ruling on the doctrine of force or wrongdoing that doctrine and this court and it's kind of a hat issue these days i think people are seizing on it because of the language that came down in crawford and davis crawford and davis don't apply there case against that standard that's that's correct i think we would go back to and the and why and so if that's that's the controlling supreme court case and the state court determined there was trustworth did not consider a number of factors regarding the trustworthiness of that statement one mr harris was specifically blamed by george taylor according to the attorney for the person who instigated the whole thing he said that he committed murder as a favor to mr harris so he was under lilly versus virginia he was not simply cutting himself but he was shifting the blame to her for the one who was responsible for he certainly was not really of the one who speaks i believe that in the state court proceedings the issue regarding the privilege was the cow there is a california evidence code specifically holds that the holder of the privileges or the privilege only applies to the holder of the privilege would have which would have been mr taylor and as i believe this would learn when case united states supreme court decision and so unfortunately i would like a lot of the more in my favor in that regard but i'm not going to push that point to the end in terms of the trustworthiness also the state court of appeal did not consider the fact that mr taylor told numerous different stories of two different people after he was released also to the attorney he told different story and that impacts on the trustworthiness of it and in regard to the law of the case we are dealing in it with a different defendant i know that  covered now in the state court covering all three defendants what a joint trial and a joint field but there were three different juries here and a lot of cases not absolute but if we if the court finds that more of the case applies we clearly don't want to get to family members of the victims who could have come back it at any time and did not cite any united states supreme court authority although they're not required to it clearly is contrary to an unreasonable application  section ten fifty without considering the constitutional ramifications of the fact that she did have a right to retain counsel and that and we're not talking about a major continuance here continuances under these circumstances happens frequently but it also happens frequently that lawyers walk in and say i would like a continuance to file a new trial motion on behalf of this defendant i'm retained that happens a lot there was nothing extraordinary about her request in this case until they all to grant the continuance when the other side was not going to be prejudiced and this is not a case of probation here we're talking about life without parole but it's but it's you know it's a california her lawyer had not done very much she had no investigator and all of that also impacts on why it is that on the day of sentencing a letter that was drafted a month before was not presented to the court for file i mean how would you know it's  the reality for a criminal defendants in the in the county jails to get you know motions formal motions or letters filed with the court ahead of time it's unrealistic to expect her to comply with all of it counsel what do  with the fact that our court has twice had this precise situation before us and has twice ruled in the in the context of miss harris's co defendants the testimony mr george was was not improperly admitted now let's look i'm going to that really is not the critical issue the critical case is the james decision and the reason that that decision should not be binding and that this court should look at this issue and you know it's because the situation between lisa james and statement that was admitted by the lawyer and mr harris were completely different because mr taylor according to the attorney specifically blames mr harris for starting this whole thing good morning my name is scott taylor deputy attorney general for respondent is the court has pointed out this is the third time that this court is looking at the miss ability of the statements of mr taylor to mr rashan his attorney and whether or not this  is law the case as we point out in our brief is certainly law the circuit which means that unless there is it's clearly erroneous or it would result in a manifest injustice he look at this now your honor you asked a question about what's the difference between the first two rulings as to miss harris there is not there really is none factually there's no difference the issue that you look at whether it be under crawford or under ohio versus roberts well under ohio versus roberts in little different it might not be but it's not i mean it could be but it's not i mean depending on the circumstances so i'm not sure that the fact that we evaluated another case really is persuasive so much as maybe the same logic where i want to claim that you would you agree we need to look at it in the context of parents i think what you have to make independent judgment yes but i think what you have to do is really have to look and say is there any distinction between miss harrison is james and really there isn't in this situation he mention james as much as he does miss harris and it's the core pointed out in harris that it was eminently reasonable to state courts conclusion as to its reliability in this case he wasn't even expressing remorse he wasn't saying prior to minimize his spite proud