appearing on behalf of marvin backing mr backing has been in prison for over fifteen years now based upon a trial in which the only person who is alleged to have been a witness to the crime be illegal and the state has never refuted the fact that mr bascomb could not possibly have sustained the burden of proof which the federal court applied to him on the ice he can't couldn't possibly have done it he wasn't there they didn't bring totally ex parking he was not clear there is no question it's the refuted in this record he was not here he was not represented by counsel the judge called his former lawyer and examined his poor former lawyer without the presence of the defendant and the federal with regard to the idaho versus right claims are two weeks for the trial in this case the prosecutor told the notice that he intended to introduce only hearsay statements of the child  not something that would that the prosecutor came up with because of something that happened in the courtroom it is clear from this record that what bothered both the judge in the prosecutor was the inconsistency of the child's prior statements it is important to understand that at the preliminary hearing the child testified inconsistently with what the detectives and the mother said i trial in this case that she would stay put that she had said additionally and most importantly is that the district attorney's stance the child to a counselor and a counselor testified at trial and basically the counselors testified a trial that she her behavior was consistent with that of a child molestation victim because she denied that anything happened and so every time except for the two occasions where the mother says she woke up from a bad dream and described advanced and the detective says that he went through an interview which was apparently but he also testified that he had no training in the in the in the interviewing of juveniles he had general intercalation training and support and that i think that is one of the indices for you to determine whether or not going to that a supreme court decision was contrary to regard to that but i think what you can look to on the unavailable the issue your honor because that really is the first problem that happens before we even get to the reliability is whether or not the district court was obligated to do something i think that the way that you can to declare it citing idaho versus right so i don't think there's i don't think that i don't know various verses right abrogated ohio versus roberts or other cases in which you just said you have to have some showing of necessity so ludicrous result let's let's but let's take the middle district if you put the children behind a screen and have them testify there must be a feeling of necessity to do that and you must there must be a hearing there must be findings the  back in even a jury has the opportunity to have some testimony and cross examination of the children there must be a showing of necessity but if the child does testify at all so you don't have to show anything which is what numbers just roberts the supreme court the language in idaho versus right which talks about the general requirement of men availability both of those cases suggest that even if you don't have to have a full blown availability determination there must be some determination of necessity there must be some finding before we turn to a casual provision of the hearsay rule and allow what happened in this case to happen because what you know let me just go back there because i think you're trying to focus on the supreme court law so i hope the right have that you know kind of dangling phrase where they can deal with an availability but you're saying even if there's not a requirement for you can read idaho versus right and maryland versus craig and have them make any stance because if you read idaho versus right as the state does to say there needs to be no showing and what  argue is the silence of the record speaks for itself if you accept that then the best thing for an aggressive child molestation investigator to do is to do what happened here you get inconsistent statements from a was that you sent the child to or in the preliminary hearing as has happened here and all that needs to happen is make sure the child knows that if they get if they get into the court room they can just clam up and then they won't need to worry about the inconsistent statements the investigator will not need to worry about cross examination of the child victim and the case can proceed without a witness because they don't even need to show necessity inextricable stance the state argues on the other hand if necessity based upon the fact that the she is nervous when she's in front of the stepfather and all of the findings that are required both by the nevada supreme court strangely enough ten days after the decision in this case as as well as illinois doesn't help us i think the only news from the supreme court that is helpful at this point would be that there must be some sort of determination of necessity i don't think anybody questions that with regard to be our ineffective assistance of counsel claim your honour's the this is a very disturbing i situation that happened here not only because of what happened in the nevada courts with regard to the post conviction proceeding but also because  are similar and you've seen this before from this same public defender's office and that is the practice of the clark county public defender of running your clients on polygraphs for physical reasons  appeal so the representations that were made by the state to the district court and the assumption that the federal district court had that there was some sort of real proceeding that happened in the in the state good morning