error in this case the state court of appeal did not rule contrary to or unreasonably apply clearly established united states supreme court precedent and indeed this is an issue for a t p a review did the state on the cumulative error claim i a cumulative error review cannot be a balkanized issue by issue harmless their due and must look to the effect of the errors as a whole and look to whether the cumulative effect of the airs tonight the defendant a fundamentally fair trial unfortunately one of the limitations of language either spoken or written is that we can discuss things in detail only one of the time and state court here in its cumulative error analysis did go through the errors and one of the time however the state court also stated that it had viewed the effect of the errors together and collectively and that's to say that the state court did not conduct a cumulative error review is to not take the state court at its word and we submit there's no basis for that and here also  for the new the district court when the state court of appeals tied to the language of a california supreme court and held that the errors did not amount to a serious flaw in the trial and that the defendant's trial was fundamentally fair and the verdict reliable the state court was not in error the state court was invoking the due process clause in fact fundamentally fair reliable verdict he said this is the precise language that this court has used in cumulative error analysis in prior cases and as i stated the state court did hear reasonably conclude that despite six evidentiary errors the petitioner received a fair trial that there were several layers there were six your honor one of a federal constitutional nature and state i found no case to speak to that your honor but i don't think the federal constitutional error loses its federal constitutional nature when it's part of the cumulative air analysis and i think when the state court says we've looked at the error single lead we've looked at the errors cumulatively the petitioner received a fundamentally fair trial and the vertical liable it's not at that point taking away the federal constitutional nature of the one err i think it's sane that there remains harmless beyond a reasonable doubt and even in combination with the other errors petitioner received a fundamentally fair trial i don't know if that answers your honour's question i think one way to look at this case is to  e that the defendant essentially had a four pronged defense one problem sensually that the facts as presented by the prosecution didn't really establish a premeditated and deliberate murder secondly the need for self defense and thus crime was voluntary manslaughter and a fourth minor prong was essentially that he was undergoing a manic episode at the time and could not have the meditated and deliberated correct your honor he argued it first federal reasonable inference in this case with the chuck was engaged in a kind of manic episode at the time that mary was killed and what would that mean it would mean that he's less likely to be carefully weighed in considering the consequences of  actions probably more likely to be rash an impulsive less likely to be thinking things through that's a thirty five seventy nine that was not objected to when he tried to repeat that argument subsequently there was an objection and the prosecutor asked that the jury be told there's no evidence to support that assertion the trial court didn't say that the trial court only told the jury arguments of counsel are just that i will instruct you on the irritable would be rash and impulsive and dr jack when they examined this car he had an interview with him but he stated he wasn't going to rely on that interview and making his diagnosis of the the matters as to which he was not allowed to testify were matters of theory about how come on hypothetically with with type one bipolar disorder would behave that's that's correct but they weren't preferential and the testimony was a different bipolar disorder but i think what's important to focus on here is that the state court of appeal found that the manic episode defense was not wholly precluded and i think what's also important to note is when the district attorney in his rebuttal argument made the statement why he objected and he said there's really was no evidence that somebody would not who's undergoing a bipolar under him who's undergoing a manic episode would not premeditate and delivery which wasn't entirely true those words spoken dr jackson was not allowed to testify to that but dr jackson was allowed to testify that somebody undergoing a manic episode would be irritable and the prosecutor then said i suppose you could make an argument well if the guy was really an angry and irritable during a manic episode you might be less circumspect so in other words the prosecutor was essentially telling the jury look there is some evidence to support a manic episode here again we concede that the defense they wanted to present evidence in this case bipolar disorder has an impact on one's ability to premeditate that's correct your honor he said that and i'm arguing that that wasn't entirely correct mr fernandez his argument wasn't entirely correct well and he went on to then make an argument that was essentially what the court of appeal found as rendering the jackman error harmless and then the question for this court is whether that is an objective  that he could not have premeditated to deliberate at this crime because he was undergoing a manic episode and i think what's important to now look at is the evidence of that premeditation and deliberation that was before  mr pearl had been studying this crime up for weeks and he had been talking to the police chief about when he could use deadly force against his wife he was telling others including those in law enforcement and his neighbors