ascribe percentages to their their question did they just said what is reasonable doubt that is correct is there some significance or something maybe that is troubling you about the percentages those i have reviewed the other jury questions but i do believe i recall that this was the fifth jury question the jury did have this case and they did and it was there to this question that they came back shortly thereafter that's correct that's correct trial courts answer these questions in seven different ways were setting up a system where you have different standards of whose will explain to the jury in different trials that is not acceptable under the only system  for cats question since they have asked this question based upon percentages are there it's one of the elements doesn't the trial judge have an obligation to get that you know take that out of the air here we'll have shouldn't he or she say now it is not a matter of percentages who are as determined court said it is not any doubt but only that which is reasonable that's what they suggest might be the supreme court the term in case actually suggest what they call a circular definition or it's really reasonable doubt is not any doubt but only that doubt which is reasonable is not a definition it is a to use less than an appropriate standard generally here or we know that that's what they're thinking about final question so is there a difference between and i think this is just dispense question is there a difference between a definition percentages but i'm not saying that's the answer i'm i'm just saying do you have an obligation you know we'll get to what they're not the case in might be right but i think the obligation is to not define i th the problems with our system that's one of the problems with this morning the minority of states it does not permit to find reasonable doubt there's if the supreme court wants to define reasonable doubt them should they find up so if you expect the trial courts to follow your mandate when you send something bad i hate to put it in the terms of what kind of example are you setting if you say only we're not really going to listen to you can't do it but we can do whatever they had we want to kill because it's more expeditious why isn't it more expeditious for them to go and free lance and and other issues just because you said they what you're basically saying is we're going to now disregard their own mandate and act as if we have supervisory authority to look at whatever the heck we want to look again because it seems can convene how  correctly or not tonight we didn't rule on the other ones before because we wanted x to be resolved and now all the issues are properly before us why can't we look at it but their issue was not properly before you ever it is now  issue of well let's just for go p c you know we know it's going to come up well look but there's hardly have p c and there is nothing that doesn't that's the defendant the saying i promise cross my heart and to that i still file a p c he can still come up on p c but he's trying to jump on the line with this particular issue well there's such a thing as judicial economy i mean i've joked appeared that you know some of these issues keep coming back and job security that's a joke judicial economy is not judicial efficiency is not judicial recognition of due process issues also is not a joke so you're saying we should we should just disregard what the supreme court  answer to the question amount structure where yes put the written but i don't think mr han school can be deemed ineffective for not having raised the issue because he was not under any his discretion you went over all the issues again and said you know i don't think they can hold water and this is why i wrote a paragraph but each one all right then you also have to rewrite your brief on it when you bring his p c because you've learned that now let's talk about this issue ok uncertain about this you so i don't think i agree with this to kirk and i don't think the court could have said well you're not allowed to watch it because they had a definition mindful of those lines of thought and in those cases what the stress and also victor the nebraska points out is you have to look at the jury instructions as a whole and what was issue coming up but the issue the whole point though is they have a series of instructions if they're flipping a coin they're not following the instructions correct if they're asking a question what is reasonable doubt why don't we simply say you have been instructed in the law review the instruction because it's the same basic problem they're not either reading understanding or in your mind with the flipping a coin following the instructions in particular about term and this isn't well and how do we know that they're not going to come back with a lesser standard of proof aha we ever know and you still don't know here and maybe in the way the evidence is going to have to know we have to know that the the question is whether or not there was a risk that the jury understood that they could could convict on less than the standard or by the process which is beyond you in the court came back and said about the what he didn't say that this one guy will to chatting this up the trial court judge jury and a jury selection jury throughout the trial and he says that it has to be considered as a whole but he said it is not unlikely the jury didn't understand the cause of the trial court made some remarks that he should not have done the prosecutor in closing arguments reminded the jury of those remarks and ultimately i think his dissent in franklin is a barrel the trial judge should refrain from making such comments as well as he's encouraging all of the supreme court apparently didn't take the encouragement a new look and should we allow definition in either one of i mean i think that's what franklin's dissent is about it's not about whether this is a structural error he's looking at this trial judge this case and the problem raised by that i don't think there's anything to read and yet again i do and i also do not think that this issue is properly before the court at this time for the reason that it is it isn't a matter of judicial economy because then you would have to exist then you're you're picking and choosing when among the different issues and cases are before the court so we should just disregard the cases in and not even consider them you know what you know you go into the rights read me i'm sure that if we did not consider them we would have a supervisory order from the supreme court ordering us to consider this issue that there's another concern this is the case of a very old kids but i do think the state has an interest in getting this case if the argument that we should consider the issue if trying case eventually if it is reversed it's important for the states issue i if i were to give the response i'm going to give it it's sort of a formula for substance answer but i believe there is some merit to form i believe there is some merit to florida because this is what happens when look i guess the question that comes up is when this case came up on the first appeal and we were arguing it and this court and answers to the record and all this was out there  illusion that he was a lot of to give without defining and overstepping his bounds by giving some sort of definition of reasonable doubt and even to the extent to say no you may not quantify it