good morning your honour's is the core dennis riordan and donald horgan for petitioner an opponent last friday the new york times ran an article that discussed the scathing criticism directed at the veil venezuelan government by the un high commissioner for human rights as well as our own government over the thirteen year sentence handed down to venezuelan opposition leader leopoldo lopez after a trial in which lopez's lawyers were not permitted to present evidence or witnesses on their client's behalf it should be the case that such a shackling of defense counsel could never occur in our state or federal courts because the right to the assistance of counsel at every critical stage of a trial is enshrined in the sixth amendment of the constitution yet in this case ms no this trial counsel was threaten room with removal from the court room and then remarkably with incarceration in a holding cell during what from her client's point of view was the most critical stage of all the stages of a trial the prosecution's rebuttal argument to the jury now when we're here on a b s correct indeed your honor and so in order for you to get relief the state court decision would have had to be contrary to or and reason the application of clearly established supreme court law do you agree the  ok so what is the clearly established supreme court case that you're saying was inappropriately interpreted by the state court in this case well the clearly established supreme court law is that you were entitled to the assistance of counsel at every critical stage now you're talking chronic i'm talking getters which preceded chronic i'm talking of it mickens versus taylor that statement has been made again and again now what is to your honor what is true is that and this is one of the dangers of the government's position is that there has never been a case in which a judge said if you get up to to object at all during this case i'm going to have a marshal or bailiff beat you with a rubber truncheon the fact that something so extreme has never reached the same supreme court does not mean that the general principle that that the the defendant the assistance of counsel during cross examination can't be reached by a federal court in that could you narrow it i mean there's a lot of argument of course over the footnote in chronic and other what we have here is a portion of the rebuttal argument after which defense counsel may have reasonably assumed she ought not get up based on the direction of the court so when you have a portion of the final rebuttal and then there is the state court saying well that doesn't mean that there was a complete denial and everyone can argue over a footnote twenty five down one would be if the court just described was this portion of the closing argument a critical stage of the trial bell says that a critical stage of a trial is a stage that has significant consequences for the defend it and your honor this is the last thing that what occurred during that portion when she was gagged by the court threatened with jail in in  remarkable directive to counsel was that if the prosecution said look this is the last thing i'm going to say to you the last thing is breathed in every breath as she breathed in a clear violation of  golden rule that was arguably the most significant thing that transpired during the closing argument but even if if i were to agree with you on that question isn't the largest boulder you've got to push up the hill harmlessness determination how how do you get first under the standard of review that we are required to apply adverse harmless determination well there's two ways to approach that which is that if we're talking about the getters chronic rule of of structural error then i v asli struck if the court were to apply that  structural error plainly meets the breck test and it would render in itself the state court decision on harmlessness unreasonable because they refuse to apply the chronic to my question implied we asked you to assume that the evidence is an ep of pose on that and when they could stop for a second because i want to get the structure straight when this case was first argued to the district court that was before i jala had come down so now we have a yellow that's redirected it yet again in these a b s cases to doing the two tiered analysis how does that figure in here well you know as as was pointed out is that we now are supposed to do the analysis fair enough fair enough so let's do it this way let let's talk about the on reasonability of the state court decision on harmlessness and then talk about brac was was the was the state court does this court have a basis on which to find that the state court judgment that that this was harmless was was unreasonable as judge tiger pointed out the state court turn somersaults it was blatantly intellectually dishonest when it said that in fact it was really no error here at all because of course counsel would know that when a judge says i'll throw you in if you open your mouth he's really saying go ahead make any objection you want as long as it's appropriate that's nonsense that is result oriented nonsense and then the court goes  say and that very fact is a demonstration that the state court was prepared to be unreasonable in order to try and avoid the consequence of prejudice in this particular  case and so i think i think the very fact that the state court when you look at the state court judgment a lot of the ruling that it was harmless is really dependent on the fact that they took the position that it really was an error at all it was permissible to do this because it really didn't in any way burden burden the defense burden the defense there has to be a complete deprivation well frost versus the situation in which someone was allowed to argue counsel is fully allowed to argue that they should present an alternate defense they gave a full argument they were talking your honor let's let's let's look at this we are talking about eight state trial court judge who threatened without any