please the court i'm full of briefs representing mr gallager based on the pinion of the district court in this case your honour's it's our position crawford error as an error is clearly state court as well as the district that it was harmless i mean it was a violation of crawford well the state court didn't find it was a violation of crawford because crawford hadn't been decided yet but it found their way on it confrontational right although the difference between the state court opinion and the district court opinion is that the district court identified much larger portions of the confessions that were subject to the confrontation clause th court of appeal for california so that only certain isolated pork portions of the statements were inadmissible and the rest of the confessions were just fine in the district court we should we think has demonstrated why that was know they didn't mention him by name but of course as the i think the district court has correctly analyzed in this case in the first place every every crime that was charged here was charged with a concert clause and every crime was charged with a at least to that element even things that only directly implicated the other two defendants would establish an element of the of the crime systems or go legit as well so i think that they're all just tied right together and in addition it seems to me that the strong implication is that it would be incriminating is to all because the defense is based on the notion of consent or reasonable belief and consent and if picture we think that the statements were incriminating as to mr goelz even though they did mention his name so the question i think for the that we'd like this court to address is was the error harmless and it's our position that at this point mechanics case and it's explication of direct there's this court is i think going to be drawn to the conclusion that we really can't say with any confidence that well so mr brooks you know you're acting as though we were the state court where we're at one level removed the question horace was is with the state court unreasonable in the those in my answer that question is that the state court was unreasonable in at least two ways the first way is that as i've already over to the state court ruled that only certain isolated portions of the confessions were admitting the entirety of these confessions and so i don't think that its analysis is reasonable or more reliable in that regard and and that's why i don't think that this court goes the state court decision as much deference as would be owed to it if it had looked been looking at the same error the error that it should have been looking at this court found harmon's they're also right that's correct you said a while ago that no one could ever find harmer's there but the district court as in the state court had to write it right and as i've given my reasons why i think we shouldn't take the state courts determination at face value as to the district court  i think there are certain factors that the district court failed to take into account and i'd like to just go over those briefly for re read of evidence and to examine the evidence during the deliberations third the jury did not convict on every count where the victim herself said there had been a crime there were the counts involving sodomy and there was a count involving digital penetration which would have been supported by the victim's testimony but the jury rejected that testimony and i think it's significant that those are the only counts there were not mentioned in the inadmissible confessions sex act right he just said he had consent that's correct and not only that but the d n a evidence showed that mission was true so so aside from these other statements that's right that's right and so that was the question for the jury to decide and nevertheless as i've stated there their deliberations were protracted  and another factor i think we have to look at because of your course under the california evidence code we can't go and ask the jurors whether the admission of these confessions had an effect on their verdict that's out of bounds but i think we have to look to what other windows do we have into the jury's deliberations and another possible window that we have is the jury instructions and we've noted in this in this case that there was no instruction given to the jury to tell them that they could only consider mr franklin's confession and mr label's confession against those defendants they were not limited in their consideration of these confessions and the instructions left them free to apply the confessions to mr gullit as well the other thing i think we need to look at is the nature of the statements themselves because they didn't only include the admissions of mr lytle and mr franklin they also included the statements made by the officers in which they lumped all three defendants together and they  said this is what you did isn't it i mean i've quoted some of their statements in the briefing are they going to are they going to believe you mr flamm franklin or are they going to believe a couple of other people who were there who openly admit to what they did another was the and interestingly the jury was concerned about the truthfulness of the officers during their deliberations one of the notes a jury submitted to the court said would you please give us some guidance on this sort of question that was done here particularly with regard t officers lack of truthfulness in the questioning so there are a lot of reasons to think here in our point of view that the jury was really struggling with this case and that's why we don't think one can say with any confidence that these confessions had no influence on the jury's verdict from the question is what would this jury have done it's not a question of what would i do if i were in the jury or what would a future jury do it's good to have an influence on this jury and all the indications are that it probably did because they were having a very hard time with this case so those are the points i wanted to make to you this morning and i'm prepared to submit the the court thank you rue frey deputy attorney general for responding to this is a harmless error case we have acknowledged that there was a confrontation clause violation and it doesn't really matter whether it's analyzed under crawford or courts analysis of chapman was reasonable and then the court also considers the brecht analysis and it's our position that the state court was absolutely reasonable in concluding that any error was harmless and under the this court should reach the same conclusion as the court has indicated mr gullit his defense was consent and it was a defense but it was a very hard road to hoe when the victim have bruises on her face abrasions the police found the screwdriver in the park that she said the defendants had threatened her with and immediately after she ran down the hill to the other person in the group who had not participated in the attack she was hysterical she had no pants on she immediately reported that she had been raped to this person so there was this very very strong evidence that there was no consent that's what the defendants were facing that was  kind of evidence that they were facing and in light of that there was no examination and then also the jury was instructed that there were actually two possible consent defenses one was that she did not in fact consent one was what's called the made very defense under california law which is that the defendants might have had a  so that's my point in light of that evidence these statements that were made by the co defendants could not possibly have had any influence on the jury's verdict in this case and i would point out that the  defense attorney what satisfied with the redacted statements and of we can assume from that that if that mr go just attorney didn't think that those statements were particularly incriminating to him and  pointed out that the jury deliberated for three days but it was a twenty two day trial there were three different defendants there was lots of councilors unhandsome and they had to go through a lot of evidence and sift through this and i think the main reason it took that long i because one of the jurors eventually refused to deliberate and that's reflected in the jury's notes and in some of the colloquy between the judge and the jurors at some point they were they were deadlocked in the jury in fact hung on some of the counts so i think that is what  next case on the calendar is bradley vs show