moffatt on behalf of petitioners in both cases briefly with respect to the facts unless you've got to hear no need for the facts very fine just get to your best point all right very good let's get to we believe we're entitled to the noble review and i'd like to get to what the state and we actually seem to agree on here and that is do that let's let's forget all the procedural stuff and just talk about this is a pure chronic case and just decide whether you're on the right side of that line what's your best argument as to why you're on the right side of that line i don't follow question perfectly i'm sorry but just to just say that you know that this was a critical part of the critical stage that's the that's the chronic point ok counsel was not there when the judge went on the nd visit to see the lighting right are we on the same page yes ok let's just talk it straight up to novo review what's the case that says you're right on this point the van vs the jones will tell it tell us what happened in that case that says it obviously wasn't on the lighting of a parking lot in a judge visiting for the nd time i'm going to guess well let me try and even cut more closely to the point if but i'll tell you why i'm not sure you're right about chronic just in a pure genova review ok the other side of the critical stage line is the admission of evidence which is often subject to harm the sort of error review which you need to get away from right you want to structural error right you want to show structural air or that is jurisdictional or ever it is you want to call it the side of the line that is not helpful to you talks about cases with admission of evidence that are white the exactly ok and what isn't this case look a little more like evidence i mean that's the whole point to see what the lighting was like  pervades the entire trial i believe that this finder of fact in this is the judge going to a scene of course and there's only one eye witness in this entire felony murder trial and i  fact witnesses they all sound evidentiary findings of fact on the one witness that's all evidence that's what i'm struggling with opon it is about you know pleading guilty these critical think that satterwhite does not apply here i do not i think this pervades the entire trial because the entire trial is that eye witness and to say it's just evidence i mean this is the entire trial it pervaded the entire trial because this is the finder of fact who went there and had his opinion completely twisted by say what he saw individually and there is nothing in the record regarding that the scene was the same as it was those couple years at that time before there's nothing in the record about that he just went out there and said all i see it's well let so therefore the witness must be telling the truth are must be credible and case with the result be the same if the jury with a trial and if not why not well because here we know what the trier of fact actually thought when the jury speaks we don't know what they thought but here the trier of fact was the judge and he said it was even even more important to raise an objection at that point if you think the trier of fact has been prejudiced by extrajudicial activity here and that that even give you more of a reason to object well i think we're going back to a procedural aspect now i mean i don't see i think that's what i i mean i i think it's evidentiary is what i think i would view for a point where i don't see the judge making a ruling depriving you of counsel and that's what chronic is deprivation of counsel and here counsel wasn't present but i don't see the operation i wouldn't say it's deprivation i would say absence you don't have to have your council taken away or some lot of things absent for but there's not an objection we don't normally reverse person it's a jurisdictional defect you don't have to object to it as we know from powell stage of the proceedings and here they did not have counsel at a critical stage of the proceedings to try in fact went out there himself without any notice to counsel and without any counsel and came back and reported it at this point going to change the result or not there's a duty to reserve objections not with respect to absence of counsel at a critical stage what why why couldn't you on ring this bell why why wouldn't it have been appropriate if counsel really thought this st prejudicial to say something the judge denies it is we'd like to go back same time and i and ask you what you're so why you think this shows it was well that and explain to you why we think things have changed in the last two years or why we don't understand your on ring this bell i know what i know what you're i know what your doctrinal answer is but tell me practically why you couldn't go back with this judge and just say we want to do this with you because we think this is important why couldn't you the next night assuming similar weather conditions why couldn't you have done that get it practically speaking do you really think we could change the judge's mind who decided to go out to a scene all by himself without any evidentiary foundation to whether the scene was the same and came back and says this is what i saw this is what i found this is what i decide you can't talk to a guy like that frankly i don't know i don't know very difficult to under rebel like that kind of bell that would go out and do this kind of thing if that's what you're asking me well you know he had practically sitting in it you know we don't know maybe you just driving it's on the way home for all we know but the point is he admitted it i don't know why that says he can't look at it with you if you think there's some critical stage of the proceedings the lawyer needs to be there explain explaining what the judge did see and didn't see i'm not that's not obvious to me well he's a fact finder i don't see that you can explain to him what he saw  he didn't saw it necessarily he saw it and he decided and we didn't know what he decided in till after he gave his recitation of his findings in the case he didn't come back and say hey here's what i think right in the middle of the trial he saved it till the end so we don't