[00:00:06] Speaker 02: Thank you, Your Honors. [00:00:07] Speaker 02: May it please the court, Christopher Wrench, on behalf of the state. [00:00:11] Speaker 02: I would like to reserve four minutes for rebuttal, and I will keep an eye on my clock. [00:00:16] Speaker 02: Bryce's shackling claim fails under either the extreme deference in EDPA or on de novo review. [00:00:24] Speaker 02: Both the assumed facts in state court and the facts developed at the later federal evidentiary hearing showed a single instance of in-courtroom shackling [00:00:34] Speaker 02: that was promptly corrected by both defense counsel and the trial court. [00:00:39] Speaker 03: Well, but that one that you mentioned, would that be Miss Sylvie, Jura Sylvie? [00:00:44] Speaker 02: Correct, that was Jura Sylvie. [00:00:46] Speaker 03: Is that the one who said that when she saw that, that that gave her a flavor of danger? [00:00:53] Speaker 02: Correct. [00:00:54] Speaker 02: That was her inference, which is the inference the law sort of expects individuals to draw from shackling. [00:01:04] Speaker 02: That's the reason visible courtroom shackles are a constitutional violation absent state justification. [00:01:13] Speaker 02: So I think Gerasilvi's memory [00:01:15] Speaker 02: is an example of her sort of confirming that she did draw the inference that the case law would sort of predicted her to draw. [00:01:25] Speaker 02: What's important about her memory about the flavor of danger was also her vivid memory of the immediate correction of the shackling. [00:01:36] Speaker 02: So it wasn't simply her memory of, oh, this is a flavor of danger. [00:01:40] Speaker 02: It was an equal memory of, [00:01:42] Speaker 02: Defense counsel stood up, made the proper objection. [00:01:46] Speaker 02: The trial court sustained the objection and issued a limiting instruction. [00:01:51] Speaker 03: Can we go to your, I think you briefed the issue of the clearly established law. [00:01:58] Speaker 03: Could you tell me why it is that you don't, do you agree that we should be applying the Sixth Circuit understanding as they stated that in Lakin? [00:02:11] Speaker 02: No, the state does not agree. [00:02:13] Speaker 03: So you would advocate for a split? [00:02:16] Speaker 02: We would, Your Honor, yes. [00:02:18] Speaker 02: And that primarily derives from DEC itself. [00:02:22] Speaker 05: And the state takes that at its own words when it said that it was going to consider whether... Well, doesn't Holbrooke clearly state that unjustified shackling is inherently prejudicial? [00:02:37] Speaker 02: It does not so hold, and it's important under EDPA that only square Supreme Court holdings on point count as clearly established federal law. [00:02:47] Speaker 05: But considering, I mean, you have that, and considering that DEC said that the prohibition on shackling has ancient roots, [00:02:58] Speaker 05: just trying to figure out why wasn't Shackling a clearly established due process violation prior to 2005. [00:03:05] Speaker 02: Because no United States Supreme Court squarely held that. [00:03:09] Speaker 02: DEC itself discussed Holbrooke and Illinois v. Allen and Estelle v. Williams, and it characterized those cases as providing statements that suggested a rule. [00:03:21] Speaker 02: So those cases certainly provided guidance. [00:03:24] Speaker 03: Well, but Deck specifically said, this is Deck saying, it has long been forbidden the use of visible shackles during the guilty phase, that that was the law. [00:03:36] Speaker 03: Also that this was, as our chief said, deeply embedded in the law. [00:03:41] Speaker 03: So did they have to make that pronouncement, even though that was, according to Deck itself, the Supreme Court themselves, long forbidden. [00:03:50] Speaker 02: Yes, the short answer is yes. [00:03:52] Speaker 02: The Supreme Court had to make that holding. [00:03:54] Speaker 04: What about the language from Decker? [00:03:57] Speaker 04: It says 35 years ago when considering the trial of an unusually obstreperous criminal defendant, the court held [00:04:07] Speaker 04: that the Constitution sometimes permitted special measures, including physical restraints. [00:04:12] Speaker 04: And it cites Allen, but it also cites the Allen saying that that should be used only as a last resort. [00:04:22] Speaker 02: Correct. [00:04:23] Speaker 02: Well, Allen was a confrontation clause case. [00:04:25] Speaker 02: So its holding was a confrontation clause holding that a defendant is permitted to be. [00:04:31] Speaker 04: So you're viewing the holding in the most narrowest sense of the term possible. [00:04:36] Speaker 02: I wouldn't say the narrowest sense, but in a narrow sense. [00:04:39] Speaker 02: And that's what the Supreme Court tells us. [00:04:41] Speaker 02: The holding has to be squarely on point. [00:04:44] Speaker 02: It cannot be sort of cobbled together from dicta or statements or suggestions. [00:04:51] Speaker 05: And I guess, is that even true? [00:04:54] Speaker 05: If EDPA is all about ensuring states have fair notice of federal rights at issue, [00:05:01] Speaker 05: Seems like DEC makes clear that the right to be free from unjustified shackling is ancient. [00:05:10] Speaker 05: You look at Alan, as well, to support its conclusion that shackling was prejudicial. [00:05:17] Speaker 05: That's a California case. [00:05:20] Speaker 05: Why should we conclude that the California Supreme Court did not know about this ancient right in DEC? [00:05:27] Speaker 05: Doesn't that make a difference here? [00:05:28] Speaker 02: The state's not asking the court to say [00:05:31] Speaker 02: There wasn't clearly established California law. [00:05:33] Speaker 02: There was. [00:05:34] Speaker 02: California has long prohibited in courtroom shackling without state justification. [00:05:42] Speaker 02: But to pass through D1 here in federal habeas, Mr. Fry needs to show an unreasonable application of a square Supreme Court holding prohibiting in courtroom shackling. [00:05:53] Speaker 02: And that did not exist until DEC. [00:05:55] Speaker 02: It's why DEC [00:05:57] Speaker 02: didn't say Illinois v. Allen had already held this. [00:06:00] Speaker 02: It said Illinois had statements that suggested the rule that DEC ultimately [00:06:06] Speaker 03: Why hasn't the, I'm sorry, go ahead. [00:06:09] Speaker 04: The Supreme Court itself has said that not only must the lower courts adhere to the strict holdings of cases, but also to their explication of the governing rules of law, as those rules are necessary to the decision and are not dicta. [00:06:32] Speaker 04: And that would be part of the explication in Allen. [00:06:36] Speaker 04: Well, it's not a holding, and it was not necessary to... It's part of the reasoning that shapes the law that was the principle of Allen. [00:06:50] Speaker 02: It was part of sort of an analogous reasoning undertaken in a couple of those cases, which I think I'd point the court to White v. Woodall, which