of that meeting was for them to prepare a legal defense the second point that we agree on is that shortly before that december eleventh meeting and that's what we're talking about is the admission of the december eleventh tape shortly before that meeting occurred mr chal the two brothers matt and mr challenge in his testimony talking about what he told the brothers about whether that was confidential what they said to doctors here would be confidential and this is that the excerpt of record of page three eighty five he told them that everything they but but let me say this to mr jealous may indeed have been incorrect about state law but that's not what we're here about the state court finding that this was not covered under the state's attorney client privilege is not something i can really get here much as i might like to i cannot really get that when i can let me through steps a little from a i'll let me do that then let me take a step the question is as you want to point out of perhaps not explicitly but included in the question is it doesn't say anything about confidentiality so how can i be arguing that it doesn't really even say anything about here's why i understand the court's concern i think it doesn't say anything about confidentiality it talks about the basic tools of the defense it talks about providing a psychologist the can provide where they can form an appropriate examination of the words of a thing the question is where is confidentiality in whose statements to make statements that are not confidential could that be what the supreme court was saying yes we know you need basic tools and we know a psychiatrist is a basic tool and the basically we're going to provide you with a psychiatrist after you talk to he's going what we're what we're talking about now is the use of that in the second trials and that's not really what we're talking about because you've got to look that's things are confidential sometimes they are i can't disagree with that but let me let's look at the context of how that was put into evidence at the first client had well choice yes but it's a forced choice that the analogy that comes to my mind is the choice that the supreme court talked about it like this the law everything the law requires is forced well let me and they say look a forced confession came in the defendant responded to that by testifying in order to take the sting out of it and explain it and then the next trial after the conviction was reversed the question was could you use that and the answer was no because he wasn't the seating for the ruling he was doing his best to respond when i tossin fairly ringing terms about the use of the defense like heifetz the need for defense like i use to assist defense lawyers in assessing mental state and there's three different purposes one of the purpose is to prepare to help the defense lawyer prepare for cross examination justice marshall says one of the purposes is to serve possibly to testify and one of the purposes is simply it was am on the defendant you captain spoke with defense counsel help him prepare defenses if  i cannot do my job unless i think i have help and that's what it was about that's that deals i think with the sanity issue and indeed that's the way it's been construed across the country it hasn't been limited to sanity this is the second part of the question gets to the first step you were talking about is the difference between rich and poor in public which is what if at no seven and this court was fairly clear in saying rich and poor has nothing to do with it if you're entitled to it you're entitled to it not only to be a point if you're poor but if you're wealthy as well and the middle class just doesn't mat discuss the failure of the trial court refusing the trial court to instruct the jury on the theory of defense in this case first and if there is time left over turn to the books issue for a few moments like the previous issues there are certain things that we agree upon in connection with the know there are certain cases your honor where that where that is permissible and i would tell you this is one of them and the reason is that if you look at brad bradley versus duncan which was a similar case it was a refusal a state  substantial evidence enough to for the jury consider it you have a federal right to instructions on that theory of defense that once you accept that proposition the court has no choice it seems to me i have no choice but to examine the basis upon which th state court refused to do that and that's what they did in bradley versus knocking that's the rule in the circuit now there's another reason why that isn't dispositive and this brings us to twenty two fifty four and in particular the decision wrong the state court neglected to consider four categories of important facts they neglected the history of the relationship of which there was substantial testimony sexual abuse for twelve years mr menendez threatening eric you know escape hatch just get in the car and drive away and never come back that's not enough it's true hard to well your honor what you say is perfectly reasonable and if these if these defendants were putting on a defense of perfect self defense i would say to you we're done i mean it doesn't work this is an reasonable self defense by definition what they did was on reasonable i mean that's that's the whole point now you know this is not you know this is not the first time this circuit and certainly not the courts of california have dealt with a situation that isn't reasonable like this take for example kelly to peaches to beatrice versus quick and case out of the circuit to a woman a battered woman who shot her sleeping husband five times he was asleep she could've walked out the door she was an adult the fact is what she did was a reasonable but that's the defense and brenda erickson state of california it's the same thing it's on reasonable self defen shot her husband while he was sleeping she got the instructions now let me say you know we're already you know they're already in a better position than my client is because mr and mrs menendez were not as far as they knew  correct i'd like to touch on the prejudice argument with respect to the with respect to the instruction because it's something that we've been debating with the state and what i wanted to say about it is mind the oliver wendell holmes name and the life of the law is not logically experience and we have experience in this case on this issue what happens when the jury is instructed on imperfect self defense and that's the first trial it's undeniable the first trial six jurors were prepared didn't vote for an imperfect self defense