really know what he thought we aren't really sure to what extent he was misinformed we the entire extent of the prejudice couldn't be clear in my belief arik well we don't wish to hear the procedural aspects was that clear he wanted no no no i just wanted to cut to the chase you can talk procedure all you want i just wanted to hear your answer to why there's really a chronic violation without all the procedural problems but you're free to argue those as well well there's a chronic violation because there's an absence of counsel it doesn't have to be private it's just an absence and there was no notice that this was going to happen which fits into some of the cases and there was no counsel there these are beyond question so we definitely have an absence of counsel and there's really no question that it at a critical stage of the proceedings  it's one or two cases sorry with the best one or two cases that if we go look at it will say eureka there is a chronic problem here or the johnson verses are pissed and johnson versus serves us isn't that that's the it's a wholly different line a case absence of counsel in a critical stage of the proceedings of the jurisdictional defect and i don't know what your best case with a chronic violation that's similar to the judge visiting the scene of the the murder i'm not sure there is one that clearly i mean the court of appeals discusses federal case law and itself it concluded that this was an absence significant consequences from the denial of counsel at that stage and i don't think you make a strong case about the significant consequences it's sort of very price there is a balancing that goes on to this and th at same vein there was a lot more evidence base than just the one eye witness very well but i think there is significant six circuit precedent that when there is this came back with his picture council i went to the scene the here's the picture i'm going to introduce this as an exhibit trial both counsel so i had no objection your honor to the unit action of this picture of what you saw  would that be a chronic violation i'm saying you can't an right you can try and keep evidence out of trial but you can't write what's in the finder of facts mind would that question is would that be a chronic violation yes ok because he introduces an exhibit that counsel was not present when the photo was taken well that's a violation of consul that happens in criminal cases all the time by the way that exhibits will be introduced that one side will take this one i don't think that counsel wasn't present when the photograph was taken but there's no deprivation counsel is there i think there's an analytical problem with that question tell me talking i mean what tell me what it is that i'm trying this is about the finder of fact going to the scene finder of fact is rather than that would never happen your honor having actually takes picture here it is it's a desert island example it would never happen it did not happen here i mean we can analyze these things in the same concept your theory is pictures worth a one thousand words being there is worth ten thousand words that must be used in the same and there's no deprivation of counsel for exhibits that are introduced without objection without counsel having been there when that picture was taken i think to say yes entry but i wasn't there when the evidence was taken to reduce this situation to a mere evidentially problem is to trivialize it by using what i think are desert island examples and extremely atten says visiting the scene of a crime by the fact finder is a critical stage in the proceedings that's critical not a clearly established law by the supreme court correct your honor in what's been donald which  i think both of them cited that's the exact holding of that case that said if there is no critical stage of our season if the supreme court has not held a specific stages a critical stage that dooms a claim for purposes because there's no clearly established federal law on that point under michigan law does the phrase outcome determinative error equal plane air yes your honor that's the plain error analysis that is i believe the  you have a procedure that the state has in force is it that's the failure to object at the right time if you play an error of you and they fail so that's the quote procedural default that means no claim in federal court unless you can show cause and prejudice right so usually that's what happens right which usually leads you down the ineffective assistance road right which hasn't been raised here ok so where what's the what's the ruling of the state court that gets at the deference and this court so one second and leave it was just was there so in other words i could see someone saying if they have an analysis that says this wasn't even air that sounds like a ruling that would get at the deference but when it they say it's not outcome determinative a hair that in my head gets a little complicated as to what if they said it was wrong but just not plainly wrong i think that might be a little different your honor yeah but trying to figure out that's why i'm so i mean i read the state court decision it wasn't obvious to me whether they were focusing on the it wasn't clearly wrong as opposed to it was wrong at all point that's what's hard for me well i don't see where they say that i best case for how this is on the good side of the chronic line this is more like putting in evidence as opposed to critical stages like plea bargaining or having counsel present when testimony is going in and all that well i think this persuasive but how would it how would all work under chronic no deference at all the there is an expert that's hired on behalf of the prosecution and the job of the expert is to come in and just say  here's here's the way the lighting worked at that time of the day and it's really like this and maybe did some to demonstrative evidence to try to maybe put the lights down in the courtroom and did some other things to show to a jury imagine it's a jury and so this expert comes in and gives all this evidence to say what you could see it at night whatever it was when the crime occurred with this kind of