misconduct that took place during the rebuttal closing argument during the trial but the misconduct that took place throughout the course of the case the district court held that portions of misconduct that mr ross cited to in his brief other than those that took place during the closing argument were procedurally defaulted but i'd like to discuss the other issues as well one of our assignments there is that the district court misapplied the procedural default standard with regard to the closing argument itself this case bears a remarkable resemblance to a case this court decided a few years back called hodges hurley that case actually based the reversal on ineffective assistance of counsel was actually a higher standard than we're dealing with here that case also dealt with allegations of sexual abuse of a child it also dealt with comments by the prosecution on the credibility of the witnesses during closing argument it also dealt with misstatements of the evidentiary standards during closing argument it also dealt with mis representing the the nature of the expert testimony during closing argument attacks on the defendant's character and asking the jury to put course this was at the point where mr ross's counsel didn't have a chance to respond to any of these arguments it being rebuttal but the most egregious example was the prosecutor asked the jury to put themselves in the place of a parent with two children one of whom is being bullied he asked them to do it not in the context of convicting the defendant but in the context is using their common sense about whether you would question further yes your honor but it's still an emotional appeal it's asking the jury to make an emotional decision about how to treat their own children regardless of the way it's put it cast mr mr ross in the role of the bully and the jury in the role of the parents  these children who are making these allegations regardless of the way it's put it's still an emotional appeal and it's the sort of thing that smart during closing argument you can't ask the jury to decide the case on their emotions to decide on the evidence the prosecutor also vouched for the the rest of her own witnesses he she said straight out these kids are telling the truth she accused mr ross counsel of intentionally confusing the children and she said something to the effect of she's not surprised that attorney with thirty years of experience was able to confuse a couple of kids she peculiar mr ross giving coach testimony she said that mr ross was unable to answer a question until he went outside in the hall and talked to his attorney she accused mr ross of leading a lifestyle that showed he was a child abuser there's no connection between child abuse and any sort of lifestyle was ever made to the jury if i don't have that in front of me your honor i believe it was she did say she said to the jury you're here to judge his wrongdoing those are her  hugged it should also meet that standard here and that requires reversal and one of the instances of prosecutorial misconduct that we weren't allowed or that the district court decided was procedurally defaulted was the comments that the prosecutor made during closing argument about the testimony of the experts both the defendant's expert and the prosecution's expert regarding the prosecution for child abuse an expert is not allowed to state whether or not the accusers are lying they're not allowed to offer an opinion on that the prosecutor said he didn't say they were lying he's not allowed to say they're l again the prosecutor said he doesn't know this child he's never met any of them mr ross's counsel actually asked the court for permission for another expert dr peterson to interview the children and at the prosecution insistence that request was denied dr peterson would have interviewed the children testified as to the results of that interview he was allowed to so the prosecution attacks dr flair saying he's never met these kids he was not so peterson had met them now he was he was not allowed interview them here are the trial court wouldn't allow it the prosecution i don't understand the difference what if what if the court had allowed peterson he still wouldn't give then dr peterson would have been able to testify in the prosecution wouldn't be able to say their experts don't know these children well you're telling me that and dr peterson had met them no your honor he wasn't permitted to because of that the prosecution was able to say their experts don't know these children it was a stretch the prosecution is taking advantage of a situation they created by preventing mr ross's experts from actually interviewing the child all peters and was the expert he was one of the experts that we named but he was actually allowed to testify because he never got to interview the children we had we had named him as an expert to interview the children dr petersen's an expert on sexual abuse he deals with a lot of  retired veterans at the v a in dayton he would have interviewed the children and been able to to say whether their stories are consistent with stories given by children of sexual abuse prosecutor misstated her testimony the prosecutor claimed that dr masel a said false allegations are very rare what dr met sally actually said was that false accusations don't come to light very often she said pretty infrequently the prosecutor also made one final appeal to emotion by telling the jury they didn't have to punish the kids because of how the adults around them behaved another of the issues  that the district court decided was procedurally defaulted was the leading questions that the prosecution used during the trial itself  these rulings on defaulted issues no i don't believe it did your honor the how do we deal with that i've been struggling with this issue myself i was unable to find any any research on it it seems to me that this court has jurisdiction to review the decision the decision on the certificate of appeal ability made by the district court i can't imagine any other way that that could be challenged other than in this court but usually us you  issue the leading questions leading questions were huge problem throughout the trial mr ross's counsel objected it didn't do the trick that trial court repeatedly instructed the prosecution to avoid the leading questions and was repeatedly ignored the trial court didn't do anything about it for instance the prosecution was interviewing or examining one of the complaining witnesses who was identified as b b prosecutor asked him when you said that the defendant would start touching you counsel objected that was the stain so then the prosecution asked what would happen when even the defendant were watching the movie boy answered he would touch me in another  little bit later the same or similar question were you told