in both of these cases mr schroeder was deprived of his most critical evidence for these two trials when the trial court denied funding for and then the testimony of the eye witness identification expert and this was in violation of the due process clause in both cases the prosecution's case hinged on the eyewitness testimony of the victims in both cases there was no forensic evidence linking mr schroeder to the scene and there was no other evidence linking mr schroeder to the scene i witness testimony was it the defense was misidentification and guilt was not overwhelming in one of the trials the verdict was eleven one so those that missed dr hawkins would have testified about the issues and i can go through for each trial what the three for the bromley trial he would have been able to testify that it's possible that m memory error that unconscious transference whereby because she saw the newspaper article within a week of identifying him it made it likely that she miss identified him as specially when you compound that with the link the amount of time it was a year and seven months between the crime and when she identified him and then the fact that scientific evidence shows that our memories decline to a magnet a severe magnitude  but he did say he could have testified to the percentages by which our memory ability declines with time and then he also could have testified that contrary to common sense and the prosecution's arguments the traumatic incident that happened to mr brumley actually decrease the likelihood that she would be able to accurately recall the seance face a year and seven months later and then by the time of trial two years later so then we've got the other case i don't know if you want me to switch so let's do something unique about the facts but isn't that the problem here the one that judge bailey already alluded to in the prior case which is you're under e d p a and you have to establish that the law that is correct is clearly established and that there was an unreasonable application or that it was that what the state court did was contrary to their t points here first is that it doesn't appear that the trial court understood the due process argument whatsoever it seemed to only focus on the admission of the testimony and  to let me just make sure i understand this at the time wasn't there some state court of appeal opinion as this evidence was not admissible that's not exactly it was stately kaliya it didn't exactly state that it was a different type of evidence some sort of unusual proust in deja vu expert that does not appear to have had any scientific validity according to the court and kaliya that the defense was trying to have funding for in testimony have and in unlike both of these trials the trial court was willing to and did in fact instruct the jury about factors that affect the real liability of the witnesses recollection abilities and that did not happen here because here it looked like the as you just said the trial court excluded this evidence basically as a state evidentiary matter yes right correct it did go up  you know we can look point to a decision of the united states supreme court it's our position that it's the rare circumstance that there is an exact supreme court case about this particular witness that particular when it  the state supreme court considered this issue on direct appeal clearly that the that the that we're looking at you saying we i need to point to a supreme court case saying that i would nice identification experts are required and i cannot do so because there was not a case to basically foreclose that argument under it is our belief and argument that it does not and that i'm trying to find a case that i have in my head but i can't remember the details there's a case where this court actually stated that it doesn't have to have the exact same factual scenario in order to be so clearly established supreme court precedent and that that case i wish i could number the name right now if they believe it's in my brief but it talked about that it's the concepts behind it and that's why i talked about earlier is that while he was decided later he talks about that this is not a new opinion this is all about how as the court said meaningful access to justice has been our consistent theme mere access to the court house doesn't by itself assure the proper functioning of the adversarial process and he goes on to say that if it isn't defendant does not have access to the raw materials that are integral to building an effective defense then we don't have meaningful access to justice and that's the general principle is the access to justice and due process rights to be put at the same level as the prosecution and what it looks like the trial court did there's the direct appeal ignored this issue the pinion ignored this issue so we're stuck with what the trial court said so the trial court seems to this witness without funding with public money also potential witness you know it wasn't money that was involved it was the one and become moot because the guy was there really justified or at least was ready to testify right it's a little confusing and not clear from the record below but appears occurred and one of the trials i believe it was the second trial the defense discussed that mr i'm sorry dr hawkins if i could just get a sip of water so in terms of timing they did have the first trial they tried to have the expert funding issue and the prosecution made a big hoopla about five hundred dollars being too much and the trial court talked about kaliya talked about denying the trial court that trial court then gave