it please the court ronald eisenberg for the government parties this is a case of a missing element that wasn't actually missing at all previous petitioner has argued that a statutory amendment after he committed this crime in effect could leave the commonwealth of its burden to prove one element of the pennsylvania sense of danger in the welfare of the element in question requires the commonwealth to prove that the defendant supervised the welfare of children but instead of disappearing from this case this family or suggests that exact burden was stressed to the jury over and over and over at the trial from the trial judge's opening instructions to the jury in which he explicitly told them that the commonwealth must prove beyond a reasonable doubt that spanier interop supervised the welfare of children and then repeatedly through all of defense counsel's arguments both in his opening address and in closing right up through some of his final words to the jury when he said there's no evidence that graham spanier endangered the welfare of children that he knowingly endangered the welfare of children over whom he supposedly had supervisory some responsibility which i told you is an element of the offense and he had as had the trial judge and the commonwealth never questioned those statements never challenged them never denied that burden on the contrary t accepted that burden to prove that spanier supervised the welfare of children and argued that it had met that burden now i believe that brings us your honour's to the word who are in the statutory amendment and th to commonwealth versus lynn and from there to roger versus tennessee the existing statute at the time of the crime in the relevant part referred to a parent guardian or other person supervising the welfare of the child in two thousand and seven the legislature added at the end of that phrase the words or a person that employees or supervisors such a person or was explanatory it was added to describe and clarify the prior phrase person supervising welfare we know that not only because pennsylvania courts and courts around the country have commonly construed the word or to operate in that fashion but we know it from the actual drafters of this amendment which was the philadelphia archdiocese grand jury in two thousand and seven which published a report identifying what it thought was an ambiguity in the existing statu on precisely this point of whether the existing statute could cover people who were not in direct supervision of children but were in direct supervision of their welfare which they exercised through their management of others and the grand jury issues that this this amendment didn't actually change anything that's correct your honor the decision is it was always this way and this was just a clarifying amendment read drown it out to be clear the grand jury didn't know that at the time there's a reason that the legislature and the lynn decision wound up at the same point in this because they started from the same point they were both the culmination of two parallel approaches to the problem of institutional sexual assault of children that rose from the grand jury report the st to happen in time was the amendment at a time when the  when nobody could be sure how the how the court would wind up interpreting the existing statute but that happened when further investigation of the grand jury  charge monsignor irwin and the grand jury in its next report explicitly argued that the existing statute with sufficient to cover that in direct supervision under the old statute in the pennsylvania supreme court agreed and so we wound up in lynn issue here why should we be concerned with the jury instruction that was given which mirrored the two thousand and seven language well for to us either to save us i finish my question because we know how do we know that the jury didn't find mischa dr stand your new guilty because of the language that was out in two thousand and seven rather than the original language there are two issues your honor the st is that the if the jury found him guilty under the new statute but the new statute means the same as the old statute then there is no error and the meaning of the new statute is construed  in the final analysis by the state courts and i'll return to that point but i'd also like to stress the other point which is that even if there had been an error then the defendant in a hay vs petition had the burden of proving injurious effect that is that his interpretation of the statute the one that was rejected by all the state courts and that was exactly contrary to what the grand jury that his interpretation was the one that the jury was likely to have chosen and that's just not reasonable that's not credible in light of the fact that it would be the the jury could never have ferreted out this so called th category entirely on its own this th category have never been suggested anywhere before trial it was completely contrary to everything else that the judge the defense lawyer in the commonwealth had said to the jury up to their that point and now to return to that question of  that the rd category that the one right before it referred to referred to supervisors of supervisors who supervised the welfare of children through their management of others and that's the quote from limb and that's exactly what the new statute meant which means that they were coterminous now the defendants problem is that he can't just tell you that these were wrong in their interpretation of the statute that wouldn't be nearly enough the defendant has to say it would have a federal claim that there was a violation of rogers versus tennessee that means not just that the state court's interpretation was gone but that it was indefensible the wrong but it was so out there so outrageous that it's unjustified inexcusable and that rogers versus tennessee standard i should point out your honour's is the standard only for director of you rogers with a direct review case directly from the supreme court of tennessee this  case in the standard gets even higher and we know that because of the next case after rogers with his metrics st as lancaster and metrics made clear that a rogers claim on hevia because of the deference tanard requires the federal court  not just to find that the state court interpretation was not just wrong but indefensible but to find furry and then too far down this road we have a threshold to meet i'd say it was was this rogers clean procedural default and well i think it was not your honor we've largely left that to our brief because it's fairly technical but but the fact is that there's a distinction between an argument that the state court was wrong and an argument that the state courts ruling was indefensible under rodgers for the right race with was this fairly presented to the already loses because that's his only federal claim ok well it seems to me you're arguing that there's a difference i guess that's an alternative argument and you're right you're on and