miss my first opportunity to appear before the court and i would like to reserve two minutes for rebuttal all right thank you your honor the record in this case is an outrage it is a transcript your honor i included with the appendix from that had been filed at the time of the heaviest the entirety of the summation with an expectation and that was confirmed that the entirety of the transcript would have been made available to the court if it's not i can certainly take care of that but then and i think if that if i may continue part of the frustration that the court had with the citations and this transcript is that the pervasiveness of the activity the misconduct by the prosecutor began at the beginning of the trial and did not cease until the very end well it's it's not just what happened in the trial and under baldwin versus reese we are obligated are we not to make there's one piece of one brief from one of those stages how how are we supposed to know that what's being presented to us was presented at each stage of the the state to decision process well this was a this was a case that was directly appeal that through the trial to the spirit court of pennsylvania the brief that was prepared on this claim the same claim that's being presented to the to this court today was presented in five single spaced type pages which as i was responding to judge stapleton tracked the misconduct nose to tail from the time of the opening remarks directly through the closing summation there were twenty one separate citations there was an enormous piece of the closing summation that was included with citations and the obvious and what was recognized in the at the direct appeal stage you're saying it's in the record yes this brief is a part of the then the record in the case yes sir and how how would we do that brief because i think we tried to get three i have the brief with me here right case the call was playing the claim was obvious it had been exhausted in the state court below and that's the claim that i'm here before you today right so in continuing with what is going to be the task of this court in looking at what has come to it properly exhausted both factually and legally i would point to the of the misconduct that has been characterized in the same fashion both at the wreck the p o and in the and in fact and in federal court and i think it's important to know that the areas of misconduct are what really lead to i think a mandate of relief that's required in this case at the time of trial the commonwealth came to trial with a very evident truly challenge case it was a statement case there was a prior statement of a witness that the commonwealth wanted the jury to believe they knew that the witness was going to say that i had never made the statement at the time of trial and what followed was an exploitation a very limited eviden y rulings that were made in order to permit the commonwealth to argue fairly both other crimes evidence propensity both gang affiliation and guilt by association and also an indication of the fifth and might for example and a half pages of argument about prosecutorial misconduct and then what's presented in the district word is seventy pages or so three have pages before the state court seventy plus pages in the district court and your opponent says not these words but in effect that that tells you that they're telling you things that they didn't tell the state courts they are presenting stuff for the first time here and complain about things for the first time in the record and they're just flat out not allowed that what's your response to the assertion that between three and a half and seventy pages there's bound to be stuff that was not presented to the state i think it goes back to exactly what was raised on direct appeal and what was raised on direct appeal was not like in the case of wilson versus vaughn unlike even the case of of more which which was decided through the circuit and also in the cases from the supreme court united states donnelly and those were some point cases those were very specific instances of misconduct cases which were list available this case is such an outlier that making a list was the same effort that i made that was made below i looked at the direct appeal brief and it was plain to me that it was the pervasiveness of the misconduct throughout each and every stage of the trial from speeches and particularly in this case and what makes it particularly egregious is through the presentation of the evidence with each and every witness that limited evidentiary rulings were exploited for the assertion the supreme court of the state of pennsylvania said it was ok for reference to be made to the junior black and therefore it could have been misconduct were a reference made to your black body and the supreme court of the state of the common sense when you said it was ok to mention the other murder because there was a connection between the weapons in the two murders so it couldn't have been misconduct to mention the other murder because there was a a ruling that although was in a in a related case it was a ruling that it was ok to talk about that so those are two big chunks of your bad evidence argument what's your response to their assertion that it can't be misconduct the supreme court of pennsylvania's already lost the limited rulings that the trial court made aware that the other crimes evidence so that it wouldn't become propensity evidence was that the fact of the other crime not the facts of the other crime were miscible i'm not revisiting the rightness or wrongness of the state evidentiary court ruling same with gang affiliation it was a limited purpose for which that evidence was going to be admitted and that really was the evidence that had a some foundational basis in the statement of the witness that they wanted the jury to believe again i'm not arguing the rightness or wrongness of those state evidentiary rulings the federal constitutional problem arose when each and every time there was an opportunity for the prosecutor to and develop properly his evidence he developed improperly and i used developed in a most gentle way developed in this case means blatant violation of court rulings over and over again to the judge is reprimanding him each and every time the improper beyond the scope of the limited ruling evidence is is is brought into court objections are made it's a stain something was said to the jury sometimes it happens at counsel table sometimes it happens at sidebar sometimes it happened loudly at sidebar oftentimes it was had to be hustled into chambers it was loud in chambers and again the improper evidence above and beyond the fact of the evidence came in for example in the other crimes propensity evidence the fact of the identity of the gun and the presence of the defendant were fair game what did