asserts that she was denied a meaningful opportunity to present a complete defense when the trial court excluded competent reliable evidence bearing on the credibility of a confession in a way that was arbitrary or disproportionate to the purposes of the state theo was denied due process and the error was not harmless sack and even if the related geisha bar does apply the state court's decision was both contrary to law under twenty to fifty four  one and thirdly the state court decision and also involved an unreasonable determination of the facts under two thousand two hundred and fifty four d two i do like to begin with the analysis here  under the most holding and reasoning of junkers as williams the state court did not adjudicate the claim on the merits of the state courts reasoning is in paragraphs thirty nine and forty and that's contained in our  ninety one and this is the prosecution's proposed findings and conclusions which were adopted rubberstamp by the c c a and under wilson vs sellers those of the findings that we must look to the state he views court held that the complete defense claim was nearly identical to the involuntary confession claim raised on direct appeal which it was not to the extent that the state court applied coerced confession of discretion standard and state law test for expert qualifications and relevance those standards are very different and less protective of melissa's federal constitutional rights than the federal law and therefore under the unanimous reasoning of johnson versus williams there was no adjudication of the federal merits of the claim of the claim itself there is no possibility that the state court had other reasoning in mind because the court rubberstamp the state proposed findings and conclusions over the weekend and the state consistently relied only on state law now i'd like to move to the analysis under the the no standard of the merits of the state's case centered on the videotape interrogation where after hours of coercive interrogation by five police officers melissa admitted to causing most of the bruises and bite marks and said that her husband in the other children are not responsible but the night murdering the lis inflicting a fatal blow the interrogation was played in full for the jury both sides urged the jury to review it during their deliberations and they in fact did review it during their deliberations this error was not harmless the testimony of norma bill and the way the was ruled inadmissible because she proffered nothing to indicate that she had any sort of specialized experience knowledge or training in the area of interpret in body language and patterns of behavior so we have to give deference that even without the friends because that's typically something a state court judge makes a decision on the cough occasions of an expert well no we don't your honor because under there is a presumption where there is a summary dismissal that the state court reached the merits it is a rebuttable presumption here that under johnson versus williams we have shown that these peril standard was less protective and different now i'm just saying that the general claim for instance the if you but even if you have a federal right to proffer an expert you don't have a federal right to proper and qualified expert there's no such federal right so if the issue is the qualifications of the expert that's not the federal right that we're talking about and that is something traditionally trial judges have to evaluate and we in federal court give them high deference when we talk about federal district judges and i so the fact that she may be qualified to testify about x doesn't make her an expert on why so that's my point is it seems like this was a fairly specific point and what point me to the record where it shows she is qualified on the point that she was not allowed to testify on your own or she was her qualifications were extensive in it's it's in the record under the low bar of texas evidence code seven o two which goes to knowledge skill experience training or education so you may have more traction for the other witness i'm sorry with your other witness saying you have more traction with the other witness and you do with bill in a way about but ok you want to finish your answer to my question go ahead but i don't think citing a texas rule of evidence is going to help you in a federal hate well she had a master's degree didn't she she had a master's degree she had she had a certification to do mental diagnosis didn't she yes that's correct you're on are and her clinical training included the interpretation of body language she said that it was not a specific qualification for the interpretation of body language but she had this was included in her clinical training and her experience so we would assert that she was eminently qualified and the state court's ruling that it may be difficult to comprehend that this of course  and i guess the other the other concern for me is in economics and i don't know who defined the field of expertise as an expert in body but my understanding is she offered up a lot more than that i'm an expert in body language i think she probably said there's no such thing as an expert in body language she took a history she observed the videotape like everybody else she saw everything the texas rangers saw and the texas ranger was able to come in and say i can look at her and she was clear to me she did it is what he said so he's kind of where i am i'm not sure if i was doing the trial i'm not sure i would let the texas rangers say i could tell she was telling the truth tonight which is essentially what he said not to shower let him stay there or the clinical social worker but once you let the texas ranger say she did it not to look at her until she did it then it b question well and why isn't a clinical social worker who was certified to do mental health diagnosis why isn't she equally qualified to say i can observe somebody is behavior on this videotape in their conduct and make some determination about whether or not i guess if you don't let people say i believe that we tell them the truth and if you don't let people say that i don't know why she'd be any less qualified to do it than the texas ranger yes your honor that's essentially our argument and it's your argument is the as you pointed out that the call she proposed to testifies to much more than simply body language she had reviewed the c p s records extensively she reviewed the family history extensively she knew that they were patterns of behavior there that were revealed by this history that would show why she might cause confess to something that she actually didn't do so her cough occasions were not simply limited to body language which is one of the mistakes that the trial court made here she wasn't simply an expert on body language