is cited in our briefs as an example of [00:07:01] Speaker 02: the Supreme Court saying, even if it's fairly logical or clear what the next step in the Supreme Court's jurisprudence would be, the Supreme Court still has to actually take that step before it becomes a holding for clearly established federal law purposes. [00:07:20] Speaker 02: And the state acknowledges that the outcome in DEC is certainly the next logical step from Illinois v. Allen and that line of cases. [00:07:30] Speaker 02: I mean, DEC itself was decided for reason. [00:07:32] Speaker 02: The Supreme Court wasn't simply reiterating. [00:07:34] Speaker 04: DEC was deciding, really, whether the longstanding role against shackling in the guilt phase would be extended to the penalty phase. [00:07:45] Speaker 04: And there were reasons why you might not think it would be extended to the penalty phase that existed at the time. [00:07:52] Speaker 04: And that's why the Supreme Court did address that issue in DEC. [00:07:59] Speaker 02: Correct, but the first part of deck starts by saying we first consider as a general matter, whether shackling is violent is violated. [00:08:09] Speaker 02: If they're shackling air at the gill phase so deck took the step of undertaking the analysis of whether [00:08:17] Speaker 02: there is a whether the due process clause prohibits in court shackling. [00:08:20] Speaker 04: I think it's just the way it was written. [00:08:22] Speaker 04: It's kind of a Justice Breyer way of writing that. [00:08:27] Speaker 04: He's just pointing out how deeply rooted the unconstitutionality of shackles during the guilty phase is. [00:08:41] Speaker 04: So it's a no-brainer. [00:08:43] Speaker 04: to extend it to the penalty phase. [00:08:45] Speaker 04: I think that's how Justice Breyer does a lot of his opinions. [00:08:51] Speaker 02: Well, I don't disagree with the course comments about Justice Breyer. [00:08:56] Speaker 02: But I think ultimately, it comes back to we have to take deck for what it says. [00:09:02] Speaker 02: And it talked about those cases and called them statements that suggested a rule. [00:09:06] Speaker 02: It didn't say those statements provided a rule or identified [00:09:11] Speaker 05: I'll pivot here a little bit. [00:09:14] Speaker 05: So you agree that unconstitutional prejudice can result even if one juror is biased by the side of the shackles? [00:09:24] Speaker 02: Upon a showing of prejudicial error, yes. [00:09:26] Speaker 05: So I guess I'm trying to figure out why was it reasonable for the California Supreme Court to conclude that shackling was harmless beyond a reasonable doubt, even though [00:09:40] Speaker 05: It did not know the extent of the shackling or the juror testimony. [00:09:47] Speaker 02: Well, it did know the juror testimony, and it did know the- Was it declaration? [00:09:52] Speaker 05: Correct. [00:09:53] Speaker 05: Is that what you're calling juror testimony? [00:09:54] Speaker 02: Yes. [00:09:56] Speaker 02: There were two jurors who gave relevant declarations, totaling three total declarations in state court that the California Supreme Court was aware of. [00:10:07] Speaker 02: And the context that those declarations provided is important to the reasonableness of what the California Supreme Court did. [00:10:16] Speaker 02: Because in California, state habeas petitioners have to bring their evidence at the outset. [00:10:21] Speaker 02: That's what California habeas law requires. [00:10:24] Speaker 02: It's not a notice pleading situation. [00:10:26] Speaker 02: There's no automatic entitlement to discovery. [00:10:29] Speaker 02: So the expectation is the habeas petitioner has engaged in investigation of the claims before filing the petition. [00:10:37] Speaker 02: And we have affirmative evidence here confirming that Mr. Frye's defense team did exactly what it was supposed to do, that two investigators from the Capitol Unit and the Federal Defender's Office investigate the shackling claim, talk to jurors. [00:10:51] Speaker 02: He had a trial investigator in the late 80s who talked to jurors. [00:10:55] Speaker 02: So there was an extensive investigation. [00:10:57] Speaker 05: But why wasn't the California Supreme Court obligated to hold an evidentiary hearing, especially when one [00:11:07] Speaker 05: juror articulated in the declaration the exact prejudice that makes shackling unconstitutional with that whole flavor of danger comment. [00:11:17] Speaker 02: Because in that same declaration, the juror provided evidence of harmlessness, undisputed evidence of harmlessness. [00:11:24] Speaker 02: So that was the juror saying the defense counsel objected, the trial court sustained the objection, the shackles were removed, and the limiting instruction was given. [00:11:35] Speaker 03: Well, it's possible that it could have been harmless, but was it beyond a reasonable doubt? [00:11:40] Speaker 02: Yes. [00:11:42] Speaker 02: If we're in Edpa territory, there's, I mean, the Supreme Court said in Brownlee, Davenport, there's a lot of leeway for fair-minded jurists to apply the Chapman standard. [00:11:53] Speaker 03: And here- And that's what you argue that they did? [00:11:55] Speaker 02: Correct, yes. [00:11:57] Speaker 02: The California Supreme Court here would have assumed a constitutional error based on juror Sylvie's [00:12:03] Speaker 02: seeing the shackles and her comment about the flavor of dangerousness. [00:12:08] Speaker 02: But at the same time, a fair amount of jurors could reasonably conclude harmless error based on the totality of the factors I discussed. [00:12:17] Speaker 02: And additionally, just the overwhelming, compelling evidence of Mr. Fry's guilt. [00:12:22] Speaker 02: These shackles occurred once. [00:12:26] Speaker 02: Early in jury selection, Ms. [00:12:28] Speaker 02: Sylvie tells us, it was probably corrected [00:12:30] Speaker 02: and then an extensive trial occurred where there was compelling evidence of guilt. [00:12:35] Speaker 02: from an eyewitness, to corroborating physical evidence, to motive evidence, to consciousness at guilt evidence, to two confessions, and several other incriminating statements from Mr. Frye. [00:12:46] Speaker 03: Well, I know you're going to sort of the bric prejudice sort of analysis. [00:12:52] Speaker 03: I guess I do want to understand the weight of the evidence in that particular prompt. [00:13:00] Speaker 03: You just mentioned there was a witness. [00:13:02] Speaker 03: And the witness was the co-defendant? [00:13:04] Speaker 02: She was not a co-defendant. [00:13:05] Speaker 02: Oh, that's right. [00:13:07] Speaker 02: She had immunity. [00:13:07] Speaker 02: She was given immunity. [00:13:09] Speaker 02: She was not charged. [00:13:09] Speaker 03: So she had no interest in that. [00:13:12] Speaker 03: That's a witness that had no interest in the outcome. [00:13:15] Speaker 02: The jury, she had immunity. [00:13:21] Speaker 02: She did not ask for immunity, but she was given