to the double homicide with which mr fry was charged there were other constitutional errors but that is the most glaring error in this case so manning is asked right out and still necessary then i agree that it was and so because this is a federal hate this case and we have the overlay of to deal with the question here that the resolution of this prejudice issue requires this court to look at the state  regardless of whether the chapman standard is applied in the state court we still determine whether or not there was a reasonable determination of whether there was prejudicial rights and me this is where it gets constitutional or the purge in this case clearly it was i mean chapman itself stairs when you have constitutional error you have to apply the standard of was that error harmless beyond a reasonable doubt now the california supreme court confessions have a profound impact on the jury here the source of the evidence of this confession is the person who is the actual killer in this case his cousin pamela maples and the actual killer is  a man named anthony hurst now in this case we have a litany of evidence concerning other people hearing mr hurts the actual killer confessing to this double homicide included among those people are a strange girl friends or lovers of mr hertz a person who was in jail with mr hurts somebody who was a friend of mr frog's so as the attorney general concede appeal by the state as a subject to bias as otherwise not exactly strong evidence because some of those people were interviewed by police but did not disclose to police some of them were impeached for bias and the jury didn't believe those who have witnessed maples who can't give you time place and and date and she could be cross examined hear evidence concerning the third party culpability in the form of confessions but then specifically the alternative perpetrator a third party probability suspect in the chamber to the defendant mr chambers lawyers and the defense was able to put that evidence before the jury however there were three other confessions to i think a reverend and other friends of ga macdonald the alternate perpetrator in chambers and as the u s supreme court pointed out in that case you have some confession evidence that went before the jury and some confession evidence that was unconstitutionally excluded recommendations i don't want to i can't quote it exactly but says my god what more do you need here this woman the cousin admittedly not hearing all the details here's a cousin i reached into the car shot a woman in her head took part of her head off then reached over and shot a man multiple times that's consistent with the physical evidence in  other people here in fessing to this very double homicide committed in what the prosecutor in closing arguments that it was a unique execution style homicide to say that well  she was found by the defense investigator and in the e r i believe twice i have reproduced the transcript of the defense investigator's interview of mr maples and another factor there  clear that she becomes emotional when she's revealing the transcript of her audio taped report concerning her overhearing this confession and she provides details about the people that are there yes she didn't hear mr kurt she heard him confess she can recall that just because she said well i don't know she said the specific date but she said it was in december of one nine hundred ninety four in my sister's apartment in vallejo so she was very specific about that and she was very specific about who was present she simply said that i walked in the confession is going on and i hear these various details being described by mr hertz and specifically the details concerning reaching i that just exactly like this case where you have multiple witnesses who are biased testifying to a point in this case mr kurtz confessions and then you have one unbiased witness that other circuits president recognizes that when you have a case that's obviously close where you've had two prior hung juries evenly divided where you have a marathon deliberations five weeks of deliberations where the jury declared itself in the third trial deadlocked seven to five those are factors which just by unanimous case law militate in favor of the finding of please the court ross moody deputy attorney general state of california i guess i'll just go to the president's point that seems to be what the bench is interested in and i think that in order to assess it you have to look at what was permitted a trial this is not a case where a substantial third party culpability case was defense was was withheld we had seven witnesses who presented the version that hurts was the killer that bradley  involved hurts and perelli both testified at this trial and the jury got to see them have the question put to them were you involved did you kill the bells and so there's a tremendous amount of of defense opportunity to present its case about whether or not crucial to actually read the testimony of maple's read the four o two hearing it only it only takes seven or eight pages of the transcript and you can see what the problem is the problem is and four one three nine is is where the real omissions and what we're looking for are occur where she says she didn't hear the beginning of the conversation she was in and out of the room she heard only bits and pieces and in my opinion the most important thing she said is she couldn't tell if it was a serious conversation and doesn't the end as it doesn't that answer really let the air out of the balloon you know you've got seven people who testified in this case that not only that he confessed to a double murder but that he killed these people or they kill two people in a camaro parked on the side of the road you know pretty specific stuff and the jury heard it all and they rejected it now what what petitioners contending here is that if there's one additional witness who couldn't tell you when the conversation started whether it was serious she only heard bits and pieces and she was walking in and out of the room that this was  specificity about the time the sheep herd these things that she heard but that what she heard was not enough to say this was a concession by the real killer to this homicide that occurred in someone a county to go and she she didn't know when it occurred she didn't know where it occurred whether it was in california or some other location when you say you mean the murder or her conversation the the homicide that was being discussed by by mr hert for the truth if you're looking for the tru has never had the benefit of chapman review acknowledged that there is precedent from this court and i think there's some mixed signals from this court's precedents as to whether greg's or shopman should apply and i think that further adding to the confusion is the supreme court's decision in the spars could it be that this court simply just looks to the question of did the california court of appeal its prejudiced test in an objective leon reasonable manner or manner contrary to u s supreme court precedent when it failed to apply chatman if if so that's the be all end all of the case and i think that's the way the second circuit second circuit concluded that but even under the brac standard here mr fry has clearly shown prejudice and the one point that i want to stress in that regard is that the magistrate judge in his