of appeals of federal for the federal claims and we will call the cases off of our calendar in the order in which they are listed the first is murdoch versus castro counsel you may come forward and begin good morning i think what's important in this case is the fact that the letter was never created anything attorney client privilege on the letter was created never with the intent the create have legal state law whether this was appropriately handled as a privilege matter or not the real issue has to do with the constitutional question in this case so i'm i'm not sure you're going to get a lot of traction in the time you have allocated to argue that the california courts screwed up their own privileged law unless you can convert that into a constitutional claim that might not get you anywhere correct cross examination the trial counsel did not have the ability to fully c examine the accomplice the jury was underneath the impression of the only statement the accomplice ever made was one that implicated the competition or that we had this other statement out there there was never published to the jury so therefore the jury was i mean the false viewpoint that he had the one consistent statement when he acknowledged today i'm sorry we don't know what's in the statement do we know what we do know is this by don't know what that means all of that may mean is that he felt under pressure to testify against him even though he didn't want to because he was facing twenty five years to two things number one i did ask for a hearing so i could have the entire letter brought into the district court i know you're asked for an evidentiary hearing in federal district court for us and i don't know whether and i'm wondering what did a rather unusual spirit is there any supreme court case that you know of i don't know of any which has said that when state law law up with whatever her verbiage you'd like it's important right but what case do you want us to read what federal case what supreme court case do you want us to believe that you say in actually lead you they can come to the conclusion that it's clearly talks about the situation where a privilege has infringed upon the rights to full cross examination so i'm talking about the constitutional right of cross examination and the use of a privilege and that's really if we're going to state attorney client privilege document that's where we're getting here because if we don't have the right to a full cross examination especially with an accomplice who has potential motive to lie then we have case what do we know about this this letter that we're arguing about there's some suggestion in the record that the letter was cooked up between the defendant and the person who wrote the letter factually what do we know from the record about that is that just a bunch of representations by that point i think the district attorney statement where each she states i have an excerpt that he did under pressure from the petitioner was this lady attorney for your client yes yes yes she saw the letter she saw the letter but she says she told you what's in it i mean here's the process she did but that's not in the record it's one of the problems that i have is we don't know what we're dealing with let's go back to the federal district court for second you say you asked for an evidentiary hearing and what was your purpose in asking for another matter i think to the letter did you ask that the letter just be given to you or did you ask that the letter be brought in of a sealed condition and turned just was there any explanation given by the court for denying it so again here we are the best case that i can see for your position is that somewhere in the supreme court's opinion it says that the right to the right to confront witnesses can trump state rules of evidence state rules are probably in everything else but only under circumstances where you balance the two and i don't know how you balance anything without seeing the light or the trial of the trial judge saw it we haven't seen it nobody in the federal courts have seen it so it would seem to me that one possibility is that somebody in the federal courts ought to see it ought we to ask for that letter to come to us or should we remand this to the district court with orders to hold an evidentiary hearing for the court to look at it in chambers and see what we're dealing with i mean i don't know whether it's a letter that just as they made me do it because i was looking at twenty five to life or a letter that lays out an enormous detail that it was all a lie because the informant was pressured by the police so that he just made something up out a whole cloth i think bringing may have to be made in the first instance in this fido we're going back to this record either i'm just trying to steer the question i mean obviously you're a learned panel and in looking at the letter or the questions can be answered have ways that opportunity no i don't agree with that i mean i asked for it to be produced it certainly could be produced in certain parameterise i think i'm not going to sit here and things i do now so i didn't think  nothing at all about cost about a constitutional issue because shelton said nothing about it just he said it's privileged right and that's the question not the answer well i would submit the whether the privilege can still survive in the face of the sixth and the the right to confront witnesses i would submit that it can and then if i could further explain that the trial court's decision to apply the privilege can go any further in explaining why did that i think without violating the privilege of doing our you know it was attorney client privilege because it would in some way have to disclose the contents of what was in that letter but not really the trial court had recently said i've considered the content of the letter and i find that based on all the evidence in the case that it does not violate anybody's right to confront witnesses at least would have some kind of a statement like that sort of just to comply to the privilege that's to the trial i mean i had many of those cases in federal court were i just said things like that after looking at apply california's three client privilege and the proper manner california instead of the other side is saying that notwithstanding it may have been perfectly correct the ruling that it was privileged nonetheless the privilege falls you know the constitution the supreme law of the land you know that state laws fall all over the place federal last fall all over the place when she objected to the light of the constitution that's what we're really dealing with and i'm having a hard time figuring out how to make the how to weigh this case assuming  that we could we could have this