basis at all without any basis at all a defense counsel with jail for making an absolutely appropriate objection misstates the evidence which he primitive in objection that he made permitted the prosecution to make that you know the very i mean displays the partisanship that alex salut we characterize this prosecution from beginning to end until in fact judge warren i think on the new trial motion having reviewed all of the evidence realize that this simply was not not a murder case  but i do submit that the state court judgment in finding that none of this was really inappropriate at all then of course the harmlessness ruling becomes easy  and if you look at the state courts you know dismissal of the golden rule objection compared with the subsequent the decision by different judges on the same court in the vance case a the powerful prejudice of this kind of argument i think you're talking about an unreasonable determined nation when this is the final thing that is said in closing and let me just also point this out the  same court which simultaneously in the same opinion found harmlessness as to this era we rope california murder law rewrote it invented a new definition of it eliminating the need for the subjective belief in the passage in the probability of death in order to be able to overturn judge warren's new trial motion the california supreme court found that that rewriting was era by a  seven nothing this was a result oriented court i think that we go on to the brac test here and say in a situation and let's let's all of the members of th have either presided over a review countless transcripts to have a judge in front of a jury say to twice to a lawyer who is performing core functions on behalf of her client i will throw you out of the courtroom i will jail you in front of the jury what about the prejudicial effect of that what about the prejudicial at the critical point of the trial he is saying to the jury what she's doing is absolutely improper it was not improper at all he had let a permitted the prosecution do it i mean this this is an important case because i will concede i will concede the state this there are ways that this is factually different from any supreme court case i don't think that they in any way defeat the rule that the general principle applies but the way that it's different is i don't know of any judge who has ever threatened to jail jail a lawyer in front of a jury during the critical point a closing argument for making mistakes the evidence objections which that lawyer is obligated by state law to make and the court is faced with the quandary of well whether we're going to say well in an american trials never been said before that sort of thing is not inconsistent with what we believe to be a fair a fair trial because you know we don't believe that it was necessarily prejudicial one of the things that justice scalia said in gonzales versus lopez is he said you know we don't even deal with harmlessness often in right to counsel cases because take take the the forever right it is going to prejudice the defendant by allowing him to represent himself but we consider the value of the right to counsel and self counsel such that we don't get into harmlessness  a judge threatens a lawyer who is doing nothing but their job at this stage of the proceedings with jail and it results in a tremendously prejudicial closing argument at the very apex of the trial that whether you're dealing with brett or you're dealing with chronic that satisfies the the standard for for reversal i know i've probably exceeded my time and that's fine but it's an important case and the issues are important and i stand ready to answer any of that will give us maid please the court peggy rue free from the attorney general's office for respondent your honor it's our position that the state court reasonably concluded both that and the limitation on counsel's right to object during the limited portion of closing argument was not structural error courts judgment and they did found find error but went on to find that it was not structural and that it was harmless and it's our position that that was reasonable first of all the petitioner argues that this one phrase in chronic that that's really what they're focusing on this footnote twenty five that says that if you're prevented from assisting the accused that that clearly established a bright line rule that any interference with counsel's assistance however brief or slight requires per se reversal and that no reasonable jurist could possibly interpret that footnote in any other manner however as the state court held in this case it conducted a thorough review of all of the supreme court cases as well as cases from other jurisdictions and the california case court said we find no case that has held that limiting counsels to ability to object during the portion of closing argument is structural error and i think that's the critical finding for this court here today there's no supreme court cases at all about limiting objections period much less limiting objections during a portion of closing argument so that rule in chronic that footnote in chronic is much too general to clearly establish the kind of rule that is required under a t p a in addition every supreme court case that has been decided since cronic has made it clear that that statement applies to the complete deprivation of counsel they've said that over and over in all of those cases as this court held in woodford versus the scottie this court said cronic and its progeny have made clear that this exception is limited to the complete denial of counsel and i think that limitation is is particularly appropriate when you're considering the scope of structural error the supreme court has repeatedly cautioned that that should be rare in florida versus nixon the supreme court specifically said that chronic should be a narrow exception and that it should be construed marilee and i think if you were to adopt the petitioners approach that would by contrast require the court