involving a car accident which in the state of michigan at least is very rare and it's all even drunk driving cases where there are fatalities in the state of michigan are rare two tenths  of every percent of drunk driving cases involve some type of fatality and the vast majority of those cases are single car accidents where somebody has trunk drives up the road and kills themselves so this is somewhat of a rare case the other thing that's somewhat unusual about this appeal is it is a single issue appeal in terms of its substance  but there's also a procedural default and i'd like to begin with that to spend a few minutes on that because if you agree with my position that the state is  let's go back to the trial court in the pretrial proceedings the defense move heard a dahlberg hearing which is the gate keeping procedure right the defense presented evidence to the t are the event dead a recorder may not be reliable the prosecutor said look at this is not a gate keeping issue for you to decide this is a battle of the experts and the two positions that they took the ring ok the prosecution's position was this is a discovery proposition what are the two specific things that they disagreed on it seems to me they've been in favor of what is that this that they asked the court to do and now are challenging what the prosecutor at the state court level asked for is don't do this don't conduct i'll say it's not necessary to do it right  on appeal than the ultimately admit that they were wrong about what they admitted what they're requesting the court to do is consistent with what they're arguing on appeal is no seattle can still missing ok so i we know we should have had a d'albert hearing yes absolutely so then the question because becomes how did the state court trial reach that decision how does that figure into the core of the argument here it figures in because what happened was the state prosecutors had let the sevens come in let us benefit from the scientific evidence let us spend days on this let us argue to the jury that it beyond just opinion evidence that scientific evidence let us use that to convict the defendant that's their argument on appeal that's what they did it travel but then on appeal they said oh maybe we were wrong about telling the trial about even if we're raw there was no due process well that's what the trial judge ultimately said the state was evidence that it was not entirely reliable i mean he ended up with the jury having it seems to me a pretty fair picture of what the strengths of the seven hits were and what its weaknesses were and there was a whole bunch of other stuff in the record as well so how do we get to a due process violation from that picture well judge givens i think that your nischelle statement is correct w here and due process but we have to go back to where the trial court started with and said look at the question of the evidence between murder for which  problem you can't say there's a due process problem because the issues closest to whether he did it or not i mean the due process has to do with the reliability of the jury's verdict based on evidence that the prosecution argued was scientific when it was not with the rest of the evidence is does the constitution say you can't do the local rules of evidence you can't no it's not a question of state law it's a question of when a defendant is is convicted on evidence that the state court trowed sentence reached the level of the denying the defendant due process and a fair trial look so i'm sorry the picture believe and in the point i was making was even with the exclusion of this information which was not represented to be really more than it you still got a difficult situation the difference is if you take out the e t o or what you have is opinion open it's only opinion evidence from civilians which vary greatly opinion habitants from the prosecution's expert using traditional reconstruction which which was we bonded by the defense or me i'm just not seeing how that's responding to the question you're saying this evidence was in pork absolutely that's exactly right the question is why had to have why does have to be left out why does it have to be left out because that what in the constitution says that the jury can't hear it because kate that we're summing that it complied with state law how did it violate the constitution for the jury to hear additional evidence which could be challenged or undermined or criticized or cross examined and was allowed to hear that and came to the conclusion that it met the standard for for second degree murder and i think they understand i think the answer judge rogers is simply this in a criminal case the defendant has a right to be convicted only but i don't think there's any case it's all because normally we check on the reliability of evidence by cross examination but in other and counterevidence i'm sure there's a lot of unreliable evidence that goes goes before a jury but that's the purpose of the trial specifically that the e r evidence was significant in terms of the prosecution's case which is a i think a different position that you're taking so we have e g we have barker versus you can see both cases where there was evidence that was admitted and then ultimately the state courts had to make a difference it was harmless and i think you're essentially in that same position and it's not an easy position for an appellate court where do you draw the line between this evidence made  with but in the case like this where if you take out the one part that everybody now agrees should never been part of the case that the government relied on and told the jury and at the end part of this is just popular culture arguing harmless error i'm questioning whether there was a violation of the constitution where's the violation of the constitution i'm just not seeing it and you give me cases about whether the fear was harmless sort of seems there was an error well the her i don't see it united states supreme court has always recognized that there is a due process right not to be convicted on certain evidence and the style that's where they start with and that's really a judgment call for the courts to make at what level does the evidence come to the point that it rises to the level of the due process file ation well i'm not even sure that there was error in admission of this evidence so it's pretty hard to get  from you know not being sure it was error to be sure that it validated d process where you would be the first one no disrespect to you that you'd be the first on in even the state of the federal courts if it was the in air it may be i think it was the big difference is for a prosecutor to say that this is the linchpin in terms of scientific evidence that so many people believe the jury is relying on probably because they watch too much t good morning we have please the court words assistant attorney general for the warden i have been as mystified by the procedural default argument as your honour's the very first rule of procedural default it is the state court has to been forced there was no a procedural default by the michigan corner of appeals a prosecutor is always free to argue that if an error occurred below it was harmless and that's all the state court seems to me the first issue for this court is whether or not the michigan court of actually said petitioner argues a due process claim and then they say this constitutes preserved non constitutional wire and the district judges says well i suppose they might have just meant that the error wasn't so big that it rates to michigan supreme court has adopted the equivalent of a dog or through a michigan rule of evidence and that's why the michigan court of appeals says well gee you know under michigan rule of evidence of an o