issue before us is a matter of clearly established federal constitutional law without knowing what's in the letter i mean all the cases that i look at that are dealing with the so you get into a balancing situation and i don't know how we can balance this case you can't say that there's any supreme court decision that definitively states that in this situation that had to they had to have an opportunity to use the letter and cross examining the witness i seems to me to i don't believe i have with me i don't know if it's an excerpt please get it against petitioner it's not given that opportunity so i mean at that point his mode of his bias was clearly exposed to the jury the counter isn't that a little different than saying i made it all up yes that is different but it to say in this sort of the court reviewed the letter itself it says that it the night the the you said the court said that it looked at the letter i don't find that in here reviewed the motions of murdoch for one an order and sealing the transcripts of the en camera hearings on june thirtieth five december twelve ninety five december twenty sixth ninety five the motion is granted so that those transcripts show that the court at the letter itself to an order and sealing the letter dated december first the motion is denied in the court's opinion there's been inadequate showing that the attorney client privilege has been waived the addresses the  or seven forty letter remains under seal on december three we granted murdoch's appellate counsel access to the letter on april when we denied murdock's motion to unseal the letter ruling he had failed to show the attorney client privilege had been waived confront i don't see i look i read this thing somebody times i never want to see it again looking for something that said i've balanced the information in the letter and to rally friends tarmacs has nothing to do with confrontation the guy was confronted all over the place and i get was cumulus i can't find anything that even begins to touch on that i think it's interesting to me that the state how do we know this isn't perjured testimony i mean you know you've read the stuff that the ninth circuit is written on this the state's got a  true so she brought the attention of the problem so now we realize that the prosecutor is trying to put this guy in jail for life and now we're going to rely on her sank it's no big deal you don't get to see it but you've got to trust me it's no big deal you know because you put it in the  vernon white was are you aware of the scandal los angeles in the one nine hundred eighty s and the grand jury investigation and the disaster down there he said behind the misuse of informants i'm afraid right now left cases were falling apart prosecutor there was no bad actions on the process on the part of the prosecution which was why myself or with you on that i think the prosecutor should have told this guy look pal your deals out the window unless you're going to waive the attorney client privilege let me see that letter so i can tell whether you're going to tell the truth when i put you on the stand because when we put you on the stand we've got an obligation to make sure you're telling the truth you way that privilege of the deal's off i would waive the privilege i believe that that the prosecution from the evidence that she had three independent eyewitnesses which corroborate what who had been unable to identify this petitioner ten years before from photographs and ten years later after being put in a line of say oh yeah now that's the guy ten years later i would still say your honor under you know the court of appeal the california court of this and sent that the if they had looked at the letter and said that you'd be absolutely right that's the problem i'm having with the case i can't find anywhere says they look at so that might be an unreasonable determination of fact under federal law it opens a lot of doors it might not otherwise be open and see how you can determine that it's irrelevant or harmless without looking at his motive in testifying against the tissue was that he was getting a deal with the process so you don't take a letter of a letter that says my testimony is going to be perjury you don't think that's really all that big of a deal not the letter from the went to say i'm  perjure myself in court because the cops threaten to me that's not a big deal that is a big deal you bet it's a big deal especially when the guy started out saying that he had nothing to do was he doesn't know who this guy murdoch is his whole testimony is rife with all kinds of crazy stuff i never knew anybody was killed i was no one with a gun i mean this is hallmarked trouble when you're dealing with accomplices it wasn't specifically stated from the letter but i think if without looking at and since doesn't have to go to the defense they steal it comes up to us the next circuit looks and see all the information tells you don't worry about it no big deal that's the end of it they never stop it up in the privilege was and waived that's why privileges are handled all the time right  didn't the primary body of effect of cross examination because there wasn't anything on it that wasn't cumulative or worthwhile it may have been just a typical the cops threaten me with life and so i gave him the story well you want from me with murdoch hanging over his shoulder i mean that probably would be useless but again i just don't know how we make that determination without somebody looking at it do you have any objection to the federal district courts looking at it yes i would object because interests and how do you make that determination  yet balancing and the united states district court but not balancing in the abstract against the privilege of balancing against the substance of the information i would say the united states supreme court's balancing  and that was after a long time and she could not identify him in any photo six pack shown her right after the crime on my request for the letter is contained in a motion for discovery which is on the docket that i review  that without any explanation but i will get all that any extra bright away my final point is i'm bothered on this case where you have an accomplice who waited almost two when you have known to ace to come forward and agree to testify against  he waited till after his jury trial after he was given a life sentence after he was sent up to prison and then when you his life was over ok now i'm going to testify and then we have that letter hanging out there and the right to cross me i'm not sure i do not believe that the jury had the entire truth look at us needing this remark and this maybe he did not the problem and we're sitting out there with a big question mark where the really the