permission for this issue to be raised again and it was raised again in front of a different judge in leon county and at that point the fence attorney mr helper and who's a different defense attorney then the third trial he had missed dr hopkins actually testified that he was willing to come in and discuss these issues without getting paid  actually said i was willing to spend some time working on this without a guarantee of funding with defense counsel personally liable for the costs associated because he was assuming that the court would grant it and so the defense attorney and this is getting directly to what you're talking about the problem is the defense attorney told him to quote not spend any substantial amount of time delving into that cases unless the funding was approved so their offers kept on being limited by the denial of funding had the funding been provided it could have been two things one obviously the testimony but it also assist the defense attorney in noticing discrepancies the defense attorney might not already know about in terms of eye witness comment the ones that contrary to common sense we all seem to believe that if someone says they're one hundred percent right one hundred percent accurate that that's true and the converse is true and even if the defense attorney would have been able to get in the expert testimony it's our distinguishes this case from any rate case or any robbery case or any other emotionally charged you really are we going to have experts on witnesses i witness accounts in every case so what distinguishes this case from any of the hundreds of cases that are presumably in any given year for both of these trials there was no forensic evidence linking mr schroeder to the crime and there was no other evidence these cases are very different than the first case we talked about earlier because there's an there's no d n a there's no dispute it is scientific evidence linking there's  cheese bite mark evidence linking him no possessions that he supposedly stole nothing linked him except the testimony so when our positions when the testimony alone is the linchpin for the prosecution's case then and be to be deprived of the right to do what you are doing you should have been able to do no i probably i believe in our position for this case obviously is different than what i believe should happen and every case as a defense attorney i believe we should be able to have witnesses like this and as we all know with what's happening in science we're learning more and more about the fallibility of eyewitness testimony there was actually a supreme court case in i believe is the one nine hundred seventy three that talked about that where the supreme court actually said and i made reference to it in my brief one of the three briefs for these three cases is actually pointed out juries have a tendency to rely too much on eyewitness testimony and we all know that there are problems with eyewitness testimony and then as we have the evolving norms obviously we've gotten to a point today where this is customarily happening in defense requests and in the testimony which is where a lot of the more recent case laws stemming from but as a defense attorney that's not necessarily what the defense is going to be about they're going to be cases where there is scientific evidence where i have my expert battling the prosecution's expert code i don't have it directly in front of you but the evidence code essentially says that one witness cannot comment cannot comment on the truthfulness of the other i wish i had that language in front of me one of the things that the expert was going to talk about is this scientific evidence show so you could give hypos i think was the second trial that the defense during trial didn't offer a proof about this and used the hypothetical so if there was a lapse of one year and seven months between the i how would that affect how does science show that that would affect the rate of accuracy and they the defense attorney could have asked those types of questions if the court was troubled by the direct statements like if the and so what we're saying is that if the trial court was troubled by direct testimony like when mr brumley identified mr schroeder after seeing his newspaper photo a week earlier that was unconscious transference and it's not reliable instead he could say if a person saw a large photo of a person the week before and then a year and a half or more had passed the likelihood of that person's memory being accurate is decreased by x percentage and that doctors told the trial court judge actually asked about the percentages and seemed very intrigued by the idea that expert could test right percentages of accuracy and while there not testimony what the exact percentages are for each of these scenarios i submit that that's because of the funding issue that he was told not to delve deeply into those so i feel like what happened is that the trial court looked at it very briefly like open shut evidence code says you can't comment and didn't look into this nuanced concept that he could reply to hypotheticals that it's also like any other scientific evidence i mean we have all the time where witnesses come up and a traffic accident and one witness says he ran did media other says that didn't happen and then you have a crime scene reconstruction expert who comes in  testifies about scientific evidence shows that in this scenario if this person was going forty five miles per hour and this would happen and they give information and this is just another piece of science the other part that seemed to be happening in this case is that