confession in which he implicated mr atlanta was admissible at trial and to protect from the prejudice of that and the confrontation clause problems the judge severed the cases however he then  in through the back door we say what he had excluded from the front door because he allowed the investigating and interrogating officer to paraphrase the co defendant confession they asked about the written decision to separate trials it's hard to figure it out from the history of the case but was it can you represent that both they were severed for the double burden problem which is that there were confessions by both the defendants so both of the firms would testify in the other defendants case so that's the confrontation close close i think there were confession i would say that mr orlando did not confess appellate court upheld the introduction of the evidence regarding the co defendants confession on the ground that it explain the detective's actions in the course of the interrogation and it explained their effect on the defendant and certainly explained why your client went from defendant statement was true or false this is it is that i mean the you make the point in your reef that the only way the statements relevant is if it's considered to be true right  you make that argument in your brief as if you don't know if it's true or false it has no relevance why is that though assume it was on the roof suppose that she knows statement that orlando paid him to commit the murder was a lie in that actually let's say you know in orlando both participated in the murder in some other way one that left you know a little bit more culpable under those circumstances it seems to me in meeting genoese statement as part of what the officer told me and go before orlando changed his story would still be wrong because what makes it more windows statement more likely to be oh i use the fact that it was given after he him so in that hypothetical the inference does not depend on the truth of what you know so that even if you i'm not conceding that even at that shows that it was a lie but even if you were to conclude that it showed that that does not prove his guilt or innocence it proves that he gave a false statement which may show that he had a consciousness of guilt which may be some we evidence of something but it's not proof that he paid the two critical things that the prosecutor said that he did that proved his guilt was that he paid the codefendant that doesn't show that he paid the codefendant and it doesn't show that he lifted the sweatshirt at the time when there was absolutely no forensic right i know that you don't think it's strong you think it's a big us but that's a jury question right i think that there is a the critical question that i think and i want to go back to tennessee v street and just go back one more step and talk about crawford  prosecutor here says any time there's a not hearsay purpose tennesee view street stands for the proposition that that the testimony is admissible and st i would argue is doesn't do that streets we still have to consider brute that is an essential ingredient to our now says bruton requires us to ask is there a significant risk that the jury is going to decide consider this testimony for its truth and in this case i submit to you there is a very strong chance that they're go consider it for its truth because that was the that was look the truth was what they were arguing that that was the truth that what he said was true that was their case that he paid him money based on the latest hundred dollar bills found in their respective homes so there was a significant risk that they were going to be able to think who would not follow the jury instruction which said like bruton don't consider it for your for its truth don't in britain that's and don't even consider it at all this case was kind of confusing to the jury what they could consider it for but i think the it is essential that brute is not a dead letter tennessee v street does not make britain a dead letter you still have to ask is there a significant chance that the jury is going to misuse this evidence and use it for truth when the defendant did not have an opportunity to cross examine it and and if i could just continue finish the thought that this court's analysis in u s b race it's really quite similar although it preceded crawford but its analysis here was quite similar to what was done in st it's like a probate of prejudice analysis that has to be that's how you protect the confrontation clause it has to be critical to the government's case not just some relevance it has to be critical the defendant has to and invited somehow there are no alternatives to it and supreme court cases such as burton crawford and in particular tennessee v st but disagreement simple disagreement is not the standard here as the court is aware this is a very deferential standard unreasonable application of broom in this case no it's not your honor petitioner here in the case that he was paid for hire that's what that's what the prosecutor argued and in the mation that this is a murder for hire case if you're ever in to help him the co defendants confession comes in that's where you have your honor the statement did not come in all that came this this case is different  came in your honor it was in a case like street or even like us for your area is where the witness got on the stand and said this is the conversation i had this is the statement that this is the statement this is the accompli statement all detective mcginn testified to was that he walked into that room and told petitioner this is what he testified this is what i told petitioner now that he  defendants said that he was the murderer but that mark orlando had paid him to do it and your honor there was unlike in britain where the that the accomplice a statement was offered was that's not good enough but you're on of the reason the confrontation clause was implicated in britain is because the evidence was offered for the truth the matter asserted in some manner at that trial for the other defendant here it was not only evidence if the only thing the jury had to go on is what office and begin to testify about what the co defendants and you you're in trouble your honor the that was not all that what what was there well first of all i'm i would like to make clear the people did not have to prove that this was a murder for hire that wasn't an element that was on there it was argued your honor and there and the prosecutor was permitted to argue that because argued and there was no other evidence of it then obviously the statement by mcginn was being used and promoted to the jury for the truth of what it's in your honor that there was circumstantial evidence of the payments like what there were identical new hundred dollar bills in shoe boxes found in each defendant's house but but that you see news they were they were piles of course sponger dollar bills but most people were gamblers i mean and then and i orlando's home and there were four and joe's how how and it there's no d n a evidence there's no testimony that those one hundred dollar bills that the victim had with or that had been somehow otherwise linked to this that that's the first answer the judge jacobs question right ok so you get for one hundred dollar bills you get ten one hundred dollar bills so what your honor that was the circumstantial evidence payment but what the people had to prove here was that petitioner aided and abetted in this murder and there was overwhelming evidence of that first of all motive petitioner was the one who had something to gain by mr calib being out of the