prosecution was able to use that also to also with his credibility each of these errors warrants hate israelis in a new trial together this is surely shape this course confidence in the result i would like to start with saying a few things about the  violation and i'm happy to answer any questions there but i also want to make sure i have time to turn to the stricken by lucian party spent less time briefing it was a very significant constitutional heir and it also warrants really fear on the group claim as you know the rule of brewton is that a limiting instruction does not work if your cause to direct confrontation clause there it occurs when the jury is exposed to a co defendants confession made out of court and there is no opportunity in court for cross examination that is exactly what happened here the party is the party spend a lot of peaches in their briefing discussing whether this case frazier vs cop applies and i'm not going to rehash for you unless you have questions the two reasons of the state of color chords i'm reasonably applied confrontation clause precedent but i want to focus for just a moment on the phrase your case because it's really the post hoc rationalization state offer in the district court offered to that you can even find a rule statement there isn't in the limited circumstances when the prosecutor offers during opening argument a brief preview of testimony because permissibly expected not say more about that minute permissibl decision but what's significant as i mentioned in wilson versus some others is the court quite clearly says they're drawing a long line of supreme court cases that have come before that what the hey vs the federal habeas court needs to do is look at the actual reasons the state court ga serious in serious regard i think mostly whether pointing to a d stranger versus out in as i said is a very different case it's not a joint trial cases the case where there is no reference to do the actual confession and such and what i want to point out here is that in mr r those case transcript that went back to the jury yes they want sixty nine nelson is a lawyer basically says yes you will see a videotape state as the city says my clients confession and so there can be no question in the jury's mind that there actually make nothing out by definition as i say cannot be vitally important part of the prosecution's case but in this case you know the jury is sitting there we know that it deliberate for almost fourteen hours we know that it sends multiple rows back that is having a hard time and we further know that the  governing standards for those two things but it would be easy to explain why the state courts decision was unreasonable both regards in any event when you look at the record as a whole as you have to wonder both references abram's and historical and why you would find th figure out what the case would look like without this evidence coming in and so i just say for a minute i think about the strickland there the occurred then by the way they say doesn't contest that there was a fishing performance here and the state  rt doesn't find it there was not deficient perform so your review would be to know and it's quite clear i think that the evidence that came in is not relevant it was relevant it's far more presidential than it is relevant and it's evidence of other crimes which is a matter  lot has to be connected to the defense what we have here is take him a walk or she's testifying she's driving with her two young kids i think they're about five and six they're going to the jail to visit her partner and they get shot up by a car being driven by certain in and two other men a car now after you hear that was very prejudicial allows the prosecution to to classify these defendants why these defendants will say more about that in a minute but say these are community super predators they should scare the jury they should also scared he should have also scared them which is this in this case and again it allows the prosecution bolster the credibility well what then comes in is testimony from detective frank who's talking about three guns a republic only one of these three guns was connected in any way to the crime it was a nine millimeter semiautomatic handgun that it was connected to the crime through transit signs as months and now he who said yes this was used by nelson in the crime but what you don't have is any way that amendment claim you in your brief and you quite a fine job in my view you know advocating a particular perspective on the evidence when i when i looked at it though ok i what i'm concerned with is whether the evidence doesn't show quite a strong case against your client and in particular what you know there's multiple witnesses you're one of that tough parts about the hand you've been dealt here in my view is that you've got multiple witnesses that put mr armfield with mr nelson and mr randall you know at times that are very unfortunate for mr armfield and the testimony in particular of miss floyd seems very very damaging to your client i know we're not doing sufficiency of the evidence review and we're not operating under jackson versus virginia i'm well aware of all of that but that testimony from miss floyd if credited by a jury is that not devastating to mr armfield in his pursuit of relief here honest and so she doesn't actually see armfield shooting she sees armfield and also nelson randle and then she goes back into her car and she hears shots so she doesn't actually put a gun articles and can't necessarily say that he did it why does this matter what we know from only one who by the way is on was shooting from so there are questions there if you go over to floyd what i would say about floyd is again she she is someone who the jury is going to have serious concerns about her credibility given her a few different positions whatever they are but i'd add as well that we know that i girlfriend it could be another motive to try to help it someone else on this we don't know that as your honor said the jury was