answer questions related to the identity of two eyewitnesses including one shooter and other witnesses present at the rare breed club house on the night of the shooting these questions were material they were no collateral because they went to mr sanders ability to defend himself against the charges the result was a violation mr sanders this confrontation clause rights record we were  rights because why the witness was there right the witness was there he did submit to some cross examination and he selected questions not to answer covering various categories that related both to what he observed  observed that night and to his direct test with the jury was instructed that you know they could take that demeanor or that conduct into account in judging that witness's credibility ye he can remember who did what but the supreme court said well the fact that he was on the stand and children could imagine was enough that that's confrontation i understand your honor and i believe  that argument is made in this case as well and this isn't an instance in which the witness could not remember the witness you know but he didn't he didn't answer the just like you're the case he didn't answer the you know the other person could answer the phone wouldn't answer or maybe he couldn't but the point is the jury had the benefit of seeing seeing his response to the question thanks confrontation it is now in a confrontation but it does not go to the heart of what the confrontation clause guarantees which is the cross examination particularly with the witness is fully capable of answering the question comes counsel can i ask your question you said it's directly inculpatory and i want to get back to that but just to be clear there was a subpoena issued to get the members of the clubhouse club and that was disregarded correct so they couldn't he couldn't look to other witness to figure out who saw what night ok and then i understand your appeal to to  encompass that and then there's the refused to testify but it seemed to me in the record that the judge cautioned the witness dickel think about it over the weekend because to be held in contempt if he didn't answer and then the briefing doesn't really what happened there except that he wasn't held in contempt i think it's correct he returned a court stated that he had had a meeting he attended a meeting at the clubhouse with other members he had discussed his testimony he'd informed everybody he was refusing to answer he informed the judge on monday that he would not answer any questions even if held in contempt the judge made a decision that holding him in contempt was unlikely to compel the testimony and instead allowed the defense attorney to cross examine h regarding some element of his refusal he said to give them a broad right to to to cross examine i think as i take your point but what concerns me is that this does seem to be a bit a one off because he's not saying he even implausibly saying that he didn't remember he just flat out refusing to testify that's correct and he explained that somebody he had made an identification somebody sort of whispered in his ear from the club that that was wrong he recanted so my concern is with this other person coaching him and was that i didn't the was the identity of that person ever revealed no it was not and it appears from the records that there were multiple people there were people who originally told him yes this is who the shooter is there are people different people i believe who later told them no that's not who the shooter is the shooter there are two shooters right that's that goes to your point about directly inculpatory because this is all about identifying a different guy not sanders right i think there is an element that is overlooked about how his testimony regarding s one  their friends their buddies that's why mr sanders was involved he shot because his friend is losing a fight he knows who how to identify that individual ass one and us two but he refuses to offer that information so mr sanders who otherwise has very very little contacts for the shooting he claimed he's an innocent man outside of the clubhouse to the extent he was involved this is a fight that came out of disrespect to two young women he was not involved in that fight testified that he believed their member members at least as one was a member of blood sat and i don't think he used the word rival i don't want to miss from my understanding is it was just clear that there were two different gangs members of a different gang members of a gang where as mr sanders is by no means a member of a gang and a strictly member of a motorcycle club not a gang that he was there you know to show off his motorcycle and to attend this event he had no otherwise no reason for being involved in this fight no theory for why he's involved and the prosecutor reiterated it in closing he used thomas words he said that's his motive those are his guys that's what mr thomas says he came to their assistance that's all you need to know and sanders had zero ability to confront that whole line of testimony and thomas taunted him saying no no you know i don't have to say the jury is not left with he could take shots at it on cross examination undermine but the jury's not left with an alternate explanation that it he foreclosed his entire ability to access that information b refusing to comply with the subpoena refusing to give up the identity of any other witnesses present that night and refusing on cross examination to disclose the identity of the people who know less one of the people who directed him to accuse an otherwise innocent man of being a shooter and then told him not to do it isn't that what is there any of thirty for the proposition that that sanders is entitled to have the judge invoke his powers of contempt to try to get the witnesses to testify as long as because the witness wasn't pretending that he didn't know or couldn't remember he was just refusing to see entitled to that your honor i think it still wouldn't remedy the confrontation clause violation so i am not i am not sure if