whenever you're ready mr good morning excuse me good morning may it please the court please tucker of the federal defenders office for samuel swoops under novo review and deferring only to the facts that are not in dispute relief should be granted because mr swoops was denied his due process rights and his sixth amendment right to a fair trial there was one particular critical evidence very fact established at trial and that was that the victim linda had told police the same night of the offense that the gunmen did not have a scar that was also in the context of linda and the other two victims all failing to identify mr swoops in a photo lineup conducted within a few weeks of the offense despite that or it was against that backdrop and the fact that identification was the pivotal issue in this case as every court has acknowledged that the prosecutor in his rebuttal argument arguments of counsel are not evidence in the case and that their recollection as to the facts control your honor they were given that generic instruction they were not however specifically advised as to this particular error which two to two two answers to that number one what should have happened to vitiate the prejudicial effect of that misstatement would have been as the supreme court stated in donnell for the judge to direct the jury's attention not just to give the generic instruction but to direct the jury's attention specifically to the misstatement and to inform the jury that it was unsupported but given the if the jury is instructed the arguments of counsel are not facts and then it's the jury's recollection of what they heard it trial that controls doesn't that directly address this situation i mean this happened this is not an uncommon occurrence where coun misstates either accidentally or sometimes intentionally and your honor were were it only the prosecutor's mis statement then that might be enough to a swatch are concerned but in this case what's particularly egregious about it is that the jury then clearly confused by the prosecutor's statement had one single question during deliberations and that question was we would like to see any statement made by linda of a blemish or scar prior to the physical lineup because of course it was the physical lineup eighteen months later when she said it's the scar and that question is this court  shows a critical concern by the jury and the judge then rather than answering that innocuously replies the statement is not admissible but of course there is no statement there is no the statement and so the prosecutor makes the misstatement the judge essentially corroborates that statement and those things together created the fundamental unfairness here and combine to create the  why doesn't that correct what he said  your honor at page forty four of the excerpts of record in the post conviction court's findings as the post conviction court summarized quote in the prosecutor's rebuttal argument he stated that linda had told police about a scar and the scar was mentioned the night of the incident i was looking at the transcript actually yes what the prosecutor  the very day i don't believe i would correct it would have corrected it perhaps if he had said the very day of the physical lineup she mentioned the scar but in conjunction with saying the very night and say in and whether it's a blemish scar you can see it in some of them and not others and it didn't look all that clear to me that you'd have a firm observation  recollection of it doesn't look didn't look clear on anything that was shown to the jury well i don't i don't know that it looked any different in what was shown to the jury i don't believe it did but the fact i'm sorry your honor the issue isn't how obvious the scar was really the issue is she had said there was no scar and then eighteen months later under a very suggestive line up she said i was looking for a scar now let me get to the suggestive line up  the way i read biggers when it came down was it was designed to prevent a particular type of police misconduct basically bringing the witness into the room  and no lawyer for the defense present and suggesting in one way or another that a particular one of the people in the lineup is the perpetrator so that the witness takes the policem guidance and the identity is tainted by that here so far as i can tell the way all the initiative was taken by the three victims rather than by the police and  i think the supreme court has subsequently confirmed my impression of this in a case that perry that unless the police arrange the suggestive circumstances biggers just doesn't apply to it what am i missing there so your honor a couple of things first of all we have two separate problematic suggestive identifications one the two men who went to the courtroom and there perry and the state are to those the police aren't suggesting anything there that they went to the court room on their own initiative and maybe identification on their own initiative told the police that's the guy your honor this is the background so detective scooter told the victim randy and this is in the excerpts of record three at three ninety nine to four hundred at four thirty and four thirty five he told randy there had been a break in the case he gave him mr swipes name he told him that he thought mr swoopes might have been involved in the crime against randy that he might have links he told him that the other case would be going to trial he knew that randy as well as the other victims had wanted a physical line up he'd known that from a few weeks after the offense and he refused to answer randy's question about whether they had seen mr swoopes photo in a photo lineup so he did everything short of saying here's your chance