immunity. [00:13:24] Speaker 02: And she provided corroborated testimony. [00:13:27] Speaker 02: You know, Mr. Frye is now trying to paint her. [00:13:29] Speaker 03: I guess if you could tell me, again, just sticking on the, I'm trying to understand the weight of the evidence. [00:13:39] Speaker 03: What evidence went to, aside from the witness that had immunity, aside from her, [00:13:47] Speaker 03: What was it that went to the mens rea, the mental state of this individual? [00:13:53] Speaker 03: What's the evidence? [00:13:55] Speaker 02: Before the killings, Mr. Frye told Ron Wilson, who worked with the victims, that he was going to knock them out and take their gold. [00:14:04] Speaker 02: He made comments also to the effect that they shouldn't be carrying their money around so much. [00:14:10] Speaker 02: Someone should knock them out and take it from him. [00:14:13] Speaker 02: Additionally, we have post-murder evidence confirming the mens rea that he ripped a gold bracelet off of Mrs. Brand's neck. [00:14:22] Speaker 02: That was corroborated by Mrs. Brand's son. [00:14:25] Speaker 02: He also took a violent- Was he there? [00:14:28] Speaker 02: He was not there at the killings, but he confirmed that she had the necklace and that it had been taken. [00:14:35] Speaker 02: Similarly, a vial of gold was taken from the house that was later confirmed by a pawn shop owner to have been sold by Mr. Fry, placing him outside in Ms. [00:14:45] Speaker 02: Worsing, but placing him inside the home. [00:14:48] Speaker 02: Ms. [00:14:49] Speaker 02: Worsing's account [00:14:50] Speaker 03: No, there's no question that there's evidence that he committed a crime. [00:14:53] Speaker 03: And what level of crime? [00:14:54] Speaker 03: But the question is, the level of mental state, I guess that's what I'm trying to understand. [00:15:03] Speaker 03: That's the weight of the evidence I'm trying to understand. [00:15:06] Speaker 02: In terms of intent to kill? [00:15:07] Speaker 02: Yes. [00:15:07] Speaker 02: The shotgun blasts, two shotgun blasts at close range to Mr. Brandt. [00:15:13] Speaker 03: Was there a forensics on that, that put him behind the shotgun? [00:15:18] Speaker 02: No, there was Jennifer Worsing's testimony. [00:15:21] Speaker 03: Again, setting aside her. [00:15:23] Speaker 02: Well, I mean, I think we have to, as an initial matter, there's a reasonable jurist would not have to set aside her testimony. [00:15:33] Speaker 02: She's a corroborated accomplice at worst. [00:15:35] Speaker 02: I mean, the jury was not required to even find that she was an accomplice. [00:15:39] Speaker 02: And even if she were an accomplice, the jury gets to credit it under California law with slight corroboration. [00:15:45] Speaker 02: and issued California on direct appeal, the Supreme Court said there was sufficient corroboration. [00:15:51] Speaker 02: So her evidence to a reasonable jurist could not be discounted as not part of the picture. [00:15:56] Speaker 02: It's absolutely part of the totality of the evidence. [00:16:02] Speaker 05: If I could ask you about prejudice here, because moving on beyond the California Supreme Court. [00:16:11] Speaker 05: Here, unlike most shackling cases, there's juror declaration from over a decade after trial highlighting the prejudicial impact of shackling. [00:16:26] Speaker 05: And it seems like Mr. Fries' shackling was even briefer than the other Ninth Circuit cases finding prejudice. [00:16:36] Speaker 05: So I guess why doesn't that juror testimony or the declaration that the shackles gave Mr. Frye the flavor of danger overcome that? [00:16:48] Speaker 02: Because, first of all, it's a compelling totality of the circumstances. [00:16:53] Speaker 02: But additionally, this isn't structural error. [00:16:56] Speaker 02: You know, the Supreme Court tells us that shackling can be harmless. [00:16:59] Speaker 02: So the fact that a juror, a single juror drew a brief inference that would be expected under the shackling jurisprudence. [00:17:07] Speaker 03: Counsel, wasn't it more than one juror? [00:17:09] Speaker 03: I thought it was juror Canale. [00:17:10] Speaker 02: She did not ever say she remembered seeing shackling inside the courtroom. [00:17:15] Speaker 02: At the federal evidentiary hearing, [00:17:18] Speaker 02: she reported seeing Mr. Frye in the transportation context outside of the courtroom. [00:17:23] Speaker 05: So to respond, when we assess the extent and duration of the shackling, because a lot of the cases focus on that, aren't we trying to use that as a proxy for the impact the shackling had on the jury and here, [00:17:46] Speaker 05: where we know the shackling stuck in the minds of at least two jurors, granted one was inside and one was outside, but over a decade after trial, why doesn't it matter that the shackling was briefed here? [00:18:06] Speaker 02: For a couple reasons. [00:18:08] Speaker 02: First of all, the inside outside court and distinction is critical. [00:18:11] Speaker 02: This court is held outside the court and shackling is not inherently prejudicial. [00:18:15] Speaker 02: to the inside the courtroom, a big reason Jura Sylvie talked about remembering this was because of how defense counsel made the objection. [00:18:23] Speaker 02: She said he made a production out of it and it was a memorable objection. [00:18:27] Speaker 02: She went as far as saying it was so stupid for him to do it this way. [00:18:31] Speaker 03: That- Not just outside, this happened inside the jury room. [00:18:36] Speaker 03: The jury room? [00:18:37] Speaker 03: Jura Sylvie testified that the jurors mentioned the shackling in the jury room during trial. [00:18:43] Speaker 02: She, a couple things. [00:18:46] Speaker 02: consistently since it was never mentioned during deliberations, and she did say one time she thought it was mentioned in the jury room. [00:18:52] Speaker 02: So it happened in the jury room? [00:18:54] Speaker 02: According to Ms. [00:18:55] Speaker 02: Sylvie, yes. [00:18:56] Speaker 03: Well, she's a juror, right? [00:18:57] Speaker 03: Okay, so she said it happened in the jury room. [00:19:00] Speaker 03: Happened in the jury room. [00:19:01] Speaker 03: And that juror Sylvie said that the Price Shackling also, that she thinks that the whole jury saw him shackled in the courtroom. [00:19:14] Speaker 02: I mean, bluntly, that's not competent evidence of her opinion about what other people, what she believes other people saw. [00:19:23] Speaker 02: But regardless, if the juror saw what she saw, she saw a mistake that was corrected. [00:19:30] Speaker 02: She saw a defendant improperly shackled. [00:19:33] Speaker 02: She saw a defense counsel do his job and object. [00:19:36] Speaker 02: She saw the trial court do its job and remove those shackles. [00:19:39] Speaker 02: And it's the removal that we haven't really gotten to yet, and it's a key part [00:19:44] Speaker 02: of this court's case law in both Elmore and Larson, that when shackles are