georgia state court conviction in two thousand and two for crimes arising out of the march two thousand shooting death of deputy sheriff ricky kanchan and the shooting of deputy sheriff algernon english during closing arguments the prosecution engaged in an extended in deliberate violation of mr allen means fifth amendment rights every reviewing court from the georgia supreme court in the direct appeal the magistrate judge in the district court judge has agreed that this was a constitutional error the district court judge further emphasized the intentional and egregious nature of the error describing it is repeated blatant and central to the closing argument the district court further confirmed that the instruction given by the trial court after multiple objections by mr means attorney was not curative that instead exacerbated the problem she characterize the instructions not strongly worded and failed to admonish the prosecution for the blatant nature of the violation so we have a deliberate violation that was not shared by an error furthermore the state continued the improper mark cross after the instruction and then returned to it in rebuttal ultimately closing its rebuttal with another improper comment don't stand for him which was a commentary on his remaining seating during the proceedings a decision that was approved by the court and religiously based do you could see that had the questions been phrased as an attack on the defense without specifically directing appointing to the defendant and asking him for an explanation that that would have been proper in closing argument if you know the entire procedure had been reformulated to strictly comply with that demarcation it would be a very different case here there was a there was a preprinted board and i'm sorry i meant it that way or no no we understand that and then they changed the word from defense to defense but they didn't change all the questions which nor did they change the closing argument and i continued  the questions directed specifically to mr all the mean individually well well that the georgia supreme court agrees with you that there is an error of constitutional magnitude but it's harmless beyond a reasonable doubt why isn't it harmless if we have in this case the physical evidence from white hall alabama and we also have it in court identification i believe it's a deputy anglish who identifies mr romack as the person who committed the crime that's pretty it's pretty difficult to  overcome your honor you are correct that there was a harmless error beyond a reasonable doubt the terminations by the georgia supreme court that represented a clearly erroneous determination of state law according georgia supreme court's ruling was a misapplication of chapman b california is because the evidence that you were cited is evidence favorable for to the prosecution but there was evidence supporting acquittal on direct on these precise the district court and the magistrate judge turman that was a clearly erroneous decision because they relied solely on the evidence favoring the prosecution and ignored the defense evidence so that decision that's not been cross appealed that's not an issue here there's the separate federal hevi standard of harmless error under bracht and what the district court said is while you've shown a clearly erroneous application of chapman you have not satisfied the separate federal hey b s harmlessness standard which is more rigorous brecht in that regard i think the district court committed to air force the first error is that the court segregated the crime scene evidence from the white hall evidence and the effect of this had a medic on hand to document all means injuries when he was arrested that's there's a lot of evidence that the assailant had been shot that night well it was when he were in a bulletproof vest when he was arrested he was he could have been shot in the guns which was the evidence that the district court focused on in making her back determination other than they were found in the woods were where he was fleeing pursuing officer that that is correct the guns were found in the vicinity of his arrest after his arrest not while they the dogs were following him and besides a bullet professor i mean there was pretty clear evidence of flight was there not i mean he had a thousand dollars in cash he did his cell phone he was basically on the run mr all the mean did address these these questions in the state habeas and he explained the reason that he left alabama he explained he thought the attack was directed towards him because of the confrontation he had had earlier that day explained why he went to alabama because it doesn't explain why he's running from the police in whitehall i entered i understand his he is testimony do explain why he fled the neighborhood where the shooting of the deputies occurred but this is four days later when he's encountered by deputy u s marshals and f b i agents who are engaged in the manhunt and  here it's the issue of whether the man in the woods quote as described by the agents and residents of whitehall shot first or whether the federal agent shot first and according to the testimony of the residents the agent shot first and s that you have an individual who is being fired upon by federal agents what's the explanation and this is where trouble the district judge in this case explanation for the bullet holes and  disputed that has gone was at the scene when the crime occurred that is that he had emitted that at the state k b s that's not disputed but the it's still in tar entirely circumstantial i thought he made an argument that the gun was planted there is it but the guns it is the guns were planted f b i agent campbell the central part of that there's also testimony about another man