to go see him and identify him so perry does talk about police conduct it's also been framed by the sixth circuit and others in terms of the direction of the attention as your honor alluded the direction of the attention to the suspect detectives who did everything he could not to dissuade randy who he knew wanted to see mr sweeps for him from doing that as to linda well i'm not sure that's totally accurate as i recall the record that the detective would not answer with mark's question as to whether or not this was the guy and  detective when they did show up told the two man specifically don't tell when what you just saw is now what the records show the record shows that he told them not to tell linda what they had seen and so what i guess are you trying to argue contrary to the state court findings that the police did in your well your honor yes and we've argued that our briefs however i think even a green even if you were to agree with the state court that there was no police misconduct relief is still required here i guess i guess maybe this goes back to something you said at the very beginning of your argument it looks as though you're asking us to reweigh the facts to know and even if it's pretty add a case don't we still give some deference to the state court findings unless the evidence simply doesn't support your honor i'm not asking you to reweigh the facts to know that's why i said even if you want to assume there was no police conduct relief is still granted here but we've got two key things one is whether or not there was police misconduct and the other was whether or not with regard to the way the judge answer the question whether or not mr swoopes as a lawyer was involved at all in formulating the response so yes and i'm afraid the briefs unfortunately got into the weeds on that but even assuming it was not an ex parte response that was the finding of the state court right it was although do we defer to that or not well so the state court said that was not an ex parte communication however both of the post conviction court and the federal court strongly suggested that the formulation of the answer was ex parte with their reference to unfortunate wording however i did want to get that there was testimony about the fact that in pima county at the time the practice was to do this off the record in gene bers with the lawyers talking to the judge there was also evidence submitted by both defense counsel and mr sweeps that they never saw that at that mr sweeps never saw it and i thought the defense lawyer said he couldn't remember but that he if he had seen it he would have objected to it which of course all of us can understand why that would be because it was a prejudicial misstatement of evidence on the most pivotal issue in going in that prosecutors are dead now as everybody's dead and everybody everybody is unavailable going to this statement was quote it's not it miscible correct that's what the judge said to the jury the statement is not admissible the state  i'm from out of state of easily but the question i have is whether or not and i tend to agree with judge homan that the years on a court of appeals is intitled to deference on their ruling regarding th particular issue but has the ninth circuit ever said that a judge who communicates with a jury during deliberations in this type of situation which seems to be a bit critical or not violates the right the sixth amendment right to counsel because they didn't run the question past the defendant's lawyer yes your honor in was leadin which is in the briefs this is how court recognized th critical that that formulating the answer is a critical stage and under support i had and underscored how susceptible jurors are to statements made by a judge in particular during deliberations and i just because it was critical but it didn't say it was structural or right and doesn't and i want equal decision that's not a factual decision but doesn't go on to say that if there is no due process violation then there can be a deprivation of counsel in other words we've got a factual finding that the lawyer was involved and if that's the case then there there is no absence of counsel under the sixth amendment so i'm not sure muslim dean support your position i disagree that there's a factual finding that the lawyer was present for the formulation of the answer to which this court has to defer and i did want to save and i know for rebuttal i'll give you some time  isn't the finding of the state court that the formulation of the response was not x party fatal to your argument under muslim no it's not your honor it's not at all because whether or not the judge was solely to blame or counsel is involved and also to blame doesn't change the fact that this was a deprivation of due process but the deprivation that was argued was the lack of participation by counsel for the defense and there's a finding that counsel did participate that it wasn't an ex parte bruce formulation of response to well even if counsel did that counsel cannot wave mr swoopes right to a fair trial and the prejudice here and let me just say that if the counsel participated what's unfair about the defense lawyer communicating with the judge  and turning how to answer the jury's question i disagree that there's a factual finding that the defense attorney participated and also the issue of the suggestive identifications while also grounds for relief also underscore just how critical the prejudicial impact of the judge's response weren't the witness is subject to cross examination on all of this trial they were your honor which is a precise the jury heard all this on cross observation and i think you should respond to it if you care to i think the result of musil