the trial court seemed to be skeptical of us like a logical testimony in general and didn't seem to believe that it was scientific and it's our position that it was if you want to say anything about the  and cumin bone was the victim cuban's was the cleaning lady there was a delay of eight months the supreme court has said in neil that a delay of seven months is a severely hamper severely troubling to the court and so because neal seven months eight months for bo and a year and seven months for bromley that evidence should have been looked at more closely and then we have the issues of the contamination with the seeing the photos in the newspaper and for miss a bone when the detective richardson was involved with the investigation of all of these crimes and scientific studies reveal that even in the best of intentions we give out unconscious signals of who to pick so what were the signals that he suggested either bowman or romilly unfortunately the record is completely absent in that regard we know that it was it was a detective mindy richardson for both cases we also know that she was told by the police that they'd like to show her some photos and see if anyone looked familiar and that's the troubling part is if anyone looked  if this was your assailant and because she'd just seen those newspaper articles she subscribed to the oregonian she got it at her house and she testified that she had seen the photo she testified that she'd seen the map that showed her address as one of the crime victims so when he says does anyone look for murder of course she said he did because she'd seen his photo a week before and i'm going to save any every mating time all right thank you thank you we'll hear from the  it please the court susan york i'll start first with the expert witness issue the petitioner asserts that the exclusion of expert testimony regarding the reliability of eyewitness identification violated his d so actually in the bromley case there was other evidence there was evidence matching that the and blood type a secrete or was the assailant and that petitioner was blood type a there was also evidence that there was some hair evidence that hair found at the bromley crime scene matched petitioner and there was also clothing evidence that he had clothing that was similar to that what clothing evidence like clothing found in petitioners put possession was similar to that described by the victim and with the second case the boeing case there wasn't that scientific evidence but there was clothing evidence that the he was found with a mask and the victim had described him wearing a similar mask and also in that case there were two separate eyewitness identifications one from the victim and one from the apartment manager who had had a thirty second to two minute conversation with petitioner and specifically took note of him and was able to successfully identify him both from a photo lineup and at trial so turning back to the expert issue here no supreme court case in existence at the time of the state court decision here required admission of expert testimony about the reliability of eyewitness identification and to the contrary at the time of the state court decision here this court had repeatedly affirmed the exclusion of expert testimony regarding eyewitness reliability and i would point the court to us we ammar all that's for eighty eight  forty eight and us the sims six seventeen f two d thirteen seventy one and the idea sort of in all of these cases was that cross examination is the way you test the reliability of a witness and that the jury is capable of assessing eyewitness credibility that was sort of the overwhelming sense in these cases the ninth circuit had observed that expert testimony and eye witness reliability wished wrongly disfavored by most courts at the time and in ammar all this court said that our legal system places primary reliance for the ascertainment of truth on the test of cross examination an organ worth the time the judge made the ruling organ court of appeals said the exclusion of eyewitness testimony was not error but so that suggests maybe there are some discretion but actually in analyzing the issue the court says that eyewitness credibility is the province of the jury and suggest that this type of testimony is simply not helpful to the jury and sort of invades in their classic role as the the finders of credibility determiners of credibility so there's no supreme court case stablish ing that due process requires expert testimony and even if you turn to this sort of more general rule about the ability to present a defense the test they under is that relief is available under twenty two fifty four d ones and reasonable application clause if and only if it is so obvious that it clearly established rule applies to a given set of facts that there could be no fair minded disagreement on the question and that's the supreme court and white v what all and so the more general of the rule the more latitude a state court has in applying it so if the rule is that sort of a petitioner has an ability to prevent or present a defense and needs to be able to present any evidence that's critical and vital to its defense that's a very general rule and there's and there's been no showing that this evidence was critical and vital and indeed this court decisions at the time as well as the state courts decisions at the time suggest that expert testimony on this issue is not even really particularly helpful process and what came out of that now one other or both of the use cases that current script has been lost or destroyed is that right in one of the cases it