picture here that was argued to the jury even if the only theory argued to the jury was that he was hired and the only evidence is for one hundred dollars bills one place and then another then it does start to sound like this statement matter that what your honor that was one theory argued to the jury but the evidence of the fact that this was a two man job that this murder was planned was overwhelming and that's what the people had to prove  don why did you bring the seventeen thousand dollars with him he could just kill him and then you have to pay well your honor i mean it's it's not a definite that he brought the seventeen thousand dollars with him but the seven to contest the seven will the seventeen thousand dollars was never found but but the the evidence of the fact that the petitioner aided and abetted in this murder was not only his mode of there was also forensic evidence the fact that he lied in his second statement and said that you know it shot up bobby calibrates from behind him and the autopsy established indisputable that bobby caliber is was shot from behind and he was facing carefully planned execution and that for example coworkers testified that the week leading up to the murder that very uncharacteristic for mr janeiro and petitioner that they were off by themselves they were eating with everybody else they were off by themselves talking about something just the fact that you know accompanied petitioner that night was very suspicious because that was not the practice the practice was that petitioner was the man who would meet with mr calibers very often in a public place in broad daylight in the parking lot in front of in front of where petitioner worked on this particular night seven hundred thousand dollars in gambling losses you know want to do it in the open  on this particular night surveillance footage had petitioner driving up and down a dark in street with something obstructing his license plate the prosecutor argued it was it could have been a piece of tape and cell phone records a stablish that shortly thereafter that footage taken petitioner called mr calibers presumably to tell him oh we're not going to meet at the spot we planned we're going to meet on this dark deserted street there was ask you but another piece of compelling evidence that the district court cited and that's the testimony of barbara diana who testified that the morning after the homicide the defendant called her she called the defendant and that he i was going to deliver the seventeen thousand dollars when i got there joe jumps out of the car to unbeknown to me as a surprise to me goes should some three times and that that's his story whether it's true or not how is the diamant testimony inconsistent with his story the defendant's story your honor i would think that it's inconsistent with petitioner story but what i would say is it fits into this pattern of very erratic behavior after the murder that demonstrates that this was not this was not the normal reaction of an innocent bystander this man is claiming that and this is why the second statement was such vital evidence to both the prosecution and the defense this man is claiming that he was an innocent bystander that he knew nothing about this that that he the only reason he didn't go to the police was because you know have threatened his life and threaten the lives of his fans but that's the hope to dispose of the bystander he was lisa accessory after all your honor he claims that he knew nothing about this murder that he did not plan this murder and his actions did not speak to that and continuing with your question your honor of just that the fact that called people on the phone and calmly discuss this murder even though he was claiming that that is you know that you know did the whole thing and he was just in fear of he went to his friend's house at nine thirty at night that night to look at the  he's saying that you know would let him go into his friend's house by himself and look at a desk at nine thirty at night and this is the actions of a man who just witnessed somebody commit a murder and he had no idea it was going to happen but your honor the second statement the reason it was this was basically petitioner's defense without him ever having to take the stand and that's why it was very important to petitioners case that he had to have the jury believe that this is the truth this is what really happened it was equally important for the prosecution to over overcome that defense to be to be able to show jury step by step how this statement came about what was the petitioner state of mind when he made this was he really just in fear of juno was he really just a good guy that suddenly had a change of heart and was telling the police what really happened it would have severely undermined the accuracy of the inferences the jury could draw from this evidence if they had not been given the the whole picture our last argument in other words it's essentially the rebuttal argument now i recognize you didn't take the stand i really know i saw in your brief that you said it was only done after the ruling was made but the reality uses it's right in the statement is disney saying the state and the reason i didn't say this before is that is that i was afraid and so it was it was up an avenue for the defense lawyer to drive a bus down unless the statement could be explained no i don't think there was any obligation on the part of the state to use the defendant statement in their case in chief they wanted to use that because they had no real evidence in this case so they relied on like everything that he said as true except the parts that were  case all the circumstances that they say are so strong in their case then they why did they need an explanation from the detective about the statement it didn't it just didn't explain what parts were true and what parts were false it didn't my experience is in federal court however i did look at the state court rules about the obligation to prove voluntariness and it's do the rule the rule says that essentially there are certain ways that the defendant can challenge the voluntariness of his statement he must do it in a motion to suppress even if he doesn't do it in a motion to suppress and even or if he doesn't it's rolled adversely to him he can make it an issue for the jury in which case the prosecutor needs to prove the voluntariness wasn't part of the charge the part of the charge was that they could use the statement if it was involuntary in truth they are just beyond a reasonable doubt was in that part of the chart i don't think they said voluntariness beyond a reasonable doubt they said they had to had to prove that it was voluntary and true this they're claiming was false then claiming the statement was false that was the significance of that not that it was true false in part true in part but the dr was confusing because they didn't tell the jury what use it could make of those portions which it found were false we are don't we said what you could do if the parts that you found abetting by itself right even helped dispose of the weapon unless you're going to you would have argued duress the state really is not going to use that statement i'm not saying that that if i were the prosecutor i wouldn't have used the statement i'm not saying that i'm saying that in in tennessee v st which is the case that as you know spawned this litigation it was completely different the defendant testified it was and they were relying on the defendant's confession folie for its truth and he was saying that confession was not true at all and that was critical and it was it was a challenge to the