a dean supports your argument but i don't think that that court ever made a finding or said in the opinion that talking to the jury absent consultation with the lawyers requires automatic reversal under under chronic you could you could extrapolate and that's certainly what happened there but i have a feeling  an open question in the ninth circle your honor thank you and i would point the court to martino's which is also in the briefs in which this court found error requiring automatic reversal when a judge responded to a jury note without possible and if not it might be resolved by telephone conference and at different state it's not evidence for anything but it made me able to understand what the  court opinion was to which we have to give deference a court of appeals of arizona public opinion and it says again trial counsel's lack of recollection neg ates needed the trial court's observation that judge and probably quote contacted counsel off the record about the note as was customary and failed to make a subsequent record nor the court's implicit ruling that no x party communication with the jury had occurred i don't see how under created put twenty two fifty four d at we have any room to reach a different conclusion than that  the lawyer for swoops wasn't fact consulted about what advice the judge would give to the jury your honor and no court has stated that mr swoop and he didn't say that he personally wasn't at present he said his position is basically as a lawyer wasn't present and consulted his i'm sorry his affidavit stated that he had not seen that jury note yes i know but that's different if in fact he didn't personally see the note himself that's not the same thing as his lawyer not having a role in helping the judge instruct the jury about the note and knowing about the note is between him and his lawyer just the extent to which is lawyer actually shows him the evidence instead of just describing it to him there's really only one reasonable way to interpret the judge's reply and it it strains credulity that any attorney would have agreed to that the judge's reply as you put it there was another sentence immediately following that sentence about how it was inadmissible he says rely on your collective memories and i'd say that's the most common instruction that the judges give when the jury asks for replays of something because they don't want to overemphasize it there are a lot of authorities that say it's a better exercise of discretion not to replay the testimony because it will over emphasize it in this case it wasn't just inadmissible testimony it was false  your honors may please the court counsel david simpson from the arizona attorney general's office on behalf of the respondents i'll start with the jury note claim and there are three important points to make about that claim first of the petitioner has not ca burden of overcoming the state courts findings that the note was not ex parte how did the state court the arizona court of appeals come to that conclusion so like my colleagues in your opponent never there was any specific consultation of this trial judge with the lawyers at any point there was would you say in direct or circumstantial evidence of correctly come up with the correct so there's no direct evidence of either way i think they come up with that i think there are three facts to consider so first is the state courts mentioning that this was the common practice in tucson at the time  the second is we do know for an script that something was discussed off the record because the court makes a reference to a conversation that they had held back in my office the third is viewing that evidence against the is what if they were incorrect can we second guess and in correct legal factual finding of a state court on  and let it go or do we get behind and second guess that as a federal court under twenty two fifty four under pretty at to standards this court could second guess it would have to surmount a very very high burden to do so  and so i would just point out judge kleinfeld did read one part of the state appellate court's decision there's another i think just two paragraphs before where the state appellate court says the trial court found there was insufficient evidence that any ex parte communication had occurred between judge me and the jury because that finding is not clearly erroneous we have no basis for disturbing it that finding in turn arguably supports an inference that sweeps his trial counsel had known of been present for or otherwise been consulted on judge that by the time this came up to the arizona court of appeals judge me and died and so that's part of the difficulty here is that the only witness who would have known the prosecutor had died and the judge had died the defense attorney was the only one who would have had any knowledge directly and he had no recollection either way of what happened turning to the actual merits of the jury no claim i do want to kind of sort out the record here to make clear exactly what what happened exactly where the prosecutor was coming from in his statements during closing argument so there's no dispute that linda was asked on the night of the crime whether the perpetrator had a scar and said that he did not  later at the later at her lineup she mentions that she was looking for someone with either a blemish or a scar and so understandably defense counsel picks up on that during closing argument in argues that the fact that she didn't mention a scar before and then mentioned it later undermines your credibility so the prosecutor during rebuttal comes back and makes two arguments so the first argument is that the fact that she did not mention the scar does not undermine her credibility