or to say whether these statements were true or faults she had a wealth of information that the jury could not wait without this expert testimony just by viewing the video none of this information would have been available to them so she would she would have been she would have helpful in that she would she could have testified to patterns of behavior how looking at melissa social history how that influenced her body language and she was to testify both on the basis of her interviews and  executed on the basis of relevance this was error because texas you know the evidence for a one allows testimony and evidence of that as any tendency to make the existence of any fact that is of consequence of the germination of the action more or less probable must to testify that to wine due to melissa psychological characteristics there was an increased likelihood that she would acquiesced during the interview secondly her behavior during the interview could be explained by her dependent and acquiescent personality  rd the conditions of the interview were subjectively coercive th to explain the statement that i'm responsible for it as meaning her responsibility for the medical medical neglect of mariah and not her death by that melissa did not fit the psychological profile of a woman who murdered their children and six that c p s record shows that they contradicted miss miss luci those admissions there were instances in the c p s records where bite marks occurred in foster care before they were the state needed to show was that melissa intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of an individual which is what the videotape confession was and texas  three defines capital murder as a murder of anyone under the age of ten so i'd like to get to the twenty to fifty four deal one analysis this isn't one of the three independent reasons here for standard is different than the complete defense standard terry williams and laffer versus cooper hold that applying the wrong legal standard satisfies the contrary to standard of two thousand two hundred and fifty four dollars d one the state law standard was abuse of discretion and again this is out our way ten thousand and ninety one that was the the standard that they applied here which is does not involve the questions of arbitrariness or just personality that  indicate that she had any sort of specialized experience knowledge or training in the area of interpret in body language again this is in paragraph forty on our way ten thousand and ninety one she had a master's degree in social work that included training on how to understand what people are trying to convey by the way they act by the way they hold their body by the way they move their hands and arms and hands she had the highest national and state policies certification related to diagnosis and treatment she had clinical diagnostic relevance to the question of melissa's guilt or innocence relevance didn't really rise until the judge excluded though in the way the and the actual findings of no relevance are contradicted by the record picker men would have testified lucille suffered from battered woman syndrome which could account for her false confession to due to a propensity to acquiesce to her interrogators thank them as testimony would have countered the emergency medical technicians testimony which would account for much of lucille's presentation recorded in the videotape of her confession that she had been subject to abuse throughout her life and learned that her cries were ineffective and that her psychological characteristics increased the likelihood she would acquiesce during her confession and that her behavior during interrogation itself by the police could have been found accounted for by her dependent and acquiescent personality as opposed to the escalades testimony that her body language and not making eye contact and head down all of these meant that she was guilty and i think them and also would have testified that she did not fit the profile psychological profile of the trial court also denied dr pinkham as testimony because melissa did not admit to killing ryan but the prosecutor argued in closing that because she inflicted all these injuries that she and confessed to them that she was guilty of the murder that the meaning of her demeanor after the incident and during the questioning had no relevance to the question of appellants guilt or innocence and that's again at are way ten thousand and ninety one paragraph forty which is completely wrong  the state but the state had made this relevant when it presented evidence testimony from the paramedics and the police officers and us going on regarding her her demeanor this is a quintessentially arbitrary and i think we i think we covered the i don't think we covered the entire argument i'm not sure if the whether the court wants to go back but i think i should i do reasonable facts yes the the argument here is that the these states argument for at the deference collapses when we see that the claims on direct appeal which were based on voluntariness were not the same claims as presented is the state his claims were federal constitutional claims and yet the state b s court used the state standard which was less deferential and different than the federal arguing that there is under johnson versus williams there is a presumption here that they did rule on the merits but that presumption is rebuttable and is overcome if the standard that they used which was here was the abuse of discretion standard is less  as we discussed before that they said that the guilt in the this claim is nearly identical to the claims raised on direct appeal which were based on voluntariness secondly they said that this court did not abuse discretion and this is the abuse of discretion standard in excluding the testimony of the illinois even pink women and for bill in waiver they said that she preferred nothing to indicate that she had any sort of specialized experience knowledge or training which is absolutely wrong she preferred her experience that we just discussed here to the trial court and forth we have here the ruling that the there was little support in the historical record for the idea that appellant physically abused her children i'm sorry that i think humans prefer test his proposed testimony that there was little effort little support in the record for the idea that she used her children that she suffered combative news and battered woman syndrome and the meaning of her demeanor after the incident had no relevance to the question of guilt or innocence and not again is is absolutely wrong these i think that there was an earlier question here about the application of state law state law here we're arguing is in issue in three specific mat ways st the state court rested this is decision entirely on the state law abuse of