the two critical prosecution witnesses to accomplice witnesses specifically the error is that although the jury was told under cal jack instructions that the accomplice testimony is to be viewed with suspicion it was also then they were also told that they were to decide whether or not these two witnesses specifically shallum and stanton were accomplished witnesses in fact as a california court of appeal found they were accomplices it was not for the jury at that point to find them it had been law you don't need a conflict with well the issue was this that if you look at what is the law in california as to how a jury should consider or how they should consider the weight of certain witnesses testimony jury instruction that lessens what would be the prosecution's burden of proof under california law does in fact amount to a constitutional issue and they want to get is for you well but it's but it is lessening ultimately what is the strength of the evidence that the prosecution would be would be necessary to present so well i'm so i don't want to i mean i understand your point where your point is if it isn't if such an instruction wouldn't even be a constitutional error under federal law in federal court why are we here and my answer is and i think the reason is california can decide how juries are to decide what weight is to be given certain witness testimony but and  lee tells the jury then how that witness's testimony should be considered and shifts that back to the defense when it is actually should have been put on the process as an issue on the prosecution is a constitutional air another worse it's not whether or not the template itself has to be governed by the federal constitution but with california laying out how a jury is to consider certain witnesses testimony kind of the one that's which is that over here is a shifting  evidence claim whether or not a accomplice witness testimony was corroborated and they said basically under fry that if a witness's testimony is corroborated under california law that's sufficient now that's different and i'm not raising and we did not and did not raise a bolo or i mean i'm not raising in the district court but this was a sufficiency of evidence claiming the difference is that the error in this case well first of all that is an arab state law and the and the california court did not decide under harm is beyond a reasonable doubt standard i'm aware under brecht but that is not why i'm here on the handiest but they did not decide in of the correct standard of review as it was raised as a constitutional issue and in at page four of my excerpts of record i do show how it was raised on direct appeal as an issue of a burden shifting proof but the other issue is what the california supreme court said and really i just read cry when i came in again today and they specifically said they would not accept the argument that was made that a witness has been accomplished testimony amounted to an element right and that that therefore they rejected that but that's not really the claim that i was making and in this case the claim that we're making in this case is that basically it a it is an erroneous jury instruction which has told a jury that a matter that should have been foreclosed on a california law in other words that they are accomplice instructions were still to be decided by them by doing so it allowed the jury to consider these witnesses and not view them under the correct credibility standard that would be under california and by doing so shifted their want to say something and i know i don't want to cut you off bro so told that if the testimony the constitutional claim however is different constitutional claim is that because the jury was told that they should be considering and looking at witnesses differently than they should have actually been viewed under california law as accomplice witnesses not resulted in a decision by the district court that was contrary to or involved reasonable application supreme court precedent well i don't think we should be viewing it under that standard in fact that's much of what my brief is talking about and why it hasn't given the case of that we don't even have the state court didn't even have to review or discuss the federal constitutional claim as long as it doesn't violate the constitution  related state claim that has the entry issue but is not necessarily a federal constitutional point the state court discusses only the state claim and ignores the federal constitutional claim i can't every issue raised even if it's not meritorious well the result is denial if the issues raised the clearly has been denied well they can decide to ignore a federal constitutional claim there's no compelling merits of this due process claim well no the due process was going to say and we are finding federal due process was not violated under the fourteenth amendment one well that is obviously the burden shifting issue and we find that it does not violate federal due process under that then one has to see under early versus packers whether or not the ultimate result resolution of the issue if it's decided i s an issue of state law would essentially not violate all become fit with the a federal constitutional claim and the issue that was decided by the california court of appeals is whether or not this testimony w corroborated enough to be sufficient it was not an issue involving the burden shifting argument that was made so and i'm not and i'm not trying to be louisville out of the years i've never really understood the argument that saying that if a court decides if someone raises a federal constitutional claim and a state court just ignored it and makes no ruling on it then that somehow whether insulated from federal review i guess that can't be because otherwise there would be no federal habeas i mean that that is why one doesn't know it we would be the signs as against the person who raises and