thank you your honor good morning my name is renee magnus i'm here on behalf of the petitioner mr just annette i would like to reserve two minutes for a puddle argument here the one fact that both experts who testify that the evidence you're hearing agreed on unequivocally is that the records that mr just minutes trial counsel sought in the state courts are absolutely vital to the preparation of the defense but mr just  as dr laura sebastian the court's expert testified she receives these expert these records as a matter of routine and hundreds of state and federal cases in which she conducted forensic analysis of issues of mental retardation they are absolutely vital to her preparation she would not take the case if she could not obtain access to the records these are records that mr just  with multiple motions at the trial court level before the organ course these are records which trial counsel has consistently denied access to the ruling of the supreme court and in holster was not intended to punish a child and petitioner it was intended to save the petitioner must diligently attempt to develop their claims in state court however this is a prime court w clearly stating that petitioners who are diligent in state court who make the efforts to seek the records will not be subject to the same type of procedural errors as non diligent petitioners as in michael williams a petitioner who presented a completely unexpected totally newly discovered clane for the first time in his federal hate its case and the supreme court held that he was entitled to be heard on the merits  the first instance because he had made efforts in the state court to seek the records by seeking funding even though at that point in time in the state court he was not aware of what might be in the jury records that he was looking for he just wanted the opportunity to examine them this is print court held he would not be procedurally part on his claims mr just the net and his counsel were even more the petitioner and michael williams judge now judge janie knew precisely what she was looking for she was looking for issues related to the complaining witness as mental retardation as might impact her suggestibility because this was a woman who the first time she was talked to about her sale and stated for primes that she did not know who he was it was not until someone else suggested a name with to her but she adopted that identification and as a testimony stated it trial this was a gentleman she had seen once prior this was a gentleman she could not pick out of a lineup there was also no physical evidence that links mr to spend to this crime at the time of trial it was not known that d n a evidence would be itself exculpatory although we have subsequently found out the only evidence linking mr to spin it to this crime was the identification by the complaining witness who was a woman suffering from intellectual and developmental disabilities at the time called mental retardation making an identification of mr to spin it based upon a suggestion of a name by another individual trial counsel recognized that this was a critical issue for mr to spend to investigate trial counsel recognized that she need to qualify expert to analyze this issue to explain it to a jury trial counsel recognized that in order to have any competent expert provide her with an opinion she would need the underlined documentation why couldn't she have presented the evidence  she specifically said requested funding for the experts reviewed records the opinion of the state court precludes access to the record and it's not grants any funding for an expert without funding for an expert and could not richie i was seeking the d h s s records regarding the complaining witnesses they did not and were criticised by the supreme court for not identifying what they were after in those records and that the trial which when the court first looks at records it may not realize what is the tory in them but it's evidence goes on court should look again to make a determination if now there's anything in there that in fact was exculp provide to counsel who could then discuss the issues of what they wanted and we made a filing which was what led us to be granted the leave to have never gingery hearing and to provide records to and to the experts at which point both experts testified both dr sebastian and both dr fierro said yes these are critical records explicitly exclude yorker's i'm sorry i didn't do it she specifically routinely so any contention that there's an absolute prohibition in oregon on disclosure of these records is an accurate under the only evidence presented to the district court on this issue i see i'm down to  it's a question of statutory interpretation and judge stuart interpreted the statute noting that these records are provided in civil suits and she could not understand how a civil defendant could get the records on a criminal offense and could not the oregon  may please the court i'm david thompson representing superintend and cook the case reduces to one rather narrow issue and that is whether the state criminal trial court decision to deny in camera view of the mental health records of the victim in this case is contrary to or represents an unreasonable application of clearly established federal law as determined by the united states supreme court and it really reduces to a question of whether or under pennsylvania versus richmond or brady versus maryland as at the state court's decision was either contrary to those decisions or and a reasonable application to see why you do none reasonable application of rich richie indicates that where there are where there is not an absolute bar to access which was the case in ritchie and arguably is the case here because there are exceptions as to when others can get access to the kind and that the defendant has a due process right at least have a judge look at the file to determine whether there are materials that would be material and critical to his defense so why isn't that at issue in rich would be at least a due process right to in camera view of the records so the turning point for this case is a comparison between the statutes that were at issue particular provision and it's not appear in that statute that was in place at the toy and that the state trial court ruled on the question of whether there was an absolute regarding these records this court will want to look at or care of i statute once seventy nine point five zero five and it'll want to look at the version of that statute that is contained in  provision that you