that his wife was unbalanced and that he had reason to fear he hangs up on the nine one one operator he laid into series of lies that the police including that mary had stabbed herself and then there's the evidence that this court pointed to a page ten forty four of its prior opinion that speaks the premeditation that's me petitioner had a history of inflicting to veer physical punishment on her that the evidence showed he had previously threatened to killer and that despite all of it it is to the police he did make one comment to the police that suggested he had considered his actions and finally let's not forget that while on the stand mr parle told the jury that ninety nine point nine percent of what he had told the police were lies he also told numerous lies on the stand to such an extent that is lawyer at page thirty five forty one of the reporters transcript told the jury i'm not going to rely on anything that chuck said either in his testimony or during his interrogation in trying to make the voluntary manslaughter case and it's our view that the defendant cannot lie to such an extent that it's attorney has to forthrightly discount many of his pretrial statements in his testimony and trying to fashion a defense theory and then claim it was evidence free air which prejudice the defense to such an extent and prompted the jury to reject the prosecution's persuasive first first degree murder evidence unless the court has any further questions i submit that for now records and he also used the videotape of the interrogation that was done immediately after the crime occurred and based on his review of the medical records and that videotape dr jackman concluded and explained in great deal why he  concluded that mr parra was in fact suffering from a manic episode so he had direct evidence to support his conclusion it wasn't merely hypothetical or theoretical and that's why in particular it was critical for  jackman to be allowed to explain to the jury what it meant in terms of premeditation that mr parlow is suffering from a manic episode he was trying to explain to the jury what are the symptoms of a manic episode and what effect do they have on a person's ability to wait and consider his actions that is that is exactly what premeditation is all about and i think aside from the series of questions that defense counsel w prevented from asking him i think the moment in the trial that most shows how damaging this was is when the following testimony by dr jackman was stricken from the record quote and he's talking about people suffering from manic episodes quote their judgment is impaired their impulsive they don't stop to consider consequences or alternatives they tend to act think and behave in a relatively rash manner and  testimony was stricken and when defense counsel then tried to argue that point in the jury to the jury in closing argument the prosecutor objects the objection is sustained so he's unable to present the defense that he intended to prevent it to present worse yet the prosecutor then in his final rebuttal argument tells the jury there is no evidence in this case that i polar disorder has an impact on one's was in fact the defendant psychiatry is also testified that he says that he suffered from bipolar however the critical difference between the two is whether it was bipolar type one which involves manic episodes  and the medical records that was also error so we hear we have in violation well that the state court of appeal found it was not only a violation a violation of state law but also a federal constitutional right law is that true that yes your honor is a violation of his right to privacy and that's never been contested at all at any time in these federal aviation proceedings is there any law and that the state court of appeal cited the california supreme court case which in turn cites federal authorities holding that it is a violation of their right to privacy so there  that hasn't been briefed and as i say it's never been contested and i don't know that it makes much difference whether it's purely a state law error or a federal error it's error nonetheless it's part of the cumulative error analysis and here you have the prosecution being allowed to call the defendant's own side high interest as a witness against him to testify to facts that help the prosecution's case erroneous flee and then when the defense tries to rebut that with it it's cut off at the knees so it really truly was a double whammy to the defense what i think is absolutely the most on reasonable objectively on reasonable aspect of the state court of appeals opinion i the state court of appeal conducted an exhaustive fifty eight page and alice's of all of the errors that occurred in this case the ones we've mentioned and others the court of appeals state court of appeal found multiple errors of those errors the state court of appeal never addressed the strength of the prosecution's case one can scour that opinion for any reference to the strength of the prosecution evidence of premeditation for any reference to the strength of the prosecution's evidence that this was not a heat of passion killing and one will not find it there is no discussion whatsoever of that that this was not a premeditated killing and that it was a heat of passion killing and i have that's why i have included those portions of the state's brief in the supplemental excerpts of record where the state says repeatedly there was a plethora of evidence there was plenty of evidence that this was a heat of passion after leak heat of passion killing after a legally sufficient provocation so i would guess that's why the state court of appeal didn't address the overall strength of the of errors all going to the same issue in an otherwise close case take taylor versus kentucky there you have a series of errors none of them individually harmful but collectively