then the question would be with that decision the contrary to or an unreasonable creation of process and does not shift the burden of proof then they get at the deference but if they don't address the claim if they don't identify and they never review it then it gets independent review on federal  end that is the purpose of what that's how they get because you can see what they viewed they see how they view the issue and how they ruled on a federal constitutional context if they don't do that how can a court look at that and guess what you did with what they put the responded to said it well let's look at the state court cases if they cited and because some of those same court cases cite federal cases obviously implicitly they ruled on that but they didn't identify that and i'm running out of time but i think the but that but the issue because it was not reviewed as such under an independent review these witnesses were the ones that actually they say that because of corroborating witness testimony exists that the conviction was not the result of uncorroborated accomplice testimony and therefore the prosecution's burden of proof was never like well if they can find it as a basis in terms of sufficiency of evidence under california law if it's different it is a different logical and legal analysis to say that because the evidence here was sufficient to convict that they nest their burden and it was not improperly shifted let me and that's what the state court  the point if that's what the state court said as opposed to an erroneous jury instruction which causes the jury to view the evidence in such a way that the burden is improperly shifted to the defense if you'll grant me this i think if there is sufficient independent evidence under winship or jackson versus virginia right to convict yes mister crack then the fact that there's a rule used instruction as to at in a record most favorable to the remailing party is whether there is sufficient evidence that any reasonable and rational trier of fact would have found a person guilty that is different than saying that as a result of an erroneous jury instruction this burly may be otherwise rational and reasonable trier of fact view that the case in an incorrect way and did not view these witnesses the way they should have been viewed and by viewing them because they were not told they were complex as they said you get to decide and therefore a jury could have said well i guess maybe they're not accomplished mr just like any other witness and they were just like any other witnesses they were accomplices and in fact their testimony was critical to establish whether or not mr eastman was involved  everybody else in this particular tape burnet was had been talking about before there was clearly everybody was involved beforehand his involvement was much more marginal and much more tangential the one that was absolutely critical sh you should view the testimony of an accomplice with distrust this does not mean that you should give arbitrarily just disregard that testimony you should give that testimony the weight you think it deserves after examining with care and caution and in the light of all the evidence of the case and you must a term of other witnesses not say as to which so he did shift the burden at that point in saying the jury you'll get to decide whether these are accomplished this when in fact things really work even if the point is that this was a faulty paradigm in which they should you have been is and these were not tangential witnesses as to mr eastman these were critical witnesses to and they really had to believe what they said in order i think to make him part of this it's under the mr t guard was a completely different case and independent other witness testimony that would have shown that he hadn't entered this but the issue of whether mr eastman under this has a robbery and whether or not he continued to deal with it as a robbery and therefore was guilty as a felony murder these witnesses were critical and so because the state court evidence claim however i would say that it damages the state's case consider the nothing that it would have caused a rational trier of fact to say well maybe he just went along to get drugs did not know it was going to be a robbery but because he w not part of the planning phase and then his actions afterwards where he does none of the drug he doesn't take any of the drugs doesn't take any of the money doesn't use any of the drugs just leaves with his girlfriend after they all go back to a hotel room is enough to say he went along thinking they were going to buy drugs and next kill someone you can see the when accomplice testimony is corroborated the jury can disregard the accomplice status of the witness you know you say that stays in the get to do that but that they should be correctly told from the beginning at this person is an accomplice and you have to look at it with basically this this kind of hide missed heightens view or a heightened i think is to guard but i'm not positive what happened to him he was convicted of first degree murder and he's still the person who was in the evidence in this case went to go are shot and there is a confession from to gar that he admitted doing so but i suppose that's true there is no reason to throw out accomplice testimony in this case i think any reasonable juror and any reasonable courtroom in the country would have been highly skeptical of the testimony of nearly every witness in this case  the federal constitution doesn't require any corroboration of these witnesses at all x true so we're dealing with a state law issue letters california penal code section eleven eleven that provides more protection to a defendant in the federal constitution allowing the jury to find that these people were not accomplices in error of law then lighten the burden of proof of the prosecution is your position and some lightning of the burden of