i want to state some plymouth marry propositions that i believe are fundamental to this case that i think weren't serious consideration or deciding the issues before the court we all recognize that because i'm here on a i have to show that there is an unambiguous controlling legal standard and that if it's some sort of a general standard i have to show that it was applied on a reasonably for this court to consider reversing th decision of the district court let's talk about some of the unambiguous controlling legal legal standards that are present here the confrontation right is a trial right deployment or examination right to trial right we have lots of case on that and the ritchie forty to us the california dream three ninety nine us it's not ambiguous in any way to trial right second under crawford confrontation is a procedur al right for fifty one us at sixty one it commands confrontation commands it's not ambiguous in any way testing in the crucible of cross examination standards right  to trial right subject to cross examination that's what the confrontation clause demands demands that reliability be and be assessed by cross examination and confrontation in front of a jury it's also not in the spirit here that mr miller was not able to confront under controlling legal standard in this mcconnell through cross examination at trial jury simply had no opportunity to assess her demeanor otherwise  credibility at trial i acknowledge it's on a it's again not in dispute and it's not in to do with that there is an exception to this trial right it's a trial right to confront in trial but there is an exception the rule the presumption is confrontation cross examination at trial not the other way around the presumptions in the defense favor here are the plaintiff's favor the limit exception is that prior testimony can be admitted if the witness is unavailable and has an adequate opportunity to cross examine that's what case would you point us to us supreme court cases that talk about what adequate opportunity to cross examine is is the best one in your view for the specific point here that this cross during a preliminary exam was not adequate for six and purposes for cases your honor one case davis we'll ask it happens to be a trial case but it talks about even in trial whether it's an adequate opportunity to cross examine and it says one of the things you're abseil out to do is impeach him discredit a witness davis feel ascot it must include a meaningful opportunity to question a witness's form of bias in any way the delaware v our case again those are those are about the scope of cross which is what we're talking about here because you couldn't cross about the recantation exactly that's exactly we're talking then you'd never be able to bring in  prior statement that that is a prior testimonial statement under crawford i mean it unless i mean if there were some fact that the defense thinks is relevant  or so for instance in the williams case the case that people rely on except extensively in that case the he actually had the same opportunity to cross examine there was a slight one small inconsistent statement that the defendant claims this is so radically different i don't believe the court needs a draw a bright line saying no opportunities i'm sorry that a prior testimony is not allowed in this is a bizarre fact better about whether the opportunity provided was adequate correct i would say that any decision when you're talking about looking at a fact pattern has to involve some judgment but i think the judgment in this case is this is extreme i mean it's so extreme it's pretty hard given that it's a judgment call and to grant really is and i think that's i think that's wrong your honor because i think that recantation statement coming in it's not what is not what the constitution calls demands it demands in court confrontation but the people who are the proponents of law it's not about whether the prior testimony was impeached in any way it's a procedural right that's what proffered sense it's a confrontation in court and it's only if i had an adequate opportunity let's talk about other supreme court cases i'm entitled to cross examination at trial this is unambiguous the motivation of a witness i never got a chance to cross examine her about why she withdrew for the trial counsel just out of curiosity i wa s yes that's interesting ok so you know the case that's for sure i know the case i never had an opportunity to cross examine her about why she betrayal from the police came and i had no opportunity to cross examine her about  what her knew i mean what she was facing because she withdrew from the plea agreement what type of charges she was facing in telling this version of events that recanted events she was looking at life in prison at that point mandatory life in prison yet she unavailable right right and that's the way it goes with on available witnesses i don't agree with that the people are the ones who have the obligation to show that i had or not a adequate opportunity my right is confrontation a trial that's the presumption i'm in i'm in i'm in the right position here confrontation is what i'm entitled to at trial they're the ones who have to show why i had and i had to put opportunity to cross examine when i had no ability to cross examine an inconsistent controlling own legal standards asserted i did not cited for the problem for the other problem blacks it was an unusual issue issue brought before the court was the only issue brought before the court was at trial which is again a confrontation issue if the prior testimony is coming in if the prior testimony is coming in and it was presumed in that case that's not what we're arguing here it was presumed to blackstone that it was ok for the prior testimony to come in because then and that particular issue the difference here is that that issue was never raised above prior to cross examine he'd been cross examined multiple times and it wasn't raise this issue i'm arguing and i think am i don't think it's ambiguous in any way and i'm going to keep repeating it it really is a trial right off went did you do the cross at the preliminary exam i did was there some incentive that you lacked during that policeman or exam or cross running by telling that version that none of this happened and she was running the risk now of going to prison for the rest of her life when prior to that she was operating under a plea agreement which she was going to go home she was on going so that's something i just simply could not explore