not reach that alone because something far more egregious happened here and that was the prosecutor's conduct what the prosecutor did here was told the jury that the person referred to as the guy and the guy with the gun in  or your colleague on the other side of the aisle has made the point that at least as to the standard for free due process type of this kind of violation is not something that was specifically raised below those questions about procedural do we need to get there were is the essence of your argument really that the misconduct is the specific constitutional right sure that branch misconduct that's referenced in donnelly and not the due process violated in this case so you know really what the prosecutor did was was to connect the dots well yes exactly connect the dots but and the question could then there be a confrontation clause violation through that linkage well first the u s supreme court is don't say that you're not allowed to continue to consider other evidence admitted at trial and back to engrave the court is that there are some contexts where the risk is so great that the jury won't be able to ignore that retracted that grass is to focus on the kind of in france but it still points to the feats of the statement how does how does green call in tussled with the victim over her purse and then he shot her in the chest and he threatened me with a got i mean everything here is is incredibly accusatory of someone this mystery guy guy with a gun and especially in light of the  prosecutor's comments later saying you know what jerry that guy with god was mr lambert then that then you know if it doesn't cover that then really the constitutional protections written provides are farmers because the prosecutor can  well i think they would have to your you know i don't know your honor i can't say exactly what they would have to do to the statement but they would have to be a sufficient reaction or there is always the option of severing the tiles and the confrontation clause important enough that it trumps the prosecutor's desire for efficiency we have to protect these rights and really what we saw here is from the beginning even even before this statement was admitted we saw the prosecutor using garcinia statement even in opening talks about a struggle with a purse that comes only from me that's not from mr cheatham that's not from the police officers that testified none of the admissible evidence against mr lambert talks about a robbery a struggle with a purse and even cheated on who does give inculpatory evidence against mr lambert although very suspect evidence for the reasons discussed in the green even he cannot say who was the shooter yet the prosecutor comes out misconduct that is as an application of frazier and in the wrong to the question of whether there was with that was error there was prejudice that because it is impossible in this set of facts to say that her comment perhaps leading i did not directly link to not really  yes because if only the admissible testimony only be admissible evidence against mr lambert were considered they would have been no robbery conviction it is illegal in possibility there was no evidence to support their convinc inside and there was there is nothing there that would support a robbery she also did not he didn't see the crime he didn't see this year he didn't see this possible that the prosecutor referred to so many times over the over the during the course of the trial they sought to admit those statements by garcia and to use symbols for going to the other guy but there was nothing that was said by the prosecutor closing or but that but then don't you really have a case that really files in the room with with frazier with the courts is that you're not you're not sure he's not being asked to perform any mental gymnastics considering an incriminating statement this was a yes in the witness never came to the stand it's right here we actually have a statement only the statement that was read twice to the jury that that directly implicated someone mystery man as the shooter and there was one person of blank were deleted were that's the neutral term that the supreme court itself suggested and that is the term that is used throughout the reaction statement here wouldn't you were  was what was going on at this trial who was accused of playing what role and how incriminatory the statement was you know even without mr lambert to me included what are the characteristics of the statement if you're asking us to say this is a statement that as a matter of the wrong could not be redacted that severance was was required there were no permissible reactions that would equate to a confrontation clause violation how would we distinguish the statements from the congregation has rights but then it wouldn't serve the purposes that the prosecutor wanted it to serve if back concession that is that there was some way it could have been redacted then don't we have a problem here because defense counsel trial counsel found that there was a preserved brewton objection and so the federal court can impute any sort of waiver for failure to specifically objects to the language that was used in the reaction when the state court found a way and one of the reasons is inconsistent verdicts and the potential result of that this case actually i think provides an interesting example of that you have these two individuals and my point is right it is something that black box and they get out of the car we actually don't have direct witness about what happens what scuffle happens and the jury comes back and they come up with a second degree verdict for garcia and a first degree verdict  actually believe that if this trial had been severed we'd be here today arguing about the first degree verdict against labor versus the second degree verdict for garcia those opens the door to that that's a good reason why we don't several these trials and of course your honor someone put the rabbit in the hat by saying other than administration there are a lot of murders unfortunately in philadelphia a lot of these are codefendant cases and the sheer volume would be before the court the question is simply as your honor noted earlier the question is whether or not this can be cured through instruction and the supreme court hasn't ruled on that in the pennsylvania supreme court decided based in part by this court's opinion and that seems to be in frazier what the court identifies as the relevant criteria to determine prejudice and isn't it the case that each one of those points one hundred eighty degrees the other way when it comes to the facts of this case i would disagree particularly as to the third point i don't believe this point is lytle at all i think it's actually exceedingly an important what we're talking about is the time after the crime when garcia and labor go it has a lot of evidentiary value as to garcia who was trying to pretend that he really was shocked by everything that happened it