they california court of appeal had analyzed the strength of the evidence and had concluded that in fact this was not a close case i would agree with you your honor but my point is the court of appeal never addressed that the california court of appeal never anywhere in that whole fifty eight page opinion addressed the strength of the evidence and whether this was a close case and i think the evidence cries out that it was a close case and that's why the state attorney general essentially that it was in its briefing your honor this was a case where all of the evidence indicated this was a killing that occurred spontaneously in the midst of a heated domestic quarrel one of many many many such asking the police when he could use self defense in defense of themself and there are two ways to look at that your honor sure you could say he's trying to set up a self defense claim and therefore he's premeditating a murder that's one way to look at it another way to look at it is that he's a genuinely in fear of her and let's not forget he did have reason to fear her there was no f there's no dispute that she had spent months there's no dispute that she had usually abusive to each other over the course of the many years of their relationship i don't know how it lasted as well as well i agree your honor and there's also no dispute all of the jury never heard this that mary herself in the week before this stabbing when she was committed to a mental hospital was making statements to medical personnel that she wanted to hurt and kill the defend it now again that's also part of the cumulative error that should have been admitted and was not the point is the defendant had reason to fear her therefore his call to the police and let's not forget the defendant is not entirely mentally stable person himself so it may seem silly to call the police and a when you can use self defense but these these this couple both of them had a history of mental problems the defendant to counsel all of this this is this is in front of the jurors just i just took a look at the at the state's the admissions that you provided in your supplemental lot of there was a lot of evidence in here on which a jury could have concluded that he was provoked that it was self defense that he was in a manic episode i mean there's a there's a number of different a number of different theories that that the jury that the jury might have had case was pretty evenly balanced considering the prosecution's burden of proof and all the evidence presented the scales were kind of an echo poison the jury found that they were waited a little more heavily in favor of the prosecution well if you take an awfully improperly admitted evidence that favored the prosecution from that scale and you'd added the improperly excluded of events that favor the defense it could have come out the other way and i think that's what this the u s supreme court was saying and chambers versus mississippi because exactly the same kind of analysis that your honor just made could have been made in chambers versus mississippi and chambers is a cumulative error case it's a case where the primary defense was somebody else did it now the defendant had ample evidence that he presented to the jury in chambers that somebody else did it he had an eyewitness who said that that somebody else did it he had another witness who said that the somebody else had a gun immediately after the shooting he had the somebody else's sworn confession that he did it which was admitted into evidence and read to the jury he had further evidence that defeated the somebody else's alibi all of that was in front of the jury so very easily the s supreme court could have said any further evidence that this somebody else did it would have been cumulative but the point is in a closed case where the scales are so evenly balanced where you have in this case such powerful evidence of provocation i've never seen anything like the other piece of evidence that i've included in the supplemental excerpt on page four mary's list of things i could do to chuck this is her list of everything that she could do to provoke chuck into a rage this is evidence of provocation more compelling than anything i've ever seen in any type of volunteers was excluded or this was admitted this was going to us and further if you go down the list mary had done if not these exact things on this list a good number of them the evidence of provocation included that she had slid of the tires of his car the week of the stabbing that she had pounded dents in his car that she had stolen his  that she had broken his beatles memorabilia that she had dumped all his along was on the front lawn that she had run off his credit cards and of course her diary has that whole scene where she cuts up all the credit cards put them on the table pours champagne so that she can be waiting for him calmly in order to confront him and provoke a fight during all this jury knew all of that your honor right and so yes the jury could have come back i mean that's my whole point if it were overwhelmingly in one direction or another if the prosecution's case were sort of premeditation were so overwhelming and i had no evidence before the jury of heat of passion or provocation i would be hard pressed to argue that these errors were prejudicial the whole point is appeals decision objectively unreasonable what what is objectively unreasonable about what is a very very high standard i agree what is objectively unreasonable about it is that it failed to consider the strength of the prosecution's evidence of premeditation and the strength of its evidence that this chilling was not committed in a heat of passion bearing in mind that it was the prosecution's burden to prove beyond a reasonable doubt that it was not a heat of passion killing entirety that clearly in all of these cases the closeness of the evidence is