to read cronic in the broadest possible manner and it would result in many cases being reversed magically without a consideration of whether the error was harmless for example if the trial court were to erroneous lee overrule a defense attorney's hearsay objection and then evidence came in a court could view that as preventing the right to assist the accused and consider that to be structural error so this would this is it concert times judge roland's and i asked you do you can see and that was  almost five minutes ago and you still haven't answered a question i think it would be nice sometimes if the attorneys general of this country and the prosecuting authorities of this country would actually just stand up in front of an appellate panel and say you how i understood your answer at the outset is that correct that yes yes i don't just want to answer to be that the state court found an error and you were defending the state court decision that's different then you are conceding error that it was clear from your perspective to me you were saying that the state court found an error but not structure error and we're defending that decision so i think i heard it a little bit differently well that is what i said and that is what i stand by and at this point  we would concede that there was air ok so let's get to the air there is there and yes and our position is that it was not structural in the state court reasonably found that and i think that that's informed it's not structural and you still have constitutional air then you still have to walk through what mr reardon spent the bulk of his time on and that is was it harmless in this context and first the question is whether the state courts harmlessness determination was reasonable under case and then whether it was also harmless under brecht the state court found that there were a few statements in that final closing argument that were improper most of them were proper a few were improper and those were the think of the victim statements and they found that that was harmless for three reasons one those comments were based on the evidence to the jury was instructed not to be swayed by sympathy or passion and three the evidence was very strong and i think that a good analogous case that this court has decided was drayton versus white where the prosecutor actually delivered a soliloquy in the voice of the of the murder victim and the court found that the error was harmless but for those exact same three reasons so for example the district attorney didn't go off outside the evidence in making those arguments and could have made the exact same arguments if he had said the victim saw two hundred forty pounds of dogs running toward her in a stampede he the victim was  breathing in and out because the dogs the evidence showed that the dogs had focused on the juggler vein and most of the the wounds while there were seventy seven wounds throughout her entire body but they had focused on the victims throat so that was completely based on the evidence to say that she was lying there on the floor having difficulty breathing it wasn't something that he made it was based solely on the evidence and so it could have been it was totally properly argument except for saying it in the context of think of the victim which i think he said three times in the context of his seventy seven page closing arguments you have to view this in context of the in trial entire trial it took over a month there were seventy witnesses this was two paragraphs of his argument well what concerns me is this muzzling of the defense attorney with a fret you know one more word out of you know and you'll be talking to me from the other side of the bench and the state court said that this didn't actually cause her to withhold further objection how can that be presume to be correct as a matter that well you have to look at this particular defense attorney let me first say that the court doesn't even need to reach that ruling because that was their alternative holding the state court said even if we were to presume that it did in fact cause her to fail to object for those last few moments then there was no structural error and then in a footnote they talked about whether it did in fact cause her to object so the court doesn't even have to reach that argument but if it if it does address that then i think there was quite a bit of factual evidence to support it she had actually violated a an order that was sanctionable by contempt already in the trial so she she was not muzzled by the thought of going to jail or being he held in contempt that there was a gag order and  she went on national television to say that but i think there's something different about attorney going off on a press dahlia versus being in a trial where you have a very specific professional obligation to defend your client to every possible degree available and of the law so i mean i don't know why it's sort of like she sinned once so it's no big deal she could sin again is sort of the argument that doesn't i don't think it's the state out of its box well she sinned many times but the trial court said bit he went out of his way to say based on my own personal observations after  experiencing mr ruiz throughout this entire month long trial he said i don't believe that this actually caused her to fail to object so i wasn't there he was that was his factual determination about her  motivation that's why it's presumed correct under the standard of review and it is supported because of all of these other instances that's the point that that we're making but to get back to the harmlessness argument the final point that i would like to make is that the evidence in this case was very strong and the petitioner keeps making the same argument that was rejected by the state courts about what is required for second degree murder implied malice under california law it's literally the verbatim argument that he made in the california supreme court which was rejected and then when it fact went back to the trial court