i'm sorry not to have clarified that i skipped over the default argument if the claim is the fault in cases over if the claim is not the fault and then reapply at the deference and the case is still over because the standard is so high in rogers the tennessee supreme court explicitly overruled prior case law and i would have been it was hadn't been used a lot but if you'd asked anybody the day before that decision with the law was it would have been the law under the prior cases metric was even more dramatic where the michigan in intermediate state courts had repeatedly  how that there was a defense available under the statute and the michigan supreme court reversed them so we know that they said that we think they're wrong that's not what the statute in the united states supreme court said this is not even a close question on the rogers test  so this case where nothing was over rule is not even close to the cases that roger has found that there were no prior cases to the contrary under pennsylvania law there was no case before l that addressed a question like this one there was no pace after lynn that addressed the new statute and its effect on the old statute and so there can be no lodgers claim let alone a now i i think i've made clear what the standard is under rogers what what happened in those other cases and i think i've also hypothetically there are two different possibilities they could read the statute my way this th category or maybe they didn't and the court below said no there are two theoretical possibilities they could have read it as having a  category establishing a th category or not that's not the end of the analysis that's the beginning of the analysis in order to make the proper analysis under cases like hedgepeth alito the court then has to look at the record how the case was  try this jury was never told never that it could convict the defendant soley on the basis that he supervised other people who were supervising the well fare of children this jury was told over and over again that this defendant was supervising the welfare of children albeit indirectly consistently with the loon decision which held that in direct supervision is covered with the original presented in federal court went beyond that and so it does not just support the judgment of love and that's why the jennys case applies but a brief word about the merits of the claim in any case sure where the court to to raise it it's entirely based on an interpretation of state law federal law does not require statutes of limitation to be pleaded in a complaint to bill information or or some kind of special notice to be given before trial and the argument was that state court requires that and since state report the state law requires it and it didn't happen then there's a due process violation for not meeting the state court requirement the problem is the state courts rejected that interpretation state law and that interfered and their interpretation was fine in the state courts and only said the court was not a tolling provision the applicable statue of limitations here was not a tolling provision and therefore state law did not require the trial notice the other way out times about up let me ask my to start with the rogers issue with regard to the rogers rogers issue that was not raised in the state court for two very fundamental reasons in most fundamentally because it was under spewed throughout the state court proceedings among the commonwealth the state d courts themselves obviously the defense that dr spin your was being charged with the two thousand and seven statute that was a disputed issue from the beginning every single time that we raised that you can look at the you can look at the creature up reaping you can look at the charts proposed instructions to the jury the charge conference every single time the commonwealth took the consistent position reaffirmed yes we're applying the two thousand and seven statute not the one thousand nine hundred and five statute that the question in the state courts was whether it was proper to charge dr spanier for conduct occurring in two thousand and one with the statute that went into effect in two thousand and seven so the issue was a pure ex post facto issue in the state court not until we got to it was clear that the commonwealth was charging up or spin reviling two thousand so there was no rogers issue until the commonwealth changed its tune when we got to hippias court and at that point it said we're changing our mind we're going to often evaluated most recently a in depth a couple years ago in the bennett decision that we cite in that is that because of the jury instruction the jury was not required to find the required element  effect in two thousand and one the commonwealth was required to prove beyond a reasonable doubt to the satisfaction of enormous jury the doctor spanier were supervising the welfare of a child this jury was not required to find that this jury was instructed because the two thousand and seven statute is broader language and broader language than that and it's just i think it's fanciful it's again it's an argument that's only been made for the st time in this court in fact in the reply brief is the st time that we saw the commonwealth's argument that subject to life billing who were not subject to liability supporting to the supreme court appearance of a new who were not subject to liability before so why drift was not an issue the statute absolutely changed a question of exhaustion not procedural default exhaustion why how do you argue effectively argue that you exhausted your due process claim before the rising out of faulty jury instructions and bennett is the most recent case where this court analyzed this issue in depth and that claim we raised in the superior court in italy in passing because at that point the real issue was that this two thousand and seven had been applied to dr spinners conduct six years earlier in in there is no question you know he had a plea there's no question that we focused on the at post facto issue with regard to that particular element of the charge we did raise the issue due process rights were violated because the jury was not required to find it require an element that is that he was supervising the offer to up the supreme court or pennsylvania unequivocally in lynn said the commonwealth must prove any in lend basically has to holdings one of which i've referred to a number of times which is if the commonwealth under the statute in effect before two thousand and seven which should have been the one that apply here the commonwealth has to prove beyond a reasonable doubt that the defendant supervised the welfare of a child but nd in hell that the defendant could supervise the welfare of a child interact with not even if that the defendant does not directly interact with the child that's not what the jury was instructed on here the jury was instructed in any way consistent with when the jury was not instructed you must find the doctor spinner supervise