discretion standard that is less protective than the federal arbitrary and disproportionate standard therefore there was no adjudication of the merits under johnson versus williams secondly under terry williams and taylor character terry williams versus taylor and laffer versus cooper cooper the abuse of discretion standard is contrary to clearly established federal law because it is different then and contradicts the federal standard which requires consideration of language and the bat family background and all the other areas aspects that she was going to testify to and also given the broad definition of relevance under texas state law it was unreasonable to determine that  relevant although qualified and relevant are legal constructs in that they in the sense that they are like competence but so we have here this is this is the only application of state law here that we are arguing should be considered  it please the court there are three points that i'd like to address st is that at pub bars relief because the state court decision below was reasonable and my opponents have cited no clearly established a prng court case that requires a different result the nd is that even if the court harbored some doubts about the evidence carry rulings in the st instance they were not arbitrary rulings and  the background facts up let me ask you this how can you make the video the centerpiece of your case and then say somebody rebutting the implications of that video is irrelevant i disagree with the characterization of the question generally both sides were lying on the video of course the jury watched it but the prosecution made it a centerpiece of their case i mean what other evidence did you have against her besides her statements in the video so after she was charged with capital murder she was going on the phone talking to her sister and her to say don't blame the husband i did it so there's that there's the fact that several medical there is medical offer a witness who would explain where she may have been somebody understanding of what witnesses would have said but in any event that idea that she takes responsibility for things that he did and didn't do is th he's explaining his own thought process after watching her be interviewed for several hours of this mess what's the relevance of his thought process he's explaining how the statement is a product of his thought pro rejected you recall what justice o'connor statement was about that whole i think the key statement from green is that it goes to open and reliable evidence once we're talking in this case about that  determination is this even competent reliable evidence in that's not the decision the decision was irrelevant and so even if you feel like you've got enough other evidence to convict her it's hard for me to see how you can say this video was irrelevant and what she said and whether what she said should be taken as literally true or just as her you know taking responsibility for the world kind of thing whether that's to say that's irrelevant i mean that's a little bit hard to do given the prosecution's reliance on it i'm not saying that the video is relevant the video is relevant it is circumstantial evidence ever of what the video the statements on the video are not a confession to the crime with which he was charged statements on the video are treated as such in a circumstantial evidence case the argument was made that her story of an accident or the denials of killing this child or not plausible that's a perfectly valid argument to make at the same time the defense argued that the jury should infer from the fact that she admitted everything up to killing the child to an essentially bolster her denial of killing the child or both sides because they weren't allowed to explain why she might be taking the responsibility she did even if that's not true for example if if you as a dad allow your kid to be hit on by the by his brother that's not the same thing as you hitting the brother but you may feel like this is my fault i let those kids hang out alone in the bedroom and one kid beat the other and you feel really responsible for that even though you're not the one who beat him and while that may as a parent not matter for capital murder it matters whether you just neglected the kid in the bedroom and they beat up on each other over the you went in and started beating your kid to that right and you would agree whether you think that's relevant to this case or not is that at least correct this is not what happened in this very look at but i'm what i'm saying is there is a difference between leaving your kids in the bedroom and they beat up on each other and you as a parent feeling responsible for that and you beating up on your kid you would agree that that makes a difference criminally in this case in this case as a general matter yes so if that's what they're trying to explain with this this evidence that there is an explanation for why she said the things she said but they're not allowed to say that so the state can then just draw some conclusions that's a problem i mean as far as if he's being denied that testimony i mean other words the witness is being denied the ability to testify because of relevance that's a part i have a trouble with this is to be clear the argument of this was a false confession expert who is going to apply in a case where the defendant did not confess to the crime charged that is not an arbitrary distinction even if the court might disagree with it in the st instance putting that aside my opponents have cited no supreme court case that would even let this court sit in judgment of that type of decision as a basis for federal relief certainly not post and book and a point to sexting versus boudreaux that you cite in our brief i mean these type of generals threshold discretionary decisions at the state court level should be getting the that would still be wrong nd that type of argument is is inconsistent with the video itself which i would like a court to watch it's a crane versus texas evidence of the physical and psychological environment to which the confession is not accurate i think it's somewhat of an academic exercise going on that because it just is not consistent with this video the jury walks and the idea that she was a pushover or that her battered woman syndrome kicked in half way through an interview and let her question maybe i won't but my other concern is i likely would have objected to a bunch of the stuff the texas rangers special that she did it and all that but maybe i don't object if you are ready know that i am planning to call a couple of expert witnesses who are going to respond to his assertions and if you already know then maybe i don't object because i fully expect that i'm going to be able to call my two witnesses my my my my comment about the jury hearing from