henri mand for re sentencing and to reconsider this case she again specifically rejected that view of what is required the court of appeals specifically held that a prior death by the dogs is not necessary you don't get a free death and they analogized it to the near misses in drunk driving cases which is sufficient just to show conscious disregard for implied malice so we have the jury the trial court henri manned the unanimous twenty ten court of appeal opinion and the district court off whining that there was very strong evidence of implied malice in this case which i think is it cannot be discounted i mean these dogs were huge they were bred to be aggressive they had never been trained more than thirty witnesses testified that they had the dogs had bitten lunged at or attacked other people or dogs presence and this was just in the span of a few months the dogs if i understand your argument your seems to be quite appropriately arguing that on a sort of a sliding scale approach the stronger the evidence of guilt including the element of implied malice the greater tolerance for error there isn't that in the proceedings so if it's a weak case with error that is constitutional or maybe you say it's not harmless but it's a really strong case either in the constitution or should not be doing to be anything other than harmless constitutional magnitude that would require a new trial well it's a case by case basis by case yes and in this case what i'm saying is that the evidence of implied malice was extremely strong and so the fact that the prosecutor said three or four times think of the victim based on evidence that was completely in the record that wasn't what was going to make a difference in this trial given you don't argue do you that  the judge would have overruled any objection that actually came to the rebuttal you know make that argument i think that's a little bit unclear i mean the the the argument the second objection in particular the defense attorney simply said objection and then she said the dogs were always on leash so that's not a proper objection and she she was simply arguing her view of the evidence while the prosecutor was giving the closing argument ok i don't think that's proper you don't you don't you haven't argued that part of the the geist if you will of the case is that the judge having sat through the trial in interacted with counsel over many many court sessions part of the harmlessness calculus is that the judge would not have sustained any objection that would have been made and therefore even though you know you can argue about whether she stayed in her seat as a result of his threat the fact of the matter is it would have had an impact on on his ruling had she objected i'm not sure i completely follow the cour found and as i said the reason they found that was for these three reasons which are the exact same kind of reasons that this court has found were sufficient to overcome that kind of error that they were based on the evidence injure the jury was instructed not to be swayed by passion or prejudice and that the evidence was very strong i mean there were many many witnesses that came in and testified over and over again about how aggressive these dogs were they had actually bitten several people before they had actually bitten the victim before they had bitten misnomers husband's finger almost off the tree the dog and the evidence was that the dog had eaten the dog house the he had killed or that one of the two i don't remember if it was the male or of the female they had killed sheep they had killed a cat the veterinarian had gone out of his way to write the first letter he'd ever written in forty nine years saying i have to tell you these dogs will be a liability to you and they brought the dogs to their san francisco apartment building and they proceeded to wreak havoc on the residents of that area for the next few months and what i was about to say was that they brought the dogs i think it was in april and august and the death happened in january so all of this massive amount of evidence of attack after attack happened in just a few months and we've given you quite a bit of extra time of course they want to give mr reardon he took extra time as well yes you could wrap it up unless there's other questions thank you thank you you played two minutes on the clock for the state has misstated something the state court and this is a sign of how unreasonable it was did not find any error as far as the judge's conduct was concerned it said the closing argument was improper and the reason it found no error it is just proof of how result oriented was it said it was ok for the judge to threaten jail because the his earlier threat of removing from the courtroom had not been heeded well the earlier threat was an absolute abuse of power almost then with say object and misstates the evidence and he threatened to take her out of the courtroom the notion that you can justify threatening her with jail because of an absolutely abusive threat to remove her from the court room for a standard objection and the prosecution certainly made stand speaking objections is just  order to begin guilty of murder marjorie knoller had to walk out to walk that dog thinking subjectively in her head not what a reasonable person she had to think i could kill somebody on this walk and i don't care that's what implied malice says judge warren and the state has vouch for him said i saw her testimony and when she said i never thought that this could have happened he the trial judge the only one  of their testing and i believe her that means she was not guilty of there were twelve others who observed her testimony indeed but the point that i'm saying is not that this court doesn't adjudicate guilt or innocence but the claim that this was a strong case or a airtight case for implied malice murder as opposed to involuntary manslaughter is simply without basis thank you very much on this thank you thank both counsel for your argument this morning the case of miller versus