implicated him and the other codefendant childers i don't think there's any question about that i the court has any questions about that i'll be happy to answer them but i'm going to go ahead and go to the prejudice inquiry which is i think the the the real can tell me what case you point you can point to where either this circuit or the supreme court has found references like those in this case th which basically there are many cases who hold that if you indicate the number of the defendants just a number the mere number of the defendant and i would let the court know about  the detective showing a picture which is what the district court looked at or inferred from the interview with self that they're showing a picture of mr palmer pointing to him he said this is one of the guy that you were cited with for a violation was told he can't refer to certain things or was there a physical redacted transcript that was given to the jury i thought that's what i read that there was some redacted transcript there was some honor the interview between the two detectives mr allen who at the time was sixteen years old being interrogated by two detectives and that whole transcript initially there with some we did actually done by the prosecutor but we don't know what what the entire transcript looks like but what we do know is that the transcript that he offered to the court still had mr tell mr palmer's name in it and then the court said well once you take out the name deletions they just went back and changed pulled out mr palmer's name yes your honor and put in well does unclear your honor what we do know is that the transcript itself doesn't have any case is a different issue the issue of harmless error because i understood that the state court also said if there was a confrontation there was evidence of a shirt in his apartment that was like a color like indicated by witnesses there was someone in the car was wary and and if he's a gang member and buddies with these guys and the gang does do violent things like this for you know turf purposes so what what makes not even involved in the shooting incident she was she with some time before the shooting incident miss love did not identify mr palmer before trial what she did was she looked at the back photo and she said there's three people here who look similar including mr palmer that looks similar to the person who was sitting on the front passenger she also said and then what happened was you want to they did a live lineup but what they didn't do is that the police did not put the two other people that she had picked from the photographic six  into the live lineup so she saw mr palmer not only in the fourth photograph but also in the live light up without the other fillers being there and then she comes in and testifies about the s childress and she was very adamant about that you want to because she actually did mr childress with the last guy that she saw because he's the last person who got out of the car and said bullis had no name on it for money yes or no i don't disagree with similar to mr palmer and then what happened was the bottom live line up for here they orchestrate a live lineup he had plenty of time he says it's a trial plenty of time to look at observe the individuals out some of them to come forward and go backwards i believe nineteen your honor go ahead and and what happened was wrong is that mr thomas did not pick anybody he didn't he wasn't able to pick anyone which was what is important about mr thomas of testimony is that he corroborates if in fact we can believe mr love anything she said he loves testimony that were in fact four people in the car four people in a car two people got out of the backseat and started shooting that's w twenty thomas testimony is very adamant about that he was questioned extensively about that so you have one thing that i think is very important here and it shouldn't really be glossed over is that there were we know that we know he was a member does not question was a member of again we're not going to debate that your honor but we know that in that particular gang setting there were people coming in and out of the house to the house that he was staying in this is a person who doesn't even have clause and so then there has to be a showing that there was a substantial and injurious effect yes your honor of that statement that causes grave doubt is  in light of that what's your best argument because there's also these delaware factors that are supposed to help guide us into this right whether there was harmless error you want to whether you look at this fall at the substantia pit number one which was a mr palmer that is not on shore your honor that is a wrong way of looking at the fact the only way you can compromise or you do you can come to that conclusion is if you're looking at it from a sufficiency of the evidence under and all the evidence that i set forth in front of the court there is grieved out here on are considering the fact that there was absolutely no physical evidence tying him i admit the facts about the facts of his abuse not the best citizen out there he's not a great guy he was and he was a gang member but to convict him and give him life without the possibility of parole when you when the when the prosecutor is it comes in and says to the court i'm not going to use these statements and then comes in he uses them because he knows he doesn't have any evidence against them he knows he's going to be in trouble i respectfully you know to reverse this case and have him have a trial where  what the supreme court has held that would control this case and i would ask the court to consider two things first we know that in the britney case the violation occurs when the defendant is directly implicated in the statement by a non testifying co defendants confession that is not what happened in this case so this is not a violation of britain so we don't look to see what also a supreme court has held what happened here i mean there was discussion that there were not going to use the statement everybody was it seemed like that's what everybody is understanding and then on the day or you know you've trial comes the statement from the government side and they were going to use it and it still