thank you counsel thank you good morning i may have placed the court my name is christina hellman and i represent the petitioner trayvon barnett i plan to reserve about two minutes for a bottle alright the underlying constitutional violation in this case is quite straightforward the prosecutor threatened a witness jonathan sprague with perjury if sprague did not give testimony in accordance with what the prosecutor wanted to hear as a result spread refused to testify so the court never heard his helpful information that would have called into question the prosecutor's case against mr barnett the prosecutors actions that violated due process under the clearly established law of web versus texas this was not an open and shut case for the prosecution and versus texas involves a different factual scenario where basically the judge just common stroke the witness off the stand that's correct your honor and in order for there to be clearly established law that does not have to be factual identity this the supreme court has said that law can clearly apply when the facts are different and this court has come up with a tast to know know because we had a motion for new trial in which it was represented that mr sprague was going to testify that mr barnett would never wear red because of his gang association with a different gang that that night mr barnett was wearing testified it was the government witness your honor that's correct only in name only the substance of the testimony that was going to be provided was going to be defense testimony so the fact that the prosecutor was the one who called him to the stand doesn't matter for the purposes of this analysis because webb focuses on the defendant's right to present a defense and that's the defendant's right to present his or her version of the facts to the court so whether the defense number bears any burden and the defense can put on a case entirely through cross examination of government witnesses so if the harm the supreme court was focusing on is depriving the defense of that testimony then it is immaterial who caused it who called the witness technically who and judge when i wanted to get back to your question about whether it does matter that this was not a judge that it was the prosecutor  under this court has held in iowa that it is the action of governmental actors that drive the comments of government actors that drive witnesses from the stand that webb does clearly apply in that situation and i also was actually not a judge it wasn't a prosecutor it was the detective that did the need the threats that were challenge there and i would also point out too that because principles apply when it because principles apply when it is clearly when the principle clearly extends it's important for this court to note that this is this is almost worse than what happened in webb because in webb it was a judge making the comments here it's a prosecutor that's the person who actually has the authority to bring the charges and so when he says i will charge him with perjury if his testimony doesn't line up with how i represent his grand jury testimony that's more course of than hearing it from a judge because that person could actually bring could it could and will actually bring those charges against him were concerned of the prosecutor was that he would testify not at all saying i just don't know anything that's the concern that was express trial his first grand jury testimony was i don't know what happened at all that's correct that's what he said the first time so we don't have a trial the knowledge on the your honor and it's because the prosecutor sad not said if he doesn't testify the way he did at the second grand jury i will charge him with perjury that the they didn't know that at trial but they did know that it was going to be helpful to mr barnett's defense and it was not going to be what he had said at the second grand jury and when considering that i think it's really important for this court to note that the testimony spraggs testimony at the same grand jury that we have in the record is actually not a verbatim account of what occurred it's the prosecutor's representation of that testimony which was challenged as being reliable and incomplete and also as the result of a prior threat of perjury that spread had come to the grand jury first had said he didn't know very much when other witnesses testified the prosecutor went back to spread and said i don't believe you told the truth if you don't come back and correct your testimonial charged with perjury again so we have a witness who potentially gave grand jury testimony under duress and we don't actually know what that that testimony was but we do know from the motion for new trial but it was anticipated that sprague would give helpful testimony from mr barnett and we do know from and the other cases that have applied that that comments such as the prosecutor made here violate due process because they deprive the witness of a voluntary choice about testifying and they prevent the defense from having a full and fair case if there are now questions i'll reserve the remainder of the time good morning your honour's may it please the court adam holbrook on behalf of the superintendent this court should affirm because the state court's decision denying petitioners motion for a new trial was not contrary to or an unreasonable application of the supreme court decision in web web itself the holding in web was expressly by its terms narrowly limited to the specific facts of that case it said in the holding under these circumstances where a judge is the one making the threats and those threats effectively drive off the witness from the stand under those circumstances there's been a substantial interference with a defendant's right to put on his own case and there are many factual distinctions between this case and webb any number of which i think would have allowed the state court to reasonably not apply webb to these circumstances and i'll focus on just a couple the first and i think one of the most important is this distinction between a prosecution witness and a defense witness and i think that's important because if you look at the case that website  the defense's behalf and that was the only case that webb relied on so webb was relying on a case that focused only on defense witnesses it was a case that involved only a defense witness and there certainly was not in question he decided and web was whether this principle applies to state's witnesses in addition to defense witnesses in the only other point of fact i'd like to touch on is the distinction between the witness in who came in fully prepared to testify willing to testify in the witness here who came in pleading the fifth and so we have an entirely different circumstance here that wasn't wasn't presented in web that the court didn't confront in web and so when you're looking at whether or not the prosecutors actions actually drove this witness off the stand it was an easier decision to make and web because you had a willing witness here you didn't you h recalcitrant witness and who ultimately refused to testify plead after pleading the fifth and willing to accept contempt instead of testifying so i think those are the two most important  s we identify several other distinctions in our brief but unless the court has in for the questions simply asked to affirm proffer in this particular case was that the witness came in ready to testify to a different version well in other words the witness came in ready to testify favorably to the defense and that would be different than his prior testimony under oath i don't think the witness was ready to testify that there was a discussion during opening statement where the defense counsel brought up this issue and said we have a witness who who is going to probably plead the fifth and so that was when there was a decision made by the court to appoint counsel for this witness to advise counsel on this issue so i don't think it's at all clear that he that this witness was going to testify he was recalcitrant from the beginning we know i think what his story would have been if he had ultimately decided to testify we know to some extent at least know we don't know all we know from from the trial testimony is that there was some indication in this was what his attorney represented that his testimony would have been consistent in some way with the grand jury testimony that he cave we find out later in this motion for a new trial through an affidavit of counsel again not from from the witness saying that he would have said something to the effect of the petitioner doesn't wear  red and and that's it so there we don't know whether in fact whether he would have changed his testimony about having seen petitioner shoot the gun there's no evidence in the record that says that he would have changed that testimony i have three points to make in rebuttal first goes to the last point counsel made that there is no evidence that he wouldn't have testified equivocally or equivalently with his prior grand jury testimony that's not supported by the record if that was the testimony he was going to give there was going to be no issue of perjury and there would have been no colloquy and there would have been no need to give him his own lawyer so the only legitimate reading of the record is that there was going to be some difference second the counsel for the government sites won which indicated this court case one that said that the web has not been extended to the situation one was not an advocate and so the court was not engaged in an analysis of whether there was clearly established law however one did identify the underlying constitutional harm as being equivalent whether it's a defense witness or a government witness and so it's petitioners position that had the court engaged in the analysis it would have reached the same conclusion it did and won and would have found that it web directly applies in this case and third and finally this case yes mr spragg came in and pled the fifth in the beginning however after the court told mr spray that he had no fifth amendment right in this case and after that the government the prosecutor had engaged in his threatening statements throughout the colloquy sprague's still refused to testify and so the import of that is that this was not a recalcitrant witness this was a witness who did want to testify but who was concerned rightfully so with a perjury charge if he gave what he considered to be truthful testimony and it didn't line up with what the prosecutor wanted to hear in those circumstances and under wow which does apply in this