the welfare of a child period and you may find so even if you find he didn't directly interact with the child that's who mr eisenberg wants you to believe the that's not what this case is about because this case is not about in the new in unexpected interpretation by the pennsylvania supreme court of the statute that was in effect in two thousand one hundred all what it's about that's not what happened here what happened statute doesn't automatically make an expos facto problem you have to show you have to show that the states interpretation of that statute was unexpected in no indirectly that's not what the two thousand and seven statute says not on its face it's not what the jury was instructed in this case two thousand and seven statute does not say that the defendant must be one of the same three categories parent guardian or supervising lopper trial but the defendant may supervise the offer of a trial in directly that's what the court held in lynn that is absolutely not what it says in the two thousand and seven statute there is no way to read the language that says th dependent must be supervising the welfare of a child or be a person that apply for special causes such a person that is a separate category that is a different category it is not required that somebody in that category well they don't have to struggle with that difficult background decision because it's clear that lynn that glen was supervising the priests he didn't dispute that back and it's clear that this priest were supervising the welfare of children so it's an easy box to check the thoughts i wouldn't i'm looking at i don't have the wind in front of me unfortunately but i do have the state courts cision this case where it says the commonwealth argue to the supreme court and this is on page  the two thousand and seven statute really nothing to do with that case of the linde it micht again if you look at the little decision the commonwealth made the argument that the ninety eight the two thousand and seven statute made no changes  the plain text of the two thousand certain statute just cannot support the argument that mr eisenberg makes that simply clarify the language there is no question that the that the legislature intended to broaden the scope of individuals who are subject to law guilty under the statu that are broaden the scope of that particular element that is the one that is it issue here in allow for liability criminal liability against people who were not covered before two thousand and seven in the jury was specifically instructed here they could find not to spin you're guilty on the basis of their expanded scope in this the same jury in what mr eisenberg leaves out of the suppose that record from the state court is all of the evidence that was presented the evidence the jury heard that dr spanie emphasize the fact that dr skinner supervised the two of them they talked about the box stopping with him they called him the boss he was the top of the heap the camo empathized all of that evidence which allowed the jury to rely on that new category that should not have been part of the case because it didn't come into the lot of two thousand and seven to find out when we met and that's an element that the jury clearly struggled with because it asked a question during deliberations it was given that element in writing unlike the preliminary instruction which was not given in writing it was given it in writing to take back to the jury room st of all were deliberate she's it was read that flawed instruction based on the two thousand and seven statute twice because after it's question the court read it to them again so the notion that the jury did not i think it's almost certain that the jury relied if you look at the entire record particularly the evidence that was presented in the instruction of sell the jerky had a much easier path to find that element of the charge met calling the th category no respect or honor absolutely is not what that is saying is that somebody who's guy's if somebody else somebody who does not directly interact with children a principal who supervises a teacher who has thirty kids in a classroom t the new language that principal by definition is is kept covered by the statute he or she may not be supervising the welfare of a child but you have to go through the difficult analysis that the court will we learn because that principal under the new language and  danger but in terms of this element which is indisputable in the charges sensuous that which is who would be subject to criminal liability under the two thousand and seven statute but not the earlier statute that principle is the principal supervising the teacher the teacher supervising a classroom full of children the principal automatically is included in that category under the two thousand and seven statute under the prior statute yes under lynn why wasn't why wasn't the jury instruction as you argue that it was improper why wasn't the jury instruction harmless or well i think again for the reasons i was just briefly getting   here that's not the standard i mean just a few months ago in this court's decision johnson reiterated that is not just in the back of the court isn't is left in any doubt as to whether or not it affected the verdict it's not hard but here again i think if you look at the two  i've been saying in response to the court's question this jury convicted dr spanier on the basis of the two thousand and seven statute i think that is clear you know whether you look at it that way or you look at it the way the commonwealth wants to now i'm sorry we can't hear you i'm sorry i didn't say that i was new to booker in fact the state courts explicitly relied on the equivalence between the old the new statutes in the trial court's opinion you'll see two thousand and one statute that's not up to the defendant to decide the state court said the opposite and for the defendant to have the heaviest claim he has to say not just that he disagrees with the state courts reasoning not just that he disagrees with the grand jury's reason not to disagree with the legislative intent but that the findings of the state courts in this case were indefensible extensions of commonwealth versus limb and not just in the heaviest context that they were indefensible extension that's the director of your standard but the question of in defense ability is beyond any possibility of fair minded disagreement that's what metra said the defendant cannot meet that standard the fact that there was an easier half so called easier path actually disproves his argument because if there had been an easier path this process this trial would have been over in five minutes no one on either just side the stupid but spanier was the supervisor of the other two if that were  off the trial would have been over on day one the jury would have been out for five minutes everyone understood that there was a larger question that everyone kept telling the jury to decide whether spanier him self with the supervisor of the welfare