lighting and that whole expert that's the only job of that expert that whole experts testimony occurs without  for tests in my example i have an expert witness who has just one job and for that whole whatever it is half hour counsels not there at the trial i think that's a little bit that's no objections are allowed nothing direct i think that why is it different i don't understand why it's different because here there were there were objections allowed the this is the court came back put it on the record said this is what i observed is there any any point to be made on that that subject and both attorneys for edwards and royster said no there's nothing they could have objected said you your honor you can't consider that or your honor we need to go based on my hypothetical after this half hour half hour the expert explaining how the lending worked on the night of the murder which shows you what the witness could or could not have seen it's done the lawyer comes back god knows why he was unfair but you get to make these things up so he wasn't there  and now the lawyer hears about this and goes are you kidding me i can't to quote your friend on the other side i can't run unring the bell we've got to start all over here well i think it would depend on what what exactly was admitted how much evidence was amended here again if that was the crucial part of the case this expert testimony everything about my examples the same as your case then i think absolutely you could you can on ring that bell there's it doesn't it's such a minute part of this case there was significant other evidence against these people all it really went to is the slighting aspect as is the weight of the testimony of how you evaluate the credibility of this witness and again there there was already testimony already evidence from her testimony saying that the lighting was good i was able to see see mr royce or mr edwards i was able to identify them you can sufficiently separate out what the judge saw from the rest of the proceeding the rest of the evidence and say well yeah this was harmless there was there was all this other evidence there you know as mr edwards tossed the gun another case and another different ball that  counsel if the prosecution's expert goes out to the scene on his own does all this investigation on his own without defense counsel be there and then comes in to the court and only evidence and you can cross examine the evidence and there's no there's no right of counsel to be at every stage where evidence is gathered that's all right i think that's the better analogy ok moffat you've got i think some rebuttal thank you respectfully i don't think that is a good example for this case the prosecution expert goes to the scene and comes back and submits the evidence that's not what happened here that's not what we're examining and that's to say that if you have an apple and an orange is the situation and then come back and say well what a fruit presented the evidence no it was apples and oranges it was finder of fact prosecution expert there is no relation of that example to this situation whether the jury did it rather than the judge say the jury is the dryer i don't think you gave me a good answer would be a deprivation of situation because we're talking about a judge that the finder of fact i don't think we have to try and project onto a situation that didn't occur here conceptually or otherwise that's not what happened this is very specific it's not review and so a certain part of the analysis by the state court because this case is very different i mean it's obviously a harder case for you if applies so how do we deal with stuart it's because it does sound like it's on point  do you have an answer to how to thank you with that point i can't there are cases that forgive me fourteen for frazier so your point would be stewart's a problem but it's not there's no reason the should play stewart you have this other line these other lines of cases where you don't apply at the deference that's what you're saying these other cases are all cases where there was plain error of you in the state court and that the deference wasn't applied to part of its ruling is that what you're saying i'm saying that these cases are earlier than stewart those cases of not been overruled by an on bank decision of this court and there there is tension there that i'm on able to resolve here that undoubtedly the th circuit will have of those cases sorry which is the best of those other prior stewart cases making your point for you i'll say the most recent one frazier his the most recent one i'm not sure i could discern between them they all are to the same effect i would notice that judge guy in yourself questions we're having here it had three questions it was about whether a shotgun should have been admitted into evidence it was three questions it had nothing to do specifically with the absence of counsel at a critical stage of the proceedings and i have discussed it at length that page twenty one note seventeen of my reply in the roister case i don't have the time to go into great detail on it but i did there additionally with respect to satterwhite  this court in vancouver says jones did an exposition of critical stage doctrine from the sixty's to the eighty's and it did not even mention satterwhite it said that chronic continues to be the dominant decision in critical stage doctrine i don't think this court can apply satterwhite and try and parse out harmless error here i think all the precedent in this circuit is contrary to that and there is for example us vs ross we see no reason to create an exception to our established rule to complete the provision of counsel during critical stage warrants anything but automatic reversal without a consideration of the prejudice there is a difference in the way edwards and royster is were decided by the court of appeals your honour's may be aware of this yet we are ok i think we understand aren't very good  d your time is up to rough it so thank you very much we appreciate the briefs from both of you and for your argument today grateful for this opportunity i thank you the case will be submitted the clerk may call the rd case