hearing basically the same evidence certainly the same evidence from my client this is the same sort of situation that this court dealt with in bradley versus and where there was a prior trial where the jury was hung and came back and evaluated the prejudice and he said you got to look at that first jury and you know we would urge the court in terms of the prejudice analysis to focus on what happened in  does not apply because the state court of appeal did not expressly reject the federal claims and we strongly disagree with that contention in the opening brief that was filed in the california court of appeal each of these issues was clearly  finding that the state crops were made in which the california court of appeal adopted as did the district court and this is an area where defense counsel and i do disagree on the finding was that this was the december eleventh session we thought there was you know it was for the purpose of even having overlapping judge  first of all your honor the prosecution at the second problem was different from the prosecution team in the first trial they have the benefit of seeing what happened at the first trial at the first trial a lot of the evidence came in without objection and the prosecution team of the second trial with the benefit of reading back over what had happened said jean a lot of this is objectionable maybe you should try to keep it out a lot of it came in you know when you read the defense friess in this case one gets the view that you know these defendants basically were hamstrung by all these arbitrary rulings the defense case was two ok under state law because there was no foundational showing given the fact that while testified in the first trial and did not testify in the second trial he was not allowed to bring in matters which were tangential to any eviden side and the first trial there was a lot of humor that struck the first problem got out of hand and he said the second file i'm going to keep a narrow focus on what the defendants mental state wants at the time of the murders and the thing about the prior sexual abuse  have to keep in mind the state property refusal to give the standard instruction on purpose off the fence with hinges upon it finding about imminence which is the state wants you and what the court found was that there was no knew that any future harm was in the future and he threatened harm in the future those were his words if you look at the felt the use of the tapes i mean that's another thing that changed in the second trial the prosecution put the psychiatrist you know i didn't because it's been because the writers and the way i'm not going to make that same hearing on them because that is you i think that's what you said well i think that's probably true on a but this issue has not been briefed in this court but i think that's what your answer you said i was going to disagree with you and so you were going to give it father in the brief time that i have left the remaining to me i'd like to briefly discuss the imperfect self defense pushing and specifically the question about whether there's a right to have a state created the fence still a basis of the jury tried to jimmy the second trial tried to jury rig the case so again a conviction because he read articles about this in the paper i just have to disagree with that suggestion whenever no one i was stuck with disagree with that as well there was a judicial bias claim that was raised in the california court of appeal part of the argument there was judge weisberg must have read the papers there was a national outrage that the first trial that these defendants were admitted committing the murders that they got one hundred so therefore it to make sure the coroner stands my position which is it doesn't matter it doesn't matter what the petitioners purpose was in the meeting because that's not what it is about if it didn't matter what we would see across the country when anyone requested a psychiatrist was your honor i want to hear i know why this defense lawyer wants the psychotic if you want help with the defense but i want to find out why this defendant wants it and if he says the wrong thing your honor the statements are mine and we don't see hearings like that because it doesn't make any sense that's not what it was about especially since  case is whether the constitution requires that it's interests of the firm that have access to a psychiatric examination and assistance necessary to prefer an effective defense based based on his mental condition when his sanity at the time of the offense seriously question trial and your honor was referring to diane vander miller and she was that the nineteen year old cousin of lyle when i was eight he came down with some of the thing and he said i don't want to sleep in my room and i spend the night with you my dad is touching my genitals and that's what was excluded from the second this is a state of the evidence you don't get the instruction is no federal review that can't be now what's really interesting about this case is you mention five point one seven which is the standard cal j construction the trial court in this in this case made the on prece dented decision for a trial court to look at it and say that that's not the law now that that instruction five point one seven which provides for a reasonable and reasonable self defense and based on entirely subjective basis it's a tiley just subjective experience the defendant the trial judge said that's wrong that's not the law i'm going to change it i'm going to inject an objective element into that now that brings us to taylor versus maddox the judge the trial delusions and believes for example you know that it was some situation like this where it was completely unreasonable that still is the basis for that for the defense why because that person is you're acting outside the bounds of the law you think you're acting within the bounds of the law you're delusional that's why it's covered now you know you can make of these hypotheticals and i believe me we've made of many in the last couple weeks about this we are so far on the other side we're the other side of kelli the peach rest were shooting at a sleeping man brenda era shooting a sleeping man those were i mean talk about imminence we are way on the other side of that and so what i what i think is really going on in this case not close now you're ours is this is about distrust of the jury system the way this word you take away the only defense a defendant puts on that's distrust of the jury system because we can't trust them they were snow the first time and you look at christian as the california supreme court decision interpreting the