please the court counsel and kathleen schmidt i'm here to represent tyree saw i'd like to reserve two minutes for a bottle all right the issue in this case the issue at trial was not whether t edmund brothers do these things his defense was that he was present during these events but derek adman's savagely beat and sodomized clifton agnew and duane edmonds robbed him yet the chalkboard admitted victim impact evidence from a p r professional and a total stranger to clifton agnew about her emotional response to the impact of his injuries and about their emotional reaction of the community when she started a card to garner support for mr agnew this was so egregious so and duly prejudicial that it caused the trial to be fundamentally unfair and violated mr hall's due process rights this really was understand that it was  this is an odd presentation of this case because as a magistrate judge framed the issue the question could be was it in a reasonable application of the test of whether it is so egregious that it causes that the fundamental isn't it to filter here right because then if it's yeah even if even if we thought there was prejudice we would have to say it was it was unreasonable to think that there was not prejudice i think what this court would ask is it was  unreasonable application was it so prejudicial that it was an unreasonable application of pain and chambers and that's how the magistrate judge just threw the yes we don't just decide whether it was prejudicial we decide whether it was reasonable to determine that it was not prejudicial here's why here's there's a reasonable as aspect to our determinations yes here's why it was so prejudicial to mr hall when you have to you have to look at the powerful poetic language that this woman used she talked about these magical cards that were filled with love and compassion and inspiration they formed this mystical connection between her reading them to a gnew who was not conscious at the time these people never had one sentient word between them but they formed a mystical bond she thought that would cause a miraculous recovery in him she talked about the outpouring from not only her motions to him but she talked in great detail about the response of the community to these things which she asked for these cards not just to support mr agnew but as a protest to what had been done to him and talked about ultimately she received over six thousand cards for him from not just louisville not just kentucky but all over the world she received gifts she talked about the day he died lied to a reasonable juror how to decide who did these things well and one more point about the facts and i will answer your question to i tried as i will this is the other side makes it sound like eighteen minutes was not a long time between minutes is a very long time for victim impact evidence to victim impact haven't is generally very brief straightforward because it runs the risk the prejudices it runs the risk of implying flaming the prejudice and passions of the jury so that they focus on their sympathy for the victim and not on their of which is to take the  he presented it at trial and no one else's personal knowledge of the events testified at trial his defense would have given the jury an option to acquit him on all the charged offenses because his defense was derek edmond savagely beaten sodomized clifton agnew and to wayne robbed him at the very least it would have allowed the jury to also find a lesser homicide but this focusing not only on plus i think when you take when you analyze the prejudice here in the egregious nature of this you have to balance it against was there any relevance at all and one of the problems like question you can say there's no answer to the question is how does it make a reasonable juror maybe jurors are going to be unreasonable how would it make a reasonable juror decide who did this just by saying how sympathetic we are with the terrible thing that happened two years ago everybody agrees that thing happened it's not like it didn't happen everybody agrees a crime happened and everybody they happened on it was terrible it was terrible to a human being right yes so let's say your reason and certainly there are reasonable jurors but let's say there's a reasonable a reasonable juror going to have that have that effect because the question here was not that this crime was committed and that was horrific the question was which of these three men committed these and here's how it had an effect that makes of that makes the question even stronger if the question is which one did it why does how bad it was tell you which one did it does doesn't seem to be related to that at all because even reasonable juror all before they were all defendants at the same time  so the jury has to decide which one did it and to say this is this is isn't just a crime against the meaningless person it's a crime against someone who had supported the community and see how that logically leads to which which person because jurors are jurors are just humans at the end of the day even reasonable jurors that are trying to follow their oath they are just humans and at some point you are so overwhelmed by the by the evidence inflaming your passions about what this man suffered and that outpouring of not only one woman but of the community in reaction that that you stopped caring which of them did exactly what you were going to punish them all and you were going to punish them severely and that is exactly what happened here the evidence here was not overwhelming and this goes to your question judge rogers the evidence really was not overwhelming the forensic evidence strongly supported tara's halls of trial testimony that it was derek edmonds that committed the lion's share of these crimes his pants and boots were soaked in the defend in the victim's blood as opposed to tara's head several splatters on his pants his white shoes had no blood from clifton agnew the jury dispassionately looking at the evidence and applying it to the instructions could well have come have acquitted tyreese of all three of these charges offenses even if they found him guilty of contributing to the homicide because he did it that he hit and kicked mr agnew in the leg and in the side but again i want to go back to the fact that i think in weighing how this would there is a long jurisprudence not only in the state of kentucky but in the federal system that does talk about the danger of victim impact evidence and it is because you do not want the jury to focus on their sympathy and their passions for what the victim suffered to the exclusion dispassionately analyzing evidence and applying it to the instructions that were given but that is exactly what happened here but here it is just to the end to greed i could not find a case where they let a total stranger testify not only about her the impact on her but on the community as a whole and what impact