nevertheless he deserves a fair trial on both of the counts in which he was actually that convicted and he did not receive it the prosecution denied his right to fair trial properly to saying that that they weren't really afraid and all of you know that the jury had to decide ok were the judges really afraid even though they testified tooth out or not and so why wasn't the statements that were made it wasn't sane believe me because i know these judges it was like ok any time in a credibility case certain instruction that comes forth and they say ok you can look to a number of factors to decide who's telling the truth and some of those factors can be if a person has a prior conviction for a felony some of those factors can be what would their interest be you know are they if say someone standing on the corner and they don't know any of the people and they're a witness it would not be unheard of for someone to say why would this person come to court and say that when they don't know either person so why was that more than that because what the prosecutor did was he took the position  vouches for the judge so what do we need one step further for the prosecutor to say along the lines of trust me i know that they're good judges these are these are judges who have a clean record  the prosecutor to insert himself into the equation to make it a vouching situation as far as you as jurors are concerned what they say goes if they said it happened it happened if judge white becomes in or a judge to comes in here and tells you x happened it happened and you know that and there's no other way to view the evidence he doesn't have to say i believe what he's saying to the jurors is that these people are unquestionable there is no credibility issue not because they're honest his defense was that judge whitely had miss had not remembered the conversation correctly i believe mr senator recalled the conversation that occurred on june i mean in terms of that was entered into that was in evidence yes that was an ok so what's it mr senator challenging whether that or that i that i'm assuming the  insurance struction is just because i say i'm afraid that's not enough it perhaps these there's some sort of it's not entirely subjective isn't there an objective standard for that a reasonable person would have been scared by what he said well has no i mean it's sort of like if i look at you like this ok and you say oh i'm really scared that doesn't necessarily that wouldn't satisfy it unless every reasonable person that gave you you know i'm kind of  eyes and looking at you i mean can and can a person just say is isn't enough that they say i was afraid yes your honor i don't think we're in this but what does instruction say on that on the on the crime it's not it's not just it does say they have to be i know but is that a subjective standard than objective standard that the jury had to be instructed on something on that and i don't think it's in them i believe it's an objective that is so that's different but that wasn't the issue that the vouching went to the vouching didn't go to whether or not the judges could have or would have been afraid that they would she went to what the judges actually said so you've got you've got two arguments going on here you've got my argument that on the air uncertainty the claim not granted the certificate has we're getting in on time i need to ask you about your uncertified you you raise a claim not included in the certificate of appeal ability which is that mr senator's counsel provided him with ineffective assistance by failing to argue sufficiency of the evidence on direct appeal at did mr senator raise that specific claim before the district court ye ok you're briefs don't cite strickland versus washington or discuss the standard for ineffective assistance of counsel at all how come we find that you have shown that a reasonable jurist would debate whether mr senator's counsel gave ineffective assistance when you have directly threatened still it's there and the laid out the elements and i laid out the evidence and it's clear that the threat was written by mr senator to his lawyers the lawyers email others the e mail was intercepted by the f b i and then they sent it to the judge will your issue your your way you're getting it before us is that under the vouching that the district court held and certified first to determine whether there is vouching then you determine whether the weight of the evidence was sufficient right because if the weight of the evidence is overwhelming and the vouching is harmless if the weight of the evidence is insufficient then the vouching is harmful and you have an error isn't that really the analysis are you both with i argue that under the evidence is was not strong to use as evidence that it was hard evidence wasn't strong the jury deliberated for a lengthy period asked for the read backs so yes it comes up both in that context but also as a separate play so comes in two different ways the first way the way i mentioned to you and then the second way which is that the prosecutor has some kind of inside information that the other parties when have so the statement that you mention is really the the first kind of vouching the second is when the prosecutor says something along the lines of they they are i forget the exact statement they're impeccable or their record is people write something like that so as if he had some inside information so which of the chew did the district court judge rely on do you know i believe that the judge relied on the statements such as the one i just gave you ok all right so then it's your position that because the judge relied on that found vouching the judge is in error because it's not harmless vouch because this evidence was not sufficient because there was no evidence of direct threats correct ok ok now i have a question for you the district court didn't reach the procedural default the district court didn't reach the procedural default because he elected to roll on the merits but your position as to whether or not these claims were either both claims were procedurally defaulted i can't really answer the question your honor i did not look at whether or not i know that they that the court the district court reviewed it de novo because the california supreme court had denied them on procedural grounds i thought he did it because the california supreme court didn't r on the issues well because they didn't i didn't procedural grounds the california supreme court did not rule on the merits was that the last reasoned decision the california supreme court decision you know we i think we were all right you know i don't i thought it was because the the california supreme court had and tonight in on procedural grounds ok if i don't say can i move it wasn't that wasn't a reasoned decision we have to look at the last reasoned decision it please the court daniel rogers deputy attorney general for respondent and i just ask you real quick you didn't raise procedural default as an argument let's the reason for that so if so if that exists is that weight i don't know that it's waived it was raised in the district court she didn't raise it to us  i don't know that i have a good reason for that other than this case was seen during briefing to be as the district court had concluded easier to decide on the merits evidence why was the evidence so overwhelming as to not be contrary the breck standard the evidence was overwhelming for a number of reasons number one the defendant had done this before this was a pattern of conduct that wasn't