i guess with the rights record gives us the supreme court takes away be my choice back to district court for another country hearing that maybe wishful thinking on my part but i do believe we get to the same place thirty sixty of the california evidence code and thirteen sixty is recognized as not ok and so unless there is industry reliability then examination isn't required as i understand it the opportunity for meaningful cross examination is required if you're right the opportunity for meaningful cross examination is required meaningful after being told what was going to happen was reserve the right to object under three fifty two oh no your honor i don't believe that is the case i think that she did make it an objection although then what have you have then what happens is the prosecutor says well i think the girls are going to testify right well ok so nobody's thinking in terms of confrontation clause but then later on he says i would ask for a stipulation the think played i thought a confrontation clause problem i can't cross examine now what do you it's a presage to the fact that when the girls testify you can ask him any questions and he he with one he turned his back essentially and said he is too young he can ask questions but he wasn't precluded by any longer ruling of the court from asking questions he was precluded by common sense and science on trying they get in the i c from this from a six month old perform with the anatomical dolls and gets all the information that would be necessary you can't cross examine a post and i'm not li g the young girls to post but i guess i am but the point is they were two years old they were three years old i thought grandson who's two years old who can't remember from he's got a very good memory but he's two years from now he's not going to remember what his grandfather so now i hear you arguing that calling a young witness who may not be qualified to testify is a confrontation  well i mean in the in the state was it made the state court when it made in and in the district court and in the district court in my well yes the short answer is yes but not in the state where i was not i was not in the state court i was i was involved in the state court i came in i came in and so that's the problem these cases quote get better close quotes as they proceed through the excuse me the statute says that the child either testifies or the proceeding well these girls were all called but solely as a pretext because everybody knew that they couldn't get any information out of them on cross examination i think that's a given recall correctly that was pretty much yeah i could be wrong but on cross examination they didn't remember they couldn't identify a petitioner they couldn't remember who or when things  there was in the sabrina in the supreme a case detective osborn says specifically he says i didn't go through the n t i see because i didn't think that she could tell us the story without her mother being present to help her that's what he says now under that theoretically we get you know reliability i don't have the answer to to the court's question and i apologize  thirteen sixty requires corroboration now this particular argument was not made below because crawford was the issue below and it didn't seem to be necessary to make it below under crawford but if we're going to use which is my premise that you can't examine a four year old child about things that happened two years earlier you can't cross examine a six year old child about things that happened when it was four and maybe as we move up  the main essential purpose of confrontation is not for the idle purpose of gazing upon the witness or being gazed upon by him which cannot be had except by the direct and personal putting of questions and the answers that's  can't do that with a four year old now i grant you i've got to get past the procedural for now i don't concede  one of the other reasons that this should not be barred is that any any further objection by counsel even if you'd been able to state it would have been futile because he's confronted by a prosecutor who says confrontation is not a problem it's the same thing the other course a confrontation problem the girls are going to testify so the confrontation isn't really something that the trial court is going to reject the n d i see testimony on would have made that objection after trying to have made that objection after all would have been perfectly futile you know i wrote an opinion saying that ten years ago in the supreme court dumped a lot of bricks on my head and i said stop making excuses for lawyers who don't make objections they either make them or they don't if they don't they suffer the consequences the clients i wrote an opinion saying exactly what you just said faced with a solid wall of authority instead of for a lawyer to make an objection we're not going to hold it against the supreme court said wrong i don't mind not holding i don't mind holding it against the lawyers the client who suffers is not the lawyer i don't understand since the court brought it up i don't understand why the prosecutors don't have to make objections or offer evidence under certain we could try again thank you i have seven minutes seven and a half minutes left and i appreciate the courtesy of the court well at the other side argue and then you can respond thank you examined for fourteen pages and then a redirect of one page that's a supplemental excerpt record one hundred two two eleven one about as far as sars examination was briefer because she was one who didn't with respect to the procedure bar there just hasn't been any showing of cause and prejudice to get around it the notion that it would have been futile to object i think is revived by the state court record because the state courts imposition of the procedural default was based on the lack of a specific and articulately objection had he made the correct objection the state court may well have found the issue preserved moreover even if we assume for a moment that it was futile in the trial court to make the objection there's no reason that the state court wouldn't say well the trial court was wrong he did make the correct objection that didn't happen here so there's simply no cause or prejudice to get around the procedural bar but  even if we were to go to the merits as this court indicated at the outset there simply is no confrontation clause issue even before wharton versus fucking any rule prohibiting the testimony of child witnesses simply because they young would have been teagarden after wharton that's that's even more clear in any event in light of california versus green from the united states supreme court which certainly is no clearly established united states supreme court precedent saying confidence issue of the child witnesses i would like to point out something that really wasn't addressed in the briefs each and each of the witnesses each of the younger witnesses i should say the five youngest girls who testified at the beginning of each direct the prosecutor went through the standard competency foundation and asked him questions like do you know what to do yes i'm supposed to tell the truth do you know the difference between a truth and a lie yes and then you ask him questions you say well if i told you that you're sitting in the chair right now is that true or a line and they would say oh that's true and he said what if i told you you're sitting at the circus right now and say oh that's a lie so all of the witnesses were given that captaincy foundation it was before the jury before the truck  the exception of course was c g into nisha t v they were both thirteen and fourteen at the time of trial so they didn't they weren't really the standard you know young child witness and so they simply took the oath in their credibility was on display for the  jury so this this notion that as a matter of law we should exclude the testimony of child witnesses is really rebutted by the facts in this case because their confidence was amply demonstrated by that little preamble that we went on with respect to all of the  sabrina the circumstantial evidence was quite strong she was in holmes at the same time as some of the other girls so he had access to her she named him by his first name josh as someone who had touched her and she mentioned playing the quote thumb in the game which was consistent with his admissions to the police that he had only penetrated the girl so  fairly strong circumstantial case and certainly it would not be unreasonable for the california state court to conclude under jackson versus virginia that a rational jury could find based on that evidence that he was guilty question i really ask people what these kinds of offenses are very badly treated in prison this is a very slight small individual but what i'm after is i do not wish to minimize the crimes here and they're serious and they're dreadful but for you guys to get a life in prison without possibility of parole for this when i look at other crimes violent deaths from various things list this sentence seems to me out of the out of the rang there are a lot of crimes that i think are a lot worst the u c punishments rot lot less what's going on here as you and i is this is not a question legally in front of us i understand that right and the california legislature unlike  prosecutor last i don't i'm just asking i don't recall that your honor but what i was going to say was the process the discretion is limited often in sex cases similar similar to california three the question it seems to me is confident when the two year old would not have the confidence to justify in a court of law i think that there may be a california case that is recognized competence but these witnesses were not put to that test at the trial court they were not put to that test by cross examination they were not permitted to be cross examined when they were two years old when they made the statements that were presented to the to the i've actually met with him and he's not having it easy and it is it's a life it's a life sentence for the line prosecutor prosecute the case moves up the ranks to unit called sock a sexual something or another something or another it's an honor to be in that section and they prosecute pretty much everything to the max  they give no quarter i have a lot of i have a i take exception to a number of things that the trial counsel did in this case is a sacramento county public defender but i do know that he works extremely hard to resolve those cases if an offer had been made that had been reasonable whatever that means if it is presented to him  would have taken it to the court asked the question and the my immediate response was the court asks why do they do this now they do it because they can and that's the only thing that's that's they make their bones by doing ok thank you thank you your case just argued as ordered cemented we thank you both