this is really a novel situation and it's a narrow issue mr martinez is simply challenging what i would do in terms of its use of the closed circuit television system in the sex abuse case in essence what happened they used to pre trial ruling on a deposition and then they just kept incorporating it by reference without a new independent finding a necessity by the trial  you're subject to that is they as you know the other side says time and time again you stipulated to it and that's the problem he didn't stipulate to it when we read the records on pages thirteen and fourteen brief we quote exactly what trial consul did he basically said i object i objected at the motion for the protective order and throughout this whole process pointed out they missed it that i will court of appeals missed it and once they missed it once it just kept perpetuating and that's what happened they just simply missed the fact the trial counsel objected and you had no choice but to agree with the drop were based on the trial courts are only really but on pages thirteen and fourteen me that even if there was the initial objection shouldn't counsel should defense counsel have continued to object as this kind of thing happened over and over again throughout the proceedings and so now we're here and and the issue before this court reasonable jurist could disagree as to whether or not under maryland versus crick you should make an independent finding of necessity for using the closer to t v that's still the issue in front of you it's a real narrow issue do you agree though that the that the fighting's from the initial trial there are two trials here and you agree that the findings from the initial trial were sufficient under craig or do you view those as insufficient for the first trial for the deposition i would agree the difference in iowa under the statute the child is supposed to be told the defendant is watching you the protective order the child wasn't told and that's a big big difference because without the child being told you're being viewed by the defendant you know no confrontation there so even in the first trial for the deposition you think the findings were sufficient but you think  and we're not reviewing the first trial i understand that we're viewing that the second trial but for the but once we get to the trial testimony the findings don't carry over from the deposition they were insufficient for the trial testimony were even the first trial would be the defendant's position on each and every hearing because a trial is different than a deposition so that's simple now counsel let me ask you as you know the other side says clearly to you that this state statutory issue you didn't argue in federal district court and you didn't argue the state court it's really an exhausted what do you say to that i'm sorry ok i'll go slowly and the other side says clearly that you did not make this argument in the federal district court also that you did not make this argument state court about the child having to be informed and so it's really an exhausted i think they did make the argument but i'm not to the bench and the bar what do we do in these types of cases so it's a real narrow issue i know and reasonable jurors can disagree  court went wrong with one just assuming that it had been stipulated to or that somehow craig crept into the record and took on a life of its own i think you're right i think that's what happened and meanwhile jail how does the how does the the hate be a standard play in here which is that we need to be deferential to the state court there needs to be a contrary to an on the reason why application you said in your presentation i think i heard you correctly that and that's why he should the certificate of real ability because everybody else has been denying well that's true as the certificate of bill believe i'm talking about granting relief to grant relief i think it has to be contrary to an unreasonable application of clearly established federal law for the moment i'd like to sidestep the various procedural hurdles that the petitioner faces and focus on maryland versus craig which is the law that i think everyone agrees applies and critic the courts of that certain competing important public interest can surmount the defendant or the confrontation causes preference for face to face confrontation if the state court makes three findings first t court must hear evidence and make a case specific finding of necessity a second the court must find that the trauma would be caused by the physical presence of the fountain and third the court must find that the emotional distress caused to the witness would be more than the minimum and in this case i will court made all three of those findings but one of the problems with this case i'll tell you what troubles me is that they made it with respect to the deposition in the first trial and when you're dealing with a child witness a lot changes can can change not always but can change over the course of seven months particularly when you have a child that might have been traumatized as this one was and so didn't the district judge then have had the obligation to sort of you know and change to renew the inquiry and see if anything a change from the first trial i had knowledge of the premises to the question your honor i think that's true i don't but i think that this record did everything it needed to to ensure that from june of two thousand and one when the hearing regarding the deposition took place until seven months later when the trial occurred in january of two thousand and two things were the same you know at the time of the hearing  in june the child was nine and then so she should just turn around and so she was just about nine and a half the time the trial and at the time of the june deposition she had been receiving  mental health care from the therapist that testified caring gado weekly for about a year and