may please the court my name's victuals and with the attorney general's office of the state of nevada in las vegas there are a number of gaping holes and parkings argument today from beginning to end starting with the application of idaho versus right and the former quite be iowa case dealt with quickly and this was ruled on in white versus illinois those two cases coyly and and craig jelled only with a limited deal with the issue at all white didn't deal with that issue but what white commented on was the fact that the coit case and the craig case were limited only to the facts of an in court protective device whether that be the court and out of court because of this and the craig case in court only dealt with the facts that they deal with which were those in court protective devices if there is no us supreme court c twenty two fifty four d which is the standard that we're dealing with here on reasonable application and deference to state court legal findings if there is no us to pray in court decision directly on point then what the nevada supreme court did could not be inconsistent with a non existent u s investment court could not be inconsistent with a non existent u s supreme court case they left that issue open in that they were attempting to swear this child then the child was essentially catatonic on the witness stand she wouldn't even stand up and raised her hand when the trial judge kept prompting her honey will you stand up this is the time you have to be s the prosecutor said you've got to stand up and be sworn the child was unresponsive even at that point because there was clear of the courtroom environment you don't know what the reason i'm sorry you do not know the reason she could have been unwilling to testify and again i am speculating at this point that she understood the process but she had been through that process one time in the preliminary preliminary hearing simply raising your hand and being sworn and she couldn't do that and she was completely unresponsive at that point in time the district presented a written objection based on koivu the iowa expected that the child may have a difficulty in the courtroom proceeding keep in mind this is a six year old child in a courtroom who's testifying in a sexual assault  s supreme court has recognized that children in that kind of situation as witnesses are different they're not adults you and i would not want to go into court and discuss a sexual incident that occurred to us even if it was voluntary i wouldn't want to do that in a courtroom but certainly a six year old victim of a sexual assault would not want to have to go into a room with strangers and go into those kinds of detail application of idaho keep in mind this case went up to the u s supreme court us from court remanded instead please apply idaho versus right pursuant to their duties under later under twenty two fifty four g baddest supreme court applied idaho versus right they apply the correct standard if they cited the case at least ten times and they did in our view a noble job of applying idaho versus right to the child up she left the bedroom went out into the living room where the mother was and approached the mother without being coached by anybody or without being overheard as she approached mother she is upset mother has no clue what's going on and what's wrong child is hesitant child doesn't want to tell her what's wrong finally gets around mother keeps asking her what is wrong with you and at that point the child's i'm afraid to tell you because dad said he wouldn't you would make him leave not that she watched the testimony where she walked in on the parents a couple of times when they were engaging in sex and she was ordered out of the bedroom virtually mediately now the experience if you want to call it that was when the child showered with apparently with both regarding what the child told the police officer that was and this is another to end of consistency of believability identical statement was made to the police officer and then the trial without any coaching or out any coaxing took the two anatomic dolls and showed the police officer with the adult male doll and the child female doll exactly the positioning that took place when boxing was sexually assaulting the child so not only do you have the use of appropriate language but in an uncoached on your requested portion of that interview child requests the dolls and says here's what happened here's what he did to me and showed the physical positions of boxing in the child during the sexual assaults when when the other child was kept out of the room of the trial judge judge mosley in light of idaho the right i hope the right came down i think in ninety two ninety or ninety two and this case occurred in one nine hundred eighty eight and that's why the we manned the law was clarified during the direct appeal of the nevada supreme court applied right and as i say cited right applied the standard faithfully made findings of fact based on the record that they reviewed based on the testimony and faithfully applied right and we know that under lock here versus on friday when the state courts do that that is the deference means deference under twenty to fifty four g and certainly in our view than of whether or whether any of us like what the supreme court did what the supreme court did was a faithful application of idaho versus right and i would if i could because you're concerned with the issue on availability even though it was not determined in would point out that from a trial standpoint the preliminary hearing transcript was admitted and the jury when the jury and this is this is a related issue but not identical to the issue we're discussing the jury had the in statements before it and could weigh that issue