understanding from the record i think that's the best reading of the record was that it was never transcribed never but it was reported i'm not sure that that is clear from the record i would assume that it was recorded but i i don't think it's clear no published opinion in the case where year was not recorded the published opinion from the oregon court of appeals fifteen three five nine six six and why deer was recorded in one of those things is that defense counsel is closing in that case he's talking about how all the jurors had said that they could be impartial which suggests that they part of why deer and that every juror was seated who was seated stated that they could be impartial which is what work is required under the constitution ignorance of the facts of the case is not required just an ability to be impartial is what is required so that suggests that all the jurors did indicate that they could be impartial it's also probably petitioner's responsibility to provide a record on which this claim can be assessed and to the extent that petitioner faults for example h venue motion and that was sort of the critical evidence in assessing whether to grant that venue and that's that's the constitutional issue that we have in front of us on the change of venue is it not correct it's not enough to say well so i think there's sort of two separate questions with a change of venue claim regarding due process and one is whether the pretrial publicity is so adverse that prejudice is presumed and in that case if if the pretrial publicity is so extensive and this is the root joke case it's a twenty minute confession aired repeatedly then prejudice is presumed and the change of venue motion needed to be granted because the petitioner couldn't have obtained a fair trial but there's another question which is whether there was actual president prejudiced and under that test it's petitioners burden to show that he was actually prejudiced by the denial of the change of venue motion and it's there that the transcripts potentially become and he has not done so here so the rulings were correct all the way along the trial court was cracked the court of appeals was correct the published opinion relates to the case where voir dire was transcribed and that's why there's so much discussion of why dare under the actual prejudice was the it was there's testimony that it was similar to the publicist in other major cases what we have on the record are some articles from the register guard which had a circulation of about sixty thousand people in a population of two hundred seventy five thousand just over two hundred seventy five and there are just sort of a lot of articles this was a pretty high profile crime but it was the type of pope publicized that standard basically for a major crime petitioner really takes issue really with statements that appeared in two particular articles relating to the possibility that petitioner would raise a mental health defense and petitioner attempts to  publicity rideau which was again a twenty minute video of a confession but it's worth pointing out that the mentions of the possibility that petitioner would raise a mental health defense were in the body of the articles not in the headline and the one that discusses it most is in an article where the headline is rape suspect pleads innocent so there really was no grave suggestion that petitioner was guilty through that those two mentions of the possibility of a mental health defense and certainly reasonable jurists could disagree as to whether those two mentions in the body of articles were similar to a twenty minute confession  defense would be would be played so there wasn't that there was a mental defense correct that's correct so the court has no further questions we would ask that the court affirm really with regard to the venue the state's appellate brief actually called this a media event his arrest was a media event and unusual media event i would put forth if you look through all of the evidence that we've put with all  the large photos i think is eight mayhap by eight and a half front page and the other items that are in the pleadings and then with regard to the second trial that was not transcribed with the board  schroeder extensively discussed that in his p c r case and he complained about how his appellate attorney refused to get that transcribed and that he was he was aware schroeder was aware that this was essential to prove his case was constantly trying to get all of his attorneys to do their jobs it seems that they tourney's were overwhelmed by how complex these cases were with regard to the forensic issues contrary to what counsel represented earlier the case number brumley case the fingerprints did not match schroeder and this seminal fluid found was not conclusive there was no evidence linking schroeder and the same when the matter the evidence showed that there tissue paper with semen and saliva was type o which was the victim's type not type a and finally i want to remind you on its that this is a cumulative air issue for all of these cases so even if one of these individually does not rise to the level necessary all of these factors together resulted in mr schroeder being deprived of due process right to a fair trial he had attorneys who weren't doing their jobs attorneys who weren't prepared for trial he was lacked the means with which to do his job and as a result the jury relied on eyewitness identification that if we would have this case today certainly would not be found by scientific evidence to be valid and for those reasons and the reasons in my briefing on all of these cases we