that you call the case number twelve to six six eight junior blacks versus lloyd repel arguments not to exceed fifteen minutes per side mr stew merits as a consequence is a high level of deference accorded to the state court decision here the michigan supreme court decision relief is only appropriate where there has been an extreme malfunction there must be a decision on which there can be no fair minded disagreement miss rhodes testified the first trial they were unavailable then for the second trial made themselves available essentially so she she gets amnesia recants they did so he just won't say anything when he's up there that he refuses to testify and she gives a little bit of testimony but the consequence of them both being unavailable the their former testimony is right in the legal issue is whether they said should be subject to impeachment with their written that occurred after the first trial but before the second trial mr were to show that i'm asked to the gentleman that you described in refusing to testify i know th the judge was getting a little impatient and i thought the circumstances showed that in fact he said he would but he wanted to change clothes take a shower clean not before he was called to testify ultimately concluded this was essentially a ruse that he was refusing to testify and that was the ultimate conclusion of the state courts in the mission supreme court is well under concluding that he was unavailable under michigan rule of evidence at all for be won so that challenged thank you so then we start with this question of whether the michigan supreme court was wrong in affirming the exclusion of the recantations statements and the reason jackson is so important is that the court states in jackson that the you know the supreme court has never held that the confrontation clause and titles a criminal defendant to introduce extrinsic evidence for impeachment purposes and it's clear that the evidence at play here would have been extrinsic evidence it would had been introduced to a third party witness and that probably in dispute the trial of counsel for mr black's in the post conviction hearing so i would say yes it was my plan to bring in a statement without them testify the whole notion that this is impeachment that sort of puzzles me and you know maybe the maybe you would think it's not a peach and i mean as a practical matter neither of these witnesses is offering substantive testimony and so we're we're impeaching  their testimony that's being read from a trial transcript so is that is that impeachment in the usual sense of the word or is this just a crane v kentucky kind of case where you know i've got a piece of evidence that i just need to so was taken for substantive purposes because it was because confrontation clause to be satisfied in a medic's based on the prior cross examination i mean another claim which has not been advanced is that the all the testimony should been excluded as a minute vance so that the question is whether that testimony had to be subject to this extrinsic evidence of impeachment and that's why i think the maddux case is so helpful in its analysis it's the old case eight hundred ninety five it's the similar case for former testimony satisfying the confrontation clause but there is also then a distinct evidentiary analysis about why kind of a similar case where you have a witness who testified the first trial dies before the second trial and out there allegations that he recanted his first to impeach with extensive evidence and there really is no guidance other than maddux which excluded that evidence now there was one piece of cross examination which related to miss darlene rose because she did a short amount of testimony although her testimony was essentially i don't recall or i wish to invoke my fifth amendment privilege but after a series of fourteen questions where she says i don't recall the last question related to confrontation context bought that and that that analysis the van arsdale case really is governing which talks about limitations on cross examination worse repetitive or marginally relevant and for someone to give in fourteen consecutive answers that i don't recall and i don't wish to be here i don't i'm not i don't want to incriminate myself another question answers saying i don't recall but have been of very little value so when the first issue is a basis on which to reverse the district court's decision about the how the two witnesses the former testimony had coincided with the testimony of what would be the untainted evidence if there had been error the untainted evidence comes from the accomplice trials lampe from the victim's girlfriend rebecca mock and from the victim girlfriend's sister roxanne barr if you look at the evidence there were essentially five independent pieces of evidence provided and the power of the case wasn't in any single person's credibility but in the interlocking nature of the evidence and in that circumstance the impeachment value or the value of undermining someone's credibility is blunted where the strength of the case comes in the you know locking nature of the evidence what do you mean by interlocking natures well here's here's my point you have me think about the alignment of witnesses you have two accomplices you could see them for dating their testimony but then you have the defendant girlfriend the mother has four children who is not aligned with the two accomplices really and then you have the victim's girlfriend and her sister who are not aligned with the other two i mean you have these three different sources of information so we're back to mock just being consistent nature of picked up the victim the next morning she goes to blacks as house black skin is there with simpson miller is not there blacks and says miller left the victim left the night before and then mark also talks about license confession  confession and then also fits exactly with lamp and simpson's explanation of the trial where the two accomplices fit together with the group victim's girlfriend offis together with the defendant's girlfriend the mother of his four children so in orphan impeachment evidence to really been valuable he would have had to show how these witnesses courtenay of their testimony but there was nothing like that in this impeachment had to show that i would just have to have cold in question  court's analysis on the harmless error standard is a back to the unreasonable but then tying into the second point which is really the point i'm making about the limited value of the impeachment impeachment haven't touched on credibility but the strength of this case trustworthiness of a witness can somehow trump a defendant's constitutional right perhaps recognizing the weakness of its argument in its reply