one oh ok oh all right thanks trial judge gives a standard instruction that the parties are interested witnesses obviously that they have an interest in the outcome the crockett's or mr crockett presented petra luna who fit that description of a non interested witness he also presented the testimony of alan miller an expert witness certainly paid you know that his first services against this backdrop summation could be viewed as insidious because if you take a look at what he said in a very short closing argument in total it was twenty nine thirty pages of which approximately twelve of them concerned either luna dr miller or colloquy about the impropriety of the closing argument and so he accused mr brewington and his associate of suborning perjury and contrary to the city's claim this was not a misstep this was a calculated summation he accused mr brewington directly of having an untoward relationship with a certified court interpreter and judge can make nobody steak about it found that that was misconduct but he went further curative instruction he did it and that curative instruction compounded the problems because what she said was the following yes she struck the testimony you directed the jury to disregard it but then she said what the lot lawyers and quote and this is at fourteen sixty four of the joint appendix what the lawyers did with respect to preparing for their cases is of no concern to you so what they heard was joshua lacks say he suborn perjury meaning mr brewington and his associate that exactly objection to the curative instruction now there was not as there was not an objection to the curative although he suborned perjury he said you can draw your own conclusions oh no that's not what he said judge  exactly what he said this is that fourteenth sixty of the joint appendix talking that short one four six zero fourteen sixty and it builds the exact quote can be found at page twelve of our opening brief with the blue covers so he would gently begins to call into question the credibility of luna's testimony hyperbolic terms all fair game right now he says she comes here and she says oh yeah no i definitely would have seen him if he stood up and you may be asking yourself how did this happen how did aluna go from one bad fact for playing to two bad facts for plaintiffs three bad facts for plain to everything plaintive says is true i'm going to corroborate it all be sure i have a context this is her she testified she saw him on the ground and there was a gun back and there was a the the defense counsel is commenting correct that it's all fair game so far obviously highlighting inconsistency between deposition testimony and trial testimony is obviously appropriate how did luna go from to everything plaintiff says is true i'm going to cooperate it all what this is all quo well to answer that question let me ask you this did you pay attention to where plaintive other attorney was while mr brewington was asking questions this morning did you notice ms harris more kids disappear while the witness i believe sergeant duffy was testifying on thursday morning right before luna took the stand and did you notice how mr brewington greeted the translator if you consider all those things you'll have your answer and that is he is directly suggesting that a they manipulated her to that or convinced her to say something that was zoran outrageous suggest in somehow there's this untoward relationship between the court interpreter because luna testified in spanish and mr brewington help me understand why the curate restrictive right yes yes help me understand why the curative instruction isn't enough because you read that objection the court says sustained and then there's colloquy and then the next the next thing the jury here is after the attorneys have there how are we going to deal with this is ladies and gentlemen i'm right the last part of that argument because mr lax could not have been happy about that  said the objection was sustained the and says i'm striking what he just said because there's two things that follow first judge chen gave it and then took it away for the reason i just identified because she basically says ok i've told you to ignore it but don't worry about what they've done but then look how he lacks follows up which is that fourteen sixty four after or after the judge strikes a testimony and says don't worry about you know you're not to concern you the jury don't concern yourself and again that's up to fourteen sixty four as well i think that fourteen sixty four as well he then says thank you your honor so the point is that she's their witness she's changing her story in favor of plaintiffs so from that the judge is going to tell you how to evaluate the witnesses credibility she's going to tell you about the things to consider again we showed you she said different things previously to be called being called in court today and they called her as their witness you make of that what you will he hammers home he doubles down there was no objection to that statement absolutely just that i wish that were i would counsel he said she's their witness no one denied that that was true and you make of that what you will this is exactly after saying that you know the objectionable testimony the judge saying don't worry yourself about you know to the jury don't worry about what we're what lawyers would do in preparing their witnesses which is exactly what he cues them of doing in the first instance and then he says you make of the what that will referring to them preparing it was objectionable i think it straddled the line i think there's a lot of being read into it and there's a case where we talk about how you can i don't think that explicitly anything was said in the correct there is no point did i would say you know the plaintiff's counsel suborning perjury