when you read it please the court my name is barry maurice and i'm representing keith ford and his appeal for a conviction of murder there are two issues in the case and on going to start with the presumption of innocence issue but if the court wants me to focus on the happy to do that prosecutor just before the jury retired to deliberate the prosecutor told the jury mr porter's had a fair trial we were here for three weeks where  gets to present course examine witnesses also an opportunity to present information through his lawyer he had a fair trial this system is not perfect but he had a fair opportunity and a fair trial he's not presumed innocent anymore that's not the law and then he says it again oh yeah i'm sorry i left out the pretty he says at the beginning and then he said it the end of that little paragraph is this and then there's an objection right idol rules the objection right and then how does he begin after the judges i'm sorry of i just was looking at that words but he starts out in a way of saying yeah yes yes yes and what that does is that converts said into an instruction when you judge over you know in this in objection well but the judge issued an instruction to the jury later right that included i mean i just want to be clear i think there is some concerns about what the prosecutor did here but the judge did put forward an instruction that included the presumption of innocence and i guess at the beginning of the try to begin your instructions  until x just as there is a presumption right in if i were a juror or having listened to the exchange in open court with the prosecutor says presumption it did exist but it's gone and he says it twice there's an objection and the judge overrules the objection this written instruction that i just read which does not speak to when the presumption disappears doesn't do very much work to  course absolutely correct can i ask just procedurally though this is an issue where a certificate certificate of appeal was not granted right so we have to review this for you know is there a substantial showing of the denial  constitution where is the clear denial of a constitutional right here even if this was a problem the presumption of innocence is say nd place to the beyond the reasonable doubt standard but it's really important because your average shura comes in and sees the defendant sitting it depends table and their st question that runs through my eyes what do you do what i see here the presumption of innocence focus of the jury's attention on the fact that they're supposed to listen the evidence before they make up their mind you know i understand all that i give you on that where is that what case as i understand it we've got to have a supreme court case that this is clearly inconsistent with what is that supreme court they where the court says that that presumption of innocence goes through the you know through the case until the jury finds him guilty so it's and unless and until standard that he is presumed innocent unless the government overcomes the presumption of innocence and then proves beyond a reasonable doubt on each element that he's guilty greit so is this structural error well i think it should be i don't out what is impact was if they'd if they judge it mysen strikes on an element of a burglary well there was plenty of evidence so it was mis instructed may was harmless because they found it but with the presumption of innocence there's no way of telling you know what is precise effect was so you know from my opinion it should be structural is this supreme court precedent that says that no but on the other hand it's almost structural because you have to use the same kind of analysis to figure out what happened yeah on the assumption that is not structural this is assumption with the we've got to prove that it is some fashion harmful court of appeals even if there are not harmful tell me why we should conclude that this was not a harmless error well tooth several reasons st of all this was a concert instantiate evidence case now i circumstantial evidence just as good as direct evidence but it is different because circumstantial evidence implies that there are circumstances that are subject to very interpretations so the presumption of innocence focuses the jury on you know the burden of proof and whether or not the prosecution has satisfied that burden in this particular case is clear i mean i don't know i don't want to discuss the st issue particularly because it's bizarre but apparently the jurors were not convinced that the defendant was the  shooter clearly on some sort of a compromise verdict the jury is nervous about this they do but they debate for four days they come in with a murder murder conviction without the firearm even though it's clear that the murder was committed with a firearm exactly i mean it's so  it's an odd verdict it's an inconsistent verdict that's not a reason to set aside the murder verdict in a self but it suggests that the jury thought this was a close case yes exactly but look at the evidence against him the evidence against him i'm going to summarize just the little bits and pieces of it there's a palm print that matches his left palm just below the window of the vehicle of the victim he is caught before we even know who he is in a white car with a calls in the jail the st of which it seems to me of the more difficult for him when he says well sure glad they did but paraphrasing i'm sorry and went down that way i'm glad i'm not in here for murder  if this were a sufficiency the evidence case he loses he loses there is enough evidence on which to convict i'm not arguing that there isn't but i am saying is that we don't know that that's the way the jury viewed the evidence because the presumption of innocence directs their attention to is there enough evidence and leaders just so know so one of the questions it's interesting because the four days in the deadlocked jury sort of cuts both ways for days