good morning or honors assisting attorney general scott shimkus on behalf of respondent appellant warden thomas mackey i would like to reserve two minutes for republic plays criminal defendants are entitled to fair trials but not perfect trials in this case the district court failed to apply the requisite at purdue friends in determining that petitioner larry stewart did not receive a fair trial in the michigan state courts but the michigan court of appeals reasonably determined that he did because he did not suffer any prejudice from the alleged confrontation prosecutor misconduct errors a reasonable jurist could think that any errors in stewart's felony murder trial were harmless because phone records showed that stewart's codefendant his girlfriend and i shoo a threshold question absolutely and i love you to go back to what you want to do but just to please help me figure out exactly what's at stake in this is really effectively for both of you  the district court decision is a little ambiguous about the confrontation clause claim i mean i could see one way of looking at it that he meant to be addressing both claims but i could see almost equally fair way of looking at it that no the confrontation clause claim is really part of the fair trial of prosecutorial misconduct claim because one of the arguments is that they've been very careful about what you could say and what you could and what you could argue  what you could and the allegations as he crossed that line which of course could simultaneously be a confrontation clause problem but also could be a fair trial process kotori misconduct what's your assessment of that so our assessment was actually be two fold depending on how it is interpreted obviously like you said the first way you could interpret it is that this confrontation issue was decided only in the context of prosecutor misconduct and if that was the case then we would argue that the prosecutor in fact did not commit any misconduct and thereby violate the confrontation clause because the trial court here ruled that many of these statements in fact it really all but one of the statements the prosecutor used both in presentation for witnesses and in closing were deemed admissible and in that sense the prosecutor relied on those rulings in good faith and therefore could not that's helpful to you on the prosecutorial misconduct claim but that would mean if we follow that line that we wouldn't do anything on confrontation clause and that would be for remains that claim would still be alive along with the other claims that could be true yes if the confrontation issue here i that would be fair it would be fair to me to only run it through the lens of prosecutorial misconduct and not let them that was an original habeas claim it was that's correct the other the other side of that coin if you will is that in the district court's opinion t judge did specifically say that he was deciding he was granting he views relief on both hevia claims two and five being the confrontation in the prosecutor misconduct but i think i agree with your honor that the the waters got analysis subsequent analysis and you would agree most of the analysis is about prosecutorial misconduct that's correct with one of those claims being on time fantasia issues yes that's absolutely correct so as i said errors here if there were any at all were harmless because the phone records show that the girlfriend lured the victim to the apartment stuart was seeing at the apartment with a gun the night before the victim arrived and told someone he was going to rob someone the victim went to the apartment the next morning and was shot stewart was seen running away from the victim immediately after the shooting and finally the same gun that stewart had the night before matched a bullet recovered from the victim's body so for all those reasons if there were any errors here confrontation were prosecutors you know they were harmless error is a funny concept with prosecutorial misconduct and so my first point is i'm not sure it actually exists but my second point would how much of a difference it makes because in figuring out whether someone was denied a fair trial you factor in the whole thing so it could be semantics but what's your take on the idea that it's probably technically inappropriate to have a freestanding harmless error analysis in a prosecutorial misconduct claim and or stand your point in the sense that you have to find prejudice for a prosecutor has come to claim regardless which might subsume the harmlessness analysis and i would agree with your latter point that it truly does it does not matter the deference applies regardless of whether the analysis for the project is done through the prosecutor misconduct claim or through a separate harmlessness analysis under brecht the deference would apply equally in either context and we would win either way with her ruling on the merits and the court on the prosecutorial misconduct claim or plane or an oil supply yes so with respect to the prosecutor misconduct claim there were six six sub claims if you will and the michigan court of appeals determine that three of those were not errors whatsoever and three of them were errors but that they were all harmless so those three that they found that were errors they conducted a separate harmlessness analysis for those but all of them were analyzed if you will under the playing air doctrine because there was no objection to any of those six cl understand your argument is they're applying plain error but since they analyzed it on the merits that we should book to correct essentially under fleming you could look at both without them being mutually exclusive one of one another the because there was