had  apparently still had the defendant's name on it what was going on here and then i guess the other question is you know the redacted statement i mean when you look at our guidance given in richardson and gray it seems like you're supposed to remove the reference to other defendants not only you know the number but their existence and so when you see in the statement here that they say to them and they clearly make some reference to other defendants existence and so i guess i'm just trying to figure out you just kind of made a statement right now how is that supported because your honor if we do look at the there were meaning supreme court cases in this area specifically richardson versus march which you've indicated the court makes it clear there when it describes what it means by omitting a reference to the defendant's existence it makes it clear in footnote five that the court is expressing no opinion that's what the court says no opinion or not reaching any conclusion about the use opponents so it is not the case that the supreme court has ever help that the use of pronouns or other references to third parties violates prudent and the only reason according to gray versus maryland the only reason that the court finds a violation there is that it finds that the use of brackets or lip cs or  other devices that so obviously identify the defendant without naming him that's the equivalent of brewton that didn't happen here to be clear there were no brackets in this case there was no lip sees no one referred  i mean let me just give you an example after the shooting when allen was dropped off he read them to we're left in the car i mean that points the finger i think pretty clearly i think the inferences he's referring to childress and palmer and i think richardson versus marsh i mean we can quibble about how far their case goes but i mean if you look at if you look at the words that were used that remained in the statement the other guys they them them to which were not really redacted under the facts of this case it could be referring only to palmer and childress i think correct christianson the imprints that you're talking about is an inference that one may draw from all the evidence and i would submit that when one reads richardson versus marsh the court says very specifically that's not the test the test is whether or not there was a direct identification of the defendant either by name and or by the ellipses and to that point i would add that and i don't think i'm splitting hairs question just to make sure i understand your legal position confrontation there somewhere i got the impression i thought from one of those supreme court cases that it would be enough you judge gould i read those cases differently unless i'm i'm forgetting some specific language that you have in mind because again i think the import of those cases is that and i think particularly richardson versus marsh says this is that it is not the likelihood it rather it is whether the defendant is directly implicated in the statement either by the use of his name or by some mechanism that is so clumsy and obviously an attempt to remove his name that he might as well be name and that is why i think richardson vs marre certainly the majority opinion makes clear that there will be many situations i mean we can debate ultimately allowing the although this whole idea of allowing multiple parties to be identified because by definition that's implicating other people that's not a brutal violation and if it requires you to stitch together other evidence from the trial to draw that conclusion that's not a britain violation either but i would like to get to prejudice because i know found in palmer's apartment which i understand was frequented by gang members would leave shirts and hats in that apartment we've got this testimony of these eyewitnesses which is all over the place and you've got some cell phone testimony which i think is debatable as well being skeptical i understand you're on time and i think and got a lack of direct evidence here and first of all director evidence so to speak would not be the rigorous standard as a court knows that we use in criminal law to decide whether errors harmatz that's not the a t p a standard and the magistrate the district court had no difficulty concluding that the that it was harm is a lot of the evidence under a much lower standard so let me talk briefly about what happened in this case our evaluation of the evidence is significantly different than the one offered by petitioners counsel we have on the morning of may ninth and i'll try not to go over judg and sure she was and she she had a lot to say what she said repeatedly is that she was absolutely certain that this petitioner is in that car all right so you has a statement from the federal or from the saying she was not credible and the trial court is not the fact finder it's true i'm just saying that you're saying she said with absolute certainty i just want to make sure you account for everything that was involved here in the has difficulty in her identification of him the state appellate court and the district court both find that at every proceeding she identified him at every proceeding at one point in time yes so and she has here in the same passenger position that he's identified in not days later or hours later but minutes later when he and his companions confront the other victims mr morel who they wound down the is minutes later in the same quark he's in the same position again not oh i can rely upon is the record and the court's characterization of the record both of just what the district court says that the identification is made by morale th looking at now it sounds like you do have some people identify him at some point in time in some manner but then there's other times when those two people love and have difficulty and well it seems like and then the gray sweater yes and so what we have stated another way is we have both of these people at various points identifying him and we have these people lo and behold identifying the same garment that they say that he was wearing is found in his home was it shared by other gang members in his apartment there's no there's no evidence of that it's a sweater that resembles