critical to the cumulative error analysis if the evidence weren't close to the individual errors would be hope would be harmful or prejudicial and there would be review and that was the wrong standard and i wonder if compelled to send it back and tell him to do it again why in the right  standard in mind let me just respond to that on the merits what judge also found was that the state court of appeal had not in fact conducted a genuine analysis of the cumulative effect of the errors that basically all the state court of appeal had done was to repeat all of the same reasons it had already found the individual errors to be harmless and since that state court of appeal had not actually decided the issue on the merits judge also conducted to no review i would add and i've argued in my brief that the state court of appeal also applied the wrong legal standard because it did not apply the chapman harmless beyond a reasonable doubt standard and if i understood counsel's argument here this court could do either so i don't know how to respond to that all of the defendant's psychiatric records from cars or hospital over the course of the last year and a half all of those physical records were submitted to the jury and dr is saying this is testimony as to the defendant's symptoms as to his psychiatric treatment were admitted to the jury there was no other evidence on those points there was no other evidence of the defendant's mental records of his psychiatric history of his treatment of his medications that was the only evidence on that issue so how the state court of appeal could have held that that was merely cumulative of other evidence i do not know and why was it important well it was important number one as i've mentioned because d any symptoms of a manic episode again directly contrary to the defense psychiatry dr is seen as testified that the defendant never made any specific complaint about mary's conduct again it undermines any theory of provocation dr iciness testified that when the defendant first came in for treatment there was a checklist of about thirty nine potential symptoms and the defendant checked unusual thoughts thoughts of hurting others violation of the privilege used it to argue premeditation and the d a s entire theory of premeditation was this the d a s theory was that the defendant identified mary as the cause of all of his problems and he thought if he got rid of or all of his problems were over would be over and so when the prosecutor prosecutor reaches the pinnacle of his closing argument and is telling the jury this theory of premeditation he says quote to one seven and the prosecutor goes on to argue that mr parle thought his troubles would be over if he killed his wife so again it's not cumulative doctora seen as this testimony all the psychiatric records it goes directly to  premeditation in an otherwise close case with other multiple errors going solely to the defendant's state of mind and for that reason i would submit there is cumulative prejudice the defendant was denied his right to a fair trial and judge correct when he concluded that the hey this petition should have been granted thank you unreasonably determine the facts that the state court ruled contrary to and reasonably apply mr buchanan he's a terrific attorney he's very powerful he's very eloquent i have the utmost respect in the world for him i think he's wrong when he states that a cumulative error analysis requires the court to state that it is evaluating the strength of the evidence my original point was there is to no particular methodology for the state courts to gauge how they must engage in cumulative air this court itself is that we're not here to grade the state papers we're here to determine whether the state's decision is reasonable and when the state says in some we believe that none of the alleged errors whether considered individually or collectively resulted in the serious flaw in the trial rather petitioners trial was fundamentally fair and the determinations by the judge and jury were reliable i think it's buchanan referenced the nurse this testimony about how the nurse wasn't allowed to test the proposed testimony that she wasn't allowed to testify that mary had threatened the petitioner preceding the trial the jury had the diary in front of it the diary included mary perpetrating violence upon petitioner cutting them with a letter opener and then writing he was bleeding like a stuck pig i think what's interesting here is in the prior appeal position of the petitioner was this diary's admission was so prejudicial because it allowed all this evidence of premeditation and deliberation to come in and now there's no mention of the diary whatsoever and and so if there's any inconsistency here i think it's on the part of the petitioner not us i would argue that at no point in the state court did we concede that this was a voluntary manslaughter case degree murder that's correct but i understood mr buchanan to be stating that in the state court of appeal we somehow conceded that the evidence of premeditation and deliberation was weak and that just was a voluntary manslaughter case that's not how i read our briefing our briefing was there was evidence here cumulative evidence on a lot of these points that substituted for the voluntary manslaughter evidence we never said it was persuasive and we argued it was not persuasive for many of the reasons mr buchanan didn't reference which was his own client's testimony and by reading just one part of mr horrible's examination cross examination question but if we have to assign blame for someone starting it it is your testimony that she started it never said that sir could have been just as well meet provoking it that night and that's it page thirty one eighty six so here you have a petitioner essential telling the jury it's possible that i started this fight but then get t