of the fact that he went in and he put two slugs in the back of kevin james his head his only mention of miss harris or mr johnson or ms james was to say here's how i got it done and he wasn't trying to blame in fact he specifically told his attorney i will never testify against any of the other people that were involved in this case so essentially we have the trial court the state court of appeal the california supreme court the magistrate and the  to go into that doctrine what other case would you have a situation where a jury made a specific finding that this terrorist killed mr taylor for the purpose of silencing him as a witness that's about the best  supreme court case had talked about forfeiture by wrongdoing a long time ago both in davis and in crawford they made reference to it that it exists and that it applies to extinguish confrontation clause writes i can't imagine a better case for you to conclude that forfeiture part wrongdoing applies as the district court in this case decided it did to answer your honor's question in terms of the attorney client privilege that was litigated down below in the trial court in fact for some reason they decided that they would bring his mother george taylor's mother and even waive the privilege in front of the trial court now whether or not she actually could claim the privilege i don't know that they were just trying to be some better safe than sorry i think in that  say that i'm taking this as a motion for a new trial i've watched counsel in this case and i really think they did a great job on tonight and your motion well that's not what the motion was the motion was to continue the case so that she could get an attorney to bring a motion for a new trial so am i saying that the trial court did it exactly right no and normally that's not the case but here we have a situation where on the day of sentencing she comes in and for time suggest that she wants to do this i think suggestion that because she wanted to change counsel and bring a motion for going to trial her counsel would not have made a motion to continue on her behalf that really is inconsistent with his conduct throughout the trial and of sentencing so here she was she was convicted on the seventeenth of december wave time again january nineteenth and here we are february fourth and for the first time she says i want to continue this case do you know where this latest supposed let was doing no this time this apparently written a couple weeks before this time well we don't know exactly when it was written we know that the date on it is actually january twentieth but what i think the assumption that everyone ma ms harris had it with her she's the one that wrote it and on the day of trial that's the first time that was filed and she brought it to the court's attention and her lawyer now it wasn't in the hands of her lawyer it wasn't filed and there was no notice ever given to the prosecution here we have a situation which calls for the trial court's discretion you have a situation where for the first time she brings it up let's keep in mind that this was going to have no impact on the sentencing we have a case here where she conspired to murder two people and murdered two people the second one was special circumstances her sentence was going to be twenty five to life consecutive to l wop that's the way it was going to be there's really the only discretion would be for a truck or to find that the two murders were not unique or not unconnected and that somehow obviously the trial court's not going to do so the issue is the motion for a new trial the other issue is where is the prejudice where is the pressure this what she's claiming is she didn't have an opportunity to file a motion for a new trial that's then she's been involved in a very lengthy appeal petition for review collateral proceedings and that once  has ms harris ever mentioned what was she going to present the motion for her problem she doesn't mention it once and you don't see it in this appeal it's just this arbitrary idea of well she could have said something and i think the trial court essentially reacted the way they did because they had watched the they had watched the conduct and the performance of her attorney in this very very complicated trial where there was actually three different juries and came to the conclusion that a motion for a new trial based on ineffective assistance of counsel was not even close now it would have been better if the record said i don't think your counsel is ineffective but on the other hand you're too late in terms your motion to continue we have the victims here this is th and you haven't told me why one that you're late you haven't said a word about why you haven't filed this sooner and secondly you haven't told us why what issues you present what new evidence you would present to the court the motion for new trial they didn't do that to conclude the trial court abused its discretion it was so arbitrary to violate due process especially where there was no prejudice no it doesn't seem to me that you could come to that conclusion was the court has any other questions  killed the victim or whatever and the issue was why was the victim killed because of self defense of an argument fight or something that miss harris has always contested the fact that she was responsible for m involving so that fact that she was convicted should not be a factor in determining that that doctrine applies here thank you thank both council for your arguments the case of harris versus henry  counsel come forward in united states versus the hope and can