he's entitled to it claim this confrontation clause violation was harmless so i hear what you're saying about he had an opportunity to prove his alternative theory his theory of defense but actually where is the actual prejudice when the cross examination even on every cross was extensive it wasn't just hours it was more than a day and coupled with the trial court's instructions where is your actual prejudice i'd like to make a few pointed response fold or even more first he wasn't able to present this theory though cross examination was allowed he never got the answers to the questions that should have been attainable so the actual remedy the actual information that would have allowed him to confront this witness was never disclosed a lot has been made of the length of the cross examination i think it's important to note though anecdotal this trial lawyer was incredibly verbose his defense counsel he cross examined  witness at length over hours there were about four prosecution witnesses and this is a nine volume reporter's transcript he asked on cross examination please explain that to me tell me what you're thinking what do you mean by that so his entire cross examination of every single witness was lengthy and that does not automatically mean he ever was able to get the cers that he needed on mr sanders was able to confront the witness against him well you also say that the court of appeal incorrectly cardillo test which says that cross examination related to credibility is a purely collateral matter and there bar for can be used against the defense even if there was no cross examination is directly in conflict with both davis and davis the alaska and it's whether he would have been likely to be acquitted or at least have a hung jury if mr thomas testimony was stricken and given the strength of the defense case and looking at the prosecution's closing argument where he emphasized thomas testimony the prosecutor did emphasize that mr thomas is testimony and emphasizing mr thomas is credibility even saying this is a principled man who could have answered questions but based on his principles he chose not to so that makes him even more reliable which shows that the curative instruction simply wasn't a factor thank you counsel and we will put a couple of minutes back on the clock when you come back for rebuttal so you can plan accordingly we'll hear from the government pl  he was a rather verbose attorney the transcript which spans nearly eighty pages more than demonstrates that counsel really attacked thomas credibility really painted him out to be this invasive hairs stand up on the back of my neck this is a very serious trial and he's just flat refusing it's not that he doesn't remember in fact he's testified after identifying a witness that he changed his story about who the witness was because somebody else told him what about that  confrontation clause guarantees a full and fair opportunity to cross examine age it's not going to guarantee that it's going to be to the extent or go in the manner that difference may wish why isn't full or fair that the judge should threaten this person who's just flat refusing after having admitted that somebody coached him in such a serious trial the judge should at least employ the contempt power to to allow the defendant to try to explore this very important line of questioning well you know i do  empathize with the trial court here i think you noted on the record that he had never been faced with such a conundrum right and he a trial court given the chronology of the proceedings where it began on friday afternoon where this was exposed took a break over the weekend for the recess and then resumed on monday and also told the parties of his tentative including telling this witness and threatening him with the contempt power the trucker ultimately decided that given everything that had come forth so far that thomas had testified for nearly a day and a half and his testimony was helpful to both sides that holding him in contempt throwing him in jail for five days the court was concerned about losing jurisdiction  obviously a monetary sanction seems a little bit ineffective possibly here and so the trial court felt well they didn't contemplate striking the entire testimony as petitioner would have it here right but again given the points that i just noted he felt it was too drastic i was thomas testimony helpful to the fence helpful to the defense right well i don't know that his testimony per se the substance is helpful to the defense but it certainly handed the defense a very weapon in terms of defense counsel really attacked his credibility thomas his credibility was entirely shot on recross examination and then coupled with the specially tailor curative instruction that told the jury  uncertain terms if they felt that thomas was concealing evidence refusing to answer questions it could disregard thomas entire testimony there was no wishy washy instruction here so in light of these points there was more than a full and fair cross examination defense counsel took advantage of it argued it in closing argument and to the extent there is have concerns about this it's very easily resolved on prejudice because of rodney because of rodney and also so rodney identified petitioner as one of the shooters both in the six pack and also at trial he never once equivocated yes the recent issue about his ideas to this johnny clarke person he never once see petitioner pull out a gun and fired the gun what was his testimony at trial didn't you say at trial i don't know who shot me yes yes right ok and that's what the jury heard he didn't know but yes but but there's the other victim joel's father rodney yes was also intoxicated but did not equivocate it right and though i read the record and those were issues of credibility of the witness that went to the weight of the of the weight of the evidence if the jury let's say took defense counsel a to strike all of any time or any thomas test money there left with ronnie's testimony and on that basis they convicted him and therefore it was harmless under