but getting back to your specific question the final indicia of reliability in this statement was the fact that the child took the dolls was it wasn't given the doll correct doll and a girl doll has female doll and he showed the positioning of the different sex acts and that was not requested by the officer it was spontaneous by the child i would point out also since we're dealing with the both the factual and legal issues under under idaho v right which according to the supreme court was the central issue here the u s supreme court specifically said in that case they were not going to apply a mechanical test we're going to leave it up to the lower courts to determine what these elements are so i think it would be unfair for us here in this federal appellate court now to go back and say well you did it wrong justices of the nevada supreme court in spite of the fact that the u s supreme court is that we are not going to apply a mechanical test as to which elements do and do not show this industry of of reliability but the federal public defender basically is right that you have to look at the kind camac the crab reading it and you have to look at the evidence surrounding that statement and the nevada supreme court faithfully did that they did exactly what the u s supreme court said they should do and i think they did trial court judge in the state supreme court both found whether it's an issue or not they found in this case the child was unavailable because she was completely unresponsive when she was on the witness stand oh no i do understand judge noonan thinks that was a little too quick and maybe something else could have been done but the fact of the matter is the facts before that judge were they couldn't even get this child to stand up and your honor you are correct to some extent that i am speculating as to the child's fear are different every legislature that i know of in the country including the federal congress has drafted a lot of statutes that protect children both in the court room their privacy protections they can have an attendant up there if they're having a difficult time you've got the closed circuit television system our state has that you have that i think under eighteen u s c the federal system eighteen u s c eighteen u s c thirty five zero nine i don't know your statutes as well as our state statutes but every legislatures and court recognize that children are different because of the courtroom system now we know that in the craig case you have to make an individualized determination a legislature can't simply say all six year old kids because it's got to be an individual life determination this victim this child they recognize that and craig recognize that united hope versus right but in this case an individual lies determination was made may have been a little quicker than we wanted it to be but it was made on evidence that occurred in the hearing before the judge and i think that's that's fair i think what the nevada supreme court did was a faithful application of idaho versus right my time is out there a couple for me adam stand up now and raise your hand for us ok prosecutor your honor i think going to use conditions i think if the witness on able to testify well and then go on and get a child is not required to testify with regard to the  what can you be confident that what happened here was not that this child did just wake that from a bad dream with a lot of sexual knowledge this was and she was in a one room apartment with her mother with practised exotic dancing in front of her she had taken showers with her appearance in her mother testified that the child had huge sexual intercourse between the parents can you be confident based upon what's happened in these proceedings that didn't happen here was that she woke up from a bad dream and that that went for that in a minute that she got out from under mother because remember mother testified at the preliminary hearing that she was present during the interview with detectives and of it she said that she actually even describe the question consider any of the circumstances that would show that the statements were not reliable such as the fact that this child in the company and the chancellor of the district attorney would not confirm the testimony that they presented before the jury such as the fact this mother was breaking up with her husband that the first thing that happens the next morning the next morning when she didn't take that child to the hospital or test when the child has this bad dream talked about it she doesn't s refuted the reliability of the testimony they would not do that and that is an unreasonable application of idaho versus right the other problem with this and i think change me tonight is the one who started along this road is that court simply said the district court did not err in its determination of reliability the district court did not make the determination that the nevada supreme court made the district court did not go  spontaneity repetitions that's it that's not what the the trial court did that is an unreasonable application of idaho versus right to the mechanistic i would suggest application of idaho versus right in order to be able to  affirm the conviction for the second time they had already dismissed appeal once when it came that they go through the factors but the factors that they're going through were not factors that were examined by the trial court the trial court never made those findings the trial wanted to my question was i mean it does give me back to well i guess the two of you are from california one from texas you know don't gang up on the guy from texas so here's here's the line up as i understand it you have five minutes that's correct your honor and mr ware will have eight