good morning everyone and welcome church hamilton and i are delighted to welcome judge john lee from the northern district of illinois who is sitting with us today by designation thanks for having me and with that we're call our first case which is on behalf of the petitioner all the roles this is an unusual habeas case as three different courts have come to three different decisions on mr rhodes his confrontation claim was made even more unusual when the state failed to raise harmless er in the district court and then again when the state decided not to address its waiver in this court simply put the state's waiver of harmless error should be enforced as an initial matter this issue is very clearly before this court and within the scope of the certificate of appeal ability the records decision was only on the confrontation claim and the district court granted her certificate of appeal ability on that one claim there's not than in the language of excuse me to the judge also ordered the briefing at precisely on this question so it seems unusual to think that it's not within the ca i agree i agree judge getting past that the state makes no other argument to defend its waiver the state does not dispute that it did not raise harmless  also doesn't defend the district court's decision and what the district court did is it raised this issue based on a misreading a broch did erred as a matter of law in finding that harmless error is not an affirmative defense which it is but the district court thought that it was part of the petitioners case and as we lay out in our brief that's based on a misreading of brock what the district court seemed to do was to read brac without reading o'neill after it which clarified that the exact language that the district court relied on did not mean that harmless error was no longer a part of the it was no longer an affirmative defense it's not part the petitioner's burden of proof and every court appellate court that has analyzed this issue has agreed with that every court that i found has found that harmless error is an affirmative defense that can be waived and the only question is if you're not going to enforce the waiver nick the question is whether to enforce the waiver or of the earlier certain it found that it had to deal with harmless error because that was part of the petitioners case and that's just simply not true well that discretionary calculus about the waiver of the harmless error issue is well it's if harmless error is not raised in the district court it's waived and the only time that we're going over look at is when we've done kind of an analysis similar to that you can add a case even though that as you pointed out correctly pointed out was not a  very practical dimension to that rule right and that is the reviewing court always needs to worry about whether what it's doing is just an empty gesture you know we're more than one of those to worry about  it correct that the prosecution introduced a number of photographs of her in her condition just after the beating that the prosecution contends had been arranged by the fire by mr davis yes that's  more than sixty pages of transcript was devoted to this beating your minister did supposedly at his direction the day before he murdered do you see and is it correct that those photographs were displayed in the closing arguments i believe that that's correct i knew who it is and i want to ask the status but is there any reason to do that other than to convince the jury that mary's brothers would have been so enraged  at the man who was responsible that they would have had a motive to kill him now and there's no way they get those photos in without mary testifying she had no information about what happened the day of the incident the day of the murder she was only called as a motive witness and as your on a correctly pointed out to get these photographs in they don't the state doesn't care if nari doesn't think her brother is responsible for this the state doesn't care if mary doesn't think that davis was responsible for her beating what they care about is showing the jury that this is what mary looked like when she came home and even if her brothers reacted calmly at first this is sufficient these photos are sufficient provocation that they would have wanted to to avenge her beating and arias also the only witness that could have said that her brothers had that knowledge to know that davis was involved no other witness can say that can say that mary comes home like this and she to her brothers that davis is involved but the last examination that was cut short made the state's motive argument more powerful is did not undercut it so i don't understand why the defense attorney wanted to pursue this line of questioning in the first place it was not helpful to the defense i think it was judge and here's why it's because the jury had already heard that davis had beaten aryan several other occasions right so that the the trial court allowed the jury to hear that information best way for the defense to to rebut that motive theory ok look there's all this provocation all the reason that her brothers would want to go out and do this right well the reasons the defense attorney wanted to to put in this cross examination that was curtailed is because there was another very similar incident where neris orbital bone had been broken country something very similar and in that case davis himself was responsible for it but she not only had she told her brothers that davis was responsible for it and he didn't do anything so if you have this case that he does that's the part she that he was not allowed to do that's right and it did i mishear your question i'm sorry no that's indeed what i'm focusing on because that's where the cross examination was cut short right so the jury never got a chance to hear that there was a very similar incident that was perpetrated by davis himself and that the brothers knew about it but that there was no reaction from them right i think most reasonable inference from the history of domestic violence between the murder victim and the sister of the defendant is that this final beating was  these decisions every single day and certainly does not find constitutional violations every single day found that the jury could have reached the last straw conclusion but it also could have reached if it had this information