honor members of the court my name is stephen or morrison and i represent steven brandy i know you have a busy docket today so i'm grateful that you decided to recount under this case particularly because i believe with all my heart that stephen brandy is entirely innocent that's not the issue before this court but i feel like it needs to be said what is it issue before this court is whether stephen on habeas review in district court stated a claim that there was insufficient evidence to find him guilty of the one relevant count of oral sex when the entirety of the evidence at trial is six characteristics my argument is think that's the government's claim in its brief that what we're not talking about is whether brandi stated a claim but whether there was in fact insufficient actually it's another layer it's whether the state court reasonably believed right i think reasonably applied supreme of the evidence are relevant now the standard talk about the sex i just in the understand what the hearing would consist of because i thought we were just dealing with a trial record and a legal question you are dealing with a legal question and if this court reaches the sufficiently the sufficiency question itself and not whether brandi stated a claim then my argument rests on these six characteristics and i would argue that as as a matter of law there was insufficient evidence now like to get to th six characteristics what we're talking about here on the record was the videotapes allegation of the child before trial and the child did not testify as to the one count the oral sex at  trial nor did the prosecutor even ask the child the six characteristics of the entirety of the evidence are it's hearsay it's uncorroborated it's unreliable it wasn't subject to cross examination it wasn't substantiated at trial and it presents as the magistrate said illegally and factually novel scenario based on these six characteristics at the very least my client stated a claim and i would argue that he that the evidence is also insufficient now i recognize that sufficiency review my client would have been an exceedingly difficult time winning in this court what i am essentially asking the court to do is to look at these six characteristics and adopt a rule of law that when needed six characteristics reflect the entirety of the evidence against something somebody then as a matter of law there was insufficient evidence now this is not going to have a lot of ramifications there are i could find no case and the government cited no case in its brief where these six characteristics were engaged to trial the government mentions in its brief accurately the victim's testimony is normally sufficient for guilt that's true as far as a ghost but there was no victim's testimony in this case the victim testified at trial there was no testimony here the evidence was in which we're talking about the oral sex when the rape the well there were four counts two of which were four one of which was a no penetration that was that was reversed in south dakota supreme court because the victim recanted a trial the oral sex count is what we're talking about here the victim made the brandy's attorney could have confronted the victim as to as to the videotaped allegations i was just wondering about that i guess he could have recalled the witness he could have but it's about the timeline my understanding is it was admitted after the child was excused but i suppose brandy could recall him and if it was if it was admitted after the child took the stand then that would i think bolster my case but but after he took the stand after he was excuse after he was excused that would bolster my case but your honor is correct brandy could have recalled the child my claim however is that under these circumstances the confrontation clause was not satisfied speaking the certificate was granted so that to determine whether my client stated a claim but that's been their only thing we're hearing here absolutely right and based on the six characteristics i think he did state a claim on sufficien y you're saying well on whether he stated a claim but also on the substantive question of sufficiency now i see your honor is struggling or i'm not struggling with it and i don't understand what you're talking about when you say  confrontation case well one of the six characteristics that i'm talking about is that the the videotaped allegation was not subject to cross examination if it's not subject to cross examination then we have a confrontation clause violation now strictly speaking your honor is correct that brady could have recalled the child but and this would be an entire wasn't ever raised confrontation wasn't raised in the district court it's not been raised i don't know i don't believe it was first time at oral argument in the circuit that's correct and the reason that i don't raise it in my brief is that that's not the issue upon which the certificate of appeal ability was  the district court never actually determined whether there was sufficient evidence the state would the state would want to argue now that is the question and i think real if you think what do you think the court's doing when it grants a motion dismiss for failure state a claim which i think it's resolving the merits i think realistically speaking this court this court could take on the substantive question of sufficiency without any detriment to well  what you want us to do if you say you've stated a claim you are still remanded tell the judge to basically issue the same order that the state supreme court did not unreasonably apply i would want this court if it decides on the stating the claim issue i confrontation well at that point i absolutely would when that that's already been resolved or with that come back as a new issue i'm not sure it has been resolved since the state essentially ended this  address the legal argument as to whether there was a position of what supreme court case what clearly established law was unreasonably applied by the supreme court of south dakota isn't that really what we need to focus on it is i don't think that there is any clear case regarding the issue we face today this is a case of first impression where the entirety of the evidence is an out of court hearsay uncorroborated and subject to cross examination not substantiated to the trial statement and objected to i'm sorry your honor that was not objected to it was not object assistance claim raised in this and ineffective assistance claim raised in united states district court and that did not survive i believe that's true we believe that's true and it was not victory but what i would suggest is a reasonable person when faced with this type of evidence hearsay out of court uncorroborated unsubstantiated a reasonable person would say based on that nobody can be found guilty and that's the standard now if the case if another case arises if this court finds in my client's favor and another case arises with these six characteristics well the knave got a great case in this but i dare say this is not going to open the floodgates this is an incredibly rare circumstance and in the future all prosecutors would have to do is ask their witness you test you interviewed with the child advocacy center you said  convicted based on out of court hearsay uncorroborated statements and essentially that's my argument this type of evidence in this narrow circumstance is as a matter of law insufficient to find a defendant guilty relief what else i think you don't think we have to go through that route what i would you write the opinion well i suppose by asking this court for a car but perhaps i'm asking too much and perhaps this court doesn't have to impose a car but perhaps this court merely has to recognize that this type of evidence with these six characteristics no reasonable person could find somebody guilty and that that's you that you really mean no reasonable state supreme court could no reasonable juror and i reckon that's not enough because it's yes not on direct that's ok that's true that's what it as i've told my client numerous times this is this is a hideous appeal and it's an incredibly narrow path to victory but i would hope that this court can find its way to finding in favor of my client who i think is