because her identification was based on multiple factors so if you look at volume five of excerpts the record eight twenty three he says quote ensure one o'clock in the morning when she's sedated and exhausted and in shock she may not have mentioned the scar her memory was refresh when she saw him the other argument the prosecutor makes is that maybe when she was asked on the about the marking on the night that she thought of it as a blemish instead of a scar and so that's where  that's where you see at eight twenty four in volume five of the record where he's talking about blemish versus sky are or i'm sorry that's a twenty one in the record so he says this lady's been in the hospital she's been there for a couple of hours and then skipping ahead the word blemish kept coming up she saw a blemish on his face this guy is asking about a scar and she's probably doped up at the time the she indicated might correct incidentally in thinking that all three victims identified swoopes so the case did not turn solely on linda's identification of the that's correct your honor and we also have some corroborating circumstantial evidence as well so the perpetrator is wrong the car is exactly the perpetrators are seen fleeing the scene in a valiant there is a valiant that is close tied to swoops and tied to sweeps in a way that suggests he's up to no good because its license plate has been switched with the car that swoops is connected to which with the car for licens crime occurred this would have been a late sixty's valiant your honor those who each and value i don't want to say ancient your honor but it was an older value that i saw studebaker in a parking lot right four years ago and i thought wow i mean if this is actually an interesting point though then when you when you think about it i don't i have no idea how common valiance were in tucson in one thousand nine hundred four obviously that's how common they were would impact how persuasive that evidence is which is probably just another reason to defer to the original fact finders in this case because they would have had a better sense of how many valiance were driving around tucson at the time but so to get back though to did not mention a scar on the night of the crime and that's the portion i've already quoted now that the one point where the prosecutor does make a misstatement is where he says now they told police that very night about this car and then immediately corrects it and say that very day about this car when i when i read this i thought if i were the defense lawyer or fire on the jury i would think linda's not all that reliable and those two guys the they may not be one hundred percent either because they so much want to get the person who did this to them but boy it's hard to get around the cars because that's something objective that's like footprints in the snow as opposed to saying i saw somebody walk through the snow the footprints really are better if you i think you're wondering was there any emphasis on the plates in the value and the switch plates from the chrysler in the trial i mean all of that evidence is presented trial your honor so i don't think that the jurors were free to say well i don't know about these identification witnesses but those plates are hard to get around that's correct your honor that is and they did call the motorcycle officer who stopped swoops in evidence as opposed to the subjective correct potential angle victim witness wanting to see just the correct another point to make of course your honour's is that even if you take even a particular piece of evidence in isolation you could view them all overlapping only mean in the mere fact that you have three identifications here instead of just one is significant i think in terms of evaluating the overall weight of the evidence the final point i did want to make about about just the record itself is the question from the jury it was quote we'd like to see any statement made by linda of a blemish before the physical line up i think it i think defense counsel said earlier  emphasis on the evidence regarding linda statements just rely on your memories but i didn't understand the first thing he said about it being in admissible was he talking about i don't know your honor i mean it's a very strange answer  best guess i get is the judge was trying to avoid making a comment on the evidence i mean i thought every every bit of evidence on what linda said about identification and various times would be admissible obviously i'm writing something right i know that's absolutely right i mean which is which is why i mean if i were the trial judge i wouldn't have given that answer i think the state saying the statement was you can't tell from context now time what he was talking about now you can't be just like talking fancy when what you're saying is no you can't see i don't know i don't know what the judge meant by that and it's frankly weird and i don't have a good explanation for why the judge would have said the statement is not admissible i think for present purposes the important point is the judge is saying this statement is not admissible rely on your collective memory the second part i understand right and i mean even if even regarding the statement is not admissible of course the jury is instructed in this case to decide the facts on the evidence that they shouldn't speculate about any fact and that they shouldn't be concerned with the reasons behind a trial court's rulings admitting or precluding abbott well maybe this is sort of technical evidence law prior inconsistent statements but i assumed that that linda was cross examined by defense counsel on the fact that she didn't mention a blemish on the night of the crime she was questioned