something that name on the briefs might have been wrong oh i'm sorry apologize if i made a mistake i wanted to speak briefly to the issue of exhaustion to emphasize certain points and see if that is in fact a problem for the court prosecution's burden of proof by mr finding an element or having the jury take a short cut on the elements is a federal due process violation it's a federal due process violation that's always or almost always predicated on the definitions established by state law let's assume you're right i want to move on to the merits ok the merits of the issue depend on the fact that we have these special verdicts in this case in which the jury revealed or revealed the probability of what it actually probability that the jury made an unconstitutional decision and i read again the california decision last night and i can't see why this isn't simply resolved as a matter of state law we have the state telling us precisely how this ought to be handled and it seems to make sense well because the answer is that the state has provided a procedure in this case which you didn't have to provide in which the jury revealed what it actually did or what it probably is that's that's the problem you keep falling back on probably is the court points out california points out there were no special verdicts in your favor that you're relying on you're asking us to make some assumptions and some inferences and they tell us under state law that gets you nowhere no i am relying on the federal principle that if the record the probability that the jury acted unconstitutionally that can be a due process violations usually involved in an instructional context but i don't see why it can't be involved in this context where we have a series conspiracy what was his partner well that's a question as to whether the jury found that my client was part of the conspiracy to commit the harrisons because the jurors did not find that there was a discussion about killing the harris's did not find there was any of the planning we're right back to the point that the state makes the doesn't has to pass to be an identified victim for there for there to have been a conspiracy to commit murder well there has to be somebody and then they point out these things more they launch a conspiracy to kill somebody and they end up changing their mind or single conspiracies in california is the exact same one is determining under federal law now if you had a situation here where the there were were these crips getting together to say let's go out and kill a blood you have the factual predicate for finding an overarching conspiracy with a fungible victim who happens to be a blood so the problem that i have with this is that there's two ways to look at this one is your way and the other way is a very simple way for example four and five well for reasonable doubt which doesn't mean anything and then six brown common and mckinney discussed yelling pleas for what they said brown and coleman discuss that but mckinney didn't discuss it that doesn't help your case but finally eleven brown common to mckinney a harris's and the murder to kill patricia of up patricia harris now i would have an argument there is sufficient evidence to establish that based on california law what i am saying is and i'm not saying that the record absolutely proves what i'm saying cases where you have an ambiguous instruction for example if there is a substantial likelihood that the jury applied that ambiguous and struction in an unconstitutional matter manner you have i don't have a chance to start with an ambiguous instruction here i don't think there's a parallel well you know way it is i mean you're if you allow the jurors to make special findings for each overt act which is i say under california law you don't have to you can you can have a general verdict of guilty or not guilty for conspiracy if you're going to allege thirteen overt acts which you don't have to you just need to allege one and you don't even have to tell the jury they have to find that one and that kind of ambiguity in the verdict which raises the substantial likelihood of an unconstitutional application of the law seems to me you can have a federal constitutional violation this is an unusual situation as i said you have an unusual adoptive admission point can you tell us a little bit about that and i'd like to was that specific point that silence in the face of a harangue can't qualify as an adopted admission was was that particular issue addressed in the state court system it was addressed it was a yes it was addressed on the appeal and how was that how was it decided it was  an adoptive admission that the silence that you could find within these harangues factual statements that the defendant didn't respond to that you would be subject to the instruction on inductive admissions so we got a factual predicate for that for the legal holding what's the matter with the factual predicate well i think i think the factual predicate is actually wrong when you have these these are quite common especially with young offenders when you have the detectives or the police giving these long traffic speeches about what they should do and how much better it's going to be and we know what happened things are selling you out and the suspect is sitting there quietly with no specific officer said i know you did it and you intended to do it but it gives the prosecution an argumentative advantage in allowing them to capua gives more authority to the prosecution's position when you get an instruction they gives more authority to your position it's there it's harmless or well no but the notion the principle of the doc admission is that the silence itself is somehow admitting something so that it just as we know how it happened we just want to give you a chance i think one of the things he says we know how it happened we just want to give you a chance to say your side of the story and and your client doesn't say anything right if he really admitted but i don't think he really doesn't mean anything but the problem is that the with the when the jury gets the instruction they're allowed to interpret merely this sort of stunned silence but the problem is what does that do but how likely is it tells the jury that his silence himself the fact that he's not jumping out of the chair saying pounding on the tables and i wasn't there i didn't do it is somehow incriminating evidence t and isn't it a problem that he didn't say look i don't want to speak you know i've done this is all i have to say or you know i really want to i want to lawyer now he did at the point that the alleged adopted missions were made he hadn't asserted is  that the real problem for this argument that it's not a dollar because he had weight is right to remain silent well no i think the real problem is the giving of the instructions and the instruction having the effect of a dollar well why isn't it difficult case that there is substantial evidence in the record that could lead a jury to acquit my client of both the conspiracy and the murder and that any procedure the any approach an appropriate instruction that adds to the weight of the prosecution's case improperly is prejudicial because the facts of this case are simply in summation equilibrium unless we have any questions from chief judge shorter we'll call on the other side and we've you so many questions will give you an opportunity to respond thank you morning your honor steve hernan for responding the court has made most of my points the state has well watch out we're not making points were simply asking questions that the the court has raised concerns that i have mentioned in my briefs and that is  is the fines the conspiracy law and that the attempt to use the lack of findings as having some evidence or value it goes nowhere because it's subject to so many meanings the only thing that i would add to discussions so far as to when i thought he was also convicted the jury the same jury also convicted on count one of expressly intending to kill premeditatedly and deliberately mrs harris and they also found that he was a principal which means that he either committed the act voted him down because they rushed to the house and then there's some discrepancy about whether he actually stopped in the house but two of the of the conspirators fired and mrs harris was killed so i believe that the prosecutor met his burden of showing that there was an actual intent to kill especially by looking at the fact that the jury convicted him on count one what about the adoptive admission argument well it's not boiler because you wait is right at the silent but i think the best evidence there is the tape in the transcript which  before he makes the interviewer out to be a revivalist preacher who doesn't let him get a word in edgewise but in fact he was patient and low key and at one point he asked the question and he kind of leans back in his chair and waits for a response do you have anything else oh no thank you counsel do you have any reply to that counsel briefly as far as the verdict on count one for premeditated murder that does  not that does not assuage the air if there if the court agrees that there's there and the reason is that it becomes a regress i guess in this case of progress if constructive intent is used to find defendant guilty of conspiracy to murder