there in the jury room sort of give some distance between what the prosecutor sad so i think on the one hand you could look at that and say well you know now they were really focused on the evidence that's where they were focused on on the other hand it also suggests that they were struggling with this do we need now post we need to find that one of the jurors actually you know relied on this misstatement to be a way to give your your we have no way of knowing that but will be the really key prejudicial elements of this is that it made it it was a de facto instruction when have your judge you say it's a defacto instruction where's the where is what your case law for that i understand that this might be wrong but i'm not sure i'm willing to go to say that's a defacto instruction well when you when you do well st of all as a practical matter if someone says he's doing something wrong and the judge says no he's not doing anything wrong that's the judge approving what the prosecutor said that was wrong so what regardless of what you call it that's the effect of validity of everything that the jury decided because i do trials as well as appeals and i know that jurors come in the st thing they do is they're looking at the planet and they're trying to figure out what it is he did and why he's here the presumption of innocence has way nd you're not supposed to make any decisions on whether or not he's guilty or not to get into the jury room so to tell the jury that presumption of innocence is over basically says well we don't have to go marry approach further because you know we don't we can decide now sure we got it we've taken you to the end of your time let's hear from the other side but we'll give you a chance to respond ok sure thank you much good morning your honour's may it please the court kristen let's go from the california attorney general's office i want to pick up where judge nelson just previously asked my friend on the other side which is that the question here is not whether or not the prosecutor misstated the law alone the question is whether or not the state court was and reasonable to find that any misstatement was not a constitutional violation and you agreed that the prosecutor misstated the law no your honor i don't i knew a wait a minute the presumption of innocence is over at the conclusion of the state sort of taken by your contextual argument because i think we are sort of nit picking i'd like to hear it because i think your brief is pretty compelling on this that you when you read in the whole context i'm not so sure that the prosecutor was actually saying as of the moment that i say these words the presumption of innocence is gone he seemed to be suggesting i've proven this to you and once i've proven this to you the presumption of innocence is gone i don't know if that's what your argument is but i'd be interested  nelson if you look at the entire contacts the statement comes after the prosecutor had just summarize the evidence after back and forth with the defense counsel about what does the evidence show what conclusions can the jury draw from the evidence what inferences to take a back and forth on what reasonable doubt means and especially if you look tilling was right around this particular statement just a few lines before it he tells the jury that he had quote provided it with all the information that you need to feel the abiding conviction in the truth of these charges that's on page eighty three of the further excerpts of record which quotes the language from the reason without instruction the jury had received he then again reminds the jury of his the burden to prove beyond reasonable doubt at the top of eighty four of the further excerpts of records right after the statement he tells the jury that it the real work begins that it needs to look at the information you have before you look at all of the evidence and that that evidence shows that the defendant is guilty of murder well doesn't he have to overcome the presumption of innocence he does by proving but danceable now he just ignores that and tells the jury that presumption is no longer here i would disagree your honor i think he's quite aware that it is hi proof beyond a reasonable doubt he says earlier in the but that's not the issue isn't i mean he certainly has to prove the case beyond a reasonable doubt but he also has to overcome the presumption of innocence and when he says i prove the nd step so disregard the st step isn't that problematic if the prosecution meets its burden and proves beyond reasonable doubt that does overcome or about the presumption of innocence i know but isn't that why the record is that again if the same in his place in content getting are you that in the record he says sorry did i say i have proven beyond a reasonable doubt that the presumption of innocence is overcome well  here's here's the here's the statement he makes before and it it's not conclusive he says and before this trial started you were told there is a presumption of innocence and that is true but once the evidence is complete once you've heard this case once that case has been proven to you and that's the stage we're at now the case has been proved to you beyond any reasonable doubt and and then he says i mean it's overwhelming there is no more a presumption of innocence and at best it seems questionable at worst seems just a wrong statement a wall because he does dance around this and there's kind of evidence you can take for both sides of this one as he's saying there at the stage he said and well and yeah but then he also says and that's the stage where at now the case is men proved to you beyond any reasonable doubt i mean it's overwhelming so he seems to be suggesting it that at one hand he's saying at this time the presumption is gone but he also seems to be saying it's not gone and tell i prove it beyond a reasonable dell and i just did that for you and so therefore once a proven beyond a reasonable doubt it's