no objection there was a playing error analysis that proceed procedurally defaults the claims but the add to deference would also apply to the alternative merits analysis that the michigan court of appeals typically will do even if they determine that playing your review is the proper framing and you say that you mean because part of plain errors how wrong you are on the merits is that what you mean by that i said but you said the michigan court of appeals would typically do some merits review and  is that what you said they often will do and this is and i'm asking why is that because step one of plain errors whether it's wrong and correct up to is whether it's plainly wrong correct yes what do you do in a case where it's just not obvious what they were doing at all sometimes they will skip the first two steps about whether there was an error and whether it was plain they might assume without deciding that there was an error and then just determine whether there was any prejudice suffered from whatever conduct there deference vary from those across those scenarios in your view we would argue that the deference would not vary know that whether they decide that there was an error that it was harmless or that there was no error at all both of those would be entitled to have deference and therefore we would win either case and that's was typically what happened here i planned on talking about the confrontation issue first if your honour's go for sure so as i said years here really were harmless and primarily because the statements from stewart's codefendant that came in were largely cumulative evidence that had already been presented in the trust mr sauer gave us some supplemental for already i mean it wasn't super recent supplement authority but it looked like six circuit cases saying you can't get around confrontation clause problem by saying there was other evidence the point the same point i guess i'll make two points on that point there so first of all he did cite two cases with supplemental vasquez was one of them he actually had cited that in his brief so he had discussed it already the other case those cases i believe said that if there was a single witness who corroborated the defendant's statements then that perhaps would not be sufficient for harmless error analysis and that the government would not prevail in that case but here we have different things multiple witnesses and even evidence documentary evidence that supported or rendered i should say hamilton's statements cumulative so we had witnesses brian may and just i believe his name was justin lane  making multiple statements regarding the nature of stuart's relationship with hamilton the fact that they had been communicating over the telephone in the hours leading up to the shooting and the phone records themselves establish that as well so this is not the case where we had a single witness who said the same thing as hamilton we had different pieces of cumulative evidence coming from multiple sources so i already mentioned the relationship to me why that's really pertinent in the harmless error analysis in other words why does that matter whether you have two witnesses corroborating or one witness corroborating because they're still corroborating just one point just in line w stewart and hamilton and of course that was a good issue here because stewart was not the only defending here hamilton was as well and they were both charged with conspiracy so the prosecutor was still charged with proving that they worked together so inevitably they were going to have to present evidence that they knew each other that they communicated with one another things along those lines and that was all established even before the jury heard that hamilton essentially admitted all of that was true the second statement made statements more  damning so to speak so there was that corroborated by anyone else by that are you referencing the presence of the gun that mr stewart had the gun i should say that's true mr may was the only person who testified that he saw stewart with a gun blain could not testify to that because hamilton made sure he didn't see the gun by hiding it in her purse so that is true we have brian may he's the only one who testified about the presence of the gun but we have other things that tied mr stewart to the gun so mr may so that he saw stewart with this gun he identified that as the gun that was involved in the shooting the  team tied the bullet from the victim's body to that gun the medical examiner testified that the shooting occurred for more than two and a half feet away which will establish that it was stewart who had the gun not the victim that the victim only obtained the so several of these statements whether they were errors or not the trial court still deemed many of them admissible really the only statement that came in during the trial that was not the confrontation clause point that doesn't really that's highly relevant prosecutorial misconduct or it's very strange to say you've engaged in misconduct and complying with the trial judge's order but i don't think it's that helpful in the confrontation clause assuming it's otherwise a seriously f ruling that would be true if the if the statements were admitted in error and we would contend that many of these statements were not admitting you're in fact mission court of appeal said only some of these statements were admitted in error for example the statements about ms hamilton hearing struggle in the hallway and being shot through the wall the nature of her relationship with stewart the fact that they had been dating for several months leading up to this the fact that she was asking the victim to come to the apartment things along those