the graying white sweater that they describe him wearing  are a question of fact as to whether or not that gray and reds there's a gray and red sweater was worn by the front seat passenger the evidence seems to suggest palmer was sitting in the back seat so don't we even have some conflict in the evidence as relates to what the sweater look like or a sweatshirt and who was wearing the fact that as to this point or any point the fact that in a in a murder trial where there was significant cross examination the fact that a point is disputed does not mean that there is more than substantial evidence all familiar of these identifications that is why the state appellate court found it harmless beyond a reasonable doubt that is why the district court found harmless he's wearing a distinctive piece of clothing according to the person that sees him minutes before the murder and at the time of the murder is there a metaphysical possibility that at some different piece of clothing the jury obviously was satisfied beyond a reasonable doubt and to say that britt with respect to virtually every aspect of this evidence so more albums that implication doesn't matter loves identification doesn't matter it's the same car it's minutes later the cell phone evidence that is not subject to the to the questions that one asked of an eyewitness in terms of whether or not their identification is tainted that cell phone evidence puts him a third of a mile from this location when he's making a call at the same time or minutes later about from that market grocery store down the street to this courtroom so that he is within a third of a mile of this murder and just coincidentally two people have described him as being there and just coincidentally his clothing he's abraham as the court is aware speaks to the substantial injurious effect standard the a d p a asks whether or not a state court looking at this evidence could have reasonably decided using a much more rigorous standard that applies in this court could premise that the state court got proven wrong leaving aside our a t p a claim there the question is whether or not one could look at this evidence multiple eye witnesses other corroborating evidence technological evidence as well and decide that there was a more than sufficient record that indicated there was no substantial effect from a statement that never named him never then i think if they quote the very comfortably come to that conclusion one further question place the fingerprint the lack of fingerprint evidence wasn't addressed by you in this part of your argument though it's  only one piece of evidence but i wonder is there any expert testimony in the record from king experts or police experts that deals with circumstances when a person might be involved in something but not leave fingerprints there was again there was testimony from a gang expert in this case judge gould i don't recall that at this point i don't recall any references specifically to two ever i would just by the way one last point fisher also argues that in this case like the deliberations and a request for read back indicate  prejudice i think as with the absence of gangs i rather with fingerprint evidence you know to say that a jury took some time to decide a case and asked to review testimony i think that just as likely indicates a jury's doing its job but on the fingerprint evidence if i could just follow up it's my understanding it's not just that they didn't find fingerprint evidence mr palmer they found a lot of fingerprint evidence involving the co defendants in this case there were like to state it more declaratively it's my recollection that this the fingerprint evidence wasn't just that they didn't find any fingerprint evidence they found i think it was at least thirty prints of co defendants but they didn't find his and i'm just seems like that's a little bit different than not finding any fingerprint evidence at all and i think in terms of what it says visa the his guilt i think it's you know it's a fact point that can be argued  a jury it certainly doesn't exonerate him and we know that the car was tampered with you know immediately no i just it's just another factor a just wondering if it's you know should we be considered when we're doing this whole analysis of trying to figure out whether or not mr allen's testimony had an effect if we find that it violated the confrontation call may have been sadder than the others about where he left his prints we don't know thank you thank you this couple of things your honor the back of the sweater there was the test of the sweater to see if there was any d n a evidence that would connect palmer to it not none whatsoever love not only in the police statement to police minutes after the crime but also here and if you also a trial she said that childress was wearing that sweater more rather says pollard was wearing it when they showed a sweater to him but morale there also says he never saw the front passenger get out of the car he won't he saw the bad passenger of the car which was alan and he turned back and ran to the house because there was a shooting how does he have time very important your honor the fact that it was no physical evidence tying mr palmer when there was physical evidence to find the two other defendant is very critical here when you have all the other conflicting evidence out here about who  wearing a sweater i mean this is what the state had against this guy a sweater a sweatshirt a telephone which is not a g p s and then two witnesses who were all over the place with their identification your honor respectfully on it without allen's statement the jury would have had much difficulty finding mr palmer guilty what about counsel's argument opposing counsel for argument that richardson versus marcia does not require the read acting of all reference to any other defense well let's look at richardson your honor there are the the court said the reason why there was no violation there was because first of all the redacted statement didn't refer to anyone anyone's existence then what happened was the defendant testifies and says i was in the backseat of the car that she puts herself in a box in the car and that's what the court he lied on in denying the claim