we're applying an object of test that i think somewhat mischaracterized catchall provision that actually it is the provision that looks towards the perception of impartiality as to be or that he did not know this is not situation as was presented in a bewildered bird the supreme court case where the judge serves the curiosity of the hospital and actually didn't know that some proceedings ha question you know that he made the statement one of the there was a connection between his statement and this document up that's good addendum that he knew that eight years ago he had made a statement concerning the  alzheimer's it's because of that you know that's a dangerous thing to start saying eight years ago i could i can't begin to tell you what i did well we do presume knowledge and it may be areas however she what you have is not likely to characterize as a garden variety crime this is a crime that was also a garden variety statement and that was one of my two reasons  for asking for clarification of jewish cohen's question because the nature of some statements and i'm curious to know what the record reveals about this made by members of congress is that the certain fiction prevails with respect to most of them that are published in the congressional electronic one to the congressional record is there anything in this record that clarifies when that this was a world statement or speech given by the same congressman fourteen or whether it was something  reads as if it's a transcript where is mr martini mr speaker i rise today to address the house of representatives press practically practically all of the statements that i'm referring to it was delivered personally on the floor of finding one team but this statement itself one does not indicate in any way the identity  arrests made of individuals implicated in this crime several days before the statement was even published and were delivered correct that's true however it does indicate in one place a particular familiarity with the circumstances of the crime that were involved in the issues before now judge moore t v that is if the second full paragraph where it know i do too as well your honor and and as i pointed out to me in the material that i submitted regarding the subsequent coverage it continues to be publicized in a way that most seven most crimes are not there an lacking in fairness or this particular judge is lacking in fairness those are specific examples that congress has set out and it's one of those happens to be the government employee and the expression of proceeding although it's obviously a separate proceeding and it's a federal court it is it's part and parcel of the review process that the constitution mandates for state criminal conviction or for its first a criminal conviction  the court there are different sides of the court but it's the same case that seen both sides of the court and both in both force the state court the federal for the particular case and controversy still to this day remains mr miller's conviction and whether or not that conviction satisfy constitutional requirements we're not talking about some other case involving mr miller we're talking about the very same case  we talking about the very same case for the reasons that judge towns question suggests and if we are not can we really city begin for purposes of the language of b we're we're going to set it aside absolutely and so it's really not speaking to the merits of the underlying case you really speak to whether or not it's this judge that it gave whether or not  it was a constitutional conviction so so we should make it different to the public does it make a difference i'll bet they would be the public's perception of whether he sitting on a too but he does interest me here and isn't good troubling that we do have a matter that is supported by the beyond this it was more generalized to the problems of crime victims well the fact is you know that the bill right in this case almost makes it less likely for  points earlier was well taken with respect to the insertion of items in the congressional record by life staff as a common common occurrence there's no evidence enough of that judge he ever said anything with respect to this the fact that trade or just the average person would they consider that some impropriety but we have to view it from the appearance to the public of impropriety even though there was no impropriety and i'm on this record i have to assume there was no may view it as inappropriate the appearance of impropriety now what about the average john doe jane doe out there what would they think if a judge ruled on something as a judicial great there he is this something that is stated and contemplated by george allen's question that is the something spoken to the something actually saying that it was an intentional killing i think you're saying that this this call this dad and the you really didn't tell us why what is there simply in the temporal rule passage of eight years ventured somehow dissipate any concern about impartiality that a is directed to protect against all think it goes directly to the reasonable person standard situation a reasonable person who understood is there in the human experience that would suggest because we're dealing with something so broad as reason it would suggest that while this was of considerable interest to then congressman martini it should not be of interest to him now and therefore in store at least in such a way that it would affect his impartiality well i think it people were understand that passions which may have been what to your stick should be used for determining when it passes into age of news yesterday's newspaper sort of speak and eight years that's your position and when do we say clearly here is the fish and when you get down to assure periods of time that that different case that's not the case but will school is it just time is totally and again that's part of what my earlier questions this is there any inquiry we should give not to the mere passage of time but to the change in responsibilities and interests that the judge martini now has from when he was a make a difference that this is haiti is not not the and not the underlying criminal fed this is a petitioner not a criminal defendant we have before us yes absolutely because the public the rich the person the public make a distinction between i hate this matter could be some of the relevant facts that this reasonable person has in his theoretical possession yes the fact it peace is not perhaps well known by the way person does not mean that they should not be that that argument has a circularity to it because what the issues are in terms of seeking the certificate of a hillbilly as of the merits go right back to judge marty's opinion this court certified the appeal bill the other two disqualification issue only if this were to determine that a different judicial officer should handle the matter then we would have a different opinion a different outcome possibly a different result in the district court and the issues presented on the certificate of appeal ability would be different before this court before the district court so what you're doing is you're taking what kind of hesitate to say but but is it tainted opinion and saying well you couldn't go any further with this take that opinion so therefore the fact that it's think it doesn't matter but there's no evidence of tape you're asking us to assume you're asking us to assume that the judge more t v remembered what congressman mark t put in the worse even if we file a claim there is right still proofs is that it must seriously affect the fairness integrity or public reputation of judicial proceedings we are where  those issues were resolved by a judicial officer who possessed mandatory disqualification factors in his background whether he knew it at the time or not to me but s whether he read it whether a staffer rooted it he would be able to give us some indication of his knowledge about the incident and mr miller or lack thereof by virtue of not having raised him in our direct appeal and play virtue of having brought if you hate his petition you're asking all of those assumptions to go in your client's favor if those are the issues and i guess what i'm saying not so artfully is if the issue had been joined before judge martini judge martin could very well need a record and say here's what i said here's what i remember here's what i don't remember we would review that for abuse of discretion and we could have well concluded well under four fifty five eight your impartiality might  would not if we say we don't question now you have even given him an opportunity to do all that and you're asking us to to assume plainer that substantially affects your client's rights when this court has already said that the jurors who reason could not follow your calling this entitle to relief on the merits but just a couple of points if i may first of all my client didn't discover this until the very end of the proceedings that the district judge necessarily would be speaking to because what we've been discussing is the general perception of the public to this kind of a rather unusual situation and how it's perceived by the public i think that as to the circumstances of the statement being in the congressional record we're he obtained the knowledge about the suppose a barrage of bullets which wasn't accurate how he knew that that had  been fired after the girl said they had no money all those details are something that judge martini could tell us about but what this court is empowered to decide is how does all this situation  finding of fact if there were something to be opinion would be that he could have slipped something into the record and made a finding of fact done something underhanded that would have poisoned the record that i think i would i would certainly agree with you but this is just  whether or not the discharge of the gun was accidental in terms of the jury instructions that were were given years ago at the state trial the handling of the intent issue that is those are actually granted on the merits we could say yes there was a client i would say attain a client on the opinion we have reviewed the merits of the of the matter and we say we could we adjudicate that even though there was a clash of the opinion farai that miller's cause to szell claims were erroneous but yet we're being asked to send to the other judicial officer and you're hoping that he'll do so i said what we said no reasonable jurors could do you know something in congress about that