a case where there is no dispute between mr buchanan and i on on two issues and the first issue on which there is no dispute is that the major issue with trial was petition or state of mind act done in the throes of a manic episode brought on by mr pawle or parlays bipolar disorder that prevented him from premeditating and deliberating his act those were the three defense theories of the stack and point on which there is no dispute between mr buchanan and i and that is that the trial court committed six evidentiary errors in this case one a federal constitutional dimension and five state law variety they have a sort of interesting symmetry and that is every time the trial court erred in admitting to evidence it was evidence that went against the defendant the petitioner and every time he excluded evidence that would have been admitted that would have helped his defense right correct i don't dispute that i don't dispute that the dispute between the parties is whether the california court of appeal unreasonably applied chambers of the mississippi when it the state court decision should be a pell first we know that the decision the question of whether the cumulative effect of errors rises to the level of a prejudicial due process violation whether the defendant was  of a fundamentally fair trial requires application of a general rule and if the united states supreme court said in yarbrough vs alvarado the more general the rule the more leeway courts have in deciding error harmless error review which is essentially what we're doing is the cumulative nature of the evidence and the state court to our mind reasonably found that each time the trial court erred  excluding evidence that was favorable to the defense there was other evidence already in the record that supported that position and similarly every time the trial court erred in allowing the prosecution to present err committing the prosecution to present evidence there was already properly admitted it properly admitted evidence on the same points let's just focus on to the trial court excluded evidence that the the victim the wife in this sort of war of the roses relationship these folks had had two or three weeks prior to the event threatened to kill the husband right correct and the defense wanted to put that in the judge said no that's correct and it enough for point in the trial the prosecution wanted to put in a evidence that five years earlier than the  homicide the petitioner had threatened a law enforcement officer correct in the case of holy unrelated to domestic violence correct on the second one how do you on the ring that bell how do you present other evidence that only rings this the veil of this improperly admitted evidence about the prior threat to a law enforcement officer the fact that the evidence that the record is feels literally filled with m against others threatening to kill and maim the friends of mary believes all the time she threatened to kill mary all the times you threatened to kill christopher all of that was part of the admitted evidence i i agree the trial court erred in allowing the jury to hear about the threat against the office to the state court of appeal held that air did not prejudice the defendant because there was all this other evidence of mr was that an objectively and reasonable determination that we might reasonably disagree on the act isn't enough and i submit that it was reasonable for the state court of appeal to the term and i'm sorry you're on just  purposes of or using the language we're using can you you know example half hypothetical of what you would consider to be an unreasonable objective leon reasonable rulin three cases before it ok you're asking me for an a v ph case in which this court has found unobjective lee and reasonable rules i should know that and i could find that out for your honour's i don't have one on the top of my head i just haven't found one yet and i'm starting to wonder if such a beast and was in congress and well i let me say this in williams we know i wish i could do better than just cite back to your honor's the language of the supreme court in the supreme court said it's not enough to just be erroneous the it can be an erroneous ruling but that doesn't make it quite as tall as when it is not  hasn't told us what it is your honor i would be happy to find i'm sure they exist cases in which this court has found a state court ruling to be objective and reasonable who how about combining it with another event in the trial in this case the trial court excluded evidence the defense wanted to put on about the probable impact of bipolar manic depressive behavior on the defendant's state of mind at the time of the murder right correct and the trial judge eroni asli said you cannot put that evidence in right for  that final argument the prosecutor argues to the jury about the absence of evidence of manic depressive behavior affecting state of mind right that's correct as well ok doesn't does that external event help us in the analysis of this particular exclusion i'm sorry external event being the prosecutor yes well the prosecutor's argument hurts my position obviously unless the state court of appeal in in rejecting that was was reasonable and they argued well the defense had other evidence there was other evidence before the jury from which they could have concluded that his bipolar disorder kept him from premeditated and deliberating now the response is what the prosecutor argued that there was no response to that is the prosecutor isn't always right in the jury isn't always going to believe it just because the prosecutor told them that that was the case again it gets back to the state court of appeals determination that each one of these  court's decision to be unreasonable i think the one that's most pertinent here would be thomas versus harvard because that's a case where the ninth circuit found a state courts analysis that to me a lot of errors such as we're talking about here and particularly cumulative evidentiary errors to be on reasonable and i can't define unreasonable for you i think you're honest correct that the supreme court hasn't definitively defined it and that kind of puts the ball and your lap to decide what is reasonable and what isn't reasonable aside from thomas versus harvard we've cited a number of cases in our brief where the ninth circuit has found state court decisions to be unreasonable including taylor versus maddox bailey versus rae and i'm sure there are innumerable other i think the fundamental flaw with the state's position in this case the basic logical and legal fallacy with it is that they are trying to defend the state court's decision that merely because this evidence was cumulative of the other evidence that was presented at trial that by definition makes it harmless and what judge also did was he looked at u precedents to determine whether that is an objective fully reasonable way to a now to