brecht for those reasons the district court judgment should be a the yes i just i have i think there is no answer give me there were specific state court factual findings right and whether or not the california court of appeals decision was based on an unreasonable factual determination under twenty two fifty forty two i want you to tell me were these three factual findings at issue and reasonable that one that thomas refused to answer only one question because it seemed to me a series of questions one issue be that there was nothing to support the assumption that there were undisclosed eyewitnesses to the shooting and that thomas undisclosed sources never suggested that they witnessed the shootings or that his identification of sanders was mistaken so what is the evidence in the record supporting each of those findings you've argued some already but you said that there properly before the district court so it is not properly here the case law does not say that the two queens cannot be waived the two claims can be waived but the standard of review under d two cannot be waive so i'd like to clarify that point first now as to those three factual frightening which i addressed in my brief first whether or not the state court your honestly found only one line of question marks he's made one question was not answered i think we do agree that our reading of the record shows that it was more than one question but the state court i would interpret it as more one line of questioning it really is all about his source thomas refused to identify his source whether it was his source for the wrong identification his source for who the members were at the club and the trial that has made the court of appeal pinion though it does say thomas refused to answer one question at first laid out all of the questions that thomas refused to answer so i don't think that i do think you could reasonably interpret that the that the court was saying it was a line of questioning as to point number two which is the argument that there is nothing to support petitioners assumption undisclosed witnesses to the million the shootings the trial court the state court excuse me was not unreasonable in finding that because the record does show that both thomas and ronnie stated that they were there there were i think eight people at the shooting during the incident was thomas rodney troll the two girls s one s to a petitioner and there may have been conflicting testimony that there were possibly others in the vicinity of the bar but the fact that there was that testimony makes the state court factual determination not unreasonable the third point that the court of appeal on recently misapprehended the record without seeing the incident i thought your argument was the sources could have known the s one was somewhere else that the person that that lanny had identified as one was actually you know out having pizza that night or something not that they knew s one was but it testimony that thomas provides that says his sources knew who it was and i'm saying that it is reasonable for the court of appeal to have determined that the sources knew who s one was without witnessing the incident and i guess one possible scenario might be that and i see them running out time one plausible scenario might be that maybe they they heard about it or you know there it's a type motorcycle club and they know who's who and they know who showed up at the opening and but they weren't actually there the last point is that thomas is identification of sanders was mistaken and there hasn't been anything about sources saying that  petitioner was not one of the shooters i know that the defense makes much of the fact that his guy was outside he provided two witnesses who testified in the defense's case saying that petitioner was outside any additional possible witnesses that could have come forward that is entirely speculative we don't know what their testimony would be and assuming that they testified that petitioner was outside that too would arguably have the cumulative the district court decision should be reaffirmed for those reasons thank you liberally construed very he said it regarding waiver and the issue of additional eyewitnesses just factually there was an officer a police officer who was a large to be outside during the time of the shooting that was not his name was never provided and certainly that would not have been cumulative to other witnesses one police officer was identified as being in the courtroom and i don't think he was ever thing called or there's no indication that there was follow up on that person is that right that's correct in that officer was in a bathroom at the time of the shooting and had some evidence to offer regarding the music still being on and hearing the shots but he certainly was not witness to anything but there was evidence that in addition just rely on rodney's testimony i think that the prosecutor's closing argument is evidence of how the case was presented to the jury and ultimately how they would have thought about it and there's a ninth circuit supporter believe  additional attorney general talks about closing argument and how you can look not only at the what was important to the prosecution and what was material in the case but how a jury probably understood these specific issues that were presented to it and the prosecutor emphasized that mr thomas was a credible person because even if you stuck to his guns he stuck to his principle that he doesn't have to disclose certain people and that makes him more credible i don't think that can be overlooked as well as the fact that the prosecutors had as the deputy attorney general has said his credibility was entirely shot that was not how it was presented to the to the jury so i don't believe that's true and rodney did have serious problems with his intoxication the fact that he was a victim the fact that his son had been shot and he was focused on that that he had inconsistency is in his testimony so given the strength of the defense witnesses which were quite thorough and consistent with each other