would that have on the on the jurors again these are human they are hearing that the community is behind this man the community supports this man and is outraged about these injuries and feel anger and feel sympathy with him again these would distract them from their jobs and their oath as jurors and i believe that this is why i mean that this evidence is kind of jealously guarded in how it comes in and when it's come in it is generally been allowed because it's been brief it has either been relevant to another point it has been humanizing talking about the personal characteristics of the person which she couldn't have known because she didn't know him or the impact on the family and again she couldn't have known that she didn't know him in his sentient life she didn't know it was so these are how these are prejudicial to him and what i would say to you on the prejudice aspect is this was you know no no problem is good this was a particularly horrific crime and nobody nobody disputes that it is i would submit that it is in that kind of case that you have to honestly be very careful that the jurors follow their of apply the evidence to the instructions and instead in this case the opposite happened we in what we saw was victim impact evidence introduced of a kind i could not of the cases where the courts in the circuit and other circuits have allowed victim impact evidence in the guilt phase none of them were from strangers none of them were about the reaction of the community so this i mean when you look at agreed just if there's a scale from one to ten i were worth ten on this one and so that is why it is so unduly prejudicial that it's just an unreasonable application of pain and chambers for to have allowed this evidence in i want to quickly t argument about the testimony concerning larry millikan larry millikan was a homeless man who several hours after the crime gave statements to the police and also was shown a photo packet identif and fail to identify derrick edmunds what he told the police was he saw two black men in the alley and he saw the event through an open window for the next four months the police believe that there were two based on that statement that there were two men involved in this u ltimately nobody could find larry melican for trial honestly everybody wanted him obviously duane edmunds wanted him because one would have been the third person in this would have said one wasn't there but the the statements from three detectives and the opening argument of one of the defendants talked about these out of court statements of milliken he was never found he was never subpoenaed there's no question that this was a six circuit violation and the only question here is whether there was a great this court has a grave doubt about the harmlessness of the error that's really what we're talking about and it should it may tie reeses defense far less persuasive to the jury then it would have otherwise been again this was not a single or fleeting reference three detectives one opening statement it wasn't kenya live on two key points nobody else at trial testified that there were only two men in the alley nobody testified that there were only two men during the atar entire event that directly contradicted tyreese hall's trial testimony of how this crime happened he said that he derek and wayne were all together when this started so there were three men in the alley he said wayne's day picked up clifton agnew's wallet after the first exchange and then he left he also testified and this was this was the key to his defense on the sodomy and on the beating he testified that he came back and forth out of the alley three times during which time derek had began to beat and then sodomized mr agnew and the out of court statements of learning millikan they couldn't challenge directly contradicted on that key point of his defense and also implicitly conduct contradicted tyreese his testimony that he was telling derek to stop he was going in coming back and telling derek to stop and he was scared derek but he did kept trying to tell him to stop this was heard through an open window and yet there was no starting from milliken that he heard anything this damage tyreese his trial his credibility again as we've talked about the evidence was far from overwhelming and in fact supports tare and applied to the first issue is that was raised in the appellant brief but as i see today we've conceded that the depth of difference does apply under the first issue and in light of that i think you've hit the nail on the head drug years that the problem with this evidence or the reason why this is not an unreasonable optician clue so short a law is because this evidence was not material at all the victim impact evidence if we call it that in not the entire eighteen  her testimony was that but it had absolutely no bearing on which of these defendants if any of them committed this horrendous crime and that's what we look to under the fourteen the limit due process is was he denied a fundamentally fairness turns upon whether the evidence is material in the sense of a crucial critical highly significant factor in the evidence so absolutely not again and in each we had a entirely circumstantial case and then you had an expert for the state come in and say that out of the three point five million people in detroit only each could have put bike bite marks on the corpse and that was the  evidence and that was irrelevant and improperly admitted and this court found that that was a denial of fundamental fairness here we have eighteen minutes of testimony in a three week long trial granted that included why dear and closing arguments everything else but i counted twenty four witnesses who testified most of them for hours and introduced tons of inculpatory physical evidence including blood on the ad just seems like the judge should have known immediately that that was improper the minute the just should have and you know i'm not a judge so i can't stand here and say that i would have done the same thing but this denied confrontation clause rights and we can see that state court and argue that there was harmless and we can see it in here and argue that it's harmless in large part because it's cumulative and in large part because on the death of difference we're looking at the brecht standard of was this a substantial and injurious effect on the the jury's verdict and this court also adopted the van arsdale factors under a basket as we jones and when we look at those factors is clearly a nonprofit or sorry this is a not an unreasonable application of the fine that this is a non harmful air the first of those is the importance of the testimony to the prosecution's case we didn't bring in the evidence we didn't argue it back to the trial court realize the error and admonish the jury prior to closing arguments that they were to not consider any of the million evidence which under kentucky