lines those statements did not facially incriminate store and therefore did not violate brewton in this case in fact most of those statements would have gone to hamilton's guilt for the charges against her which were identical to the ones that had been  against mr stewart but the most damning statements were made it in their correct the the statements referencing the gun and then specifically the mission corporals also found that the statements about how she communicating with both victim and mr stewart yes the michigan court of appeals said those were errors those were proven years because they facially incriminated mr stewart but again the mission court of appeals turned around and said but they were harmless because they were cumulative i get that but so our mind if i ask you for the just a couple threshold questions about what your position is in terms of how we should look about look at the case particularly the question of whether we really should perceive this as a ruling a confrontation clause claim as opposed to saying no that kind still there but what was really going on was arguments about prosecutorial misconduct in terms of crossing the lines that had been  if the downside is if you lose the confrontation clause i mean what maybe you know this best where i don't know i don't know the answer to this are there features of the underlying confrontation cause claimed that he did not address yes your honor  petition yes or other features of back claim the judge rosen did not address because the the risk at play here is if you call it two claims and if you lose on the confrontation cl that's done even though it might be that there are some other arguments that fall under the label confrontation clause as your own i'm sorry i understand your question there is no additional claims or arguments that were needed not address that he did ok good i got it so and the one that i like to focus on today is the statement that bring ya to hamilton made to the officers that she saw mr stewart with the gun the night before the incident brian may is the only  other evidence at all in this case physically connecting mr stewart with the gun there are no fingerprints found on the gun the only two eyewitnesses saw not mr stewart holding the gun  but mr brown the only adin a fireball d n a was mr brown's not mr stewart's so this evidence was critically important to corroborate mr may's testimony and as your honor pointed out i realize the case brac and nevertheless found that on these types of cases where you just have one corroborating witness the jury is struggling with circumstantial evidence and then you have the jury in its  to see the improperly admitted evidence that's strong evidence of doubt about whether that a lawful emitted evidence affected this jury's verdict so we think that analysis of bracht that the court has engaged in those two cases it's relevant for two reasons one this court has found it relevant in two prior published opinions and conducting the same kind of analysis it's also relevant because it indicates that the jury isn't satisfied that the evidence apart from this is sufficient to find the defendant guilty that's the analysis that the court took adopted in vast quantities and unfolds here and in this case but i just always thought of our role as we read the evidence at this point we determine whether it would have been in jury is prejudicial fact i didn't think it was this particular group of nine or twelve and what it might have done to them and that's to seems like a kind of a dangerous korean very hard one to figure out why the analysis your honor and direct is the court analyzes whether this would have had a substantial and injurious effect on the jury have to be on a jury i understand what they say but it has to be on a jury would this objective lead impact in a jury not subjectively would it impact this year where you are if if if i can't persuade you  that that's the correct interpretation that we look at this jury just tell me why i'm wrong with the way i'm thinking about well because it's a question of prejudice it's a question of harmlessness it's wanted to be objective  don't you want to be an object in the sense that we look at would this harm in front of any jury doesn't matter who the jury is and that's why it seems odd to me to look at what this particular jury was doing i've always understood harmlessness to look at just w speak but when you conduct that analysis your honor you're not doing it in isolation you're doing on the record that you have before you and as fulcher found as vasco is found when the record itself indicates that the jury in this case wanted to hear this evidence your client would lose this case without those questions no your honor the client would still prevail because there's the evidence in the record physically time my client t gun other than brian may is is nonexistent this is the only testimony corroborating brian mays it's such a weak proxy that they asked a question one time and not another if we really cared about what this jury would do we'd or hearings and bring them in and say what were you thinking seven twenty years ago i understand your point your honor but even if this even if this case were just analyzed in the abstract without considering what this jury did  it is strong evidence even in the abstract that if a jury is dissatisfied that the evidence in the record apart from the statement was sufficient to find the defendant guilty that's what brecht asks breck breck does not ask take out the bad evidence and see if there's enough good to support the jury verdict that's not brecht supreme court tells us in o'neill that's not the test the test is whether the the factors are evenly balanced