innocent and who was convicted in any event  based on some some very tenuous evidence your own as i see my time's up thank you very much  somebody based on a videotape exhibit that was not discussed in the trial where the victim was not even asked about the alleged abuse in your thirty some years i was going come to that it's in in the argument this scenario is not unusual this scenario it's not unique what we have it in a different area and federal law is  back before there was child advocates founders before there was videotaping before that we would ask social workers counsellors what the child had sad and we would get the out of court statements of the child in front of the jury to people for their memory this evidence is so much better in that it comes in a videotape of the child saying it themselves for the i guess it would be the it would be the federal rule of evidence eight zero three twenty four would be if you find your line of cases there that  azure all those cases all or part of the convictions is based on out of court statements actually not taped but made to  filled in the detail and in some cases clearly the counts what sexual act had occurred the court said if the child is unable or unwilling to give the detail we're going to let work because the child testifies and there is the opportunity to cross examine the child that will be sufficient in this particular case the child didn't have the opportunity to talk about the oral counts because no not going into the specific counts that he had that it's very true now to say that was sinister that's the part that's unusual don't you think well that is not usual and yet there are many cases where you ask the child that and the child is unwilling or unable to really say his penis when here or or the touching was here and the fulfilment or the detail of that that count comes from an out of court statement comes from a a a a statement that the child made that is found to be reliable and allowed in  subsequent evidence and that's what we have here we have a videotape that went through with all of the proper review for tender child statements and was found to be i tried to write judge the question did the supreme court of south dakota make an objectively reasonable finding that there was sufficient evidence to convict mr brandy  use the guidelines the standard set forth in jacksonville virginia that in light most favorable to the verdict could any rational trier of fact find this to be guilty and that they answer to both those questions is yes it was i mean it was reasonable for this room quarters out to go to find that an rational trier of fact could find that he had oral sex when it viewed the videotape or the v c r now i guess i have a copy but i mean the court's very busy but if you review that v c r it's it's very clear that the child outlines an oral sex count that occurred on him and he also doesn't contradict in that that there is some mention in the magistra what what the defendant's problem is is he's arguing that the manner in which this is proven by by the videotape he's complaining about that he's complaining about the eviden clearly can't be overturned by this court this is the south dakota supreme court is clearly able to make a ruling on whether or not the tender years exception is appropriate what what really the defendant is arguing is that that statute should be overturned how this evidence was presented should be should be overturned and you can't you can't do that and heaviest belie e he is couched it as an incision argument or a dismissal of his claim but what is what he's complaining about is the manner and the method of why there's substantial evidence in this case and that is the videotape even himself in page twenty of his brief he states that that there is some evidence of oral penetration in this case while some evidence is the videotape and if the videotape is rational is if you view it as rational then we don't have then he doesn't have a case and you're absolutely correct judge the videotape was played after the child has defied the child has divide and no one asked him about the cow the assistant who did the tried the case i thought he did because in the motion for acquittal he argued i clearly did ask the child i mean he just made a mistake he thought that he did ask the child about the wealth around after the child testify the judge made the additional finding under ten years that the child had been cross examined effectively which he have the i mean they asked him all sorts of questions about credibility they asked me about goes they asked him about school they asked him about his troubled family i mean there was affective cross examination a trial attorney the child under rex he put it in my crack well that probably led him to that lead to his defense attorney saying law if we can keep it to that area we can get out of the the first count of penetration but in regard to the oral sex nobody asked neither attorney asked the child question so the child was unable to tell the jury about that by no fault of the child and so this fits in knows if you find it's reliable evidence or if the court finds that it's reliable outside the court's statements like it has in many of those catch all hearsay cases then we have plenty of evidence and we have sufficient probably if she had or if she if this was a direct appeal to her as i read it probably wouldn't have made the finding but you did judge duffy's credit judged credit law to make that finding and she said no i mean she she she did sort of weigh the merits of this case wasn't delighted in how she read the record but made the correct finding the appropriate finding that she could not reverse this and i guess she heard the decision is really kind of a guided this court that's exactly what this court kind of needs to do and you and you're really using it just like she is now to send this back rather point judge about saying this back makes no sense whatsoever this this court must review this record based on on the state record jury trial you can't introduce any new evidence about what the prosecutor was thinking by not asking at what you know you can introduce any new evidence and so the the record is fully concentrated on whether or not the out of court person in brazil had vouched for the for the victim so that was pretty much the state hey b s and then th i haven't you know it's kind of a convoluted if you look at his petition i think the magistrate cites parts of his position his petition in her opinion is it's fairly convoluted but i do not think there's in effect of since the council and i think if you recognize it's it's not going to be effective meaning crockford and the confrontation clause do not come into play when the child does testify which he did in this case and there is affective cross of the cross again but i suppose the argument would be that the defense attorney should have cross exam we called him or something about the oral that was on the tape but i suppose he would say i didn't want to highlight it and he the prosecutor didn't ask about it so maybe the jury will not even know they have a he didn't know the answer that question lighthouse or when the child on direct said he put it on my butt crack that good that gave him kind of a reason why i'm going to go there but i'm not going to go on but he was very effective i mean if you wan read it read the trial transcript his trial attorney was very effective in bringing out areas of credibility in regard to that child that he that he had an imaginary knife  appeared under his pillow that he i mean he did very well and that's all cited independents brief but even above those a jury found him credible and again if you will watch the videotape donna child's voice it is a very believable video i've i've looked at one hundred fifty child victim videos this child has how it feels this child talks about what the conversation they're having when the when the white stuff came out this is how children come from this child it very well i see my time is up i pod yes but let's are other questions we the child was unable to testify he wasn't asked about oral penetration by testifying to it it would have been non responsive and objected to so he was in fact on able to testify and i see that my time's up