reference it says this is not a case where state statute grants c y as the absolute authority to issue to shield its filed from all sides and then it goes on to say it cites the exception for a directed to do so by court order and then it says and this is the passage that arguably i would think applies here given that the pennsylvania legislature contemplated some use of c y s records in digital proceedings we cannot conclude that the statute prevents all disclosure in criminal prosecutions in the absence of any apparent state policy to the contrary we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determine that the information is material to the defense you seem to be reading the supreme court's pronouncement and richie isn't limited to a statute that specifically provides for  i would agree your honor that there is some broad language enriching with respect to what a state legislature may contemplate in their statute and i and i have to concede that the statute in place at the time that the state criminal trial court ruled had some exceptions to disclosure the question i think reduces to this the state trial court was in the position of construing the statute in front of it effectively for the first time that any state court without any appellate court assistance to determine whether we had in this particular case what amounted to nearly absolute confidentiality on the records the question then becomes did the state court on reasonably construe the statute and the petitioners not made any argument here king the state court construe the state statute as not allowing for disclosure of these records to virtually anyone now that according to the united states supreme court there's a difference between incorrect and unreasonable clearly established federal law ok but clearly established law is richie richie clearly establishes that in the not with i would say you're conceding  your state law does not absolutely provide access i mean prevent access it has exceptions or has exceptions now the trial court in assessing the constitutional claim of a due process right to access to very vital information  assume that if it incorrectly interprets the the just wrongly interpret the oregon statute as not permitting disclosure to virtually anyone are we supposed to ignore in our analysis as to whether that's ok you can basically avoid applying the supreme court clearly established law by coming up with and in correct or wrong reason for doing so i see that my time's up you're in a kind of respond to that question sure your muscles if not is not up until we say your kind as a thank you i think that this court has to look at ritchie with respect to the specific statute that it was interpreted or looking at in that case and yes there is some broad language with respect to what the legislature may contemplate with respect to disclosure but i believe that there is wiggle room and richey between the statute that was in play in richie statute like that which was in play in one thousand nine hundred ninety four for the state criminal trial court which included a provision sectional and of one seventy nine five of five which said no written account referred to in subsection two and that describes the records of this action may be used to initiate or substantiate any criminal civil administrative legislative or other proceedings conducted by federal state or local authorities against the patient or to conduct any investigations of the patient and that's where i think the state trial or was not on reasonable and interring the state statute to me that in this criminal proceeding this statute prohibits me from disclosing these records and prohibits me from even doing it in camera review that is an absolutely reasonable interpretation of the statute and that if a state trial court the foundation for rejecting the due process claim which was effectively based on rich and so there's the steps i think this court needs to take into term and whether or not foundational point it's not an unreasonable determination by the state or drunk on the statute as counsel can see that it did allow for disclosure of these records in certain instances that is on all fours with the language and richie that this is not an absolute pro be prohibitive statute there are times when the records are disclosed they are disposed in civil cases they were disclosed i'm sorry ron i don't have it in front of me i could certainly take a look at it and give you the analysis from judge stewart and the twenty eight j letter the issue in terms of the specific provision of the statute in oregon state and federal courts prosecution defense she would seem like it's these records they're absolutely vital she would not take the case without them the facts before the district court with said experts and forensic is subject to interpretation and clearly other state courts have interpreted the statute differently because experts are being provided these records in the state and federal courts  state courts no it was not made to the state court it was it was never available while when judge eight and was undertaking her briefing she briefed numerous issues she proof brief the federal constitutional issues a sixth and fourteenth amendment issues she brief the need for the opportunity to investigate and present a defense and confront witnesses i don't believe that she she did not have an expert she did request funding for an expert was never granted it so she didn't present the testimony from many experts and i've i've tamed these records in other cases that she did not present but again she was not granted funding to us no there was no specific claim on funds for an expert the there are two claims the preserved claim for i'm trying to understand what you gain by may have argument here it's not our claims before us well if we're talking about reasonable interpretations of state core law and what and whether or not this was a reasonable interpretation of state court law i think the fact that an expert has evaluating these disability and mental retardation issues in various cases i get this information all the time why this is what you're saying we have a state law interpretation that this contrary to the statute itself on its face looks honor can certainly consider that in terms of evaluating whether or not this was a reasonable interpretation of the statute as urged by counsel for the government that it's interpreted differently and hundreds of others cases certainly tends to indicate that this was not a reasonable interpretation of the statute in this particular case ok thank you