in the woods that was emphasized by defense counsel in at the same of the crime or elsewhere without disclosing that to atlanta police then transport the weapons across state lines to drop them in alabama woods well why isn't that persuasive that two reasons your confirmed that the burden remains on the prosecution secondly the question is not whether the district court had it been the fact finder had been a juror would have mean the question is whether this jury that heard everything this jury heard could have had a reasonable doubt about whether he did it and if the district court has a grave doubt about whether mr amin did it you're not looking at the state's evidence in isolation you're considering it in the context of the constitutional violation and here i mean this is an unusual habeas case we have a constitutional violation everybody agrees it's agree just it's terrible it was secured the question of what kind of evidence what the level of evidence to overcome that i think is very important and every court that's dealing with an egregious error and gone gora the first circuit decision i hope i'm pronouncing it correctly that is a very similar case it's also right agreed with you that the fifth amendment claim is a stronger claim which is that when you say focused on first but i want to give you four more minutes because i want to hear what you have to say about the sixth amendment  well this is this is an unusual sixth amendment claim because and your typical sixth amendment claim it's the confrontation of a witness who is critical to the state and really want campbell was a witness that was critical to mr allen means defense so this in a self makes it unusual climb there are very unusual facts about mr al ameen that were presented in the state court record he traveled alone from alabama to montgomery he did not travel with a group he requested to go there he was separated from the group that evidence is clear from the record the night before the arrest him he was caught lying on cross examination about crossing the fence where the gun ultimately was found he testified in direct that he was alone i mean that he was with others but then when cross examined about it he admitted he was alone and that is where the pistol is found so where were did he find the air fifteen and a nine millimeter i'm back to judge wilson's question you'd have to believe that asian campbell somehow found at the scene of the original shooting the weapons that were used in shooting the two officers which apparently were totally missed by the local officers and then carried them to whitehall alabama and planted them in the woods jackets f b i agents were on the scene the night of the crime and the westin that is correct and then mr olomouc i recognized talking about planting guns will give every judicial officer heartburn i recognize that but these are not just drop guns that we've seen in other cases that are untraceable these are guns that were traced by ballistics to the rounds that were were recovered during autopsy from the deceased officer and from the hospital when gauging in surgery on the wounded officer and matched with the bullets that were recovered from the shot up black mercedes own by your client that i mean if agent campbell was able to orchestrate all that he must have had pretty good power well  he had to do was move the guns from point a to point b the guns that's the question i'm not just not just an untraceable gun that gets dropped at the scene where the police officer may have shot an unarmed man well and you harkening now to the subject to cross examination but no evidence there's no documentary evidence there's nothing mr amin was under f b i surveillance ok and there was no before the crime and there is no evidence that linking him to these guns whatsoever no figure no physical evidence at all and then the second thing is that you know the guns were tested by bernadette davy it's amazing that this case manages to touch sort of every issue of complicated procedure she was fired for not doing enough testing and so that all happened years after this case but the ballistics expert was fired for not doing their jobs who linked these guns to that but having said that again  impeach him based on a crowded mall turpitude this is an effort to show similar conduct bent of mind where which if you were a defendant in georgia what's the difference for a for b you know you're not just trying to show this is a bad person you're trying to show action in conformity with par conduct in the incident question and if the shoe is on the other foot george a lot well what the defense attorney was attempting to do is to show that he's been accused of planning evidence before correct and so therefore he might have a tendency to do it again this time around correct and what the trial court decided it was based on georgia law if if you're cleared of it georgia law is clear that if you're cleared of it and you're not convicted it then you can't cross examine on that basis right so i mean we don't we owe some deference to georgia georgia evidence to show that the witness had act in a conformity with prior conduct not just that he did he engaged in a dishonest conduct and therefore can't be trusted today ok i gotcha all right thank you reserve some time for rebuttal and w is the court i'm here today on behalf of the state urging the court to affirm the district court's denial of relief and as the court of the way every discussed both issues in the case whether the prosecutor's closing argument was harmless error under the brecht test because we are now in federal court and then whether there was an impermissible restriction on his right to confront f b i agent campbell turning to the first issue we submit that the district court properly concluded