conclude that these phrases refer to washington rather than someone else is to go beyond the four corners of the confession and use inferences derived from the other case that's the heart of your argument that's correct so that's and by basic circumstances in richardson there is they did there was eerie existence marsh was was totally eliminated from the statement and richard's correct but that that the fact of the conversation in the car was not a whim and that is no evidence that if the very existence of marsh was when it was made then there is no marsh evidence which is certainly not please because in the course of his redacted brute nice statement four times the descriptive noun the driver is used about someone that mr also says he knows in his new for about ten years how old it is that something that in were very discourse could be considered to not give rise to a suggestion that this statement has somehow been altered to put it another way why is that not the situation from greg that the majority threw just deletions almost with actions and non obvious reactions and holding the greys that all these reactions are improper non obvious reactions from the face of the documents were not they don't even go there they're not yes that replaced a evidence in the case about how wrong roddy and washington know each other there was evidence in the case about how other people how long other people in that case knew each other but as i say understand it there was the evidence the only evidence about how long washington had been part ten years we're full raise another fact that makes that you're more curious and less able to follow the instruction your honor it with respect but i think what i'm hearing is that arguments term specific description that it would agree that driver's descriptive now it's a descriptive name but i would also agree that it is only incriminating when linked to other evidence the supreme court has never held a redaction facially neutral or non obvious deletion violates the confrontation clause the supreme court has never held that of adaption that only becomes incriminating moving to other evidence violates the confrontation clause the supreme court has never issued guidelines as to when c one heck of a lot of them they're seated close to one another and close to their counsel three of them and what is one of and his statement says what it says so right is obviously not the s the driver to people sitting next to him he's using two descriptive terms and you do think that that is highly suggestive such that what we are talking about is a statement that poses substantial and injurious effect here on mr washington no your honor i think that in richardson in great both of those cases involve the similarly small number of defend exception especially given the supreme court's stated policy that joint trials are to be favored that exception to prove an exception shouldn't be interpreted to be any larger than it needs to be suggested to you are patient from the four corners of the statement together with the presence of the three defendants it gives it oh i guess we just disagree my feeling is the four corners of the statement if you read it th holmes to figure out there was a but action going on here the language is natural there's no there is no immediate conclusion that this next to their basic area of disagreement the language is natural right i mean that's pretty much what it's coming down to your suggestion that the language in the statement is natural and the counter to that that repeated food times the term the driver about someone the giver of the statement right but then again there was no evidence for its not as far as i remember maybe i'm wrong but as far as i remember there was no there actually was no direct evidence between of how long roddy the statement giver james washington so they and these people fundamental position is that there's no need here to extend gray the gray applies and that would all says that extensions are in permissible we're not asking for i'm not asking for an extension  the so you're arguing that this can be done within the four corners of the of the so we decided with the four corners of the confession your honor i am arguing that yes however i would say that there are other immediately just so i had a statement being read as the first out document in the case and that would be to me the principle of gray is that if a read back a statement makes an obvious accusatory reference to a defendant that statement is in permissible under britain if you look at the diet the tension that occurred or the decision in the in gray itself justice scalia in dissent says wait a second we're going beyond the four corners of the got committed we're going further than just the facial reference on the document and to me that's a pretty good observation there are you doing the dissent no i'm arguing the what the the dissent observed about the great decision that the great decision was going wasn't limited self to a specific reference or jest the face of the statement but it was dealing with any circumstance where a attempting to advance the position in justice scalia's dissent that we should jest look at the statement and nothing else no other circumstance in the case that relevant at all and that's the way this should be done but that's not what the great decision held the great decisions that help in these circumstances this is accusatory so there's no extension if that's an accepted principle and you know what the record shows with respect to when the redactions that were performed here were completed was it prior to the commencement of trial was it sometime during the course of trial your honor as i read the record it's not completely clear there's some there's life but the what what boggles my mind about this case and it's simple to wait on full because it one of about to say does not implicate the narrow witness and take a course names the defendant washington as a as the driver then the statement comes in when deal with