confused as i try to sort through the record and figure out what was properly before the state court at what time and how it was that this material had been made part of the trial court record or made part of the appellate record before the decision on appeal as i understood the description these were being offered up as as an offer of proof made in fact after the court of appeals court of appeal has already ruled on the main appeal there's some motion for rehearing pending and at that questions right and the problem in the ultimate prejudice to my client was that whan the witnesses whether it was anita brown the mother whether it was dana brown or whether it was jason brown either gave answers that were less than either under seal or anything else does it work here's what we need to get into it and the reasons that the testimony vary by jason about his illness about the family isn't enough what we have in this record from shafer or from anybody that's admissible it's not hearsay as to what's in that report and why there is prejudice in terms of specifics which could've been done under seal presumably  the answer what you have anywhere in a federal court record is just the proffer declarations that i submitted with a motion to dismiss them under seal before you the district court didn't have anything we were just another big problem which it is if it was before right said but did not look carefully at what the respondent stance or was and the respondents failed to provide if complete record in that they re site in the attachments to their answer that if you pass through it you'll find these references to this proffer but they did not seek to proffer or make mention of the proffer in this specific answer so as far as the district court is concerned there it is in the record a reference to the state court and there's no coming here if all of this testimony and it was considerable testimony even by jason about violence about being having to be restrained there was considerable testimony from the mother from the brother we don't know because it was never put out there anywhere in the state proceeding or here other than a sort of summary of what councils impressions of fifteen hundred page report work what it was and you're saying now we should say review or here in federal court at any level would we have the same information so there's a chambers conversation there's a discussion by counsel with trial the trial judge about dr shafer report i would psychiatric records were provided to enron's counsel that that was part of the discussion to say you know dr shafer's report is accurate this is why it trumps the privilege and then in the settled statement as far as the constitutional claim completeness i don't know its completeness but dr shavit gave it to me so i think we have a great deal of information outside the record some of it was provided to the state court of appeals on the hay vs in the petition for rehearing in the and here's here's the question that i'm having in terms of sending this back whether even assuming that's an appropriate remedy and that is having looked at this and looked at the my own testimony from jason conceding he might have said the  comment about the what was the book answer whatever the beautiful talk about the strain of the talk about that he doesn't remember what happens when he's angry that he was put in the hospital for a nervous breakdown the testimony from the brothers about their brother etc how do we assessed and it seems to me that's an awful lot of information and that's essentially with what counsel conceded defense counsel conceded at the trial well i have to i know my time is up but i would like to tried to address in the table in the reply brief that there is a great deal of specific things that would have to change or i think reasonably shows that the jury would have changed their assessment of jason's credibility both because of his downplaying simplest level jason to the jury was saying my manic depression just makes me manic in a physically active kind of way that i can't stop and it is clear from the psychiatric records and it is clear from the proffer that was provided  the issue here is whether brown was denied effective cross examination the reason really isn't as i mean the state court of appeal didn't go  there it's said we don't have to decide whether or not the privilege was violated it's whether there was harmless error right when you say affective cross examination not just the cross examination means the whole presentation all the court's even the ones that arguably review the problem of the offers of proof concluded that there was no prejudice well who reviewed the offer of proof when what i start with was trying to figure out in the same confusion that i would had to earlier not sure who had the material in front of i'll take as a given the trial court because we know there were chambers conferences the trial court had in front of it more than the record reflects after that i get kind of lost and so we get to the state court of appeal  decision we're we're now looking at a word or if we're looking at a district court which is looking at that but we know what the state court of appeal looked at when it's rendered its decision that it was it was harmless error wouldn't have an effect in particular do we know what it was it was evaluating to say well that evidence wouldn't have made a difference if they weren't looking at the evidence that defendant could have submitted then how can they say it was harmless error i think we can assume that  the information was contained in three three places one was the report and psychiatric records i don't believe that those were before any court in the second  place that they existed and in various form in various forms of war where the office of proof or the proffers we know that or we assume that the trial court had an offer of proof in  chambers that's the state appellate court didn't have the offer of proof until after they had rendered their initial decision now they did not file it i don't know whether or not they considered it it was also presented to the california supreme court that court did not file it i don't know whether they considered it and it was not presented to the district court in the third place and that the information was contained within the arguments of coun  was able to glean from those arguments just what the browns problem with the exclusion of the evidence was so  even if they didn't go over the offers of proof they still had basically the in a prejudice analysis what brown was expecting the evidence to do at trial i discussion it's just hard to be confident just how clear the understanding is or what they thought was was that issue and so and i'm not sure how this falls out because i don't know where the responsibility the record ultimately rests but it hard it is a little bit troubling to to have a court say independent of terms you know we don't have to decide the substantive law the privilege issue we can just look at it and say this is as harmless here wouldn't have mattered a very effective in and helpful fashion lots of specifics has to how it is that jason's testimony could have been called into question and this whole credibility reliability could have been called into question if some of the specifics that come  i believe i accurately cited to the excerpts of record where the authors of proof were and i took every single contention from offers of proof that i could find from the various offers of proof because there were different ones and i took each of the bits of evidence or each of the bits each of the conclusions that brown argued the evidence would show and i showed in the record or in his testimony or in the testimony of his family members that he was able to show those things and so court correctly surmised that at trial browne was expecting to use dr shafer testimony in reports to go to the credibility  jason brown and that it would go to his veracity honesty in his ability to recall and the fact that brown would make an argument that jason brown was the actual  shafer report in the records the psychiatric records they were able to conclude correctly what brown wants to do with the excluded evidence and they were able to take that conclusion and reasonably come up with a harmless error analysis i believe that that analysis of the offers of proof goes from page nine to eleven but i'm direct review pal counsel tried every which way he could to get a complete and accurate explanation is for the court to review that didn't happen it wasn't the petitioners it wasn't his fault it wasn't  exploded over again looking at it v at least in terms of the proffer there was considerable evidence from jason about the anger that fits the not remembering his action quite right he is reporter stephanie he the defense was not able to complete the impeachment you could ask impeaching question but when jason didn't give a complete answer it downplayed those issues we couldn't finish the complete impeachment