either separately or in combination were substantially prejudicial to the verdict of first degree murder which as you know requires both premeditation and expressed mouse the first argument the first issue would be the deprivation of counsel at a critical stage of three instructing the jury and in that connection i advised counsel this morning that i would rely on this court's decision earlier this week in france versus hague he's really which speaks to the  onstruction question and he was familiar with the second more than i can say well i'll discuss it as when we get to the age of the second question that i'd like to address because it was incompetent and i'd like to begin with the second question because i think it sets the stage for how the first degree murder verdict is effect the trial court allowed a was open because mr al gore said said he's got a gun before the gun was drawn from underneath the seat of the car so to show the witnesses state of mind the state courts have held the trial court correctly allowed the witness to testify how he knew the gun was there before it was pulled out and he said that garak the three year old son told him about the gun it got worse than redirect because the prosecutor went back to it and be direct and when as your honor pointed out the defense counsel try to object the judge said you open the door and that i don't think that ruling is preserved under the certificate of appeal ability so we have your predecessor counsel preserved both in a district court heaviest proceeding and pull evidence from a three year old child and put it in the hands of a biased witness we don't even know if the child actually said that well that's clear sir but it's the child say that the defendant gentlemen the jury the testimony of the child is hearsay it can only be it was admitted for a limited purpose it was admitted to show the state of mind of the witness and how he knew the gun was there before before it was pulled by the defendant and may not be used for any other ever dench repurpose you may not consider it as to the defendant prosecutor could not have argued that this was uncontroverted evidence because it's not the evidence it's simply to show the state of mind of the witness and that makes a difference now remember became devastating not because of because of the absence of the lemon instruction opening the door to the prosecutor using it for the very devastating purposes that judge larson thought this was designed to avoid  structure the argument of the prosecutor emphasizing the testimony that was supposed to be the emphasized by the tactical decision here which just makes it strange that th real reading of instructions it came out and said we need amplification on the definition of first degree murder containing the phrase expressed malice does this exclude implied m offense counsel got a call but never got to the courthouse and instead the judge said re read the instructions now on a lot of levels that was the wrong answer and it was also wrong because counsel was not allowed to enter the room your honor in france which was a forever case the defendant was excluded from a mid deliberation instructional of the decision the majority says because of the delicate nature of such deliberation inquiries we have recognized that the fence or their attorneys have a good process right to be present in conferences when either yest part of the much majority judge kozinski supporting your decision your honor it said that the stop meant the period for supplemental instruction was a critical stage of the proceedings that goes through our argument that there are two remedies there is it can be kept it can be viewed as structural error and therefore prejudice is present or if the but we don't have to get there in this case there's prejudice here it agree they're not in the judges and lawyers they're not clear that's the point isn't it judge her son that jurors are not us the jurors are jurors and the jurors were confused it wasn't clear to them sure it all murder by premeditated conduct with expressed malice is first degree murder to all of us that's clear to the jury split was much they just precisely what we would view as chronic is a direct descendant of of gypsum and shields in the cases that lead up to it and what school we talked about cranberry cases i mean i don't have a cranberry case but but but that it's critical because it goes to the verdict which is what the trial is all about so it does affect the whole entire trial and here we have a conflict we have a it's not a perfect storm  but it's but it's a pretty damaging confluence of rulings on the admission of the three year old's testimony which is the key evidence direct evidence and premeditation intent to kill and expressed malice and the instruction and expressed briefly this this was a classic reasonable tactic aside from the question of whether what the effect of it was deciding whether to request a limiting structuring is one of the classic tactics that trial coun judge was and i think you mentioned something that i was actually going to mention as well which is at that time counsel could have objected this state of the nature of the evidence as hearsay didn't hadn't changed it was still objectionable i think the prosecutor argument was objecting to the objectionable on hearsay grounds the defendant's counsel did not object and has never challenge the failure to object but when at the time of the initial ruling counsel it was reasonable for him not having the foresight or the hindsight that we have now to foresee this argument now when that one thing the issue is raised  a three year old and competent child there's a flipside to that and that is it's a three year old incompetent child the jury may have seen it is such that this was a biased witness referring to a conversation with a child and it wasn't necessarily testimony was i know it was consistent so far as it was all very fast that he went to the car and the shooting started i don't really recall whether she testified that she actually saw the gun before she ran ok so i mike all by all ball so all ball is the principal witnesses to what happened i guess is that correct he was the closest to two to mr maslov at the time that the fired multiple shots i know that the at the beginning i know that the jury found premeditated attempt on pam as well independent of mr studer ok so it was an old ball who said differ well if you're if if you're not present if counsel isn't present then you didn't have counsel i do see that i don't know that there is a significant difference i i agree i only spoke of presence because like that seems to have just been the conversation as as this case moves along but i don't know i've always thought of it as presence just because he wasn't present  it clearly established those are two separate questions i'd like to really figure out whether that's a constitutional violation and whether it's a critical states because i think  is subject to a presumption of prejudice however the supreme court is clearly backed off of that as so far as it should be taken literally sat or wait suggest that those sorts of situations are pervasive denials and arguably anything that happens during a trial is going to go to the verdict so it's not simply whether it goes to the verdict it's a pervasive  i suppose you can look at other circumstances as well but i think time to time it is definitely a factor didn't start on collateral view and collateral review the petition raising the same claim was denied with a one line denial which is a denial on the merits and as the district cour found there was no more waiver because the supreme court essentially decided to get and ruled on the merits and didn't find a waiver implicitly so my answer is yes  established general principle that's basically what we have what critical stages are has not been defined by the supreme court and specifically nothing that's a cancer that deliberations sure we can say well that's critical but the court's never said that which leaves open a lot of latitude first a court in deciding that question today said that it implicitly may have said this is a critical stage we don't know but the fact that it's an open stage no question you know that's that's correct this court this court house however there are a lot of decisions out there doing various things with this i think the discussion with council gets us past the waiver in terms of clearly established law i guess i'm comfortable with chronic applying here chronic the complete denial of counsel at a critical stage of the trial results in the following the court has unified form we found constitutional error without any showing of prejudiced when counsel was either totally think this is a critical state where the court has decided that you're asking i think whether the court has to decide this precise narrow little piece of the trial is a critical stage critical stage i think he comes to agree that if it impacts the entire trial but then then it seems to me you get to use the sense of what is critical c acknowledge just that stage is the next trial or critical i don't think you have to have a cranberry that says the movie deliberation supplemental instruction to the jury is a critical stage and emphasized for example the threat to blow your heads off earlier in the altercation but i emphasized earlier judge thompson because only the wife was present then the reading from the government's a bit and remember there is a self defense issue in the case judge thompson so that muddies it up further about whether it's expressed malice implied malice or no malice whatever and what i'm suggesting to you is the evidence that you  categorized is great if this was a substantial evidence to support the verdict case but not for prejudice for prejudice all of the evidence has to be looked at and while there is some of that evidence what happened in this case was the child's evidence became spoke that that he didn't have the foresight and then said hindsight force that is exactly the point no the first council had the foresight would have failed to have to seek that limiting instruction when i was a prosecutor i and you're on the jury had a problem with implied that's what's important on the prejudice how the case was tried look at how the jury received it we're talking about whether there's prejudice to the verdict the jury thought somehow this still there was an implied malice question here judge burton come on that's what that's why this is here that's why you're struggling with it because the jury you have the problem that if you look at the thrust of what i've been saying to this morning it is not that you have that you need to walk this case out the door it is that this case w