removed, it sends a message that the defendant is not dangerous. [00:19:54] Speaker 02: So even if juror Sylvie Washington, even if she did draw a flavor of danger inference, that inference was mitigated because the court removed it. [00:20:02] Speaker 02: And the court is saying to the jury, this was a mistake, and I, the trial court, am correcting it. [00:20:08] Speaker 02: I'm removing those shackles. [00:20:10] Speaker 02: Juror Sylvie said she never saw the shackles again. [00:20:13] Speaker 02: So the mistake was corrected. [00:20:16] Speaker 02: The fleeting inference of prejudice was quickly counteracted by appropriate trial court action. [00:20:25] Speaker 05: Do you want to reserve the balance or do you have more? [00:20:30] Speaker 02: I don't think I have more unless the court wants to get to anything specific, but yeah. [00:20:33] Speaker 04: Well, can I just ask you, what do you want us to do? [00:20:37] Speaker 04: What's the state asking us to do? [00:20:38] Speaker 02: The state is asking this court to reverse the entry of judgment on the Shacklin claim and direct the trial court to deny habeas relief on that claim. [00:20:47] Speaker 04: And then consider the other 44 claims and then proceed to education. [00:20:52] Speaker 04: And do you have any understanding or explanation at all for why this case was pending in the Eastern District for 20 years before? [00:20:59] Speaker 04: And it seems as though there's something fundamentally wrong with what's been procedurally has happened here. [00:21:05] Speaker 02: I mean personally, I've been lead counsel in this case for the last five or six years So I can't totally speak to the extended history But there had been there were numerous extensions by both parties that were agreed to there was a there was a piecemeal hearing where in part on the shackling claim That took up some time. [00:21:24] Speaker 02: There's been at least one change in counsel for mr. Frye and [00:21:29] Speaker 02: possibly more, but I don't have a sort of succinct answer for why it's taken so long. [00:21:36] Speaker 05: Let me ask you, you suggest, you know, your request is that we reverse. [00:21:44] Speaker 05: And in your view, what should be the basis for the reversal? [00:21:47] Speaker 05: Going straight to Brecht or dealing with the, what would be your recommended? [00:21:55] Speaker 02: I recommend it. [00:21:56] Speaker 02: I mean, I don't have a preference for how the court reverse, but they say we prefer the court to go through EDPA, add a deference to the state, and reverse strictly under EDPA. [00:22:08] Speaker 02: But certainly the court could just bypass EDPA altogether if it's going to reverse and just assume it had been bypassed and find harmlessness under BRCA. [00:22:18] Speaker 05: All right. [00:22:18] Speaker 05: Thank you. [00:22:19] Speaker 02: Thank you. [00:22:34] Speaker 01: May it please the court, I'm Michael Snedeker, appearing with my partner, Lisa Short, on behalf of Jerry Grant Frye. [00:22:45] Speaker 01: This case presents a unique example of the powerful effect of seeing another human being shackled at the wrist, at the waist, and the ankles on somebody who's unaccustomed to such a sight. [00:22:58] Speaker 01: We had two jurors, 12 years after the trial, submit declarations. [00:23:05] Speaker 01: One of the jurors, juror Canale, remembered exactly one thing about all the witnesses, the testimony of the exhibits. [00:23:13] Speaker 01: She remembered only that Mr. Frye was shackled. [00:23:17] Speaker 01: Juror Sylvie signed a declaration prepared by the Federal Defender's Office that dealt with matters of jury deliberations. [00:23:26] Speaker 01: But after she signed the type copy, she added a paragraph in her own handwriting saying, I also saw him shackled at the waist, shackled at the wrists, at the feet. [00:23:41] Speaker 01: It's true. [00:23:41] Speaker 01: She did say later and in trial, she said at that time that defense counsel objected and the judge gave them an admonition. [00:23:49] Speaker 01: But I think from Holbrook v. Flynn, we know that jurors cannot always be completely conscious of the effect of certain sites or certain restraints. [00:24:03] Speaker 01: I'm confident that these jurors remembered not any admonition that might have been given by the judge, but they remember seeing Mr. Fry shackled. [00:24:13] Speaker 01: It gave him a flavor of danger that is not going to be dispelled by a judge saying, don't think about that shackling, or don't worry about that shackling. [00:24:22] Speaker 05: The shackling of the ankles did not occur in court, is that correct? [00:24:31] Speaker 01: But she saw that I believe her shackling did occur in court. [00:24:36] Speaker 05: I don't think that's what the magistrate judge found in terms of the factual findings that were ultimately determined. [00:24:43] Speaker 01: Well, the magistrate judge effectively punted, I think, by saying whether or not he was shackled at the feet is not relevant to my determination. [00:24:53] Speaker 05: Well, I thought that the evidence of any shackling at the feet was outside the courtroom. [00:25:03] Speaker 01: Well, I believe that it was inside, but I could be wrong. [00:25:07] Speaker 05: Yeah. [00:25:08] Speaker 05: You want to look at that. [00:25:09] Speaker 05: But that's fine. [00:25:12] Speaker 05: Please proceed. [00:25:13] Speaker 05: Do you want to talk about clearly established? [00:25:16] Speaker 05: I do. [00:25:18] Speaker 05: And whether Shackling was clearly established? [00:25:20] Speaker 01: Well, the idea that a Supreme Court hold-in is required to define clearly established federal law under 2254D reflects the concern that by relying on Supreme [00:25:37] Speaker 01: not plain and undisputed. [00:25:40] Speaker 01: But this does not apply to legal doctrines which have been never discussed by the Supreme Court precisely because they reflect basic common law principles that are codified in the Constitution. [00:25:56] Speaker 01: The Supreme Court has written that there are principles of justice so rooted in their traditions and conscience of our people as to be ranked as fundamental [00:26:06] Speaker 01: Shackling and the ban against it is one such principle. [00:26:11] Speaker 01: In DEC, the court said of its earlier recognitions that shackling was against the law without justification. [00:26:18] Speaker 01: In Illinois v. Allen and Holbrook v. Flynn and Estelle v. Williams, it is clear that this court's prior statements about shackling gave voice to a principle deeply embedded in the law. [00:26:32] Speaker 05: I just want to ask you, neither [00:26:35] Speaker 05: Allen nor Holbrook were about shackling defendants, correct? [00:26:41] Speaker 05: That's correct. [00:26:42] Speaker 05: So I'm just trying to figure out, and I wanted to give you an opportunity to explain how that meets the standard if those cases were not about shackling defendants. [00:26:54] Speaker 01: Well, I think they were not. [00:26:55] Speaker 