she also been in foster care for almost a year and so presumably some of the changes that may have occurred after getting out of this difficult situation would have occurred in that time frame but i think more importantly for what the the state district court didn't is the fact that at the trial in january of two thousand and two all of the parties agreed that and i think the defense attorney used the frame use the phrase that the june hearing was still exactly on point so even the defense attorney didn't believe anything that changed the state didn't believe anything it changed and the guardian ad litum for the victim witness was given an opportunity to speak at the hearing during trial and she said the guardian ad litem sad she had just spoken with the victim two days prior and that and that she still supported the use of these protective measures and that happened that happened before the district before the the victim it testified correct immediately preceding so i think trial started on tuesday this hearing about the victim witness's testimony was on wednesday and the guardian ad litem says i spoke with the victim on monday i still support the use of these procedures and so i think while certainly children change rapidly at that age i don't think there's any support in the record that this child change that she was no longer  fearful of the defendant and i think that would be the petitioner's burden in this hideous case this collateral attack to prove that the state wouldn't any longer have the burden to show that and there's just no evidence in the record that any of these changes did in fact occur what about the argument though that when you rely on the stipulation as well or the board stipulation what about the argument that the that there was no stipulation i realize we don't have an ineffective assistance of counsel claim before us maybe we should but we don't  believed that the defense attorney had preserved air as to a confrontation clause violation and objection but just randall's talking about sort of the substance of objection whether the proof at this june hearing supported the district court's findings under maryland versus crick just ran was not talking about the separate question and was not faced with the separate question that we're arguing about now an appeal of whether those june hearings could be used in in the january trial and so it was more about the proof in state court and in federal district court  it's more about the procedure apparently now and so in no way was was this procedure you know we need updated findings and no way was that preserved because that objection didn't happen prior to the deposition didn't happen prior to trial  and really what they fought about with the parties fought about with regard to the discovery deposition was the iowa statue and a portion of the i was statute which is nine fifteen about thirty eight which requires the victim witness to be informed of the defendant's ability to view the testimony via closed circuit television that was the fighting issue at the discovery deposition stage and so to the extent that the defense attorney at trial is saying i want to bring forward my objection from the past you know that's really the only objection i think we can fairly say that he brought forward it's not even the substantive confrontation objection and a point we're talking about about what the child has to be told that that was not raised before the district court in this case that is my reading of the briefs your honor and out there no one the briefs i mean the judge's order and i don't believe it was decided by the judge either about whether the victim has to be informed and i think importantly you know even if it had been again his relief is only available for decisions that are contrary to warren reasonably apply clearly established united states supreme court precedent and craig doesn't say anything about informing the victim or the witness that th federal hate us relief and what stage was that dropped in the state proceed to use it we have opinions on the direct appeal and the p c r was it dropped on direct appeal any complaint about nine fifteen thirty eight are to my recollection has never been an argument after the discovery was not in the direct appeal or the p c r both state either state opinions right directives and neither of those opinions thank you believe it's ever been district court only decided it wasn't necessary with regard to the discovery deposition yeah but the bet that objection was renewed at trial right the objection about informing the trial was renewed at trial correct i thought that occurred prior to this covered opposition so this protective order i guess that would be the objection that's being made but when you look at the entire record i think really what what the senate was asking for and what he specifically names were some other protections he asked for an interpreter he asked for the ability to communicate electronically with his trial while this closed circuit proceed or with this trial attorney while this closed circuit procedure is occurring and he asked i think for liberal brakes to be taken so he doesn't have to object in the presence of the victim witness so i don't think it can fairly be said that that's that was object that it certainly wasn't brought up on direct appeal or in post conviction proceedings and for that reason we don't have a record about whether this advisory was made or not and so i do think this claim faces certain procedural hurdles and we would ask the court to enforce those bars question i judge strand did not give a certificate of appeal ability on the ineffective assistance with that those two issues the procedural bar an ineffective assistance or a little bound up together does that present a problem for us that we really can't go the procedural b ar route because of the in effect of assistance claim that work that's not before