to it and to me to go about determining prejudice and judge also concluded based on decisions like chambers and crew which and hawkins that it's unreasonable to simply label evidence as cumulative without looking to whether the effect of that improperly excluded and improbably admitted evidence could have shifted the evidentiary balance and in chambers yet what which also found was that the evidence that the improperly excluded and improperly admitted evidence in this case was just as damaging to the defense as the improperly excluded evidence in chambers and i think chambers is a perfect example and i think judge judge also explained it at great length why chambers supports his decision that it's an objective leon reasonable to merely label evidence of it as cumulative chambers itself is a case where identity was the issue and chambers was arguing that a fellow named macdonald committed the murder while chambers was able to present at trial the luminous evidence that macdonald committed the murder there was evidence that an eyewitness a long time friend of mcdonald saw him commit the shooting there was evidence that another witness at the scene was looking at chambers at the time of the shooting and testified that chambers did not commit the getting that was also presented to the jury there was evidence from yet another witness that macdonald had a pistol immediately after the shooting and then there was a written signed sworn confession that macdonald made that was admitted at trial in chambers and read to the jury and is that that were not announced they were yet an there was yet another witness who testified in that trial in chambers and who contradicted macdonald's alibi defense so chambers had ample ample evidence to dispute his identity as the shooter and identify mcdonald as the shooter and yet in in chambers itself the supreme court still finds a due process violation based on the cumulative effect of the errors and the most notable errors are that chambers was on able to present evidence that macdonald had also orally confess the jury that was cumulative evidence the point is when you have an extremely close case as we have here when you have evidence on both sides you cannot simply label the evidence as cumulative and find it harmless on that basis because it could have been what tipped the scale and that's what judge also found based on cruel which based on hawkins based on chambers that's a perfectly reasonable analysis based on u s supreme court precedent and the reason the state court's decision was unreasonable is because this state you can look through that entire fifty eight page opinion by the state court there is not one of reference to the strength of the evidence of premeditation or the strength of the evidence that this killing was not committed in a heat of passion and recall that it's the prosecution's burden to prove both the prosecution bears the burden of showing that the killing was not in the heat of passion all the defense needs to do is raise a to determine how strong was the prosecution's case how clear was it that this was a first degree premeditated murder versus say a second degree unpremeditated murder or voluntary manslaughter and judge also precogni the state has conceded that there was in fact plenty of evidence in fact the state says on page fifty seven of its opening brief there was a substantial amount of evidence that mr parr acted under this sort of provocation which would cause a reasonable person to yes and i think the answer that is that kind of analysis that is inconsistent with chambers could have been said in chambers as well there was evidence that macdonald committed the crime there was evidence that macdonald confessed to the crime there was evidence that chambers did not commit the crime but the because the case was otherwise so close the evidence that was excluded could have made the difference and with respect to dr chapman dr jacques men's testimony your honor that evidence that was excluded was absolutely critical dr jackman was the defense the expert who had reviewed the defendant's medical medical records who had viewed the tape of this interrogation on the night of the crime and he testified that based on his review of those records mr mr parra was suffering from bipolar disorder type one which is characterized by manic episodes and that in fact he was suffering from a from a manic episode at the time of the crime so then he wants to tell the jury well why is that significant what difference does it make consequences or alternatives they tend to act think and behave in a relatively rational manner that testimony is stricken stricken improperly and that goes directly to the core of premeditation and deliberation what i think that was even similar to what i just testified from dr jackman's testimony his testimony there went directly to the core of premeditation and deliberation the definition of premeditation and deliberation in the quote the citing a holding called people versus nine and you and says in california this type of testimony is it miscible and was wrongfully excluded it doesn't go to his capacity to deliberate it goes to whether he was actually deliberating or premeditating the crime you can testify as a psychologist in count in california about what the symptoms of a manic episode would generally look like for the jury to evaluate whether someone suffering from a manic episode was actually deliberating or premeditating the crime so that issue has been resolved as a matter of california law in this case it's never been contested that testimony should have been admitted and it's harmfulness the harmfulness of the it's exclusion is particularly in pick up eric when you look at the closing arguments because when defense counsel tried to argue that very point to the jury in closing argument that dr jackman's testimony indicated that his client probably did not have the ability to premeditate deliberate the crime he interrupted with an objection from the prosecutor the objection is this thing he can't make the argument he can't use dr jackman's me to show absence of deliberation and premeditation and then when the prosecutor stands up and gives this republic argument he says this he tells the jury there was a he refers to his objection to defense counsel's argument there was a point that i objected during his argument the reason i objected is that there is able to exercise good judgment and that's when the prosecutor says objection sustain the prosecutor asks to have the last two or three sentences stricken and the judge says well the arguments of counsel are not evidence and then the prosecutor really hammers it home in his final rebuttal argument where he says to the jury flat out over defense objection the evidence here is that bipolar disorder has not been testified to as diminishing a person's ability to premeditated or deliberate acts all so he's telling the jury dr jackson's testimony