proof under particular state laws such as p c eleven eleven wrong does not violate a federal due process right because there's no accomplice corroboration requirement under federal law might you know i think there's an old civil rights case of the reverse the city of columbia from from the sixty's in which something similar to that was found to have happened but apart from that very unusual  this case i want to emphasize that the jurors in this case were in fact instructed to distrust both of these women and that their testimony did require corroboration because there were three different counts charged in this case a robbery totally apart and separate from the murder from the spirity and reading the evidence in this case i think there is no way to distinguish some of their testimony as going to only the robbery and some of their testimonies going to only the murder either believe these women or you did not and certainly that they are questionable they're suspicious i think any reasonable person under any instructions or without any instructions would have been concerned that when they took the stand it's where it's all the truth that maybe they were doing it and yet the story they told is believable enough under the federal constitution it is corroborated enough under california law deference applies to the case now the second i think potentially more difficult question presented by the facts here are what do we do when the state court doesn't give us side nothing from ation or apply the twenty to fifty forty language under an independent review of the entire record and i think that would be frustrating for a judge trying to defer to something where there was no reasoning but that's the state of the law the circuit in fail on the country's far as i know here we don't have nothing here we have the reasons opinion is a very thorough opinion and it covers state law and if this court has to say as it has no ability to disagree with the california court of appeal on state law so we're kind of stuck with that aspect of the opinion but there is not much in the opinion about federal law which with you know for for the deference purposes our position is that in reading the entire record that you would have to do under the independent rule that said nothing you can look appropriately at the california cases cited by the court of appeal here including particularly people which is friday which does contain a holding regarding federal  very thorough opinion rejecting that the district court adopted that opinion those those things were proper so there has been no insulation in this case this court we're here today talking about a federal constitutional for alleged federal constitutional preprocess issue the problem for mr lanahan though is that left ruth again this is a state issue and so unless the state court is violating federal law routinely reasonably certainly rejected this of not terribly properly which is which is my position and you know if there's any doubt about that even if we there's any doubt about the reasonable as of the state court of the union there is nothing in this record to suggest judge right when you were let me let me give a different answer to the how can we ever say a state court judge or a determination of harmless error how is that different than brecht ok and i think it's i think it's apples and oranges and kumquats right they are three different things it starting on excerpts of record twenty three twenty one they don't talk about any whether it's whether it's harmless beyond a reasonable doubt or whether it's the reasonable probability standard under people versus watson people versus watson which is generally how a state court will decide a california decides in california state court error is that they use something called a reasonable probability standard which everyone agrees in california is lower than the chapman standard of harmless beyond a reasonable doubt so in viewing this then a state court could decide this particular claim under a lower standard of proof or a lower standard of prejudice then would be required in harmless beyond a reasonable doubt now i know the holding a book to wreck sets however the fact that they got it wrong over in state court does not mean that necessarily you then review it under a harmless to the on the reasonable doubt stan entered in federal court on a federal hadrian's but they are three different standards of review and so in looking at it i one i don't think can make the sort of reasonable doubt that is they don't get a deference because they have used a different stance however when you review it under a non deferential standard you still have then you have to use brecht and brecht is really neither reasonable probability nor harmless beyond a reasonable doubt is were accomplices in the crimes trust so that was the difference and in fact they found that this wasn't a confusing instruction but a jury could ultimately what i'm saying is the jury could have looked at this instruction could have not viewed them as they should have been  accomplices and they would have made a difference if you want to do you want to record sites where i can say what they were talking about he didn't take up the drugs i can do that in it isn't a brief i think it's just a fighter it's also an it's an insight i think it's on page eight of my opening where they specifically talk about somebody wants a rug no one talks about what's he guards says to him when he's in the car when he pulls up says we want to get some somebodies got some ice want to help buy some want to get some and split he comes along thinking that he's going to do a drug buy not rob and kill a drug dealer and his actions afterwards are can are consistent with someone who went whoa i had no idea what was what you guys were doing i don't want any part of this now a jury could see that and under a theory of felony murder say he did not conspire to rob he did