two you're probably should have held this hearing here and then they said  are evidence what have been proven unreliable after dogbert hearing we find any error was harmless other clearly entitled to do that we don't know what would have result would have been had there been a dog hearing perhaps it would have been the prosecutor let the court down the wrong path right there is no invited or a defense attorney says your honor i would like a hearing the prosecutor says your honor i don't think you need to hold their hearing because and then they give whatever their reasons are i'm the judge such i think you're right mr prosecutor i don't need to hold a hearing and then after the defense has been convicted the process the defendant then comes in and says you should have held that hearing judge and then the judge says i think you're right i should have and then it goes up to the michigan court of appeals and then the prosecutor says we didn't think a hearing was required but if you read this record even if there even if we assume the e t our testimony had not come in he clearly would have been convicted and so therefore there is no invited air every time there's an objection to evidence that the prosecutor opposes and the judge keeps it out or it lets it in you know say the defense attorney objects to proposed hearsay your honor that's a present sense impression and then it's later decided there really wasn't a present sense impression the prosecutor is not precluded from arguing on appeal that admitting that evidence perhaps it was improper it doesn't warrant a new trial that's not invited here in the slightest so it's the state's position not come in and it was a harmless error for several reasons but most importantly is the conventional calculations the state's expert produced under an objected to a method called momentum analysis showed that the top arrange for the petitioners vehicle was one hundred seventeen miles an hour two hundred twenty six miles an hour and then when you read calculated using the e r data it was one hundred nineteen to  hundred twenty nine almost the same and i refer you to page id nine thirty nine and that just shows you that basically you have calculation a norge action he was speeding really fast calculation be perhaps objectionable basically the same result well then by definition if it's tough to properly admitted evidence there would be not the kind of error that would result in a new trial so i don't i can't speak for my colleagues to  me it's a closer issue whether this evidence made a difference to the jury than it is whether the evidence should have been admitted in the first place you could make a rational you could make a logical argument and i could see the basis for her saying if this was error it caused some harm right it was extra evidence in a close case extra different evidence in a close case letter but it seems to me you're easier argument is that it's this nothing wrong with  admitting it i agree that there was nothing wrong with admitting it but the court of appeals sort of jumped ahead and just said well we're just going to assume for the purposes of discussion that perhaps it shouldn't have come in and they said even then it's harmless and they did be cause the at the deference that you want to focus on this yes but i mean i totally agree that there isn't all there is no constitutional error that's been proven by any stretch but we also have lots of it is no constitutional violation that be the end of the case absolutely have to get in there was a difference i totally agree i totally agree but there was a lot of other evidence that was laid testimony about extreme speeding it just crusted a hill we need crusty hill you ought to be extra careful he's riding the rumble strips for three to five seconds when i was driving down from lansing yesterday that there were almost twice and i paid attention and i was offered in half a second each tag i mean but he had you know he was drunk super drunk and even his own expert said he might have been going ninety seven miles an hour so when you put all that together if i don't i don't think how it possibly could be on a reasonable for the michigan court of appeals to say a for the sake of the argument the jury should not heard that a t r related testimony based on all the other testimony it would be any error was harmless in fact the prosecutor in her closing argument i refer the court to page idea lev forty nine said petitioner cannot control the car it doesn't really even matter what the speed is in the end the speed was too high for his condition driving at night super drunk you know know staying on the rumble strips all those activities put together clearly establish the kind of malice that's required for a second  slowing down all those things are part of the reckless driving i agree but when you put all those things together in fact the prosecutor in are closing arguments that i'm not arguing just speed there's all these other things when you look at all of them together we find the kind of malice that's necessary for a second degree murder conviction and it seems to me that this court should find that the ed but deference does apply and there was either no constitutional violation or skipping past that just saying we don't need to decide there was clearly the ruling that it was harmless error was not objectively and reasonable but even the district court who reviewed a novel reached the result that even looking at it and all the others just you know this case is nothing like igi case where there's you know true junk science you know the six are called it bunk that this is easy our testimony is not bunk at all they called in an expert from toyota and they cross examined the witnesses about this and lo and behold data produced the result almost the same as the conventional on objected to momentum method of calculating the speed so of all those things put together there's even no constitutional violation or the harmless or ruling was not objective appellate court reviewing a state review and you apply the yelled look through dr you're not looking at the state court of appeals decision because they bypass the constitutional issue the only merits adjudication is the state court and it was the state trial court that said that this was the due process violation that mr boy denied a fair trial and it was not harmless and if they had analysis is correct then the position that that the passage in this just stated that you have to find that this is objective leave on reasonable is a very high  very difficult for you to do to overrule the state the only merit adjudication on the constitutional issue the only other thing that i would point out you may find this help or bound by the state district courts trial judge state trial judges determination of what's a violation of the constitution because it's the only merits adjudication on the constitutional issue the michigan court of appeals bypassed i thought the difference was a difference that goes in favor of conviction you're saying it goes in favor of all the factual issues you weren't the defendant is entitled to the same deference above ruling that there's a constitutional violation as if there was a ruling that there was not made if it made a difference even if it didn't make a difference were about yes correct it many  s well i think there are a number i mean that i'll be counterintuitive so that's why i'm wondering if you have cases where i think it's just the opposite i think it's the same thing that it started with talking about it being a two way street review volume one thirty eight number seven did an analysis and critique about the harmless here test and what that involves and i think that may be helpful if it's not it isn't thank you very much and the questions