things such as motions in limine eight there are instances where as a trial develops it is necessary for the court to say now wait a minute when you go where you proceed we are going to meet to handle a certain matter the matter in a certain way and  essentially that's what's occurring here there was some guy i can't tell you whether or not just trying to be candid in terms of my reading of the record i can't quite tell whether this dac the statement was finalized prior to the prosecutor's opening i don't know there's some dialogue it may well have been we don't know but certainly if that was the case the opening is relevant and i would submit is you know the defense counsel here is saying prior to the reading of the statement the defense objection is is he says that it is clear as a bell that this statement refers to my very you agreed with my general point that there is a huge variety of ways to do statement could have been edited so that its  participation in the shooting he said i was there when he was shot really he had a couple of versions but eventually if you if you want to have a marsh type statement he comes around and says i did  court says here that quote certain principles are fundamental enough that when new factual permutations arise the necessity to apply the earlier rule will be beyond doubt and i submit that that's the case here we have a trilogy of cases that develop a rule that obvious references to that event a defendant should not be used and we have here an obvious reference i noted when i was reading the gray case again that they referenced in that case  the supreme court's decision in richardson against california and the richardson case was a situation where there was a crime and there were three black defendants and one white defended and that the statement  said who was there were there were some people there and a white guy so that was a in response in the court focused on the absence of a showing of prejudice such that they didn't have it didn't have occasion to throw established by the supreme court no your honor why don't the concept of traverse which and i would submit that there is no extend i want to emphasize i not asking for an extension of law i'm not asking well should we go one way we can go the creditors way to some other way and the travers way is a bad idea i'm not saying that i'm say travers is inconsistent with gray because travers has this notion that if there is the circumstances of the case and it cannot be ten p no obvious reference so it's a circumstance the test is one that looks at the trial circumstances and i would suggest that perhaps the timing of travers which was side about six months before this trial may have been part of the reason why the redaction as it appears appeared that way and it as i understand the would all case would all cases saying washington's person my my understanding is that and i may just not know the record well enough because they all were identifies him as being part of this community and then in this statement  there is a one of the things that the police officer that stuck to pass why he do is come in and draw a sign his name on the back of washington's photograph right so that there is  you know whether or not after the supreme court's decision right versus whether there were a number of any viewers that were entered by the supreme court i am not i believe that there was i'm aware of one i'm not on a site at one of the things i meant to check on and i just can honestly say that i've done that i could i could submit a letter if you want me to you case which was explicit you have the richardson case which completely completely removed any reference to marsh and then you have gray dealing with the middle ground where it doesn't have a a group an explicit lawyers and prosecutors and judges who are analyzing and applying supreme court precedent were given sort of a compass three three point compass and it allows us to navigate through each case it be intent of the wood all the session is not to throw out that approach and say ok well you can't do that anymore we're going to sort of and the pally onyx system where the supreme court has to deal with each specific factual circumstance this involve a photograph that somebody wrote their name on the back there's it involves a name such as the driver how long did that person notice the supreme court doesn't generate cases a principles that are so facts specific the supreme court has given us in the great decision and this line of authority aced principle a rule of law that can be applied and applying that in the manner the court did previously here is completely consistent with what all decision thank you your i it seems to me that we're talking i'm talking at cross purposes so i want to make sure i get my position out there before the red light turns on and that's this the supreme court has never held or even country where other courts have said have made exactly the same distinction that the pennsylvania supreme court made in travers which is taken from the language in richardson that at that link and two other evidence is different statement there was redacted to say that that the codefendant was directed to a residence to pay the money to someone and the dea agent said yes he came to the residence and he paid the money to him so the fact that there's incriminating evidence and that was cited with a cruel and gray the fact that there's incriminating evidence apart from the statement does not answer the question because as i was saying earlier  circumstance and instruction that you cannot use this against a defendant won't work because it's too jarring when they hear the name and then gray it's too jarring when you hear to be needed but it's not too jarring when it's only was corroborative evidence and that in of itself as a quantum of evidence makes it offensive for the confrontation clause as it was used here would you teach a prosecutor i'm not sure that's a fair question tie right by but i'll withdraw it i've made my point