the prosecutor elicit that a li shot in the back for throwing snowballs that's what came out repeatedly with regard to the gang affiliation evidence what came out was that this was a violent drug gang that was also implicated in a series of other murders and that my client m decision and do you agree if you disagree is the state standards for deciding whether there's  and the constitutional violation affectively the same identical i have asserted in my dander i have asserted in my brief that unavoidable prejudice is a difference with a distinction but even if it is the equivalent of the donnelley standard of so infected the trial with with with with misconduct that the trial was unfair that no reasonable juror jurist who is faithfully and and carefully applying the law could have found  violation in this case i'm suggesting and asserting and arguing that the opinion of the trial court that was adopted by the appellate courts was a reasonable it was an unreasonable application of the well established law at the time the and that's the that's the trial judge who sat through these rockets proceedings that you described right he did more than sat through in some ways he contributed to the to the confusion or misleading of the jury by the way that he conducted the trial but by the district court was necessarily wrong in each of the five categories that the magistrate judge broke down alleged misconduct in it's that the magistrate judge failed to account for the cumulative effect of all that's right directly yes or she'd just like the trial court did not do the proper analysis for whatever reason i know judge the trial judge revisited his evidentiary rulings and gives a little bit of revisionist history certain of his conclusions that he states with authority in his opinion are absolutely contradicted by the record the district court is required and the claim is just so that i'm clear on it that it's not any particular thing it's the whole ball of wax you've got to look at the whole thing in toto the cumulative back and if you look at the whole thing in its completeness then you see that it's manifestly an unreasonable application of the law to say this t to be done and it must be and as i said relief would be required the i think in conjunction with the the outrageousness and quite frankly shocking nature of this transcript and the idea that that would be given imprimatur of a fair trial as is also a bit of a she could be a bit of a shock but more importantly judge jordan the areas in which the prosecutor exploited the limited rulings were right make this almost worse than darting and unlike don you require a relief because it was during the very development of the evidence for limited rulings where the inflammatory evidence was repeated over and over and over again the jury was a claiming bell's there was just no way for this judge to undo the harm that had been done by the misconduct so it's it's the whole and it's highlighted by the areas of misconduct that were a campaign to compensate for a very challenging evidentiary case this was a two day trial at most a statement case that took nine days to try and i would ask this court to to to grant relief and i will back and forth between the trial judge and the prosecutor and assertions that the prosecutor had was stepping out of line would you agree judge or not be the first one to say that i don't think in a sense of prosecutors really doing his or her job right and with the doing not just with the law and rules require but but fully upholding the highest mr additions of the office that having been said i think it also is important to note that the supreme court noted united states versus young as judge hand said before that criminal trials are not  events it's not reasonable to well we tried without emotion and it's also important not to lose sight i think of what kind of case this was i mean this was the kind of case where you have you know the attempted assassination of a prospective witness and you have a trial  that there's no material difference between the pennsylvania formulation and the supreme court of united states formulation of the legal standard  now let's say we say that's right these are really different words but they mean exactly the same thing how is it if that's true that you can take the position that there was not a ruling on the merits here i mean you are at some pains and go on at some length in your brief about maybe this is procedurally default and they really did present this if it's the same standard and it's an arguable that they presented the state cases that and argued it in the in the court ruled on it then that in fact then they in fact exhaust completely  and get a ruling on the merits look at a question i believe one that's the one that i believe the supreme court reserved involved in versus research about what happens if you raise what may be a state law claim but it's decided by the state courts under a standard indistinguishable from the from the federal standard you know i think that that's an issue on which the screen court hasn't ruled and i think this is a matter of watching if it's exactly the same standard and you're the one who's taking the position that it's exactly the same states constitution it's not so difficult to say so in your brief and that's that and that's the clearest way to do it but but mr goward that and the answer my question my question is you have contended they procedurally defaulted but at the same time you're contending that the standard is exactly the same i understand yes an institutional interest for you to make both those are guess i'm trying to understand how they can be made consistently if those are the exact same standards and they ruled under the state's interest did there not perforce by just deemed to be sufficient to be deemed the exhaustion of any federal claim i mean that i think is the question i think the supreme court has reserved and that i don't think i think it's the sort of thing where if the court were to assume as the statute permits if the court were to assume that without the need to decide subsection b two of the statute that anything that that a federal claim was presented at least to the extent it was presented at this to the state courts i think that's a legitimate then i think th and i'm i don't think i can square that circle i just and maybe i'm not going to get any more anya from this point than on that i've gotten so far but it seems to me that by your own argument that these are identical standards you are conceding that there was a ruling on the federal standard are you not i am conceding i don't i i don't think i've seen that judge jordan i think that it's actually a i think it's actually a difficult and complicated question about whether whether raising state court you said this in the abstract i think in the context of