questions of seems to me would be best for you to focus in on and since you've already sort of wind on the main point which is was there air yes now the government has to show its harmless error beyond a reasonable doubt that's a high standard so it would seem to be helpful to you to at effect that it had on the kind of sense does two things we have to look at and then we have decide if we take that out of the picture does the remaining evidence is it sufficient to not only sustain the from the verdict one was that an individual by the name of travin robinson was a person that committed the robbery and way that he put that out the trial counsel put that out before the jury in opening statement was he told them that the question get my first question about the facts as everybody says that the reason why robinson can't be the guy was a suspect it is he's too different of a building but that in quotes from the guy in the video or is like super different from you know judge prado i q were his clothes so that is a make any sense to me well then end up i would agree that so they were see similar enough that they could wear each video news was a big deal shown to the jury yes or ok so the jury could determine whether when mr robinson are mr shafer in in looking at it no judge of this i would disagree with that the video is not clear enough the fingerprint was it was not a regular fingerprint it was a finger tip just the tip of the finger and with regard to that piece of evidence the we have the only thing that can't be pinned on robinson you can be in the closing the d n a is inclusive while the i can pin everything on robinson except the fingerprint and so i was looking for you all to have an expert for there to be some really searing cross about how can you make this comparison and let's look at the cards and all that and it's not here i looked every time the word fingerprint was met in the transcript and it's really very generally there's an argument made in the closing argument about well we don't know what the minutia we don't really have the card but there's very little here to undercut the fingerprint and fingerprints are huge with the jury and so it seems to me that that's the thing you have to show us that the fingerprint is not if it weren't fingerprint would be enough to get you know and i'm not saying that what i'm saying is when we look at a harmless error beyond a reasonable doubt one of the questions you look at is was the evidence so overwhelming you know we admitted mr x but there were ten other witnesses who said the same thing mr harmless so here mr x s these two identifications to look at all the other evidence and what i'm saying is most of the other evidence you can pin on robinson at least arguably but you can't do that with the fingerprint so does that way they're on that bucket argument they say the testimony of angela lance and by itself would be enough to convict this man every element in the office was proven every single one by that one witness but we went further and mrs morin aso identified him and was devastating on the defense but what they're cross examination of these witnesses by defense counsel with regard to their identity of of him and how it came about i mean isn't that how defense counsel was under the belief that there had not been a positive identification of the defendant by any and it was discovered that the it wasn't it  was that argued to the jury and at the witnesses were tainted because it's been suggested to him before trial that that he was the the bank robber that was brought up judge but i would i would and he makes you park in a strange out of the way place and stay in the car and all that so i mean it's a weird story why robinson isn't a coconspirator but he was never charged he's treated as an innocent bystander giving somebody a ride you know to the airport and then they go and but he was he was in the courtroom sereny evidence comparatively how he was different if he did say no judge i mean where they did one taller than the other or learn significant weight issue between robinson was a tall slim man in shape or is much stocky or but again if they can wear the same clothes there's only so much difference in their bill so you know they're similar enough that they can wear the same clothes roughly same age they're cousins or something so i mean there there's enough similarity there that i don't think that anything's overwhelming potentially other than a finger surveillance video taken from twelve different cameras and if you look specifically at clip number four which was the same clip that the jury looked at the to the jury looked at clip number four on a laptop computer which provided the clearest picture in twenty minutes later that five out of the twelve although you can look i did not i'm sorry but i want to give it about the idea of don't do that ok but the record would also reflect that it only took the jury twenty minutes after they saw that clip to where's the evidence that they don't look at the evidence the only thing that the rubber talks about would be their belt however it does not to take him away from the fact that trevon robinson testified in the jury can make the determination for themselves because trayvon robinson was present in the courtroom and the fingerprint your honor would answer that additional question because in this case the united states didn't just present one fingerprint expert we presented to fingerprint experts and there was no cross examination at from the fingerprint experts conclusively stated that finger number nine was the it was the tip from finger number nine that was left on the demand note and this ties into the surveillance video problems did they say that they take robinson in and explained they did not take robinson's fingerprints your honor they only looked at schaefer's fingerprints and finger tip number nine was an exact match to the fingerprint tip left on the demand and this is important because if you look at some of that surveillance video your honour's particularly if you look at clip four you'll see that the