charges and sentenced to life in prison he has been in the custody of the state of california for over nine years following a trial in which is right to counsel was violated and the verdict was based on in from the simple factors that undermined the fairness of  raises several issues which i believed weren't released i would like to take the time available to me this morning to focus on two that i think rendered the trial fundamentally unfair and deprive mr m buttons for example in this day court record is where a significant aspect of the proceeding as occurred and that is the jury here was out for today they were deliberating for two full days and they asked a question that question was clear on that point thank they they were they were clear but not the to this jury this this jury requested guidance and i think that's precisely the problem here when the judge simply referred them back to the instructions and did not allow counsel i would concede that that proving prejudice would be very difficult given the instruction that was requested however i don't think we get there i don't think we get there because i think that in answer to the earlier question i think that this was a critical stage of the proceedings chronic from this court that is the anytime the judge communicates to the jury it is it has consequences for the accused and it is they are then i think chronic that's what we're raising here and i think that's how we get back to the chronic case i think that that we can really just english this court's decision and rose arce and not find that there is a problem if today this that would be at page eleven eleven where the court says that they are deciding this this case under federal rule of criminal procedure forty three that's the issue that was before the court it was not a question of the sixth amendment right to counsel as we are the what the respondent would have this court do with the norris case simply can't be right it is it's not just the number and it's not just the fact that it was a message here the fact that there was a photograph of the victim and as the poor points out the victim in this case was at least as far as the defense was concerned and aggressor and as a result that message sends to the jury was clearly was clearly that it was a message indicating most of this year wasn't really more than a message with a were the well that's one of the things i wanted to point out i think there's a void in the in the declaration as to how long they wore them and there's an indication that they wore them but they were there wearing them the first day that you see that's france saying you're mistreating  prejudice passion the trial judge was president and saw the buttons and did comment that i don't see that there wasn't a legend on them he did see them when there was no request for them to be removed well i can appreciate your your view on what it might have conveyed that this was a nice guy and he wouldn't be an aggressor my counter to that is that that it was  there had been no self defense to show i would say well all it showed was that you know somebody help this guy and somebody should be you know and this is a nightly class this guy and we hope somebody is brought to justice but it won't really say anything in particular about but i don't think that's the only one or the one that should be drawn i think that it was simply the victim's family remembering the victim and i also would like to point out on the this is the subject of self defense all the other circumstances so i think i can't be certain of this that there isn't a case law dressing whether this is structural or not but holbrook itself certainly has an element of prejudice built into it  look at it and say would the buttons present a risk that people would the jurors would consider the question that whatever of whatever you think that the buttons present other not directly answering back question i do think the circumstances of the buttons are distinguishable from norris and that you do have to look at how many buttons how big and what did they and i frankly can't remember whether i and state court i handled this in state court and i believe there was an a b s with a requested response i can't remember what i did in terms of trying to dig that out but i may have been found that no one remember correct but when the but when it was brought up on appeal that the state court they had not seen them but that they felt that there wasn't sufficient evidence presented to them to morrow and i think that decision was reasonable that the that th seen cases on making the distinction between critical stage in the context of presence of the defendant and critical stage in the context of a counsel at least in circumstances across a meeting these  that in certain critical stages we can't know what the impact of not having a lawyer is and we don't do harmless error right right so what's the line are we saying that there's simply and  nuance i don't know the answer to it although the chronic and some of the cases like that with putting forth the broader propositions certainly involves an error or an absence that permeated much more  about this where we have agreed upon a structure and with counsel present everyone's agreed that these directions go forth and a judge just simply saying referred back to those whether that's a wise move or not but that seems to me to be a stronger overall argument was that there was clearly established frame court authority that this that this was a critical stage whether it's substantive or not meaning answering a jury's question th that's what i'm saying but but i think this case on this claim should succeed or can be disposed of on the the fact that there certainly are more clearly isn't supreme court authority the first time that the motion for to have the buttons removed was that was the first time that any information was provided and in the record regarding the description of the buttons and then it was the next time i'm sorry when was the next that was that is correct and i believe that's that's my street that is quite quite i was going to answer the earlier question that a remained for the fact finding in that regard would be helpful but i do believe there is sufficient evidence in the record regarding the size of the buttons when they were worn