brief and here today the state now argues that the defendant cannot page forty nine of our brief a witness was unavailable and as a result his preliminary hearing testimony was right into the record defense counsel then sought to impeach the testimony with the witnesses record but the trial court refused applying at this court how that not allowing the defendant to impeach the prior record of testimony violate the clearly established federal law defendant in vasquez sought to impeach prior recorded testimony and this court's holding on that issue is unmistakable the confrontation clause still applies footnote five of that decision is particularly court cited and quoted the seventh circuit writing quote when a dad or otherwise unavailable hearsay declares testimony is admitted against the defendant the defendant's confrontation me more of a crane v kentucky issue and i just i wonder if it's a misfit for confrontation i mean the whole point is these folks are not testifying your honor the the rights are related and the supreme court has thought that there and of course they they combine it at some at some level but this court is already sad that it is a confrontation clause issue and that was the whole thing in vasquez even when pryor recorded testimony was right into the record and the defendant was not are they a witness was not on the stand it was still a confrontation caused by a place and so so relying on vazquez this court has already decided if it's in the back box although not neatly perhaps ok but i mean why isn't it true that we've been trumped now by the supreme court i mean you know nevada v jackson this court has i mean and for ed for purposes this court meaning supreme court has never held a third party documents and also third party testimony so that's actually what the court was talking about when it was saying extrinsic which was the documents or both you both both your honor so so why was that issue  in jackson why are police reports and the and this defense also want to tempe so witness through third party testimony so it was something not directly related to what so the state wants to say the extrinsic is i don't know and anything that's another piece of paper but taken to its logical extreme if the state stuff initially is correct then no witness could ever be impeached with any out of court statement or even a prior statement in another judicial proceeding and that's what their definition of extrinsic would include a room clue pretty much anything and confirming that extrinsic evidence is much narrower in jacksonville  nevada the two cases the court cited one of which is actually six irc a case i'm jordan v warden and then the other case which is a first circuit case brown fever weighing in both of those cases what the defendant had to do was to impeach a witness with third party testimony so if extrinsic evidence is much narrower than what the state is trying to claim and that of the jackson is on point for other reasons well not on point because there the defendant's right to confrontation was satisfied this is on page one thousand nine hundred one of the opinion the defense how the defense counsel was given quote wide latitude to question the witness about the prior allegations she had made in the past so for that reason a ton of point and it's also not on point because the evidence issue in jackson is incomparable to the recantation statements here the question before the court the question presented made clear that the impeachment was on a quote collateral matter and the state of michigan very well knows that they actually wrote and mika's for it in that case and they wrote this on the first page of their brief the question of the state courts ability to forbid distracting in time intensive battles over collateral matters is a critical one too they need the states so here the recantation statements were in no way they went to the i understand i know you're citing the vase cares case let's set that aside for a moment what is the united states supreme court case that in your view is clearly established authority the court is made the supreme court does make clear that for cross examination to be effective a defendant must have the right to impeach or just credit or discredit witnesses and explore possible bias sees prejudices see that confrontation cause is not a place where states can experiment aren't say we would like we would like this exception to the confrontation clause so confident the confrontation clause is absolute except for a couple in their own exceptions even if we agree with you and we say that you know perhaps the statement should have been admitted since there was cross examination when the testimony was originally presented and it was pretty simular why isn't it harmless error since they were excluded your honor the constitutional errors here were not harmless because in applying the standard from fact because they had a substantial and injurious the fact in determining the jury's verdict both because of how important simpson and rhodes and teller were to the state's case they also because of how we get the three untainted witnesses testimonies w nonetheless say that the error was harmless beyond a reasonable doubt so the correct analysis is to look and say ok if these two witnesses simpson and rhodes and hello were effectively undermined you then take them out of the equation and if you don't have their testimonies the state's case in this is incredibly weak and today the state is claiming that perhaps rhodes and tallow and simpson weren't as important but if you look at the record it's it's clear that that they were two of the most important witnesses for example simpson was the state's lead off witness that's how the state began its case and he was the only witness who testified that he personally saw blacks and shoot miller and the state mentioned some sent over twenty times during opening argument and more than ten times during closing argument and they knew how important his credibility was two times during closing argument the prosecutor said the simpson story had been quote entirely consistent the state knew very well that they needed the jury to believe some sense and even though another accomplice ramp testified simpson's testimony still mattered a great deal in arizona before the supreme court made clear how important co defendants testimony is even when it was also critically important to the state she was the most important witness to undermine klaxons alibi and given her relationship to the defendant their four children together the jury easily could have found her more credible than other witnesses and also the story that she told on the night about the night of the murder which mr seuss r t raised that story was graphic and compelling so it's