really has no evidentiary value as to lambert it simply didn't matter what happened after the crime as not arguments need to the state court under the admin and then also this what this court must do is they must look at the legal arguments presented to the state courts and we're limited to those arguments that's not merely a procedural default analysis analysis you must look at the law the arguments the facts presented to the state court let's say hypothetically there were eight or ten problems with the closing but only one is briefed to the pennsylvania supreme court you have a whole new argument before you hear to make it sound much more appealing but the pennsylvania supreme court made reference concluded there wasn't prejudice because among other things it said that there was simply an isolated reference to name  something to take into account and looking at whether the pencil mr krikorian unclear because you remember to do the arguments lead to the pennsylvania supreme court and if the pennsylvania supreme court was told there was one break in reaction there was one problem then to federal court and say here's some better stuff and then have the federal court look at it if the state court is only presented with a limited argument that limits your argument remains in federal court it cannot be deemed under reasonable closing brought to their attention and we look at it is as an isolated reference to the other things that they're considering seem to go to the strength of the evidence but here in terms of ch things response first off the jury asked for the statement we don't know which offended they were thinking about when they asked for the statement it would make an awful lot of sense to me if they were considering garcia's culpability if they wanted to see the statement as to garcia to see if they really did believe his statement that he didn't do anything and he was simply the driver and second i would dispute your honour's perception that there was only this witness these individuals i'm sorry garcia and lambert were found together later that night with the gun that is proved to be the gun used to shoot mary adman's and that don is direct evidence as well about what happened it does c supreme court law and i think the reason is because this jury looked at schiedam this jury believes cheated neither of these verdicts could have come out unless this jury believed she them garcias test garcia statement let's think about him just for a moment he says i was just the driver i was just there and i mean i had no idea what was going on i have no idea there's the best evidence against him is schiedam himself and he really is the primary witness against everybody and the jury believed him yes he had these words he had these problems but the jury believed and the jury saw an appellate court doesn't get that opportunity and when we're reviewing harmless error prejudice brecht all these difference interests we have to factor that in we have to factor in credibility determinations that were clearly definitively and absolutely reached by the jury and when you have a case that does hinge on one witness like this one it is very plain what the jury did the jury pool leaved cheatham and garcia statement didn't corroborate that actually it impeach it garcia statement said she them did it that's it if we are to presume as my opponent argues that we the jury looked through that statement that they believed they thought it was lambert and she had him that were being named if that's true then that statement impeached she it had to have because what conceal was saying was i was just there driving she jumped out of the car ramberg jumped out of the car and they ran over and they robbed and killed this woman clear that we can no longer use the unreasonable fear to extend doctrine that this court had been using and in vast as they actually describe the holding of gray and it's as gray hell that redactions that replace a proper name with an obvious blank the word delete a symbol or similarly notify the jury that the name has been deleted so that's an admission by this court that gray itself is limited but what they didn't bounce is which was valid under the law of this circuit at the time was they said what's the next step identify what the next step was and they determined it was unreasonable not to go there that is no longer valid law after what all and that's how we get around baskets as to washington respectfully your honor i the case itself did not have much explanation and seems  very brief brief briefing before the court i think with more time and more litigation on the matter of a better result could have been reached i would encourage the court if they think there is a problem and if they have if the and it seems to a agree with the proposition that there would be no point redacting and otherwise incompetent statement if that measure could be deliberately undone by a lawyer and it is saying frazier frasier all the concept of mental gymnastics by a jury seems to turn on the effect of a statement and misconduct on the jury not on one we're looking at the state court's opinion we're not working to parse the language what we're doing is we're looking to the decision the supreme court's been very clear about that this isn't about reading the paper this isn't about well there's one mistake there there's another mistake there  the court needs to do is they need to take everything together and see that if the decision the ultimate result isn't reasonable i would argue in this case it isn't but if there is a single misstatement and i agree with you judge ross i believe that it is the overall impact  intentionally if the decision in the case is not reasonable then one that misstatement in the opinion is not controlling and it's not this positive not under contrary to not under unreasonable application washington decision that was denied the panel in washington considered right versus what all and in fact determined that it was not extending the supreme court it was a court of law and wipers is what all itself as well as yarber out describes described that there is sometimes a fine line and a parent lee it was not cost here and what the court did in washington was to apply the fundamental principles and that's also what i'm not in the court to do involves statements that the state reaction obviously refer to someone often obviously to the defendant and those are in princes of the jury couldn't make even if this were the very first piece of evidence that that is absolutely the case here that is a fundamental principle and an house that it was not an isolated break that only reveals to the jury that that the guy at the house was mr lambert this is one state that it is very clear in the context of the statement that this guy the guy with  the point i mean a few moments ago about how the one great in the reaction really exposed the other guy mr lambert throughout and so that that's why it doesn't matter whether there was a specific