not to tell about the drugs or the sex acts a little bit more specific boy answer now there's an objection it was overruled then did the defendant ever tell you not to tell him about the drugs it was an objection that was overruled the boy answered yes then did you tell you not to tell about the pornography boy answered no get another direction that was overruled to the defendant ever tell you not to tell him but the sex act finally the boy answers yes the prosecution finally on the sixth question got the answer it wanted and stopped this is a great example of the leading questions the way the prosecution led these boys to testify even after having prepared them for the trial the prosecution still use the leading questions during the please the court i am hilda rosenberg i am representing the warden there are only two issues that are properly before this court the first is prosecutorial misconduct based on allegations which have not been procedurally defaulted and the second is a brady issue with respect to the grand jury testimony contrary to petitioners claim a certificate of appeal ability is required on procedural rulings based on procedural defaults they did not seek i see a way on any of the procedurally defaulted grounds in the district court and while they claim it was unnecessary the supreme court disagrees in the case of black versus mcdaniel the supreme court indicated that the right to appeal is governed by certificate of appeal ability requirements and they explained how one seeks a c o way on a procedural ruling the court said when the district court denies a petition on procedural grounds without reaching the prisoner's underlying constitutional claim a should issue and appeal of the district court's order may be taken if the prisoner shows at least that jurors of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling that the district court in this case specifically limited the certificate of appeal ability to not be faulted prosecutorial misconduct claims and to a brady issue with respect to the grand jury testimony if the petitioner was just satisfied with that certificate of appeal ability he was free to ask this court for an expansion of the certificate of appeal ability to include the default claims he did not do so turning first to the prosecutorial misconduct claims the proper standard here is the dardenne fundamental fairness test were the comments so pervasive so egre that they amounted to denial of a fundamentally fair trial and therefore constituted a due process violation of the correct standard is not hotch in fact it would be for this court to base its determination on the case and this is pretty applying door that's correct but the supreme court has specifically criticized this court in the  parker case for making these types of comparisons with prior circuit court precedent the court in parker stated referring to this court and it stated that the prosecutor comments in this case were sufficiently similar to certain comments held unconstitutional in its prior decision in gaul to that they rise to the level of impropriety the court went on to say as we explained in correcting an identical era by the six circuit two terms that go they cite the renick ok so circuit precedent does not constitute clearly established federal law as determined by the supreme court it therefore can cannot form the basis for haiti if relief under the a supreme court specifically said that that kind of comparative analysis was improper that the that in deciding whether there is a prosecutorial misconduct claim under the court has to look at darden and darden is very instructive on this point many of the circumstances that were present in darden are also present in this case and one of them is the provocation by defense counsel in their closing argument the court and darden determined that this was one of the bases on which it decided that there was not prosecutorial misconduct in darren's case like in darden in our case the defense counsel a closing argument that was very inflammatory that relied on evidence outside the record compared the case to the richard jewel case where an individual was falsely accused of terrorist activities compared the ross case to the salem witch trials where children falsely made false accusations he further accused the children of being coached at least five different times during his closing argument when there was no evidence of coaching in fact the children were asked specifically one of the children beebe was asked you know how many times did you meet with the prosecutor when did you meet and he said i met one time immediately before trial and that was the only information on the record so there was no evidence of coaching yet they were he he made that accusation several times he could have been coached by any of them that's true but there was still no evidence of coaching and and that was one of the things that the prosecutor was responding to in her comments one of the other issues was in jordan that the court looked at was the presence of a jury instruction that was very important in that case there was an instruction that argument is not evidence and the same instruction was  present in ross's case in fact the judge instructed the jury to that effect at least twice during his general jury instructions and then once during the argument the prosecutor also emphasize that point in her argument including in her rebuttal and in addition the judge instructed to jury that they were the sold people who would determine the credibility of the witnesses that the jury is presumed to follow the instructions of the court unless it's that there is information that shows that they cannot and the second thing is that this was not a case like that this was not a case with agree just comments for one thing many of the issues that mr ross's counsel presented as examples of misconduct were procedurally defaulted the leading questions issue misinterpretation of the state's expert witness those two things were procedurally defaulted and should not be considered but in any event most of the comments were direct responses to the provocation by the defense counsel and and also another point that's very important is  that russ his counsel said there was no opportunity for him to rebut these comments but there certainly was an opportunity to object and for the most part he didn't so some of the comments that he went over were the so called golden rule violation where you're not allowed to put yourself in the shoes you're not allowed to say please put yourself in the shoes of the litigant and both the district court and the court of appeals viewed the actual comment made by the prosecutor as an appeal to their common sense the the district court said this was a completely proper appeal to the jurors common sense about how to interpret