materials it's very common to see drug charges and gun charges joined together in a single indictment and i gather under wisconsin law this was proper joinery you're arguing that they're after the jointer there should been severance correct so ok but the jointers so it's all right and it seems to me that's the most routine of things to do because of the frequency with which somebody who's dealing drugs might also be a felon in possession of a firearm that's at the federal level that wisconsin law is obviously not too different so why is the utterance of the word felony in the drug trials so prejudicial that it means that there needed to be severance that would be a huge change in practice well the stipulation is common in a felon in possession case itself i mean that in a in an indictment though i'm pos stipulation the government could have proved up you know all sir of things yes that would have been worse weren't we and we're not arguing of that that should have happened what we're arguing arguing is that the cases should  that was that i'm very confused as to why did this very common joinder of charges in which the jury hearing that drug part is going to hear about a prior conviction of a felony no details you know nothing but just a prior conviction sounding if we all just say that all of those were unduly prejudicial we would be changing criminal trial practice a lot and we're not arguing to ask for the court to make a blanket ruling to that effect we're just arguing that i have my opinions blank but what is it about this case it's different from all the rest of them well i think first of all if you look at the sentence mr mor received a fifteen year sentence on the drug counts he received a one to two year sentence on the various gun counts so the drug counts really drove this case the gun counts were secondary at least as far as the sentence goes and so that does raise the risk that the gun counts are used to prejudice the jury by allowing a requiring the jury to hear about the the felony conviction because that is an ally element of the offense why couldn't a reasonable lawyer representing mr martin's have thought that rather than belabor all of this  it was best to just let it be let the stipulation come in and focus on whatever else he had to say about the drug counts that's certainly possible interpretation we don't issue and the circuit court did not order a hearing on the post conviction motion so so we just don't have evidence that was what was going through the trial attorney's mind but don't we at that least in terms of federal law which is the only thing we're worried about here isn't there a presumption that counsel is in fact proceeding in an appropriate way there is and  our focus is really on the fair trial issue i think the fair trial issue drives the other two issues and it's it's probably fair to say that if the chords is not  trial issue court will not agree with the petitioner on the others who are so right so are our focus has been has really been on the fair trial issue and introducing a prior conviction as a as an element correct not the word felony but that's why we're talking about this wording doesn't seem like it was the prosecution or the circuit court belabored this in front of the jury no they didn't you know it was not it was not it was not argued a closing argument other than just the fact that he had been convicted of felony and that was an element of the gun charge that i can't get away from thinking that you really in fact are arguing for an absolute rule that in a case for which prior conviction of a felony is not an element that it's forbidden to mention the word felony in conjunction with the defendant unless i suppose if you had some exception to the prior crimes this mr moret that in this case the state conceded that it would not have been able to introduce the prior conviction i think that is somewhat limiting to to this case there certainly are cases where that prior conviction might have been admissible through other acceptance but here and that was the case you know harmon that the state cites him actually decide also  harmon versus mcvicar where this court held that because the state could have introduced the evidence anyway the prior convictions didn't prejudice the defense in this case the state does concede that it could not introduce that evidence so what about other kinds of things it seems to me any time you have joined or of two different offenses in the indictment because they all arise out of the same underlying transaction there's likely to be some evidence it's going to come in and count one that's a little different from the evidence it's going to come in and count two and same thing so that would make joinder of offenses very difficult to to do you have to join them at the beginning then you mediately have to separate them because of the prejudicial effect of the evidence it's not relevant to the other count all that is built into the analysis the prejudice analysis but you're saying almost prejudice is a matter of law if there is something that the jury's going to hear that's not relevant to the you know here's the drug count there's something else about the gun count you know whatever it might be well i think felony convictions are particularly prejudicial the tradition in american law and dating back to common law in the sixteenth century according to professor waite more rules against propensity evidence states of the sixteen hundreds so i think prior convictions are particularly prejudicial bad has been reflected in case law dating back a long time  your claim and i think i think it's really a severance claim if i'm understanding what he's saying here correctly technically yes and he is saying that the the charges should have been there the count should have been severed after they were joined but just because the initially did sever the charges right there remember that because the circuit court realized oh a jury wouldn't find out about the prior felony conviction in a separate trial on the drug charges and then later the prosecutor said well you should reconsider that ruling because all a lot of the evidence involving the guns will come in both trials and it would be a waste of time and resources to have all these witnesses and all this evidence be duplicated in two different trials but you know  fallacy in the prosecutor's position there is to think that the evidence of the underlying guns would call to mind in the jury the idea