these witnesses it goes to the rd point that i wanted to make in a food court would let me i might still say something about the st two points i don't think i really got to make those either but the rd point about this not being the type of know that that this type of this this ruling excluding these experts was it was not the kind of ruling that made this trial fundamentally unfair and one the jury heard about this background information in it what it didn't sway them you know to this was not unequivocally helpful testimony from the experts and for a couple reasons one of them want to mention that it undermined her statement that you can credit the stuff i admitted to as some evidence that i that i didn't kill the child but also you got at least two of the children had given statements to the effect that there was domestic abuse between the spouses and at times miss lucio is the aggressor you know the idea that these experts were going to somehow explain away to the jury that this is a person who takes responsibility for everything in the household and you can see her blame the husband for the drug paraphernalia in the house you could see or it are a way eight thousand one hundred and twenty nine saying argument and the belief that this was somehow a case based on direct evidence of end of acts they were dangerous to human life and that is inconsistent with what this jury was asked to decide when the jury was asked to find that she intentionally beat the child in the head and this was not a direct evidence case it was circumstantial evidence so their argument is not consistent with the record and i just i come back to  were debated and discussed but to find it's not relevant how can that stand up to any standard of review to say that it's not to say that it's a bigger man was not relevant how is he not relevant so look that's what's hard to me it's not relevant because his what what he was described in the objection as is what he was going to say was that  know you never agreed to everything that went on in the household or were to blame for everything or made statements and the key thing that she denied to the very end all throughout was intentionally killing the child so handsome her defense was that this was an accident she put on a medical expert to say that the whole could have caused the injury and she argue that no one was coaching her through this interrogation and yet she described the child sometimes and she's not mother of the year or she was an abuser or not a killer that's a defense and it didn't prevail but it's a defense and it's not being deprived of factual circumstances of that interpretation because of course it's videotaped in the jury can see the entire thing they can watch her on state's exhibit five it's not very long in the courts of watch it beating a little   distinguishes that and says that her state habeas argument is whether these experts were going to talk about whether melissa was likely to have engaged in ongoing abuse of murat i mean that kind of testimony is either completely irrelevant or it's a direct truthfulness and again it's important to note that under undisputed state law if an expert is not qualified or can't ever reliable opinion necessarily is not something that's going to help the trier of fact there probably multiple reasons but we've covered them in the brief while this type of evidence would be properly excluded and it would be quite remarkable things for a federal court sitting in federal aviation review of a state court decision to to grant will leave without without considering all the reasons that this evidence might have properly been excluded well it depends of course on whether we find an exception to the implicit adjudication or no i don't think i don't like the standard we're applying and it also depends on how much credit we give to the supreme court saying you're supposed to look at what the state court actually decided and not just make up reasons that might have supported them and then we have to follow that precedent that says you to look at the arguments that she presented to the state a b s court and also you have to look at you have to look at what they ruled in the writing on pink raiment is no relevance and i'm just you know look at i understand federal habeas law it's hard to win if you're the prisoner i get that and i respect that and i've applied that hundreds of times so i'm not unaware of that but it is not the same thing as saying there is no federal review of state court cases but what i'm saying there is no one but it is circles tried by it is very limited but it exists and it's perhaps most important to consider it when we're talking about life or death of the defendant argument though is you look not just at the underlying facts or conclusions you have to look at are away ten thousand and ninety five the conclusion of a law that says that i just look at that it just said the court did not abus not relevant so i didn't resist discretion in determining this was irrelevant that's the only way i can put that together otherwise you're saying all the state court has to do saying i didn't do anything wrong and we have to give total deference to that and see end of the matter and you court says well i didn't make an arbitrary decision you'd say looking at the record was this evidence excluded arbitrarily the petitioner can't say that here even if the court might be inclined to disagree in the st instance there's no supreme court case that  that would require a different conclusion other than it's fair to say it is if you didn't abuse your discretion you didn't act arbitrarily the the decisions below if anything else the fact that the direct appeal court looked at a similar claim what about our decision in cattle so i realize that's not a supreme court decision but we still have decisions to interpret in state court i mean supreme court decisions and we're bound by our threshold heaping function to do tell whether experts are qualified and there are multiple reasons i could spin it right multiple reasons to keep out experts including relevance reliability qualifications if they're not qualified not has clearly said that she was guilty they had no idea that she was a battered woman or a familial and social history as shown in the c p s records it would have shown that she would be more likely to say things to cover for someone to cover for instance for her children who actually did this they had no way of of determining how the familial background and her social history related you accepting that appointment and we also appreciate mr klein and being here and both of you all presented very helpful arguments and we appreciate that of course it's a very serious case and we take every case seriously and particularly these so thank you the case under submission and we will get an opinion out when we can