a report from a child as opposed to asking them to emotionally identify with parents of abused children so basically what the prosecutor w saying is if a child came to you and reported something was wrong and then you had another child who just wouldn't just wouldn't say anything i mean they just were so upset and then when they were told my first child said something they started crying when she would have an obligation to follow up and ask them what happened this example was given by the prosecutor because the detective followed that same type of questioning the one of the youngest youngest children in this was a little boy by the name of justin he was ten years old when he testified and these acts occurred when he was much younger and he wouldn't be forthcoming initially so the detective had to prod him a little bit and because of that the defense accused the detective of being suggestive and this comment was a direct response to that accusation these were the circumstances that he was dealing with the detective was dealing with a child who you know for very good reason  was not being forthcoming he was embarrassed it was he was young and that is why that example with given again it's an appeal to the jurors common sense their reason not their emotion and that is what both courts found the comment the vouching comment that for the victim that that the prosecutor made was tied in to the evidence at trial she basically said the reason that they're telling the truth is because look at all how they withstood the cross examination they were they were subject to hours of cross examination i counted the pages for the first one of the children and b b and it was over two hundred pages of cross examination in the transcript and and she said she said they withstood that cross examination and that is why they are truthful again no objection was made and again it was a response to the multiple claims that the witnesses were valid made by the defense counsel the comment that the defense expert did not say that the victims lied when it is not permitted under ohio law the ohio court looked at that and said  did not even find that improper they said maybe it's arguably improper but we have to give the prosecution some latitude in responding to the closing argument  and the reason that they said that was because she was saying where is the evidence of coaching did the expert say they were coached that's the context that the comment was made in and it was a direct response to the defense's argument again no objection was made by the defense counsel  comment don't punish the kids for the suggestive questions or mistakes in the record again no objection was made to that and the ohio court of appeals stated quote it was not a motion in emotional appeal for a juror to convict ross for the benefit of the children again that has to be viewed in the context in which it was made she was saying don't convict because you think we maybe we didn't ask the children the questions in the right way this went back to the whole issue of were they too suggestive when they interrogated or examined the the children and  the comment about mistake in the records well there was a mistake in the record and so she's saying does that mean that that we shouldn't convict ross  the comment on the misinterpretation of the state's expert regarding false allegations of abuse that comment was procedurally defaulted should not be considered in any event if you look at what the that the prosecutor misrepresented the evidence on that point and if you look at what dr masel he said it's it's first of all it's very open to interpretation i would completely disagree with their interpretation she was asked two questions and she did say that false allegations are rare and she also said that they are not commonly discovered so i would completely disagree with what she said and and even the court of appeals said any consistency said if there is a consistency if any so even the court of appeals wasn't sure that there was an actual inconsistency just out of curiosity what was the reason for not letting dark computers toast actually what they wanted to do was they wanted to have him conduct a psychological evaluation of the children and ohio court of appeals determined under ohio law that was not allowed that it was considering considered damaging to conduct a psychological examination of these children by a defen expert and it wasn't that they weren't allowed to talk to the children that wasn't the point the point was that they weren't allowed to conduct a psychological evaluation and that's what they had requested and in fact they they sent out meaning the defense sent out an investigator who did talk to these children so they had all that information but the court specifically refused to allow a psychological evaluation and there is they talked about how you could not you had to be very careful which children who were victims of sexual abuse how many times you examined them i see my time is up was trying to build the grand jury because to me yes i mean there's some indication that they part of the in the six didn't come out of you so there's some indication that there were comments about it and how are they supposed to know you know whether they were produce if no one has looked at it for a brady violation there are three things you have to show and one is that the evidence was suppressed too is that the evidence was impeaching and three that it was material so for the second i'm going to jump to the second one even though i know i don't think any of these were met but on the second one was it impeaching through the testimony in court it was determined that with respect to brandon the issue of the anal sex came from a concern that was registered by his mother with the caseworker when when when he initially disclosed she took him to care house he was interviewed at care house and the mother was the one who mentioned anal sex now she there was a transcript of her testimony that was put into evidence and as part of the record she was interviewed by phone and the parties had an opportunity to examine her during this by phone she was very direct in saying that this was my concern not my son's and she also said that brandon denied it she questioned him about it and he denied it now with respect to dustin that was that that the allegation of anal sex stemmed from an admitted mistake of the caseworker she had put in her in her referral letter referring dustin for counseling that there was the possibility of anal penetration and when she was confronted with that  on the stand she said she made a mistake she said that neither one of the boys in the interviews alleged anal sex and she was part of the interviewing process so she conceded that was a mistake and and it did it stemmed from a it was in the bill of particulars