position was that we go back to intermediate state appellate court where their decision there was also largely on reason but they do cite a supreme court case and so if we look at their application that's been quite case that's what i was generally about the reasons why this is the state court rule as a rule which also merely boiled down to the determination that this statement was in a minute for the truth of the matter circuit and so that's kind of a magistrate as he analyzes but it doesn't explain if if if it is a state intermediate court they were looking at i mean under under at that we sort of limit it to looking at that one case where can we say well what's your view matt my understanding and i will admit i'm new to this area of law but my understanding is that the court and i think it was both and the seller said we're not just looking at what was there any possible reason that could  that talks about this issue and my understanding is that we sure that state intermediate court may have cited that one case but that doesn't but that doesn't sort of confine our analysis we can say well look this that case may not be the best case in the world but there's really no other supreme court case that shows this is an unreasonable result i mean just for getting the the one case cited is there what do you think the best case from the supreme court or he is for your position on the confrontation was well what mark planned that you know i mean if you look we're not left with a lot when you look at the intermediate appellate court decision but if you look through that then we look at it becomes an unreasonable application issue contrary to issue and we look at how they apply how the state applied the clearly established confrontation preston which i have to point back to crawford to washington for that there's not a great supreme court decision that's on all fours here but if there are several supreme court decisions that i think give us a lot of guidance and that too clearly established a confrontation pos present that state should have been following was in crawford that this is the core of testimonial statement that the confrontation clause is meant to protect it gets out of court it seems to me even without crawford i mean really it goes back to bruton and maryland versus gray right where and i mean i don't think that the landscape changes under profit in those cases say you cannot admit you cannot pay someone based on accomplices out of court statement even when that accomplishes their in trial and there's a reason investigation why the steps taken in the investigation i mean to me the question is is it an reasonable application of this brute gen line of cases to get around it by just saying well it's it's for investigative background which of the seven circuits the says and when we have cases more saying this on direct appeals it that would effectively zero you know override the six the memmott if you could always say it's for background investigation i completely agree and  just to touch on that i know i start with a project that's the seminal commutation of case but you do have to go back to britain and like you said gravy maryland where the court applied it to redact a confession and you have to look at all of these cases and you general principles wanted us to a different result here what i'm looking for is a case that is more sort of procedurally factually similar to this case not a redacted confession but this kind of circumstance that i'm seeing in this case then i guess that's what i'm looking for and i'm asking for a closed case right at i don't i don't think there is i don't know of a supreme court case that aids is close to this point actually  but we're looking at supreme court jersey but it's not looking at our cases we're not libel i do agree with that that we are looking at supreme court judge prudence but this court has said that when there's not a supreme court case directly on all fours we can still find the state court that it has a discussion in there about not being it cites the seven circuit case i was referencing saying you can't use this idea it's a background step in the investigation to go over you know undermine the confrontation clause precisely exactly it southwick is that it is well established under supreme court precedent that that is very important police officers cannot through their trial testimony refer to the substance of statements given to them by not testifying witnesse we do in that situation i might be able to find one but i don't have one right off the top of my head i do have cases from the circuit that say that the state can waive the issue of procedural default or contemporary contemporaneous objection which the state did hear i don't remember if it was exactly like what you're saying it was in cheek go cziko a case the court said that the state waived that argument but in fairness i would say we would be ignoring being court decision i would say we look at the louisiana supreme court decision who seems to have done some kind of merits determination although it doesn't give us any reasoning they are and then also rely secondly on this procedure of the independent procedure determination now there's not a lot to go on from the louisiana supreme court so we went through it to the intermediate appellate court and we see that it applied the supreme court decision was the other didn't make us if we look through that and we looked at  detective detective doe is on the stand and the prosecutors are i want to walk through your investigation and they go through a few steps and then he says to detective so and did you talk to the only eyewitness to the murder and detective doe says yes prosecutor says and he identify who shop the gun the detective says yes and the prosecutor says and after that did you get an arrest warrant for the defendant and detective doe says yes would that be a confrontation clause violation that that's that sounds very similar to what the i think the united states based the jones get that but but i don't think it's that different in terms of how the testimony was alyssa that well let me ask it another way what is the probative value what is the value of mentioning who eyewitness identify a defendant certainly but the you know the sequence of the investigation and that's what i was trying to get at with regard to detective down he is sequence of things how this progressed and that's the that's the only reason that that was and why does that matter to the judge and i understand some background to just did you investigate the case did you end up after your investigation did you end up arresting the defendant i mean what's that what is the value the non truth value of of eliciting what the witness horton said on in terms of who he were who he id  just to just to show the sequence to the jury as to how this transpires how a warrant was obtained and then and then from immediately from there we go on to the witness testimony of the two victims i guess what's especially troubling to me here is that it's and opening horton's testimony was used as substantive evidence of guilt maybe you know maybe because you met with him you didn't decide at the time that was you thought he was going to testify but that's out there as as this is substantive evidence of guilt ladies and gentlemen of the jury what words and says but then the defendant never has a chance to cross examine hor you yourself i guess ended up deciding wasn't credible enough to put on the stand and the jury never hears that he wasn't credible after on the saying well yes or no and i want to do address that that was i would say that's a poor choice of words on was recalling correctly as this has been some time in articulate mumbled a convicted felon of course and i'll prefer to go with the two witnesses who were actually in the room who were articulate enough to explain the situation to the jury and who had no prior felonies except for  drop them off dropped off a check for one of the victims in the armed robbery and daylight time they were in the room all together and they all knew each other and who  charge on that was aggravated battery the robbery was to robert jones who was b and in the older gentleman unfortunately for the state for him of course he passed away shortly after this this robbery the autopsy revealed it was due to other issues however he passed away so i have tom harris who is also there and then howard bishop these two were sitting on a couch directly across from mr jones they testified that atkins comes in who they knew as jay money when money comes in the room the trial a cross examine both mr bishop and mr harris as to what they were drinking when they had started drinking and their recollection of the events that day however they were  he was unable to put a dent in their testimony my opinion both testified who the assailant was knew him by a street name and later on based upon the strong identification of the defendant by the witness minimal statements by the prosecutor and by the detective with regard to the confidential informants statement yet even that case there were more there was more to oh about that i would like to address the issue of harmless asks i think that is a very important issue here although i will note again that the state waived it and of course does not need to reach it at all except that we are after president and paddles us to reach these two eyewitness identification is it really just their intoxication i mean that's as about as good of evidence as you usually have in a criminal trial two eyewitnesses saying this is the guy what was a real  seen him i've seen a man who went by the nickname of money a few times in the neighborhood didn't know him well at all and i'm just as mine is even weaker on that point it's not even clear he didn't know him and when bishop was interviewed at the scene of the crime he did not identify jane money he daryl williams who came across the earth seems like from the transcript with unbiased and credible witness he said several things that completely undermine the accounts of harris and bishop so when you take all of this together i think you're left with you know argument you both thought us mr anderson a month say something about the gals on the other side for specific reason but they don't say that i'm any way minimizing your contribution but i want to thank m