about whether she had mentioned a scar on the night of the crime though isn't a lot of evidence depending on how the victim or the witness answers that question if she answers it in a way that is inconsistent with what she told the police as reflected in the statement then isn't the lawyer entitled to read at least that portion of the statement to either impeach or rehabilitate yes i don't i'm not familiar with that what the rules of evidence look like in the mid eighty's right i know today would be admissible either way even if it were a prior consistent statement it would be admissible in the state of the whole statement would come in as i say this may be a very technical question of evidence rules right and i think the answer is actually today would come in either way because it's a statement concerning identification and the witness right but  entire whatever of the entire police report was the interview of the victim oh that's right i'm in a substantive evidence is that's correct you would only admit whatever portion of it would be necessary i don't i don't think that rule of prior inconsistent statements has changed in the last thirty years that's correct that it would be you don't need me whatever portion of the state would be necessary impeached i don't think there's any question here that there was no statement that she ever made about a blemish one way or another before the lineup so argument is that if you look at the rebuttal argument it's essentially conceding that she didn't mention a blemish on the night and then the prosecutor offer some suggestions to the jury as to why she might have mentioned that right right that's the way i read the prosecutor's closing argument and of course to the to the extent there's question of questions about that and how that interacts with the trial court's response to the jury note the jury or the response of the jury notice telling the jury to rely on their collective memories of the evidence that's been presented at the trial who the valiant and when the market value in tied to the crime mark and randy both observe the value both saw the value correct they both saw the value and  they both they both said that they had they were familiar with the values before i think it was either mark or randy said that they had a friend who had a value and so recognized it particularly identify the getaway car on the night of the correct correct your honor  i'm happy to answer any other questions a court may have about that point i i know i believe judge murphy you asked a little bit about ninth circuit precedent regarding whether the jury note is a critical  proceeding i think if you read most of the dean in isolation i think muslim can be read to suggest that i think if you read the ninth circuit subsequent precedents they're really kind of all over the map and what do you say about martino's which ms tucker cited when i was engaging with her on a point i think martinez sort of recognizes that the ninth circuit's press and it is all over the map on this question and lays out arguments on both sides but doesn't really address them  so i think what the discussion in martinez is technically dicta although it's helpful just for clarifying in some ways it's just helpful to clarify when certain things aren't clear i think overall the legal question under cronic really revolves around whether prejudice can be evaluated case by case or whether it's not worth the time to do that because it's so inherently prejudicial and i think here prejudice could easily be evaluated you just look at the wording of the note you weighed against the other instructions and against the evidence presented a trial and conduct a harmless error analysis in the same way a court would normally conduct a harmless error analysis and then we do have supreme court cases that have repeatedly reminded the ninth circuit structural error is not something that we overrule chronic i think they're still getting to the same point though which is is it worthwhile to engage in a case by case analysis or is should we have been reversed before for finding structure or when the supreme  things that the state courts found that need to be deferred to first the state courts did find that the prosecutors statement was incorrect the that was unequivocal finding of the state court second the court referred just now with mr simpson to the fact that the post conviction court i'm sorry that the court of appeals found no expert to communications however the post conviction court referred in its findings to the quote unfortunate choice of wording and the court of appeals did not address that did not shine so the court of appeals really did not get into this issue it was a very they were looking at preclusion it was a very quick discussion on their part so they parroted the p c the post conviction court saying that was not expired today but they ignored the part where the post conviction court said unfortunate choice of wording and third regarding the car there was there were some conflicts in the car description so the victims had described it as a ford i'm sorry as a two door no primer silver window vents in fact the photograph of the valiant taken by detective scooter that was then used as identification purposes was a four door not a two door it did have primer on it and it did not have silver window fans so it's not as definitely the car evidence was in dispute about well it was a valiant your honor and the victims had described it as a car sort of looking like a valiant but  well they did my point is that it did not match in those respects the description given by the victims and then finally there are three identifications but they're all bad so three bad identifications is no better than