that under brett the error was harmless under the facts of this particular case we have discussed in the district court discussed the distinction between the standard to review that a state court would apply or on conducting the same analysis instead you look to see whether they ever had harmful or injurious effect and there is no burden of proof upon either party anymore contrary to what posing counsel said this morning replaced any sort of presumptions or burden with the grave doubts standard and said let's just go right to the heart of the matter if the court has grave doubt as to whether the error was harmful th that carries the day the petitioner wins applying the standard and which the district court could have done from the outset as we pointed out your precedent has said so in mansfield because the supreme court has made clear that the brick standard subsumes the deference due to a state court's decision under twenty eight u s c section twenty two fifty four d one as well as the chapman standard let me ask you this a prosecutor georgia supreme court didn't quibble with whether he did or didn't georgia law and we pointed out a case from this court one can comment on the failure of either party to present certain evidence and while the prosecutor initially said questions for the defendant that case law has made very clear that while the actions of a prosecutor the argument itself may be improper and you may have intentional misconduct that without more doesn't carry the day you still have to look what if it's repeated say not yet your honor i will acknowledge i think it may have been brecht itself there's a footnote in which the court said we were serving that question but the supreme court has never gone back and address that and all the cases that we have both sided still do you don't divorce the prosecutors conduct from the bite of the evidence itself brecht itself says look at the the comments look at whether there was a curative instruction look at the way to the evidence and as judge tolman pointed out t testimony about mr hill's post miranda silence you even had close and then you had closing argument on that and you had a prosecutor being held in contempt afterwards for violating the court's instruction plus and i think this was key the evidence was weak mr hill was not the only defense witness and this court found that all of those circumstances it undermined his credibility that they the court found that the error meant the breck standard here you have approximately twenty witnesses presented on behalf of mr almaine challenging the state's evidence and the different court read the evidence and in that light even including which we submit went far afield the testimony that mr al ameen proffered in his state collateral attack cullen the pinhole store says the court has to look at the record that was before the state court when it decided the issue but even with the benefit of mr means state hav testimony the district court still concluded that the evidence in this case was weighty i'm very troubled by the evidence that both does deputies said that they shot the shooter multiple times that and then there's no evidence that mr al ameen was shot what they said your honor is i shot him i think i shot him there was never a definitive statement attributed to either deputy that yes i shot him i think i shot him i think i shot and i shot multiple times when said they thought they hit him in the chest or the head that's pretty strong evidence you also have a situation you've got the the fact that he did have body armor when he was found there mr herrick said mr garrett said there was no damage to the vest and there was no bruising to the body is that miss out on evidence that is there was nothing to indicate that mr al ameen was wounded but his car had a bullet holes in it the bullet fragments and the projectile recovered from the car were were fired from  gun and i would point out that he has brought up the fact that the state's back the state's expert firearms expert was subsequently fired in two thousand and nine seven years after this trial but mr almaine had his own independent ballistics expert that is clear from the pretrial proceedings that expert was not called at trial to dispute what the state's expert said what about the seven and so there was a report of a wounded man on a nine one one call that came approximately thirty minutes after the if memory serves that came approximately thirty minutes after the shooting began deputy english the surviving deputy head immediately gotten on his radio and said this car is falling right now the black car i think it's a mercedes damian gordon who was the one neighborhood witness who testified for the state said even though he said it was a cadillac he said it was a big boxy black car i saw it speeding away but  that there was evidence that there was a potentially another man whom i'm assuming that defense is saying could have been the shooter who was wounded that there was a suggestion of that there was a call about that there was actually your honor there were several this is part of the defense evidence in the jury got to hear all this and weigh the evidence as to whether the deputies identifications of the shooter because both deputy kitchen and deputy english identified the shooter as a man approximately six four six five wearing either a tan or a brown trench coat a robe looking garment who got out of the car the person who got out of the car is who they engaged in gunfire with that car had their bullets in it and to go back to your question it may well have been they thought they were shooting him those bullets could have readily lodged in the car itself because there were bullet holes found in his car sales that were recovered at the crime saying the