we're here on this court certificate of appeal ability to review the question of a violation of mr james the sixth amendment rights to confront a crucial witness against him at his jury trial there is a single question it's based on crawford versus washington and the prior cases that ohio be robertson barbara page which is was this witness yolanda smith who testified to the defendant's full confession with many many details unavailable why she unavailable because her testimony came in not through her personal presence at trial but through the reading of her transcript from her preliminary hearing testimony answer is that the prosecution acted at best with indifference to his constitutional rights to confront her and at worst with an almost purposeful effort to keep her from appearing at trial i don't know where the answer lies along that age it's somewhere in there it is nowhere near good faith or what the california supreme court refers to the california courts is due diligence the of course i briefed this extensively it's very fact defendant case by case analysis here and i don't have time in my ten minutes to you don't have to make that shelling because i see that there was a warrant out for her arrest and i will find that she has been the firman of lee avoiding arrest on that warrant so even if you had tried even if you had contributed anything because they were the court's findings that they weren't going to get her no matter what they did well if they did it's not in the court's findings the court more than once in the record said specifically i am making this finding based on this warrant that's how that's how you're going to get this in because later on this record show when that warrant was issued you know this is the problem the defense attorney attempted to find out the prosecutor refused to provide it and the judge agreed with that so i as i say first it's an unreasonable application of the law because the government was totally relieved of its duty to show good faith or mark that's what they said the defense attorney was never allowed to see it it never was put in the record do we know if it was in the warrant system well that was the testimony of the officers that they found it on their computer like three days before trial began when they finally began looking for her there is nothing in the record to say when that word came out well i don't know how a trial court could conclude that she had been actively court i think down the peninsula cinema taylor's some place south of us it was it was a terrible record on which to make this kind of finding and deprive this man of his right to confront this witness and that was  where the prosecution put on witnesses to try to establish all the good faith efforts they claim to have made in the course of that the testimony came in that the officers just just before trial began two days at the most before the jury was selected maybe three days and found had gone to the computer and found this warrant it's one hundred thousand dollars and eventually the information came out it has something to do with the credit card fraud the defen attorney tried specifically asked i need to know that the date when did it come out while the judge said i can't make the government i can't make the district attorney investigate their case more than they want to judge never asked to see orange i don't believe if you did nothing in the wreck it didn't get put in the record i don't know why such a secret but it was like this big secret which really you kind of wonder i mean under all the facts of what went on here a christian could really be could really be excused for thinking that there was an affirmative effort here to set up a good faith showing that wasn't based on anything that i wanted to let the judge go off appellate court adopted the trial court's ultimate finding which is it would have been futile you know they don't say the appellate court did not say specifically because of this outstanding warrant but it was clear they were going right down the line with the trial judge and that's and that's what the federal district court judge said also it would have been futile and the only grounds on which anyone could say that would have been the trial court's identification of this warrant the trial court had no grounds for saying that because first there was no showing she was avoiding it the only evidence in the record at all about her knowledge of that is that the the agents working for the prosecution in the day or two or three before so if she knew about it that's all we know about how she might have known is that they told her now what did they think was going to happen when that information got out if it was a really hearing they continued it over and over again to get her in there because without her they had no physical evidence they had an alibi testimony just interested alibi testimony from the people at the hotel that he was there from two fifty five to three twenty five when the teller at the second bank robbery said it was three o'clock very close to three o'clock when the robber entered the bank he has very strong alibi evidence he had other witnesses he made a the most distinctive thing that those witnesses talked about was his speech and his walk that's how they identified him and i would point out to you that while you cannot make a black person cannot mimic an asian person or a white person you know a person with brown eyes can't mimic someone with blue a six foot six person can make a five foot five person but anyone can mimic our anyone can make a speech these are not things that are specific to this person and had yolanda smith living in a hotel full of accusation crack addicts and crack dealers decided that she wanted to set up someone to cover i don't know i'm speculating  these are very real possibilities here and things that could have gone with this trial she could've done it she could have gotten someone to mimic his watch she could have you know there's no physical evidence there's no surveillance photos one that's very even the prosecutor said to the jury don't look at that it was so bad you couldn't tell the bank robber had on you know baseball cap in the big bulky jacket all these things that bank robbers do to hide their identity without you know longest minutes they had one eye witness at each bank with inconsistent testimonies and certain points who were relying on physical characteristics that could be easily mimic without her they had not only not a confession which is huge they had no money no gun imploding not without your lawn just minutes no plotting no no one could put him there in the location standard finding the prosecution's efforts were reasonable in this case the state