law it's presumed that once you and monitor the jury that they don't consider that evidence the second of the van arsdale factors as was the testimony cumulative yes all multiple times admitted his involvement in the case and even got up in testified testified pursuant to an agreement that took a life without the possibility of parole off the table this was not testifying because milligan statement came testifying in consideration for this benefit  guess you're on and why would that be prejudicial to have him pointed at instead of someone else it is why i'm not saying it's not prejudicial at all i'm saying it doesn't have a substantial injurious effect in light of the remaining evidence that was brought up and in light of these van arsdale factors again and continuing with those of the fourth one is the extent of the cross examination that was otherwise permitted it in this case they were allowed to cross examine every other witness including the people who brought in million statements and the fifth van arsdale factor is the overall strength of the prosecution's case it's beyond strong in this case including tons of physical evidence tons he's guilty of at least mans because there's no denying that hall hit the victim in fact of the two between hall and edmonds hall was the only one who had any visible injuries from the attack and it was the injuries to the victim head that ultimately the medical examiner concluded were the fatal injuries all hand was visibly swollen no evidence of an injury on adman's what's a crock pot what is  it's that originally i thought you were talking about like a flower pot but that's not a crock pot it's in our house we use and make soups and stuff it with a plug sticking out of it at the plug sticking out of it everything that's what was thrown at the appliance yes your honor and it was shattered and he admitted he was the owner of the metal i think it was metal it has a ceramic insert and it was a ceramic insert that had come out and shattered everywhere and that was the brutality that holland needed that he exhibited on bright harmless standard because in pay vs cases and this is talked about and and brecht is once we get to this point this was an issue that's been taken up to the u s supreme court on direct appeal so that they review this issue day you know this is an issue that's come up through collateral attack where we give deference to the state courts we give comedy to the state courts who've expended all this energy the passage of time as occurred it's hard to get what mr milligan would have testified to i believe was raised as a six minute claim and like i said we you're seeing there was a violation right i don't think there's any real room to not say that you know just just the i certainly am prejudiced under hey vs corpus which is subject to the brecht substantial injuries of fact and this court has to be left with a grave doubt as to the jury's verdict as a result of this evidence evidence  that the jury was admonished not to even consider evidence that was not brought out by the prosecution was not emphasized by the prosecution was not used by the prosecution in fact the other prosecution referred to this testimony in his opening this singular piece of evidence in light of the entire trial had a substantial injurious effect such that you are left with a grave doubt as to the jury's verdict in this case and there is no saw hall commit any of his actions that he saw a criminal act being committed and these two individuals were there and he could identify hall i believe the only thing that even come from up close to that as they said attempt to do the job and then trying to think your honor that may be the case that he said that they were there the whole time i don't remember exactly that's what came out or it was just that there were two men on the scene either way even if he says they were there the whole time that's subject to interpretation by a jury when hall says i came and went and here's a man looking at this event out the window it's not the single piece of evidence was not the linchpin was not the most damaging evidence was not the substantial injuries affected that hall's making it out to be here on appeal this was a small amount of evidence that the trial court admonished the jury not to consider that wasn't used in closing arguments that was brought out by the codefendant who they didn't believe the code they were buying his story so again that goes to is this court left in a grave doubt as to the verdict against mr hall and the warden would respectfully submit that the magistrate judge the district court judge and the kentucky supreme court all were not clear then reasonable in finding that this was not a substantial and injury effect on the verdict i see my time is almost out so  meant when he said there were two men in the alley and he saw the whole event that would have been something that you would like to cross examine him about and paul would have liked to do that but he didn't have that opportunity inference was from his statement there were two men two men only they were there the whole time that directly contradicts paul's testimony and hall again for all the sound inferi that was presented at this case there was not overwhelming evidence about what did the there was very little forensic evidence actually there were no fingerprints on any of these items that they got like there was no fingerprint on the crock pot honestly the commonwealth dell fertile reeses hall they took life without parole off the table so tyrese would testify for them when they have done that if they thought they were suborning perjury if they thought his version of events was untrue no they couldn't have and it meant they needed him to win or they wouldn't have done that to that he says that in his statement he admits there was some contact and it's possible that he would have some liability for contributing to his death the jury can infer maybe didn't hit him on his leg maybe hit him in his head but that was an open question but that evidence that derek edmonds was the one that made it out the lion's share of views that this man took that caused his death came from tyrese and the forensics why didn't the jury believe that they didn't believe it because it was contradicted by these out of court statements that larry millikan said and nobody else was there to contradict larry millikan nobody else derek edmunds the us and here were guys with complete and total lie because he said he wasn't there we know the parade of felons and the affidavits that derek pressure tire recent assigning were lives because paul couldn't have been the lone assailant the forensics say there is no way hall was alone is saying we know from that d edmonds beat and sodomized clifton agnew but the jury heard him properly in minute evidence we have met the bright standard and i'm asking for relief for tyree solve all right thank you in the case