unable did have this opportunity to evaluate credibility without serious error and why do i point to the serious error when this when the testimony and the guns about this rd episode came in about the courthouse shooting the prosecution is able to make a lot of use of this is able to say and actually they're going to quote it confusing when i do you're on your own and look at page essay five physical there's no evidence that there's a relationship there if anything it is it was would have been an opportunity for calling to say there were other people in this group that could have been responsible for this but he does nothing he doesn't present to the jury th fact that my client was incarcerated at that time so i assume the jury is left with this notion that there are a group of people including the defense my client remember there were two people that were identified mystic you are in the car so you have your confusion between the two armfuls because they're interchangeable perhaps in the jury or prosecution's you or as you think there is an association there and what you're left with is that not only should the jersey be afraid of of the defendants collectively and in terms of retaliation of soon some we need to hear from misspending and why don't we do that now good morning misspend neck good morning and ma'am please the court counsel my name is lee a bendix from the illinois attorney general's office on behalf of respondent this court should affirm the judgment of the district court which rejected petitioners hippias petition including the two issues certified on appeal the confrontation clause claim and the trial counsel and effectiveness claim i'm going to begin a confrontation clause claim which this court can reject on any of three independent bases st that there is no clearly established united states supreme court precedent on similar enough facts so that the claim fails at the threshold of the tw d standard nd that if this court reaches the merits in light of that precedent night namely the group in mind that the state courts rejection of the claim on the merits was reasonable and finally that any error was harmless would like to talk about the st two grounds together because they're quite interchangeable and it's uki cases of course are britain the lead case and the case of frazier now i want to stress frazier  defendant's confession that there's no proof or there were men need differences between what happened in the frazier case and what happened here how do we know argument differently than you described they think that paraphrasing is not the only key fact and said actually i would say the key fact here is the way in which the jury was potentially exposed to this objection objectionable content it was during deliberation in these mistakenly preferred provider transcripts but let's remember here that while this was a cia multi any us proceeding nelson was severed his case was severed and held before a different jury and so what had happened was there was an opening statement made only before nelson's jury that briefly mentioned the fact that he confessed in implicated his partners and so when petitioners jury during deliberations they asked for two specific things they asked for the police statements says they asked for the jury testimony the grand jury testimony a floyd and prosper and what the trial judge did is say here let me give you the transcripts the entire transcripts from the st two days of trial so when handed that big stack of paper it is far from clear that the jury happened to read the single page and which this brief reference more more likely that what they did is flip to page two of the trial when floyd and prosper that is also true in any scheme to be arguing that a bruton issue is a less of a problem when the jury receives the information during deliberations my view  would be that it would make the information and fresh in the jury's mind during deliberation and possibly more damaging well i have two responses to that your honor and the st is look at the cases we have from the us supreme court which is all that matters for haiti this review putting fraser aside all five cases in the britain line involve exposure to the jury deciding the case of the complete contents of the confession during the evidence phase of trial so it was clear they were told this is evidence you should consider now the difference here are looking at frazier we should keep frazier in mind because when frazier was looking at what happened in those distinct facts it only was during opening statement and the jury was additionally instructed that opening statements are not evidence now what we have here you're right is a different situation but remember what we have here is if we're assuming the jury did look at these particular pages those pages were preceded by that same instruction that juries are opening statements are not evidence and so this did not happen the dynamic president drew where a juror the same jury was told here is a piece of accomplice is in anticipation of the testimony he say and which between far more crucial information it was done in the actual opening statement of that trial only important to the prosecution's candy you're right your honor and all of those dynamics are present here because again you have that same instruction given about opening statements are not evidence and remember let's think about that threshold question for hideous review there is never been a supreme court case looking at the mistaken provision of transcripts so it's possible they would view it as potentially more significant but it's also possible they would view it as less significant because it's even more clear that it is not evidence to be considered because remember not a single word about elsa is confession was mentioned during any proceedings held in front of videotaped confession was never admitted into evidence or played before edition or story just the fact that that word videotape was uttered does not mean that the picture that the jury ever saw that videotape