this case one could certainly understand as especially permits assuming without the need to decide that that shocked when i read this transcript but i was shocked by the lack of respect and the contempt by the prosecutor to the court but i don't understand that to be what we need to focus on that day i think we need to focus on the day the impact on the jury under the applicable standard and i think you agree with that yes or table and we have to do it in the context of the whole case and the strength of the evidence and the limiting instructions given by the court yes and i think we need to focus on what this misconduct resulted in the jury hearing over and above what they would have heard anyway if there had been no misconduct and of course the stay quit relied on that quite heavily and saying they've this evidence in several months since they said this evidence is admissible because it's probative of issues that were after actually being litigated and  the jury was going to hear about the lock my junior black maffia because that evidence was essential to the government's case on motive on intent to kill and one conspiracy is here and i  i understand that and i find that persuasive what i don't what i really have a problem with is the i understand that the district court that the state court held that the water murder evidence and mister mckee's yes it is testimony was relevant and they it was probative of his access reads access to the murder weapon and i can go with that but the district court i mean the trial court made it absolutely clear that which is obvious that there was no need for the jury to know that a sixteen year old boy had been shot were throwing snowballs at the car that reid was in and i thi hard for me to think of some if the standard is whether this had an impact on the jury that made it unable to fairly evaluate the evidence against mr reed it's hard for me to see anything that i think could be more calculated to adversely affect his interest a by the jury now having said that what what is your response to that i mean can we just can we really overlook that well i think in this case also i mean the you have course the state court trial judge you know who actually heard the evidence you petitioner i mean there's i mean i recognize the position that this puts somebody like the position or the petitioner in you know at trial on the other hand there also seems considerable unfairness you know in arguing that well the prosecution's case was weak because it defend it depended so much you know on this identification but then argue but the details of what this witness observed where is were so were were not just unduly prejudicial but a violation of the constitution and also i think there's  wasn't the only eyewitness to the shooting and it was you know i think it was also unfair you know unfair to say that our case is weak because the only only witness that the jury heard at this trial about the other shooting connecting him to the gun it was that was this one witness i don't you know i mean i think that also i see part of it what's the what's the downside for a prosecutor in other than you know you we would hope that every prosecutor has this sense of  responsibility and integrity about following rules but what's the what's the practical limits on a prosecutor if a prosecutor can do the sorts of things that were done here and  and and a conviction stands you know where of a trial judge repeatedly says you go this far no farther and the and the prosecutor runs up and keeps going over the line and then there's arguing back and forth and fighting and you can say that that that the defense counsel needled them into it but for whatever reason i mean i think you'd have to concede that over and over again in this case the prosecutor is going up to where the trial judge said and taken back when there are repeated violations the put the push back i think is you know is a sanctions against the prosecutor directly you know or you know that you know where but that but that and he put that in he said but that but that especially when when the cla real problem right is we've got to figure out what should stapleton just said is whether you can say the things that this prosecutor said and still have a jury untainted right well enough of it well and of course of please begin where my colleague mr gove word began as well which is the codefendant case in this case there are tremendous distinctions between the claim that was reviewed of mr bowman versus that the claim which is before this court on behalf of mr rayney mr berman's was of that specific instance variety the other crimes propensity evans was not a part of that claim it was reviewed thusly and no relief was granted it's not the same claim had alternatives in order to have pushback for the prosecutor and he threaten each and every one of them repeatedly finds bigger files you're going to pay for the cost of this trial i'm going to read to your superiors you're going to pay my salary or over and over again and when we talk about the effect of the jury that's where the rubber hits the road what is then the jury left to consider this man wants to tell me everything those people are going to hide it all from me the judge says that were so important by association and propensity are so inflammatory that may be the answer for misconduct when he is uncivil at the bar of the court but that can't be the answer when the nature of the impropriety the improper evidence is as a judge state person remark a sixteen year old boy shot in the back and that this was a killer gang with a series of other murders on its belt that's the kind of evidence having been many many years in the trial rooms that cannot be undone especially in this case when it's done over and over and over again without consequence so that would be a response to that the defense had to respond in compensate for what he must have realized i don't know was an evidentiary challenge case was a statement case with appropriate berlin's could have been tried fairly i've done it that was not what was done here this was  campaign that began a soon as the prosecutor had a chance to address the people and did not stop until he was finished if you look at the summations there not just as a summation of the prosecutor's evidence it's eight men for this court to see how he improperly argued all of the admissible evidence it's incredible catalogue which is right appellate counsel and me when i presented this on first instance in use the entirety of the summation as a way of spotlighting this very outlier case this is this is the most basic tenant complaint that a defendant may have don't have a fair trial these are the most egregious of the facts i have ever seen are thank you very much appreciate appreciate the organs from both sides will take the matter under advisement