could have reached the conclusion that defense counsel was trying to get it to realize is that listen this evidence was coming in whether the defense counsel wanted it to or not the trial court had already ruled that this was miscible to show motive right so the best way to combat that is to say that look you know this is not actually as relevant to motive you think it is because this happened before and there was no retaliation and i just want to point out too that the question before this court is not whether there's harmless error it's whether there were certain harmless error and the fact that with the wisconsin court of appeals already found was the only court to address the harmless error issue and found that there was no harmless error it should be enough to meet that standard miss iseman if i can ask yes the question so during her affirmative testimony on examination basically undermined the state's motive is right because she said that notion when her brothers found out about the most recent incident if you call right and so the cross examination would you agree it wasn't intended or targeted toward to contest no raised credibility or reliability of the witness but it was an effort to obtain other affirmative evidence yes that would bolster the defense case is a crime yes i would agree with that it's exculpatory evidence it's not trying it's not impeachment evidence but i argue that that's even more critical it's well i mean it was so along those lines if the defense had wanted to call mary as a witness in its own case and asked the famed questions on direct examination and a district court prohibited them from doing that would that be a violation of the confrontation clause and if not then what's the difference i think the difference is that this was the state's witness it wasn't it it wasn't a defense witness this was a state's witness called specifically by the state to to prove its motive case as this was the only witness that was called for motive that was her only information she didn't have any information about what happened later on that day she may have undercut the state's case somewhat by saying they didn't and initially react but the state didn't care about that sort of secured or didn't buy that certainly or you know contrary close known he held up the photos and said that no this is sufficient provocation i don't care what they did initially she doesn't know what happened the next day she wasn't there and i figured i'd maybe suggest and i think it was a really interesting question when we get into kind of a constitutional doctrine here because i was trying to imagine what happens if you need to hear from you if the defense needs to bring this evidence in let's say through another witness his mother or you know and then we'd be talking about the right to present a defense the right that the compulsory process quotas are in essence just it's the right to a fair trial and these are two dimensions of it that are kind of opposite sides of the same court cross and in preserving your own evidence and he of the state's evidence where the defense is just asking to put on the other the rest of the story you know since you can kind of frame it either way exactly and the way i thought about this too is rose should have to take the stand himself in order to to give himself his confrontation rights that he should have gotten i don't ask you a quick question counsel about this is not a claim that was presented and i recognize that but it seemed like an awful lot of the state's evidence here was coming in through what i would have called hearsay that is by impeachment of ms dotson rhodes's girlfriend and future and of other witnesses who gave statements to the police that those all come in for substitute substantive evidence under wisconsin law i'm sorry i don't know i'm sorry i didn't i didn't really contemplate that that question you know referring to all of this you know kind of just to sum up i really think this is the perfect case to enforce the state's waiver of harmless error i really don't think that this is the time to be giving the state the benefit of the doubt on this this was a this harmless  defense that should be raised in these cases the state didn't raise it and even after roe it's put a state on notice for it and i think that that means something and especially considering the state and even chose not to address its waiver to this  court i think this is a case where it's the state's waiver should be enforced and even if not remember that though this court is not asking whether there is harmless error it's whether there is certain harmless error and in a case like this where you see that the codefendant was acquitted and the wisconsin court of appeal says no harmless error the answer to that certainty question has to be no i'll save my remaining time for  wisconsin supreme court relied on us for cases favors the alaska delaware in the barn by an art stall and when it discussed those cases it discussed cases where it should show it in those cases the defense counsel was trying to get to the credibility to the believability to the reliability to impeach the witness and when this consequent court had this case they said we do not have that here what we have and if we did they said we might have a different outcome but what we have here is we have a state's witness and the defendant is trying to impeach the state's answer is trying to contradict the state's motive it was not a case where the looked at all of the u s supreme court cases and the wisconsin cream court took the purpose of the limitation of the cross examination they took that into consideration and they recently two former and one current trial court judges on this panel who i think all understand that these are difficult lines to draw in court and a fair amount of discretion will be left to a trial judge but when i look at their wisconsin supreme court's explanations for affirming the trial judge's call here to cut off the cross examination it basically the worst possible time for the defense i look at these rationales and they all make a lot of sense about confusing the issues misleading potentially wasting time and what they make sense in till you recognize that the state has been allowed to go into this into this issue of motive in a loving detail as i say all the photos all the sixty plus pages of transcript of