and if they're evenly balanced you have to grant the read and that's that's what the judge here and and this it's not just a question about wanting to see renate hamilton ease of being met we certainly talk about that in davis perhaps not in depth i'm trying to remember your honor if they which is harder which is easier well if it's witnesses mr lane the night before said i didn't see a gun at my apartment and i didn't think anybody was trying to hide anything but there was a gun but brian may brian may is the is the only evidence that they have his testimony i stablish in some type of physical connection with the gun but of circumstantial evidence he points to it as it was two and a half feet away things like you know your honor there's no dispute here that there was a physical struggle and in the process of that uncontrolled physical struggle there were gunshots in the ballistic evidence was largely inconclusive from the review of the record but we know the jury was struggling i mean and i use this not as the strongest evidence but to confirm our objective analysis of the of the record here when you just struggling with i want to and i say all the time in our oral argument i don't know what to do with this case this is really difficult  assess these things and what a jury does with respect to what evidence they ask for don't ask for just odd because if your inference is fair it's also fair to go the other way this jury took two hours they didn't ask for anything and we're going to decide harmlessness based on that it just seems like a very dangerous approach but you do have two cases that say it so that was that was our problem not yours but we would ask the court follow those cases what we have in this case above and beyond that it was not in either of those is an affirmative instruction that the jury could consider these statements against mr stewart aspect to it i think it's built in the dardenne test whether it rendered the the the proceedings fundamentally unfair but about the fact that the garden misconduct seemed worse than the misconduct here well i think only about the gun but really on his statement to officers that it was her job as part of the conspiracy to get mr stewart or to get mr brown into the apartment that's a clear confrontation clause violation even the state court recognized it instructed the prosecutor not to go there and he did it anyway so that's that's dardenne berger under reasonable objectively unreasonable application of supreme court law and the state court isolation instead of considering as the supreme court and burger told us to do consider them cumulatively and that's what the district court here did if you consider them all cumulatively i think it's inescapable that that mr stewart was prejudiced by the confrontation clause errors by the confrontation clause errors that are embedded within the prosecutorial misconduct claim and then also by the door layer which we haven't talked about and i realize stewart offered some testimony at trial that was inconsistent with his statements to police but that is certainly true but that was after the prosecutor improperly asked him about his statements at trial so it's the statement that causes the harm in the door contacts and we would we would suggest that the court can affirm and should affirm on in the these three grams right with that the jury asked about the gun asked about to hear this there are some issues with that under our case but let me let me twisted a little and say even if you disagree with our case law the only corroborating evidence of this which we agree impermissibly admitted statement is brian may and why can't we look at objectively would it jury would do by using and this is what i think he's saying let's use what this jury did t put us in that position to understand if the error with significant i think i understand the question and i do think it's important to clarify exactly what the jury asked in this case so they asked a single question about hamilton statements they asked quote is the report or statements from ms hamilton evidence that the jurors can review they didn't reference anything about a gun in particular they didn't reference any particular statements and then the court responded essentially other than the testimony no there are no statements we have no idea why the jury asked that question we don't know what information they were seeking we don't know which defendant they were trying to use that information for they could have been using it to determine hamilton's guilt because again she was charged with identical crimes in this case so the jury question here i think is minimally helpful to petition or stewart's case because we have no idea what they were specific what about the other point that it's only corroborated by man i would simply fall back on what i said previously that even though me is the only witness who testified to that there are other pieces of circumstantial evidence in this case that tied mr who had the gun we ended up in a struggle he ended up getting shot because the trigger was pulled but the medical examiner here testified that the shooting took place from at least two and a half feet away but presumably could because there was no stippling on the victim's clothing suggesting a close range fire the other thing is just be real briefly your life yes and i apologize the other thing that i would clarify is with respect to the d n e evidence there was no major dahmer d n a evidence found on the gun but mr stewart could not be exempted from that sample that was found on the gun so i would point that out as well ok thank you to both of your free helpful arguments and briefs mr souers the record appointed your clients lucky you did