likely the jury would have been on the edge of that seat well let me ask you this question in determining harmless i mean one could say that this inability to testify was highly contrived i mean as a tell all if if i'm getting the name right i mean she had written this affidavit seventy seven days before and now she can't remember anything and i mean the trial court's got to put up with this doesn't doesn't this that contrived this undercut the harm the harmlessness because the jury would see it for what it is perhaps arguably against box thing so the jury had the right to hear that and make up its mind i mean there's a chance they wouldn't have believed her on that point but there's also a very high probability that they would have she's a liar simpson's a liar and that's why you just take them out of the equation because without the recantation statements there's a constitutional violation and then only three week witnesses remain a scene i see my time has a question judge  weinstein's federal evidence evidence is extrinsic if offered to documents or other witnesses rather than through cross examination of the witness himself or herself it's unambiguous excuse me the third party witness part of it was simply that somebody would have to read that inconsistent statement into the record he said not her that's right would have to be a notary he would not be the witness is subject to cross examination which is the only guidance we have out of comparable cases for maddux batiks had the same posture as this case where you had someone's former testimony read in no confrontation clause violation there was allegations that this person his own statements that he had recanted matter they weren't allowed those third party witnesses to testify to try to undermine that person's prior testimony that and that is an evidentiary matter i think what we're dealing with here is whether or not this is a constitutional where and i think there is some reason to believe that in the wake of crawford becomes confrontation causes has really taken on some additional stature this isn't just a question  there's no question to this extent it got to stand your point that it excuse me but i that depends on who's designing that this is experiencing evidence yes i think that's true i think you're right that that is a threshold question but i think that of the the witnesses the first part of the statements of their statements they would have and i mean that i mean that's not the most compelling you know demonstration is strings of evidence i've ever come across and well i call the whole point of process the whole point of cross examination of cross examination is to then allow the prosecutor also the opportunity to ask those witnesses about those statements as well that would be lost essentially as would these statements are coming in without the opportunity for the prosecutor to to cross examine those witnesses about the statements but let me just make one final point about harmless because before i step down which is that there was a substantial amount of cross examination that occurred in the first trial regarding inconsistent statements that those witnesses both witnesses had made simpson had made three other prior inconsistent statements simpson had made two other prior inconsistent statements so the value of these additional inconsistent statements would have been limited and so consequently went right there were inconsistent statements and then the witnesses come along and say none of that was true which clears up why there were other inconsistent statements so i but that would only be at my point on the harmless error analysis is that the strength of these of the witnesses together is not from anyone's individual credibility it's from the you know locking nature of the evidence so the fact that they were they were not connected were they had no connection but not as far as i know no that's right yes but that's my point is that so but yes but they each come in independently and recant right because they are not court by trying to torpedo their testimony through witness statements and making themselves available so essentially their statements could come in without the ability of the prosecution to cross examine which are exactly the justice considerations there were play in the united states supreme court in its evident decision and maddux not to allow this kind of pre provision of evidence which allows opening the doors to perjury which is exactly what was happening here but now they would both be subject to a charge of perjury would they not not here because of course they just put their statements and we are they would be subject to a state charge of perjury would they not they did not provide any testimony that could the perjury than have to rely on affidavit as opposed to live testimony i never thought i've never seen a charge of perjury based on an affidavi perjury that's right and that's one of the things through this record it is replete in the record that they were trying to avoid any perjury charges in fact the state trial court said mr simpson was trying to have his cake and eat it too by getting us by getting his deal getting is friend defendant wanted to impeach testimony of a prosecution witness with there were statements that was the claim that they were the police report fact i should made up when it's a friendly question posture for someone to try to impeach testimony by saying didn't you say something to the police officer typically will happen is this person to testify live and i have and say can you tell the police x y and z and question you just lie and say no i never said that to the police  the person will try to come in and bring the police officer i have a reporter i wish to introduce evidence about what you said to well you know the prior witness had said to you earlier let's extensive coverage of the pietschmann it's the person's own statements and that's how that's how it works for it is a technical matter is expose it happens my point is that there's no supreme court case that's examined this fact pattern we have former testimony trying to be impeached through the center written letters the only thing like this is maddux and it excluded as an evidentiary matter excluding the impeachment evidence and the dissent talks about this in terms of confrontation with a majority reprieve was also an evidentiary grounds exclusively my point to the court is if you're looking for a comparable case navigating this extrinsic evidence former testimony it's maddox and jackson and together they say it stays out even if you don't agree with me overthrowing extrinsic evidence there's no clue established law and even if you don't agree on that point is still startles ok but if you're wrong about all that you lose right just