gone so it's it's confusing i think and how do we take that because this is a pretty fundamental right the presumption of innocence it is why is he why is he jumped up and down on such thin ice in a case like this i certainly agree that the language used was definitely not advisable and we would not recommend to a prosecutor that use this kind of language because it can pose a risk of the prosecution going too far in but just stepping back again the question is whether or not the state court was unreasonable made permissible argument the state court was not unreasonable to find that there was no due process violation that any misstatement did not rise to the level that it so in fact at the trial with unfairness to make a denial of due process which is the stand two a couple story lines and an eighty plus page closing the defense the prosecution repeatedly said it was his burden the burden of proof beyond reasonable doubt he says in rebuttal that the defense does not need to bring any evidence forward he embraces his burden he's not trying to confuse and mislead the jury intentionally here and given that the jury was properly instructed no one has argued the jury's instructions on presumption of innocence or reasonable doubt were invalid under the law and they had those instructions with it in the jury room it was told to follow those instructions a but to judge fletcher's point those instructions didn't necessarily address that the it didn't correct if you assume that he said the presumption of innocence  presumption of innocence reasonable doubt instruction was legally invalid no that's not the point i think the question is how much can we rely on the instruction to correct the questionable statements that th prosecutor i think it's fair to rely on this to make the contours of what the jury the burdens are here clear to the jury and this kind of speaks to the question i asked earlier about whether or not this is structural error the supreme court has said that it isn't and that it position in this case that's different than what happened here because it wouldn't just be a no instruction i were silent on it it would be presumption of innocence is over but i think that the state court was not unreasonable in finding that the went in with the proper understanding no but it concluded there was no constitutional violation no where do you conclude that i view the court of appeal are saying we need not decide because if it was harm us so the court of appeals runs through the question they avoid the question as to whether or not there was a constitutional error because they say in any event in our view it's harmless so i don't i cannot read the court of appeal as having glued in there were no constitutional or the court of appeals as i we don't need to decide because on the there's a hard and important question here i still think that it's a fair reading of this decision that the court did reach and decide whether or not there was a cost you know how can you say that when you say the court when the court we need not resolve any conflict because we concluded any assumed error is harmless i think of the discussion prior to it and i know i read the entire discussion before and this is the summary this is this is after that discussion i'm my answer you know i got is i think of the discussion the detailed discussion of the california cases and it well it is if the if the court of appeals this was not error i disagree and i think it was an unreasonable conclusion the hard question for me harmlessness well again given that the jury got the proper instructions these are a few straight lines i think the jury walked into that room understand and got this hardware struction what trucks are you now referring to the reasonable doubt  issue this is a case where because of the nature of the error it really you can tell what the effect on the jury's decision making  said generals it should be structural error but it has not yet been held that but what that means to me is that the pretty the presumption is that if you tell the jury that there's no presumption of innocence that it's harmful  because you know i can tell you that pretty sometimes a presumption of innocence is the only thing standing between a defendant and an improper conviction because it focuses the jury's attention on the need to prove the case beyond the reasonable doubt otherwise he's presumed innocent the instruction never told them that it continues into deliberations you have to view the instructions as a whole and what the jury heard was the judge st saying that they have to prove zonder beyond reasonable doubt he's presumed innocent and then they heard the judge say that it was correct that the presumption of innocence is over for in them two together you know the jury was properly instructed initially but the nd part of it what the judge said was improper the prosecutor argued that he's proved this case as every prosecutor does but if you look at the page citations there way in the beginning and the middle of his argument this was the rebuttal argument and it was the rebuttal of the jury was told improperly there was no more presumption of innocence within minutes of them retiring to deliberate and that's harmful well but that but in a way that supports the reading that he's saying that the presumptions and innocence is over because you've heard all the evidence and i've proved beyond a reasonable actually it doesn't go the respect your honor what it tells the jury that it's not presumed innocent anymore the jury is instructed than i supposed to deliberate before they get into the jury room so that means they're told that he's not presumed innocent before they deliberate which means that presumption is gone and that's not proper because it's in it's starting point is presumed innocent until proven guilty beyond a reasonable doubt we should judge these cases based upon what the prosecutor actually said not what he actually meant and this was done