it was not the evidence you are going to see a statement given to a cook county prosecutor that was videotaped of nelson confessing to shooting alco and you will see him tell you how he it but it certainly gets at the content and substance doesn't it it is still a brief reference your honor and actually in addition to that even more important than that point is the timing and only potential exposure of this information to the jury we don't know that they looked at this single page number one and number two they were never played the confession itself it was never admitted into evidence petitioners jury was instructed that the only thing that is evidence that you should consider is the testimony of witnesses it is to feel ations and it is exhibits that does not include the stack of paper so much like fraser they were not supposed to consider this contents for any p i know i know we can't all jurors a t he had our instructions when we tell them that opening statements are not evidence course whether they do or not i also received the instruction that said each defendant should be judged based on the evidence pertaining to that defendant you can see that at separate appendix page six hundred and twenty nine dollars and we know that the very st page of this section of the transcripts the nelson opening statement began by saying this is the opening statement given to nelson's jury but even putting that aside remember the twenty to fifty four d standard which looks at what are the supreme court cases on the books and as van pat n described where there is no clear answer to the question presented let alone one in the in the defendant's favor the claim fails at the threshold we don't have any case with this fact of a mistakenly provided transcript to my knowledge there is no case in any court that opposing counsel or we have found much less a u s supreme court case considering a britain claim about a mistakenly provided transcripts from proceedings that did not even occur before the jury in question i mean this morning well i would agree with your honor when you pre stressed floyd's grand jury testimony as particularly important and although his st response to that point was to raise the personal discharge verdicts that is actually beside the point for where floyd was helpful because after all floyd didn't hurt didn't purport to see the shooting itself she provided the context before and after the shooting and put the group there and their intent to target the victim and i would also agree that the nd thing that's so colorful about the strength of the evidence of guilt here is the fact that it is a consistently provided narrative by multiple witnesses that corroborate each other and i know young witness that one witness that was on my mind i don't know if she should be or shouldn't be you can tell me mr writer on medicare is mr randall sister didn't she see these three fellows together an hour or two before  shooting and and hand a stocking cap or something with with guns in it yes during the eight o'clock hour or so that was shortly before the fatal shooting yes yes and that is noteworthy too because it puts them all in the car as floyd described and she said oh i felt i felt heavy objects that i assumed were guns so that explains how randall helped facilitate the group to get the weapons they needed to again target mr copeland on the nine o'clock hour  that the nine o'clock shooting now to the extent that there were a few moments where the state court eroni a slate described apps aspect of the record that is not determinative here the state court did not purport to have their judgments depend on these these inaccuracy used and instead remember this trial counsel claim came up during post conviction where those errors and rights were not fried to it but the correct version directly link him to the murder weapon where is in the correct version there is no direct connection between the murder weapon or feel that that mistake was only mentioned during the direct appeal decision that's the that's the confrontation clause opinion when the trial counsel claim came up that was the post conviction opinion where that mistake was not made and in that opinion the court described the strength of the evidence and did not list that as one of the things it was considering and in any case under the direct standard at least what the state court did on review is not relevant we just look at the error and we look at the likelihood it impacted the verdict that cuts out the state court appellate review process from the analysis and let's remember that even in the strickland context that the error involved described this other shooting that petitioner was not present at and so even even my opponent acknowledges some of that evidence was probative but even looking at the entire sum total of the pages where that what with that trial it's a couple dozen pages you can see the citations at page nine of the apple it's brief this is a six hundred some page trial it was not extensively focused on during the trial and so again as this thirty page thirty nine of the apple is brief we've provided multiple cases from this court citing strong evidence of guilt as reason  reasonable to look at that and say of course they were looking at this when they were deciding it as say forty eight that there was overwhelming evidence in this case i don't think even the prosecution there was overwhelming evidence in this case and a scatter of course your questions went to that to whether or not we've gotten over the you for your argument your briefing and for taking the appeal on appointment i know this is not the st time you've done so you have the thanks of the court as does your firm and mr armfield should know you've done a very fine job for him so with that we'll take the case under advisement move to our rd case in the morning you know i think we're going to take a break oh i'm sorry i'm sorry we are going to take we're going to take the ten minute break we announced at the outset so we'll be back in a few minutes