is not evidence that he's unable to premeditate and deliberate and i think it's the cumulative impact of that error in particular with the error in allowing mr parros own psychiatry just to take the stand against him the error in having mr parros own medical records used against him in violation of the privilege that makes that this whole the cumulative effect so devastating to mr karl's defense and that with respect to the mr parros own psychiatrist her name was dr kaiser and dr epstein us directly contradicted dr jackman so this is really a double whammy type of error dr jackman testified that mr parlow was suffering from bipolar disorder type one the more severe form with manic episodes dr epstein is wrongfully admitted testimony says the contrary he's stuffing from bipolar disorder type to a much less severe form not characterized by manic episode so you have dr the defense being cut off at the knees in its attempt to use dr jackman to show a lack of deliberation and premeditation and at the same time improperly admitted evidence on the prosecution's side by the defendant own psychiatry is taking a stand against him and contradicting dr jackman's testimony and dr epstein is also testified the defendant did not exhibit any manic behavior during the time she was treating him that his mental problems are under control with his medication the week before this doubting when she last saw him she testified that the defendant never made any specific complaints about mary's conduct totally undermining his defense of provocation she testified the defendant had unusual thoughts and thoughts of hurting others long before the homicide and he identified his wife in particular as the stressor that made him ready to explode and the prosecutor of course used this evidence in closing argument to  premeditation and deliberation the prosecutor his whole theory of premeditation and deliberation was that the defendant wanted to get rid of mary because he identified her as the source of all of his problems and the prosecutor says at page three five one six to one steffan remember that he sought psychiatric help and he had thirty four out of thirty seven problems including ready to explode and ready to blow up why i got a wife who i can't stand can't stand or mr in any event mr parnell thought that night he really thought that when she died his troubles would be over so the prosecutor actually used dr astin this is testimony to bolster its case of premeditation and deliberation and again what's critical is how all of these errors interacted with each other individually perhaps we would say they were harmless i don't know i have doubts about that but collectively when they impact together to put additional weight on the prosecution side of the scale and takeoff weight on the defen type of the scale they're devastating on the one hand you have his own psychiatry is testifying against him improperly on the other hand you have his expert not being allowed to present his full story on the one hand you have improperly inflammatory evidence of threats against a police officer that have absolutely nothing to do with this case that the police officer testified in his entire seventeen years on the force he'd never taken threats so seriously and then at the same time you don't allow the defendant to testify when he takes the stand about the threats that the victim was making to kill him the week before this whole incident occurred he consistently throughout this trial the trial court was taking evidence away from the defense and giving it to the prosecution and again i want to return to the basic point which is this was a close case the state concedes that in a close case u s supreme court precedent clearly indicates that and even assuming that you know loosely so somebody could say the state courts analysis was ever under chambers what can you support the proposition that was an objectively unreasonable i think you're getting to the the only one i know of cumulative evidentiary error is thomas versus hubbard now i think an example and i don't think it makes much difference whether when you're talking about prejudice whether it's cumulative error individual error and i think another example of an objectively and reasonable analysis of individual error is the supreme court's decision in williams vs taylor and in that case the us supreme court that dealt with the prejudiced aspect of the strickland analysis for ineffective counsel and the us supreme court did find that the state courts analysis of prejudice in that case was objective leon reasonable for two reasons one of which i think is pertinent here and that is that the state court failed to accord appropriate weight to the body of mitigating evidence that was available to the defense attorney and was not presented at trial and i think the same analysis applies here the state court failed to accord appropriate weight to the body of evidence that this was a heat of passion killing either voluntary manslaughter or second degree murder and that the cumulative collective impact of all these errors as they interacted together could have decisively tipped the scales against the petitioner and that that's what application case we're judging the court's decision not its reasoning process so if this court can make the conclusion that the evidence here on first degree murder was stronger much stronger than the evidence supporting voluntary manslaughter or second degree murder it doesn't matter what the state court never expressed least made that same mistake secondly i'm a little confused on petitioners argument with respect to chambers and the cumulative nature of the evidence in chambers i thought i heard him to be arguing that because the united states supreme court in chambers did not say the evidence is harmless because it was cumulative in other that the fact that evidence is cumulative can never as a matter of law factor into a harmless error analysis and we know that's not true this very court in the first opinion in this case stated the fact th petitioner was able to testify to a plethora of other threats made against him by his wife made the erroneous exclusion of other threats harmless because it was cumulative this was not a chambers  wholesale denial of the right to confront and cross examine an adverse to witness a violation of the right to present witnesses in his own defense it was an exclusion of evidence the supreme court subsequent to chambers has evidence we declared unconstitutional in chambers significantly undermined the fundamental elements of the defendant's defense that is not this case the arabs did not significantly undermine the fundamental elements of the defendant and that we can reasonably disagree on that question doesn't make the states court objective leon reason must the court has any further questions i don't see any thank you for your argument counsel thank both sides for their argument very interesting