entire life of that demand note is captured on that video because it was in a situation where schaefer entered the bank already carrying the demand out he enters the base and the bank teller angela lives gives him a withdrawal slip which he turns around and makes a demand now so the entire life if you will of that demand note is captured on camera in the significan that means that that tip could only belong to the robber it could have blond to anybody else and the jury got to see that on the video as well it wasn't that the government's theory that mr robinson was totally innocent and didn't know what was going on i mean did you see him as a coke in there girl that was cooperating are just the cousin who happened to drive his cousin into to the ball martin had no clue what was going on until after it occurred i mean is that the theory of the the government that mr robinson had absolutely no knowledge of what was going on you know that's a really good question can only that's something that we kind of struggled with ourselves to try to figure out was travis and robinson a coconspirator or an innocent bystander that case the answer would have been easier to come up with if tribune robinson drove schieffer to a standalone thing but the problem was in this case the bank is and is inside of a wal mart so his story mean i realize that it's not the same as driving up to a bank but wal mart's have a lot of cash so whether or not there's a bank in there you can rob a woma and it's a weird thing in my view if traveling is supposed to be an innocent bystander that he's being asked to park and then why did he go it with me that's also kind of weird typically you would just sit in a car forever you go in there with him and so his story is weird in my view it does need some buttressing and so then that raises the unfortunately we're stuck with a weird but we don't have a sufficient kings why anyone out here trying to consider obvious what we're trying to do is look at this whole issue harmless or beyond a reasonable doubt and look at what we would have without the ids and as i said i think the story that oh my cousin just happen to be wearing my clothes carrying my gun and i drove and parked behind a truck and i just kind of sat there you know listening to the birds chirp unknowing of what's going on is a weird story that by itself would not be sufficient to convict you know using a reasonable doubt standard as a as a reasonable juror not saying it's insufficient evidence i'm just saying most jurors would say laughs that story's got a lot of holes in it now we have the two witness and your own a colleague here said what really convicts him and she convinced you is that both ale and c m positively identified him for you here in this courtroom the two tellers so why don't why can't we hold the government to their own argument what really convicts it and say well if the government and projected that to the jury can we find a harmless error beyond a reasonable doubt well your honor the government also said on page seven thirty four at the think of printed evidence in of itself alone ladies and gentlemen is sufficient for your conviction as well and why do we know which one i mean that's the problem having made the argument that either one independently supports this conviction how do we know how can we say beyond  the jury only deliberated for approximately one hour and thirty four minutes thirty six of those minutes can be exploited because during that time we were there we got the first jury note where they wanted to see the video get in and then there was some back and forth in terms of overwhelming evidence this one seems to me not to be quite so alone but it's not just the fingerprint your honor because we also provided that we also provided wal mart video which places shafer at the time at the at the scene of a robbery at the this and that at the time of the robbery and that wal mart video has a timestamp on it so you could literally see him exiting the car walking up to the wal mart going down the hall pacing up and down in front of the bank before he decides to rob see have that as to know that we can ask parks off descendants you know if you send it around to the three of us and all of that so it's a different it's a different experience than looking at the electronic record on appeals where that's my mask and literally where is it what we did is we gave to the district court the surveillance video which would be on a cd and then if you open up the cd it's going to have clips one hundred twelve on it i think under exhibit four and then the hard copy would be the stills that we took from the video just to emphasize certain events that occurred like for copy data let us know that so we can get it because we look at the electronic record and oh ok and it in all was you know sometimes micro searching for something but you see what i'm saying here this is kind of the modern world that we're things are electronic and we need to know if something's not i would guess since it's a video and it hit the video can't really be condensed to paper that might be the first office but i don't really know we don't where's a picture of shafer to compare with the video that will contention that video so clear and not the fingerprint evidence is clear because in this case the thing the print was not only verified by one person was actually verified by three separate people and we brought two of those fingerprint experts to testify before the jury i would also suggest here honor that the reason why i'd also suggest your honor that in this case we presented nine separate witnesses and this was a situation where none of the government's evidence was controverted or challenge we were looking at a situation where the bank surveillance video the fingerprint experts the identify separate identification from tribe and robinson and a separate identification reduction with the bank tellers are the bank tellers identification had no effect on any of the other evidence that the government had like for example the surveillance video the bank surveillance video