presented to the the jury right what was presented to the jury were the three threats and they were all charged as direct threats and  you hand the other statute charged originally and dismissed those counts before trial all of which would have sufficed under the in direct threat so the fact that he had done it before wasn't presented to the jury we have to look so in the analysis first of all for procedural default you'd agree with me wouldn't you that ineffective assistance of appellate counsel is one way to get around procedural default right the judge however certify the issue of the vouching for it so now we're in this path of vouching and we have to look to the weight of the evidence so we have three threats in the first one is and that it's a direct threat and it was a package given to his lawyer that ation through a third party can satisfy california statute starting to write and that's usually in a situation like where it's going to the secretary and the secretary says i got a call judge here is what was said on the call but this was conveyed to a lawyer essentially in the in the auspices of getting legal advice right well this was a essentially a criminal act that was conveyed to an attorney at that point the expectation there was no expectation of that is not going to reach the judges well so your theory is that there is an expectation that the defendant when he conveyed that to his attorneys assumes that it would get to the judge he either assumes or she he either knows or should know that it should get to the judge well that would have worked if in one of the counts that you dismissed but in this count it's supposed to be direct but again others and a hoss direct can be through an intermediary so the th and you're not in forgive me i put maybe i'm having trouble separating the sufficiency of she from the weight of the evidence it seems to me then you talk about the weight of the evidence is you say what is all the evidence that shows that the defendant is guilty the evidence is the threat that was communicated to the f b i as to judge dealt with or secondly there are the additional threats that were made after that to the attorneys that informed his state of mind as to that earlier one and then as to judge whitely the evidence is that the threat that judge whitel testified that he heard and judge whitely was specifically asked on cross examination if he could have been confused and indicated that he was not that threat is consistent in tone and tight with the other threats it's consistent with the begin to the other threats coming and the threat against judge delatour came in and the affidavit that was that was the threat in the affidavit yes and the affidavit that was filed was actually heard by another judge wright so again the question of whether it was a direct threat to the judge hearing the case what the affidavit devan the affidavit supports judge delatour it's version of what happened in that courtroom right so in this case when you look at all of look at whether the evidence was sufficient to support the charge and the conviction beyond a reasonable doubt well i think in fairness in fairness to counsel on this i asked him to directly address harmlessness and i said that's what we were so we're kind of if if you want him to address efficiency at that's a different issue well and your honor as to sufficient evidence in terms of then it is the element essentially informants analysis of that element is the sunday house case the zend a house case indicates that a threat can be communicated through a third party is in a house is not one hundred percent on  this court conducting that deferential review relying on the state court and state courts analysis of the elements of penal code section seventy one that send a house is close enough to satisfy a sufficiency of the evidence standard and mark you insufficiency of the absence before the court now it's not in in my view there's there's some overlap because we're talking about the strength of the house ok a lot of we have isn't it the my argument would be that in the case of judge delatour if i make a threat a criminal threat to an attorney an officer of the court your own attorney my own attorney but an officer of the court it is i should know that there is an excellent chance that that information may go to the court i may i may want the  no evidence of this and especially at this point but i may want the attorney to do that i mean if if i tell my attorney that i'm going to plant a bomb in the courtroom  tomorrow i should certainly expect that there will be someone waiting for me when i arrive in court that attorney is not going to hear that threat you know future criminality and simply sit on his or her hands might in fact the attorney does have a duty right believe so yes was that threat ever shown the letter ever shown to the jury the the actual letter that was sent the threat to the attorney no i do not believe it was is it in the record i do not believe it is in the record i think the e mail from the f b i is what was what was shown and we as the court knows evidence i don't recall the specifics of that stature of think it's fourteen seventy one but but you just you just tell me that it was not presented to the jury the e mail was present at the actual e mail from the f b i i was present and i'm  it not mr senator's correct threat in the letter that was turned over to his attorney which is attorney then contacted the f b i regarding and then the e mail from the f b i was what the jury heard yes ok what seems to be a mission pression the attorney did not turn over the e mail how did they get it they intercepted it the f b i was doing you know one of these random looking at e mails for poten ly harmful information and they came across this particular e mail that went from a senator to his attorneys so you know in what kind of interception and i saw that term used throughout the briefs but nowhere in the record because the f b i agent who testified never explained why or how explain how it was intercepted i'm assuming it was that the f b i was randomly looking at the e mail because they saw this e mail from senator to his attorney they then wrote an e mail to the judge and quoted from the e mail that was going from senator to his attorney and when did that happen really simultaneous well the date that they sent the i don't know what date the f the e mail was originally from senator to his attorney was dated i don't think that is i'm not sure that was even in the record if it is it was the same day that the f b i sent it to the judge which was april sixth close of that was unable of two thousand and six and i do not know how they intercepted it but i would say that clearly mr senator when he sent the e mail to his attorney did not intend for the f b i to intercept it and send it to the judge so in that grounds this is not my ex and natives because the threats that were made in zenaida's were directly made to brit direct staff member and when he made the calls he said tell him that was amos tell someone so you know that i'm going to come and do him harm this is this is clearly  attorney never called for security or reported that or anything like that so just came in independently through this service yes it came in with the f b i intercepted it and sent it to the judge we don't really do you really know that you just you basically said i'm assuming the f b i found it that way you don't really know i don't know how they have actually intercepted it i am telling you that that the f b i agent testified at trial that they had