all from nari on this issue of motive that's that's the problem because then they they're not allowed to go into how the defendants the defendant brothers had responded in those prior instances and and you know i think i can easily see an argument that the defense should have been allowed to do a lot more than just the orbital bone incident and if they had been allowed to do that one and maybe a couple more and the judge would call cut it off then i would see a kind of f court's opinion about the excluded testimony such testimony would in effect have put davis the deceased victim on trial for the alleged prior incidents of domestic violence the state had just been allowed to do that correct davis on trial for the prior incident the beating that had occurred the day before he was killed right i was getting second it would have required the jury to speculate as to whether a lack of retaliation for davis's prior assaults on mary magnified rhodes's motive in this instance ok but it seems to me that the state the state's evidence is also asking the jury to quote speculate about whether this was sufficient provocation to push these two men to to murder their sister's boyfriend or ex boyfriend sir and when i was as i was preparing for all argument i i have been stuck on paragraph sixty two as well and i think i disagree with how this wisconsin the pm court analyzed how the trial court what the trial court decision was in this case and the cross examination for fear of misleading the jury for fear what was the danger of misleading the jury that was not similarly presented by the state's side of the motive issue the safe side of the to kill davis inside so that was the state's motive and the trial court was concerned about pretty in davis on trial but in davis on trial for love and open that door that that's the whole theory of the case and that's the problem through those explanations and saying look at these pictures look at these you know it wraps up the opening session of the closing argument by displaying the pictures and it begins the rebuttal portion by showing the contributed to all those verdict when it did not contribute to the defense verdict in this case the state's evidence against rhodes was just stronger than it was against saline you had roads own testimony it was but it's not overwhelming i but she's but she's pretty good a trial you don't have physical evidence you've got an issue about motive you're also you also have roads phone call to a t shirt dotson the date right after the recant what she had told to the police yes so it was anticipatory impeachment essentially what she does happen from time to time happens but without a limiting instruct which may or may not work but i know are enforced against petitioners i don't so why should we make a special exception here to relieve the state of the repeated waiver of the opportunity to raise her mature state to die this because harmless error was raised in it was discussed in the district court the district court asked for supplemental briefing after the petitioner raised harmless error in its reply brief and that's when i became involved in the case so then they asked for supplemental grief and i said yes you can consider harmless error and basically we both parties brief the issue at hand was there so i would disagree that it the issue of harmless error has been waived when  upon itself said ok this is been raised by the petitioner i want supplemental briefing from you to respond it we both submitted briefs and ultimately the district court agreed that the state that premise there  was concerned is because davis was concerned that rhodes was going to call the cops on davis for what had happened to his sister so he gets in before norr so i don't think that mary's testimony was only to show motive it certainly showed that what happened on april third was connected to the shooting on april fourth and that  third and on the fourth do you want to say anything on the merits of the harmlessness question you've only got a few seconds left oh well at least to address the ban on assault after it is said that there's a host of factors one of them was the strength of the state's case i think i address that already of the fact that there are two different verdicts so i don't see how the decision to limits the testimony had any contribution on all roads verdict when it didn't have any just a couple real quick points first of all this is definitely a case where if this court was harmless here certainly the state is simply incorrect that this was raised in the district court raise does not mean after the district cou and even if this court somehow blesses what the district court did find that it was exercising its discretion that this court but then bestow on the district courts this court still has to review the harmless error issue  state's waiver doesn't go away and so the court in go over six thirty that was the only court i think out there that has done something like that it essentially said what the district court did was find it was an exercise of it's just question will give district courts still waive this issue that still matters to this court and review it doesn't get a racist when the district court decides to take something up to a sponsor i think that would be the closest match like a set of discord somehow blesses what the district court did the court in go over says ye but we still have this weight on the side of the defendant because of the waiver this is not a regular brick analysis you've just got a second this is a lame acquittal is a red herring ok there was already tons of doubt versus a lame the fact that eye witnesses testified against rhodes and against the same day i would witness the id both of them and the jury found that that was not enough it already had a lot of doubt against certainly the fact that that doesn't mean that the additional doubt supplied by mary's testimony wouldn't have made a difference to old perhaps that would have and what tipped the scales in his favor so the fact that selene was acquitted especially because the two eyewitnesses testified perfectly exactly against them that means the jury did not buy the eyewitness testimony and they already had enough doubt and sailing so they just needed maybe a little bit of additional doubt against all both wanted his girlfriend new roads and his brother so yeah beforehand