edition of evidentiary hearing that occurred over eleven days at that point has met its burden of eviden see no evil hear no evil approach to it to to to avoid a mistrial i guess that's the implication why aren't they entitled to a hearing on them if i ma maybe i don't want to play semantics with you but when you say it was a theory there was it in camera nobody else was there discussion between the judge and this juror and according to the defendant there was parts of that discussion that were that rises to a level of constitutional magnitude smith or for those in the case that due process requires that if there is allegations of extraneous implanters upon the jury that the trial court be opinions or in the supervisory capacity that we in the federal system and united states were totally you found that it was not error for the district court to individually interview yours and in that case and you also indicated in your supervisor capacity recognition that sometimes trauma the attention of something to yours is problematic here you have an anonymous notice what if this would have been a tough one to to speak to the other jurors about to phrase the appropriate question i think without giving away what the problem was and i think that's what judge smith recognized by me taking action he brought the juror in the transcript is  of thing is the critical comment in my view here the one about he had been found guilty before she said and off the pages to the extent you can believe they she had never communicated this to any other that your that's correct and judge smith that was a critical question to answer and that was asked that he will rest with all question regarding did you tell people if you look at the colloquy between the juror in the trial judge he actually went back to that question after she continued to speak and knew about apologizing about how she thought she had done something wrong so i do think it was a situation where the trial court addressed it he addressed it in a matter which i think consented to by the defendant and camera inquiry and then he disclosed the record a motion for a new trial was made it was denied and both division and to quote the a problem division after their exhaustive review of the record that was a factual finding made by the trial court but there was no taint about the jurors that some title longer twenty to fifty four eight to be presumed to be correct and  pricing again and put in limits your review to particular areas and although each judge has its own well discretion and again you know five judges may have handled it five different ways you've indicated in united states  console that that's was the rule it was the third circuit invested in the trial court and they should do enough if they don't do enough that it can be reversible error here however the question is whether or not the process was violated and i think the judge and the room and didn't find out if it's been a jury problem till after the verdict had been returned but that but at that time my fence counsel did found find out it was perfectly amenable to the procedure that had been taking so long he was found guilty once before and she does not bring that to the court's attention so the idea of crediting her answer that she hasn't spoken to anybody the only hormone of speaking to you the jurors would case it was a death penalty case the defendant in this case complained that the police had not properly preserved certain physical evidence seized from the victim or recovered from the victim for d n a testing it was too degraded