court reasonably applied this clearly established supreme court law to share it disagrees with the state courts determination in this saying that the prosecution should have begun their efforts earlier and that they should have undertaken additional efforts to locate the witness the state court specifically addressed each of these contentions and reasonably rejected each of them in turn to the state court noted that while the prosecution could possibly be faulted for not having started its search earlier any effort started earlier would have been her testimony if not exhaustive were at least reasonable under the circumstances and such a conclusion was certainly reasonable given smith's efforts in avoiding police officers in the week before trial as well as her outright refusal to testify at trial in addition there was a warrant out for her arrest which she knew of how do we know she knew it because officer roberson testified at the due diligence hearing and when he spoke to her she already knew about the warrant and she was concerned that officers wanted to rest her and officers in this case tried to assure her that they just wanted her to appear at trial they did not say that they were interested in arresting her on the warrant and if the officer testified yes and that is if you could you just point me to the part of the transcript where the officer testified that he she acknowledged that she knew the word was outstanding yes and that is in the excerpts of record page seventy assumes that if the prosecution had started looking for smith earlier they would have been able to secure her presence at trial again her uncooperative attitude with the police in a week before trial demonstrates that  was not true in addition because that arrest warrant was in the system at the time of trial there's no indication that smith would have wanted to appear at trial and risk being arrested on that warrant regardless of when it issue for whether the prosecution should have undertaken additional efforts to secure smith's presence at trial the court reasonably concluded that additional efforts were not necessarily so long as the efforts undertaken were reasonable the course conclusion was a reasonable application of established supreme court law which requires only that the prosecution's efforts be reasonable not necessarily exhaustive branches they both immediately spotted him when he was walking into that lineup and knew that it was him they positively identified him at the lineup they noted his distinctive lamp one of them notice sloping shoulder that she had noticed earlier during the bank robbery and they both recognized his voice they also both positively identified him at the trial and they were unequivocal in their identifications the also surveillance photos from both banks of the robber based on all of this evidence the state court reasonably concluded that any error in it meeting smith's prior testimony was harmless unless there are any further questions i'm prepared to submit the matter you on the harmless error standard i just want to emphasize to you the law in the hideous matter it's not whether there was enough evidence to support the verdict without a doubt the standard is whether the evidence that came in here improperly had a substantial indian jury as a fact or influence in determining the jury's verdict this was extremely powerful evidence and the government was determined that it must have it to proceed with the trial and i understand that i don't know what district attorney who would have gone to trial with a single eye witness with inconsistency in their testimony on this kind of evidence when you had alibi evidence also  and i just want to finish with it actually it's an anecdote i hope you'll allow me to do this i have been a prosecutor for probably four five years now the robbery trial had robbed him the jury acquitted and i course was convinced that there had been some miscarriage of justice here however in a completely unrelated situation about a year and a half later another young black man from the same the state court of appeal and saying that the efforts that were made were reasonable has to be an unreasonable well turn and i haven and i really disagree with their position on that i've also was that there was an unreasonable determination of the facts yes i did yes as i said there is nothing to support the judge's entire finding which is she was avoiding arrest on this warrant for that whole six weeks that they had he spoke with her in his opinion she already knew about the warrant and didn't trust him and thought he might be trying to arrest her he also at one point did testify that he told her he wasn't that wasn't his interest in arresting her but later on he also testified that he never told her that he would not be arresting her they didn't they didn't take that extra step of reassuring her that she could come in and  testify they wouldn't act on it but even still we don't know when that when she learned about it we don't know if any efforts were made to execute it we don't know when that was issued we don't know anything the trial court knew nothing and simply  no other word for it really or really revealing the court of appeal and its determination it talked about the warrant then it also talked about the efforts to contact her the six telephone calls the three meetings they set up with her all of which she refused could fail to come to and these efforts are reasonable under this or under the circumstances and it's clear that under the circumstances means what the trial court found which is more i was out and she was avoiding it under those circumstances don't remember that and then is the defense attorney continue to ask the court just to tell him what the date was and the prosecutor wouldn't release it and there's nothing in the record to say that it didn't come out that she didn't find out about it the day before the officer talked to her well then what were they doing in the six weeks between the trial study and that conversation there is nothing to show that they couldn't have with it as soon as they move the trial date go out there and try to find her that they couldn't have  her grandmother this with her on the phone just her grandmother just once when they knew that she had direct contact and that you didn't and never went back to see her again they never asked her who this relative wasn't really all they never asked for addresses or information i mean i don't know phone conversation with her with smith there were many phone conversations all of which were i don't want to testify well let's meet at starbucks i mean how many times are you going to do that they waited a week into trial before they even put information