of a felony conviction i would say this is especially true in today's very gun friendly environment  where wisconsin has very strong laws that protect people's right to keep and bear arms and people can open carry they can close carry they can do everything else so if a jury hears that somebody has got a lot of guns do you really think the jury's going to think oh well that that the wedgeworth the station held bad evidence of possessing guns would be admissible in a trial and possessing drugs with intent to deliver because the evidence of the guns goes to the sharks and that's again that's the underlying evidence what i'm what appears to be your opponent's primary concern is that the word convicted or the phrase convicted of a felony is in there and if people watch c s i or if they watch you know whatever of the million shows they could be out there watching are maybe that makes them think that somebody is a murderer maybe that makes them think that somebody said drug kingpin maybe that makes somebody think you know that they're whatever some awful thing and it you just introduce the underlying evidence of the guns burdensome though it may be in terms of calling witnesses at least you get a fair shot at proving or disproving you know me putting on your defense to the charges in question without the burden of the felony there as well your honor i suppose i have a couple of points with respect to that issue so the first point is that the marquis county circuit court did balance these considerations so the test under wisconsin for severance as the pre prepared the potential for prejudice to the defendant and then on the other hand is the burden to the state if there is sever realize that there was a potential for prejudice if the jury learned of mr morgan's prior felony conviction the ones the prosecutor pointed out that it would be a huge burden on the state to have to introduce all this evidence can always duplicative witnesses it t county circuit court balance that potential for prejudice to the defendant against the state's interest in having multiple trials in the court concluded that the state's interest oh wait the potential for prejudice and my second point really that really  second point which is more in school aim is not that the drug evidence prejudiced the gun charges or the gun evidence prejudice the drug charges all three of those claims as a journalist basically can see that there is go all three of his going from the mere fact that the jury heard twice in passing at the end of trial at the party stipulated to him having a prior felony conviction there was no evidence of how many prior convictions he had what those crimes were the underlying the jury heard was he said related to being a prior to having a prior felony infection that's said and there was a lot of evidence of his guilt this is simply no way that the jury found him guilty of all these charges simply because they heard two fleeting references to prior conviction but more and more importantly the state courts did not unreasonably apply clearly established federal law when they reached that conclusion they would like to make two brief points about what clearly established order was the first point is other circuit courts have other circuit courts have reached the same conclusion in orange reply brief he seems to suggest that this court and other cases likely have indicated that that's not known in lane that is clearly established but they didn't in fact court has said on the ground that we think it's victim because every now and then you know the supreme court decides to reverse a court of appeals per curiam and say no we actually really mean lovely britain and we want you to follow it so those are kind of two separate points i agree with you we should probably take a fresh look at anything that's post but it is the supreme court decisions not the seventh circuit or any other such case that's really going on but as i point out my time he seems to really back away from that position as reply brief by broadening the scope of this joinder claim he says that he's not reliance on my john lane he says that he's actually reline and other much older supreme court cases which simply recognize the constitutional right to a fair trial but the problem is that a good doesn't allow more ins to have such a broad claim of throughline such broad general principles and i think kerry vs muslim really reinforces that point i said it was like in my brief it's a two and because the supreme court had never held its private conduct namely spectator conduct could violate the right to fair trial the court noted that prior decisions have recognized the right to a fair trial and that's prior decisions have established is that mr jointer charges can violate the right to fair trial and the and he seems to recognize that he needs to cite something that specific that's why he relies so heavily on that lane footnote in his opening brief for the as i said the problem is  well we are arguing that mr morris was denied his right to a fair trial and the right to a fair trial guaranteed by the due process clause of the fifth i'm fourteenth amendment's is a general standard but it is the supreme court held in panetta you versus quarterman that a general standard may be applied in an reasonable manner for purposes of the post so you read pineta he is saying that there doesn't necessarily have to have going to supreme court decision in say in this instance finding that the right to a fair trial was denied by mr jointer credited the app that it might be the first time correct i think lane it's it is probably fair to  footnote that we cite but it does provides support persuasive the forty and as we've discussed the rule against admitting evidence prior convictions has a long tradition  and just to address prejudice that the evidence in the case is not as strong as we believe the state is characterizing it there were no in especially on the drug counts there were no controlled by as there was no one who but there was a lot of evidence tying mr morin's to that house there was yes and he didn't argue a trial that he did not live there but then other people live there and no fingerprints were found on any of the drug paraphernalia and d n a evidence was found on three of the twenty items they tested other people's d n a was also found so we don't believe that was a slam dunk ok thank you very much thanks to both counsel 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