01: The only reason the US Supreme Court took up the debt case was to resolve a question which was not [00:27:05] Speaker 01: for which there was not a consensus, and that is, what's the effect of shackling at a penalty phase? [00:27:11] Speaker 01: The first word of the holding in deck is that shackling is also prohibited at the penalty phase. [00:27:19] Speaker 01: It was an open question because the presumption of innocence has been overcome by the time you get to a penalty phase. [00:27:25] Speaker 01: Along the way, they did make the first formal announcement saying that we hold that shackling was banned at the guilt phase. [00:27:35] Speaker 01: Had there not been that penalty phase issue, they would not have found a need to because it was so widely understood. [00:27:42] Speaker 01: It is a principle accepted by every case cited by both respondent and us. [00:27:49] Speaker 05: Let me ask you this, because before DEC explained why Shackling is prejudicial, [00:28:00] Speaker 05: How would a state know the contours of the right? [00:28:03] Speaker 05: And the reason I ask this is I'm thinking about our decision in Ghent, which says that a jury's brief glimpse of shackles is not inherently prejudicial. [00:28:17] Speaker 05: I'm just trying to figure out, and I wanted to give you an opportunity to explain, before DEC, how would the California Supreme Court know how to analyze the prejudicial impact of the brief in courtroom shackling at issue here? [00:28:36] Speaker 01: They had their own long history of developing law related to the prohibition against shackling without a justification. [00:28:46] Speaker 01: I think that every court, every decision that we've cited, all those from the 90s prior to DEC have all assumed that it was clearly established law that shackling should be banned. [00:29:00] Speaker 01: Justice Scalia said in Harrington v. Richter that in order for a petitioner to prevail, state court error must be an error well understood and comprehended in existing law beyond any possibility of fair-minded disagreements. [00:29:17] Speaker 01: Well, there is no disagreement here, nor has there been over the past couple of centuries over whether shackling without justification [00:29:25] Speaker 01: is permitted in any courtroom. [00:29:27] Speaker 01: Every single decision that we've cited recognizes that shackling is prohibited. [00:29:34] Speaker 01: Now, they're scuffling around the edges of how long, the duration, the intensity, but in terms of that fundamental principle, there has not been an expression of doubt about that. [00:29:46] Speaker 01: There is, in fact, [00:29:47] Speaker 01: universal agreement that that is to be banned and that agreement has been in place longer than the right to counsel has been in place, longer than the right to call witnesses on your own behalf has been in place. [00:30:01] Speaker 01: Shackling has been banned throughout the history of our law. [00:30:05] Speaker 01: And the fact that there's not a direct holding is not relevant, I think. [00:30:10] Speaker 01: It does not preclude or somehow magically take away the rights to which Mr. Frye had. [00:30:19] Speaker 01: The whole notion, you know, he cites what cases does Respondent cite for the idea that only a holding of the U.S. [00:30:26] Speaker 01: Supreme Court can justify clearly established federal law. [00:30:33] Speaker 01: Well, he cites Marshall, the Rogers, [00:30:45] Speaker 01: Marshall v. Rogers is a case about when counsel must be appointed. [00:30:50] Speaker 01: It concludes as follows. [00:30:52] Speaker 01: This opinion is instead confined to the determination that the conclusion of the California courts that there was no Sixth Amendment violation is not contrary to clearly established federal law as determined by the Supreme Court of the United States. [00:31:08] Speaker 01: The word holding does not appear anywhere in this holding. [00:31:12] Speaker 01: The other case he cites was a case [00:31:16] Speaker 01: He cited in his opening brief the case of... Pardon me while I shuffle my papers, John. [00:31:33] Speaker 01: It was White v. Woodall, and in White v. Woodall, it was cited by appellant for the principle that only holdings would apply, but that case involved [00:31:46] Speaker 01: whether an adverse inference instruction was required at the penalty phase of a trial about a defendant's failure to testify. [00:31:57] Speaker 01: And the Sixth Circuit had put together Carter v. Kentucky and Estelle v. Smith and Mitchell v. the United States and held that yes, just as a defendant is entitled to an adverse inference instruction, [00:32:14] Speaker 01: At the guilt phase, he also is at the penalty phase. [00:32:18] Speaker 01: Justice Scalia said no, because it's possible that maybe an adverse inference instruction would not be required for something like feelings of remorse. [00:32:29] Speaker 01: And because there was a possibility of fair-minded disagreement, the state of Kentucky won. [00:32:34] Speaker 01: Now, that case also says nothing about a requirement, an absolute requirement that there only be a holding [00:32:44] Speaker 01: square holding from the US Supreme Court that will establish clearly established federal law. [00:32:52] Speaker 01: And the fact that DEC did not make such a square holding until 2005, or the US Supreme Court did not, does not mean that they didn't squarely recognize that that was the law repeatedly in earlier cases, and that I think has always been the law, remains the law, and was the law in effect when Mr. Frye was tried. [00:33:19] Speaker 05: So can I ask you, in Brown versus Davenport, Supreme Court seemed to indicate that EDPA gives the state court some leeway, particularly when applying general rules like Chapman. [00:33:38] Speaker 05: I'm trying to figure out, why did the California Supreme Court exceed that leeway here? [00:33:46] Speaker 01: Because I think it, [00:33:50] Speaker 01: It was so clear, I think it is so clear, that they should have done that. [00:33:54] Speaker 01: It was beyond any reasonable doubt or any standard that it was an unreasonable determination of the facts if they somehow determined [00:34:02] Speaker 01: that you are Sylvie's, the fact that she had noticed that he had a flavor of danger, and she noticed that for a decade after it happened. [00:34:09] Speaker 05: But that beyond a reasonable doubt standard is the standard for reviewing errors, I believe, on direct appeal. [00:34:17] Speaker 05: But this claim, and this is what makes this case different, this claim was first raised in the state habeas proceedings. [00:34:28] Speaker 05: That's correct. [00:34:31] Speaker 05: What I'm trying to figure out is could the state court have applied a standard more forgiving of state errors in that posture? [00:34:41] Speaker 01: It's quite possible, Your Honor, but we don't know because they said nothing. [00:34:47] Speaker 05: I know, but under Harrington v. Richter, I think we're obligated to look