or the walmart surveillance video that is what it is and it has not affected in any way shape or form regardless of whether or not the bank tellers can make an identification it's standalone evidence in of itself the same this true with the fingerprint evidence that is also a stand alone why do we keep having to make these well we know the government did this wrong did this wrong this wrong we can see error but it's harmed wants a government doing things i really wish that i could tell you to make the mistake that we did was there any other collateral if you but there are any action taken against it he was facing the death i mean this is the second time this week already we've had inappropriate conduct by u s attorneys in the prosecution of their cases and we keep hearing well it was harmless so right we did it but what the heck they're guilty anyway so was there any action taken to correct these types of behavior on the part of the u s attorneys on your honor well i was one of the trial attorneys myself and davis were on the trial attorneys and this is something that we take very seriously and it wasn't intentional so what happened during the witness during the witness for which was the first incident of error that we that we corrected it was we were showing a surveillance video to refresh the witnesses memory it was the being that you didn't know i mean it's very basic that when there's a roomful of people of one race and there's only one person of the other race you go do you see the guy in there i mean ok so you're talking about the set you know both of the things i mean th floor as any of the district courts or any of the trials are going on and then we taxed or we call someone down there to bring the witnesses up when it's time for them to testify i don't know where the failure in the communication occurred but the record will reflect that myself and a usa davis were arguing at the pretrial conference and there was a story we're arguing on last minute filed a motion to dismiss oh we were also trying to get our fingerprint expert marcy farley commission to personally identify it to personally fingerprint the defendant that day i don't know where the error i don't know where the miscommunication occurred or why the witnesses were on the wrong floor but it is our responsibility and we accept air for that is more than just bring the guy mean it was more specific than your honor i don't know exactly how that occurred i just know that our typical for seizures were that there was a breakdown of communication the only other consideration is that this is a case that is very similar to u s forces rogers which is one twenty six f thirty six fifty five in that case the bank teller provided improper identification testimony after seeing the defendant at counsel table the court held it was harmless beyond a reasonable doubt because they relied on evidence such as finding the clothing used in the robbery fingerprints and that rogers was uncooperative post arrest i would argue that this case is even more overwhelming independent identification from detective jernigan that is untouched and you also have a separate independent identification for robinson when he identified shaffer what he saw in the bank surveillance video so i would say your honor that in rogers michael schaper born february nine hundred eighty four is is ridiculous so you didn't do anything to show that this fingertip identification is based on too few you know my new ship points or whatever they're called instead whether or not they could have gotten robinson's fingerprints it's clear that the evidence that you left pretty near unrebutted is that these two experts say this is shaffer's finger tip ok that's hard to explain away for the reason that counsel said there's a video of the of the robber we know somebody was a robber you know picking up this process slip and so forth so we know this is the robbers finger tip and lo and behold it shaffer what did you do to undercut them and how why should we send this back for a new trial only to have this same finger tip be the deciding point and it would be wasting everybody's time well  one wasting time is not not this the head if we have x days because heard there beyond a reasonable doubt would say it's a waste of time to retry this so why isn't it a waste of time given this finger tip that you didn't do anything to undercut well because i do when we were talking about what are the points of identification for this fingertip they couldn't tell us they could tell us the points of similarity or the points of difference because they weren't any more prepared for that than anybody else i had just taken that print so we we don't have those kind of masterful excellent scientific evidence on fingerprints that says yes we've got forty five points from person and then they put them up in front of the approached the bench to argue for the mistrial because we have been presented when was the first time you found out about this in the cross examination of those witnesses was the first time it was disclosed that one they've been shown photographs and told  mr shafer once and then with the second witness learn we that they'd actually been brought to the courtroom open the door he said oh did you also examine them over this in front of the jury that they had i actually been mr shafer been pointed out to him is opposite that was the only way to develop the record so that they have argued out to the jury that these people might have been their identity might have been tainted because they had been shown and suggested to him that he was a bank robber ahead of time they did not because that is the legal argument and that's why i moved to mistrial during the trial with what's happened but that and also the factual argument if i show you a picture of somebody ten times and i say i say that the people understand that it's not that or off in the realm of i agree be nicer to have an expert but the fact is it's not that far off the ordinary person's experience that people can have suggestions made to them and buy into that suggest well