or anything like that they were there with exactly what the court said at the sidebar that in artfully perhaps shot in the line the attorney tried to suggest that this is the plaintiff's witness and this witness had changed her testimony she gave testimony she gave a statement to the police initially on the day she gave a deposition she gave testimony at trial and that testimony became increasingly more favorable to the plaintiff's version of the story that's not to say that anyone suborn perjury that's to say that she was prepared and she i think that even if we had that the curative instruction was enough but i don't actually think that in a fair reading of what he said i concede it's an artful it would draw an objection in the objection was the state it was not proper but that said he never established a foundation he never ask correct me if i'm misunderstanding the record but he never said with the plaintiff's attorney how many times that would have been a foundation he instead is commenting on did you see them in the courtroom members of the jury isn't that improper i think it is it straddles the line for sure i think that a jury is and i mean that a jury is a jury in assessing the credibility of a witness who testifies in front of them is ten is supposed to tell look to their demeanor as well not only to the things they say but how they say them and what the jury was asked improperly to do is to speculate what happened in the hallway or how she was prepared in a way that was not there was no foundation for it and that was struck and what the court said to mr to the to the system corporation counsel in this was that's fine if you if what you're trying to do is tell them to the court that they prepared the witness that's fine that she was coached you can say things like they called her that's fine that's fine and i asked them to draw some inference based on that then they gave a curative instruction and then there's this portion which we now heard about where he comes back and he says ok here's what happened she changed her testimony you make of that what you will he literally used the guidance that was given him by the district court a moment before at the sidebar and that is now being sort of cast as doubling down but that's not necessary the fairest reading and the damning version the most damning reading we could have is the reading where we say he was intending to infect the jury but that didn't happen it didn't happen because it was a curative instruction immediately it was struck from the record it didn't happen because the trial court in its general jury instructions then expressly emphasized again summation is not evidence your job is to consider the evidence and only the evidence the arguments that the parties presented the rich rhetoric that came out from both sides very sort of passion evidence and the jury knew that and more over the plaintiff's attorney on rebuttal took this and really effectively turned it around used it as the core of this whole summation after it was struck he said you see how the city's attorneys have nothing but victrola ad hominem attacks you take with that and you consider how and he says which another statement that actually drew an objection he says to them i learned from a lawyer many years ago bill kunstler there's an objection that's not appropriate you when you can't win on the facts you can't win on the law you make it up and you pound the table and he refers to these statements that were made in the summation to really effectively show how in their version of what they want the jury to believe that everyone else everyone on the other side is lying and they're both throwing the you know the sort of vitriol back and forth it's not a perfect summation but it's not such an offensive thing that it infects the verdict a verdict reached by a jury after six days of sitting over trial over a lot of conflicting evidence and this district courts analysis in the portion of the in of the decision below the talks about the weight of the evidence does a great job marshalling all those facts through the court to show that a lot was presented and the jury really had to ask draw the inference these credibility determinations who do you believe because the stories were incompatible they chose to believe the version of the story that was presented by the city and that is not something that can be disturbed on this basis  hundred seventy three of the joint appendix this is permissions and let me point out here that it's a bit rich to suggest or to criticize begun that's the officer who didn't see anything on the side of the street for not seeing plaintiffs when plaintiff counsel missed their own client in the video of him in the convenience store indeed it was suggested that a man who looked more like myself tall or heavy build short hair was his client the plaintive unless of course questioning officer on this video about the fake crockett was deliberate which might explain why a doctor lies about medical evidence and a plaintive can't remember a single thing that permeates the entire summation that type of points made by mr krueger at page thirty five and thirty six of the special appendix judge chen makes crystal clear that this conduct was roast meat talking about the objected to comment that it was utterly him impermissible and just and that is to tell the jury to ignore it i'm just raising it in response to suggestions that it didn't cross the line everybody knows across the line it was it was really bad in that exact type of conduct that this court has repeatedly very skilled this was not one of his finer most could what could he do except for violate the very rules which is sort of say you know they're wrong in sort of vouch for himself it's all in black and white for you thank you very much i have a question unrelated to this