and that makes the recantation more credible because she adds it was a courageous thing yes it's a courageous i could you just argue that to the jury because they wouldn't let me bring in your honor even though they let a statement come in they would let me years i'm very careful maybe it's not good practice but i'm very careful and arguing facts of the jury that are not on the record in any way and there wasn't in fact i was specifically told by the judge that i was not allowed to bring in any evidence that she had actually withdrawn from a plea agreement so i didn't want the evidence that's an opinion that you would make as tour of us ladies and gentlemen this is a courageous thing couldn't argue about how she knew the details that she testified to at the policeman or examination because i didn't have recantation she provided details here and if i had been able to cross examine or her letter says the police told her what to say well did present i could have argued that but again your honor now you're asking me whether or not the confrontation clause is satisfied by the admission of a handwritten letter and i'm saying that the supreme court precedent when i don't have a prior opportunity to cross examine if it's not adequate that evidence is not supposed to to me admitted it's not supposed to be admitted the testimony you have your opportunity your  and i think there were some things in your dissent and also been the majority opinion that that made clear that their case is i think controlling here to the extent that on the second issue whether the  whether defendant's confrontation clause rights were satisfied here under blacks than it was it was hell but there is a clearly established right to admit this type of post testimony but pretrial statement as long as its intrinsic statement after the premier examination which was fully cross there was really no issue there and i don't think there's an issue here about the adequacy of the confrontation  blacks than and render it really meaningless because it was just a couple of years ago there's been no development in supreme court precedent regarding the confrontation clause on this issue council's right the conversation clause guarantees a right of cross examination in that i would categorize it as sort of framed in the briefs of blacks i think is a an exception to that general rule blacks than allows for actually the introduction or requires the introduction of evidence should it exist once it's memorialized i think that's kind of a hinge point like someone just memorialized by the declarant it's confrontation clause status sort of changes from extrinsic evidence which nevada versus jackson the supreme court case held was not required to be admitted by the competition cause once it's in this letter this type of statement has to come in and it didn't come in so i guess i don't see what beyond with blacks and being the controlling on blacks and sort of being or as i can tell that the the cutting out of the outer limit of the confrontation clause right in this area to go beyond that would be quite a step into territory that is not clearly established by the united states supreme court which is the appropriate yardstick in this case with regard to the sort of the first issue i guess whether there is a was it was under oath and there was a record of it these are all sort of considerations that california versus cream talked about but didn't make a requirement as far as the prelim bit but even those were satisfied here n unless there are any further questions i'd be glad to rest on everything ok you feeling like the playing field getting shifted underneath me here it's it's it's not the issue here what type of right this is it's a trial rate it's not that issue here that the fundamental principle that i had a right to cross examine bottom line at trial in front of the jury i didn't get that well ok that's true but there are exceptions to that rule a number of them one of them is for a prior testimonial statement where somebody had an adequate opportunity to cross and the question before us is whether no reasonable jurist could could conclude that your prior opportunity was in fact adequate and so i mean that's as you know that's a tough standard on hey vs and say you have to demonstrate some how hopeful inadequacy in your prior cross and that's you know that's a tough thing to do that's what it's and that's kind of your obligation as the petitioner the burden has shifted at this point they got a conviction and now you have to show that no reasonable jurors could make this conclusion one you keep going back and standards it's still there the proponent and they've never established that anywhere that this was an adequate opportunity and how can i have an adequate opportunity to cross examine when the story has completely changed completely changed but if there had no opportunity to cross examine the record difference you know usually for cross examination you're trying to tear apart the credibility of the witness that's what cross examination you go after their credibility and point here your lack of cross examination seems to be focused on bolstering whatever that was and that that's part of it recantation it's also one of my themes in this case was attacking ohm law enforcement that they had essentially in six month time period solved an entire cold case by getting one or two of these women to say what they wanted to hear and then feeding them the information and miss miller even turns by the police took them to the house to show them where they where the murder occurred so i needed to attack the law enforcement i absolutely needed to do that opportunity to ask her why why she changed her story i had no opportunity for her to explain where she got the information to testify upon their examination no opportunity at all no opportunity to even question about why she originally elected to plead guilty she even told versions to the police where she implicated other defendants in the police report she had done that i had no opportunity to ask direct trial were any of those true or any of those statements true what were there other suspects out there that the police did not investigate i was it frustrates me that when you have a trial right for cross examination that's the presumption i didn't get it here and there hasn't been a demonstration by anybody at any court that on that the prior plea of prelim was an adequate opportunity when the witness that's under the facts of this case where the witness in this case radically changed