to see if there could have been. [00:34:57] Speaker 04: But don't both parties in this case agree that Chapman was the role that the California court applied? [00:35:04] Speaker 04: I think that was what... Excuse me, Your Honor. [00:35:08] Speaker 04: I think from the briefs, both sides agreed that the California court applied Chapman. [00:35:15] Speaker 04: They just argued, one side argued they applied it correctly and the other side argued they applied it wrong. [00:35:24] Speaker 01: That's correct, Your Honor. [00:35:25] Speaker 04: What I hear Chief Judge McGee is saying is that maybe there's a chance that Chapman doesn't apply to review on habeas as opposed to direct. [00:35:41] Speaker 04: But have you ever seen any law on that? [00:35:46] Speaker 01: Your Honor, it is possible that the standard [00:35:52] Speaker 01: I know that Nunes v. Miller has been criticized by recent cases and that the termination of whether or not there should have been a factual hearing, that standard is not crystal clear right now. [00:36:06] Speaker 01: But our position is that under any standard, it was so clear that there's no possibility that any fair-minded jurist could look at these declarations. [00:36:18] Speaker 01: and not want further factual development, or to put it another way, they could say these declarations do not create any sort of justification or requirement, or invoke any curiosity about what really happened, and therefore we're not going to allow a factual resolution. [00:36:48] Speaker 01: So his points, appellant's points about duration, I think, have been addressed already, that the whole point of determining, like looking at how long someone was shackled and where they were shackled is to determine whether or not there was any impact and the degree of the impact. [00:37:08] Speaker 01: And in this unusual case, we know that there was a very powerful impact from the shackling at issue. [00:37:20] Speaker 05: But I guess, can you point to any case finding break prejudice due to courtroom shackling that was of similar duration, brief duration here? [00:37:34] Speaker 01: No, Your Honor. [00:37:35] Speaker 01: We don't have any of, we have shackling. [00:37:39] Speaker 01: We have cases where people were shackled or brief times where it's like in the Larson case, for example, [00:37:50] Speaker 01: The shackling was found non-prejudicial because of four days. [00:37:53] Speaker 01: But in terms of being actually prejudicial, I know of no case in this circuit that has found such a short duration to justify a reversal. [00:38:05] Speaker 01: But I also know of no other case where we have direct language from the jurors about having been profoundly defected. [00:38:12] Speaker 01: And I believe the whole point of assessing the impact of shackling [00:38:20] Speaker 01: That's what they're driving at when they're looking at how long was the shackle, what was the extent of the shackles, the intensity of the shackles. [00:38:28] Speaker 01: And it could well be that somebody could be so moved by the sight of somebody that that's what they can never unsee throughout the process, regardless of whether there's additional shackling or whether there are admonitions given. [00:38:43] Speaker 01: If the shackling can be, and was in this case, so profoundly affecting, [00:38:50] Speaker 01: That in itself requires reversal. [00:38:55] Speaker 05: And I appreciate the argument. [00:38:56] Speaker 05: I'm trying to figure this out. [00:38:58] Speaker 05: And it seems like several months elapsed between the shackling and the jurors' guilt verdict and death sentence. [00:39:09] Speaker 05: And in the meantime, the jurors heard a lot of evidence and very limited mitigation evidence. [00:39:20] Speaker 05: So I'm trying to figure out, yes, we have the juror's statement, but don't we still look at everything to determine whether or not there was prejudice? [00:39:32] Speaker 05: And here, it seems like the [00:39:39] Speaker 05: evidence in front of the jury was substantial and significant, but I wanted to give you an opportunity to talk about that as to why that wouldn't outweigh the juror's statement, or don't we have to look at everything in context? [00:40:02] Speaker 01: Your Honor, there was a stout defense presented by Mr. Fry, an extensive [00:40:08] Speaker 01: closing arguments. [00:40:10] Speaker 01: There was an expert who meticulously reviewed the Department of Justice's treatment of the crime scene and found many fundamental disagreements between Jennifer Warsong's testimony and what the physical evidence showed. [00:40:24] Speaker 01: There was evidence, and by the way, now is the right time to do it. [00:40:31] Speaker 01: I want to ask court for permission to add excerpts of record because [00:40:35] Speaker 01: We inadvertently forgot to include excerpts from the autopsy that were developed and argued strongly in the closing argument, indicating that the victims had to have been killed at least an hour before Mr. Frye and Ms. [00:40:50] Speaker 01: Worsing arrived at their house, and other evidence showing the lividity of the bodies indicating that they were turned over somewhere between one and seven or eight hours after they were killing. [00:41:07] Speaker 01: evidence presented about money that the police believed were there and put in the warrant that was not there. [00:41:17] Speaker 01: There was also evidence, I think, well, I've discussed the issue of confessions, but there was no confession, really. [00:41:25] Speaker 01: But the evidence was against Mr. Frye, was fundamentally rooted in the testimony of Jennifer Warsing. [00:41:36] Speaker 01: his own statements, Ms. [00:41:38] Speaker 01: Warsing's statements, all of those were directed where the jury was told to consider them and be very cautious when they did and be suspicious of vicarious confessions and of these statements of accomplices. [00:41:53] Speaker 01: There are evidence that both parties were there, but in terms of who did what, [00:42:01] Speaker 01: There is a real defense, the kind of defense where people would have to approach it carefully, and I think the jury did that. [00:42:09] Speaker 01: They wanted to review many parts of the case, and I'm not going to argue that there's not substantial evidence of his guilt, but I am going to say it's not that easy a case. [00:42:21] Speaker 01: There were lengthy arguments, and I think the jury reflected, and it's not so substantial. [00:42:28] Speaker 01: In the Larson case, [00:42:30] Speaker 01: The jury came back in three hours. [00:42:33] Speaker 01: In this case, it was three days of deliberation, between 10 and 11 hours. [00:42:42] Speaker 01: I think that's enough. [00:42:43] Speaker 01: Given the amount of prejudice, the prejudice cannot be dispelled by just simply saying, well, it couldn't have made any difference. [00:42:54] Speaker 05: In Larson, that was a six-day trial? [00:42:58] Speaker 01: That was a trial in the state of Oregon. [00:43:00] Speaker 05: Yeah. [00:43:01] Speaker 05: So he was, I think, shackled two days of a six-day trial. [00:43:07] Speaker 05: That's correct. [00:43:08] Speaker 05: With a security leg brace. [00:43:12] Speaker 01: That's correct. [00:43:15] Speaker 01: This court found it to be not prejudicial in that case. [00:43:18] Speaker 01: For one, he had an [00:43:20] Speaker 01: quote, relatively unobtrusive leg brace. [00:43:23] Speaker 01: He was able to move freely around the courtroom and defend himself for four of the six days. [00:43:29] Speaker 01: The leg brace is just a far cry from the shackling that is in this case. [00:43:37] Speaker 01: Plus the fact that there was very short deliberation by the jury [00:43:44] Speaker 01: And for that reason, the prejudicial effect of the jury having seen him for a couple of days in that leg brace was overcome. [00:43:53] Speaker 01: That's not true in our case. [00:43:58] Speaker 04: On your Chapman argument, just to take you back there for a second, something I'm not clear on is, are you saying that the California Supreme Court [00:44:09] Speaker 04: made an unreasonable determination of the facts in finding there was no Chapman error, or are you saying the California Supreme Court should have held an evidentiary hearing under California state rules or state law? [00:44:27] Speaker 01: They definitely should have held a hearing. [00:44:30] Speaker 01: That is our position under both state and federal law. [00:44:36] Speaker 01: They're required to take as true any declarations presented by an initial petition of habeas corpus. [00:44:42] Speaker 01: They had to assume that these declarations were true. [00:44:45] Speaker 01: I think it was state law error for them not to have granted that hearing. [00:44:49] Speaker 01: And I think the deference we owe them is overcome by the power of these declarations that [00:45:02] Speaker 01: to make some sort of ruling based on, it's true, you are required, in fact, to imagine what any reasonable fair-minded jurists could have come up with on the California Supreme Court. [00:45:18] Speaker 01: Well, I don't see how any such jurists could ever not want to see what these, not wanted to hear from these two declarants and also the other jurors. [00:45:29] Speaker 01: There's another juror mentioned [00:45:31] Speaker 01: There are other situations, according to the initial declaration, all the jurors saw it. [00:45:35] Speaker 01: I mean, the fact that why would the court not want to flesh this out? [00:45:43] Speaker 01: I think if you acknowledge that shackling [00:45:47] Speaker 01: is banned, absent justification as a fundamental principle of law, then you have to elaborate or want to know more facts about those declarations. [00:45:57] Speaker 01: And I don't think that any fair-minded jurists would think otherwise. [00:46:01] Speaker 00: I think that's what I have. [00:46:13] Speaker 00: Do you have any other questions of me? [00:46:17] Speaker 00: No. [00:46:17] Speaker 00: Thank you. [00:46:18] Speaker 02: Thank you, Your Honors. [00:46:37] Speaker 02: A key word here is branding. [00:46:39] Speaker 02: In both Dyes and Rodin, this court found prejudicial impact because the defendant was functionally branded as a dangerous individual. [00:46:47] Speaker 02: That did not happen here. [00:46:50] Speaker 02: There was a mistaken shackling instance that was quickly corrected, and he never appeared again in shackling. [00:46:56] Speaker 02: That is not a situation of branding the defendant as a dangerous individual. [00:47:02] Speaker 02: Both Dyes and Rodin had a shackled defendant for the entirety of the guilt phases. [00:47:08] Speaker 02: This was one day in jury selection, not even when evidence had been taken, not even when the entire jury had been sworn in. [00:47:15] Speaker 03: Not according to Sylvie. [00:47:17] Speaker 03: According to Sylvie, there were more than one occasions. [00:47:19] Speaker 03: According to Sylvie, all of the jurors saw this. [00:47:24] Speaker 02: Juror Sylvie has never said there was more than one instance of shackling. [00:47:29] Speaker 02: And when she said she believed the other jurors saw them that could have been referring to the potential jurors seated in the box with her during jury selection just as much as it could have been during and I'll check on the on the reference, but I thought she indicated that she saw fry shackled on the bench and [00:47:46] Speaker 03: Oh, outside the courtroom once. [00:47:50] Speaker 03: And that, along with Jura Canales saw Fry shackled in the breezeway and Jura Sylvie saying that Fry shackled in the courtroom and that she thinks that the whole jury saw him. [00:48:05] Speaker 03: I thought that's what she said. [00:48:07] Speaker 02: Correct and when I met one time I was speaking of inside the courtroom shackling I was not referring to outside which this court is recognized as not inherently prejudicial So Gersilvy identified one instance of in courtroom shackling But if your point is is branding right if you're thinking that that's what the [00:48:24] Speaker 03: the case law is sort of telling us, then what do we make of the statement, you know, the flavor of danger over that many years? [00:48:33] Speaker 03: Isn't that the branding that sort of has been sort of imprinted in that juror's mind for that many years? [00:48:40] Speaker 02: No, because the flavor of danger occurred upon the site of shackling. [00:48:45] Speaker 02: That's what Ms. [00:48:45] Speaker 02: Sylvie tells us, which again is what the law would sort of expect. [00:48:50] Speaker 02: But the law allows for harmlessness. [00:48:52] Speaker 02: And Ms. [00:48:52] Speaker 02: Sylvie tells us what she also remembers is that air was corrected and that she never mentioned it or nobody else ever mentioned it during deliberations. [00:49:00] Speaker 02: So we know. [00:49:01] Speaker 02: And this was a key fact. [00:49:03] Speaker 02: The Supreme Court relied on it in the Davenport decision with the juror says it wasn't brought up during deliberation. [00:49:09] Speaker 02: And it's undisputed here that Shacklin was not discussed during the deliberative phase [00:49:15] Speaker 02: of this case, and it's undisputed that the shackles were removed. [00:49:21] Speaker 03: In the jury room, but not during the liberation. [00:49:25] Speaker 02: Correct. [00:49:25] Speaker 02: Yeah, there is that part of... Well, I should clarify that is in the federal evidence jury. [00:49:32] Speaker 02: hearing. [00:49:33] Speaker 02: It's not in the state court record. [00:49:36] Speaker 04: So we're allowed to consider it under Brecht, but not as to on the question of whether the California Supreme Court committed Chapman error. [00:49:45] Speaker 02: Yes. [00:49:46] Speaker 04: Okay. [00:49:46] Speaker 04: And then my other question for you is, are you aware of any California law that says that the state Supreme Court applies a different standard than Chapman when it's on habeas review as opposed to direct