where it said either oral had got the idea that that might be a possible possibility that there was an inconsistent statement and that was shown not to be the case through the testimony and in terms of the final requirement of brady for materiality to fully answer your question this was this was not material because there was no reasonable probability that it would change the outcome of the case  reason it's not material is there's two reasons one it was cumulative in the sense that there were other in consistencies many inconsistency in the children the child victims testimony that was that came out both internal inconsistency as an inconsistency as with other witnesses and this court has held that when when the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack the undisclosed evidence may be cumulative and hence not material and that's bird versus collins the other reason that it's not material is to some extent a substantial equivalent of that evidence was available and by that i mean that the defense had access to the transcripts of the examinations conducted by care house of the victim witnesses and they were they were given these transcripts they were used for cross examination purposes throughout the trial  they even had a video of brandon during his forensic interview with the detective and as i stated earlier and addressing your question judge they also had an investigator's report they sent the him their own investigator out to talk to these witnesses to i mean let's say there had been testimony of the grand jury about it i mean counsel would have been very could have used that very very effectively to show how easily they were coached that they don't see anything about it here they don't see anything better here but look prosecutor was able to get them to say whatever he wanted them to say at the  jury so why couldn't you least have the prosecutor's representation that there was no such testimony as an officer of the cord or i mean why why was it just completely eliminated  well what the court of appeal said was that they that the trial judge did not provide the testimony of the grand jury testimony because they he could reasonably find that there was a slim chance that it contained any of those allegations based on the testimony that came out at trial and moreover the court of appeals felt that that it was completely speculative and that under these kinds of circumstances anyone could just say you know there's maybe an inconsistency in the grand jury testimony can i have it police will but that's not me but he's saying maybe there is  somebody pointing to something that appears to be their alternative charge something in the note i mean you're basically saying no you have to take their explanation for where it came from well  would say two things first that the court decided under state law that there was no particularized need that outweighed the need for secrecy that is a matter of state law it's not a constitutional brady part of it comes into play with not so much in any in camera review because that is not a brady issue that is a matter of state law whether and in camera review is is going to  didn't meet the requirements for brady in that they were unable to show that it was a peaching and they were unable to show that it was material under the definitions of materiality in this court and i wanted to ask you about the ohio and are there transcripts of their testimony i i believe that there are i take transcripts in your ohio grand juries i would i guess i would believe that there are but i can't answer for the reason i believe that there are as i i can't imagine that this would have been it such an issue if they're warning well you know everything differs from state to state and what would have happened in tennessee with regard to this case is a police officer who was in charge of the investigation would have shown up before the grand jury and would have testified as to what the investigation showed there would have been no prosecutor in there there would have been no court reporter in there there would been minutes in a in a journal of what the grand jury did in response to the charges and that's it so i was just interested to know whether and that the procedure in ohio was so different that actually there may have been an issue here of available transcripts well my best recollection is that the children did testify and i i honestly do not know for certain whether there were actual transcripts that were made correct around it and judge wright i think you made my point for me on that there was at least enough of a question that even under ohio law much less under federal law under brady there should have at least ben and in camera inspection of that video or transcript if there is one prepared in order to determine whether or not these there was actual impeachable information and then was there that request yes your honor we did request that the t really i don't know of a way to augment it c j to remain and because i don't know that there's a procedure like that your honor and with regard to the supreme court we were restricted to a fifteen page memorandum in support jurisdiction they didn't even accept the case which is why why we filed the a v s corpus petition regarding that specific issue bibi's mother's testimony over the telephone because she had actually left the state in order to not be compelled to testify actually stated and i had the page i heard as she testified by telephone that b b himself concern he never said it i was just concerned and you know he told me his mother bounced around a lot your honor at one point she did say he had made this report that's why i brought it up  based on that fact mr ross's counsel asked to recall b b in order to impeach him with with his testimony and they were denied the chance to do that it's the same thing that they would have used the grand jury testimony for if they'd been able to get ahold of it what's the number that there was some sort of you know contact with regard to the appeals to emotion at the end of that long conversation about investigating bullying the prosecutor quoted alice walker saying that the most important question is was the child crying that's not an appeal to common sense your honor that's an appeal the motion with regard to there being evidence of coaching i read it to you when i was up here before that those leading questions are evidence of coaching from mother on the stand the dardenne court said that improper comments have to be put in context the court has to look at the cumulative effect of all of this misconduct and the effect that it has on the jury and that's what we've asked the court to do and i see i'm out of time thank you very much ok thank you mr schultz and we appreciate your arguments the case will be submitted and you may call the next case