nine millimeter and the two twenty three millimeter were shown to i've been fired from the two weapons that were recovered in alabama along with mr allen maines of the possessions that was what convinced the court the dish record in this case that the evidence was white one of the officers who treated deputy english the second surgeon who testified this trauma surgeon that more famous simply an analgesic i think which is more in the nature of aspirin it's a pain killer it's not like other pain medications which can blur cause drowsiness but he said it's just simply an analgesic but it's strong it's given for pain the other medications were simply antibiotics because of the wounds and i think some maybe some the georgia supreme court going back to its analysis we have never conceded and i think it's fair reading of their analysis of the issue on appeal there was no mention of the jackson be virginia reasonable doubt standard looking at the light most  when there another witness i think is member shaka who testified that he was absolutely positive color me was not the shooter and the description your honor of him again this is all fodder for the jury to reject or credit and the in his second closing argument at the trial itself again the comments of the prosecutor in this case did nothing to undermine the defense that mr almaine put up would you it would agree with me that the comments were pretty egregious well even in the eyes of the georgia supreme court there was a constitutional powers but the point is you're on of the no court has said they were not the point is they have found it to violate the fifth amendment that without more is not good enough under current supreme court precedent i just don't know how you just stop prosecutors from bali and its constitutional rights when they have enough other evidence in the case to convict the defendant just doesn't seem right to me with all due respect your honor dan we're not here simply on a claim with amendment rights were violated and whether an argument may may a be offensive is not enough under current precedent would it be enough if there was a claim in this case of prosecutor vehicle for such a claim your honor but we know that in georgia there is no cumulative error doctrine and to couple to together is not something that the supreme court currently recognizes as well if you want to touch on the sex the men long the six amendment claim no supreme court cases from on sixth amendment from the united states supreme court were cited all he cited as authority for being able to inquire into the similar transaction evidence was united states versus cohen which involved an application of rule four zero four big which is a rule a federal rule of babbitt's it is not binding on the state court and to argue today that the that the georgia court was somehow banned by a federal rule of evidence which already discussed this morning under georgia law you can't get into specific acts of bad character unless there is a conviction of mall turpitude even that the district court in evaluating this in concluding that the georgia supreme court's decision warranted deference looked at it objections and the de novo review pointed out the minimal role not the key role the mineral role that agent campbell played he was simply part of the team that went to whitehall attempting to apprehend mr almaine he was out with the dog handlers he did not find the guns they were found by other individuals the first the i think the handgun was found that night when they went back out it was so dark they went back out the met next morning and found the other weapon neither were found agent campbell and as the prosecution by the time the blood was tested it was impossible to even determine whether was human blood nevertheless there was a blood trail the night of the crime that was used to get a warrant for his store already touched on the i would statements that the assail have been shot he really held firm to the grey eyes testimony both in the cross and in the recross in the prosecution knew it had a problem with that as shown by the redirect and then an attempt to just deliberate and really highly unusual and is an unusual case we've got a constitutional error everybody agrees disagree just could that have impacted this jury and what the district court said look if i was just looking at the crime scene evidence i would have grave doubt and she said but you know what i'm going to put that out of my mind and then agree to pretend that this case is just on the alabama jury on the alabama have until it is your position that this is the for the exceptional case the bricked court drops a reference to in footnote nine when it said our holding does not foreclose the possibility that in an unusual case of deliberate an especially egregious error of the trial or one that is combined with a pattern of prosecutorial misconduct might so infect the integrity of the proceeding as to warrant the grant of k b s relief even if it substantially influence a jury's we do in fact embrace the footnote i think that under proper application of brecht this error could not be dismissed as harmless you're getting on the verge of creating the same error the georgia supreme court has been committing where as long as there is evidence to sufficient to convict that nothing matters it doesn't matter what the air is you can excuse everything and look at what errors whatsoever i'm happy to present something in a briefing of the court would like it again i want to know mishmash of a consistencies mix back that's the way the district court disk described the crime scene evidence that would have been sufficient for the jury important to police errors during closing arguments thank you very much the case was very well argue thank you thank you