review? [00:50:01] Speaker 02: Your honor the state court here would have the governing standard would have been Chapman, right? [00:50:06] Speaker 04: So we are to apply Chapman, correct? [00:50:08] Speaker 02: Yeah, the question is whether a fair-minded jurist applying Chapman Could have found harmless Eric It's cute [00:50:20] Speaker 05: Your colleague, I mean, your friend across the aisle just made some statements regarding that the strength of the evidence was not as strong, referencing the autopsy and the timing. [00:50:32] Speaker 05: Can you respond to that? [00:50:34] Speaker 02: I don't recall that portion of the autopsy report directly. [00:50:38] Speaker 02: What was one important aspect of the autopsy report is that it corroborated Ms. [00:50:44] Speaker 02: Worsing's testimony that Mr. Brand had been shot twice and Mrs. Brand had been shot. [00:50:49] Speaker 02: once. [00:50:50] Speaker 02: There was expert testimony disputing the processing of the scene, but there was not evidence of innocence. [00:50:58] Speaker 02: There was, you know, Mr. Fry's never identified the killer. [00:51:02] Speaker 03: Well, Ms. [00:51:03] Speaker 03: Farring also testified, if I understood correctly, that, you know, Mr. Fry was talking about hearing the devil [00:51:11] Speaker 03: all of those sorts of things, that there is some alcohol, all of those things that Ms. [00:51:16] Speaker 03: Warren also testified to, and so we have to take that part of the evidence, correct? [00:51:22] Speaker 02: Correct. [00:51:23] Speaker 02: That's how she describes some of his statements, but I think it's, speaking of the evidence of guilt, again, it's a totality analysis, and he told Ms. [00:51:32] Speaker 02: Worsing he killed him. [00:51:33] Speaker 02: He told Officer Smith, I killed him. [00:51:36] Speaker 02: He, upon his arrest sitting in a patrol car, told the officer, do you want the big one? [00:51:40] Speaker 02: I'm Jerry Fry, I'm wanted for double murder. [00:51:43] Speaker 02: When he learns that Worsing is not being charged, he's mad. [00:51:47] Speaker 02: And he says, she's an accessory after the fact. [00:51:50] Speaker 02: She's as guilty as I am. [00:51:52] Speaker 02: So it's not, this case doesn't rise or fall on sort of any one of these factors. [00:51:56] Speaker 02: There's evidence from all different angles pointing to the same conclusion. [00:52:00] Speaker 03: I'm sorry, he said to an officer, what? [00:52:04] Speaker 03: I missed that. [00:52:05] Speaker 03: Um, the big one is that, no, I heard that the one before that you said, but, um, it implied that he admitted having killed. [00:52:16] Speaker 02: Um, this was to a Amador County detective Anderson. [00:52:19] Speaker 02: Um, when he, when the detective told Fry that Ms. [00:52:22] Speaker 02: Worsing was not being charged, right. [00:52:24] Speaker 02: Mr. Fry was upset and he said, she is as guilty as I am. [00:52:28] Speaker 02: Right. [00:52:28] Speaker 02: She's an accessory after the fact. [00:52:30] Speaker 02: Right. [00:52:31] Speaker 02: Um, again, implying and really not implying directly stating [00:52:35] Speaker 02: his guilt, which was consistent. [00:52:37] Speaker 02: with his other confessions. [00:52:38] Speaker 02: And, you know, Mr. Fry. [00:52:39] Speaker 03: Well, hold on. [00:52:40] Speaker 03: The state didn't argue that there were confessions at the state court. [00:52:42] Speaker 03: They said that there were statements, right? [00:52:44] Speaker 02: Well, some of them were statements. [00:52:47] Speaker 02: One was, I mean, he told Officer Smith. [00:52:49] Speaker 03: So my question is that the state didn't argue that those were confessions. [00:52:51] Speaker 03: But you're arguing that they're confessions. [00:52:53] Speaker 02: I don't know if, I'm not sure if the trial prosecutor used the word confession. [00:52:56] Speaker 03: We checked. [00:52:57] Speaker 03: I don't think they did. [00:52:58] Speaker 03: OK. [00:52:59] Speaker 03: But maybe your memory is better than I am. [00:53:02] Speaker 02: I would, yeah, I'm not 100% sure if they used that word. [00:53:06] Speaker 02: Reading the California Supreme Court's resuscitation of the fact on the record, he confessed to Ms. [00:53:11] Speaker 02: Worsing that he killed the Brantz, and he confessed to Officer Smith that he committed the crimes. [00:53:15] Speaker 02: The other statements are short of full confessions, but they are nonetheless incriminating. [00:53:21] Speaker 05: And so you heard Mr. Snekder say that a state [00:53:34] Speaker 05: That was state law error not to grant a hearing so I just we talked about it briefly before I just want you to be able to respond to why That isn't the case. [00:53:46] Speaker 02: It is not the case. [00:53:47] Speaker 02: It's also not the question under d2 for this court whether the state violated its own air I'm sorry. [00:53:52] Speaker 02: I didn't hear that. [00:53:53] Speaker 02: I'm sorry It's not state law error and it's not [00:53:58] Speaker 02: This court does not decide whether the California Supreme Court violated its own error under D2. [00:54:02] Speaker 02: It determines whether it's unreasonable determination of facts. [00:54:06] Speaker 02: But importantly, California's law says that evidentially your hearings in habeas are to resolve material issues of disputed fact. [00:54:15] Speaker 02: They only are required when there's a factual dispute and when it's necessary to resolve that dispute. [00:54:22] Speaker 02: The declarations before the California Supreme Court, I'm out of time. [00:54:26] Speaker 02: Go ahead, you may proceed. [00:54:27] Speaker 02: The declarations before the California Supreme Court were undisputed. [00:54:31] Speaker 02: There was no conflicting evidence. [00:54:33] Speaker 02: So there was no need for the California Supreme Court to resolve any disputed facts. [00:54:38] Speaker 02: And it had the result of Mr. Fry's investigation. [00:54:41] Speaker 02: So it could reason. [00:54:42] Speaker 05: But was there any obligation or why wasn't there any obligation for the California Supreme Court to take the jurors' declaration regarding the shackling into account? [00:54:56] Speaker 02: It would have. [00:54:57] Speaker 02: It would have assumed the truth of those declarations. [00:55:00] Speaker 02: And assuming those facts, which were undisputed, it could have reasonably made a finding of harmless error under Chapman. [00:55:09] Speaker 02: And I see I'm out of time. [00:55:10] Speaker 02: Yes. [00:55:10] Speaker 02: Any further questions? [00:55:11] Speaker 05: Thank you both very much. [00:55:15] Speaker 05: Mr. Schnechter, Mr. Wrench, we appreciate, you know, [00:55:18] Speaker 05: the enormity of this case and the decision and the care in which you took in presenting your oral arguments. [00:55:27] Speaker 05: The case of Jerry Grant Frye versus Ronald Broomfield is now submitted and we are adjourned. [00:55:54] Speaker 04: This court for this session stands adjourned.