i thought when i when i saw the prosecutor's reference to the imaginary person that's a great defense the empty chair defense blaming it bringing in a civil or criminal case blaming the wrongdoing on misconduct there i am inclined to agree with you that you get a little carried away in arguments the words aren't what they should have been and i'm looking at it in terms of the prejudice and  on the prejudice the guy who says it wasn't his stuff it was mine isn't there and the whole tenor of the trial is to suggest that there's no such person right the said if the jury had heard either directly through testimony or through the prior statements from around and they that they would have credit nonetheless credited every time the police and this quite a similar kind of believe it despite what morality sense right and you can account for almost almost everything not everything but almost everything on which the court relied similarly that they saw him carrying a lock box maybe they not necessarily there are several factors that were under feuded and those are the latter factors relied upon by the california court of appeal such as the fact that they were paying no letters in the car she was driving that highly portable inventory nevertheless that theory was in presented to the jury what are we supposed to do in a case where the theory that makes sense to the facts wasn't presented i'm a little confused that's what the jury believed however that theory was never presented the jury never got a chance to pass on it instead they were presented with a case that really was misleading because morale is wasn't there well misleading in the sense that they didn't know that there was perhaps another individual also involved but if you only look at the fact they were presented with there's really no other reasonable explanation to from which to infer based on the fact that he had keys to two hundred sixty thousand dollars worth of narcotics and that's the most court that in many cases a confession is very damaging evidence and very crucial but under the facts of this case it would not have made a difference and case in that manner your honor it's unfair what was in the prosecutor's tennis case and we don't know what she believed as far as whether she believed morales or didn't believe him around i don't think there's any indication she ever appeal and it's not the way the case is breached but i'm troubled by it same thing judge wardlaw is she calls the prosecutor in arizona finds out they're hammering moralities and dad then and they know that dollars worth of dope and there's nobody else around i don't know how prosecutors appeals characterization of the case is overwhelming that perhaps the court of appeal relied on too many factors because a lot of them you're correct they were subject to interpretation was that he left his keys with cortez so that he could lead a repairman and well he went and got furniture that day that simply did not believable in light of the fact that cortez was out running errands that day so as i recall the police testimony changed between friday and wednesday on throwing the keys out the window and it also changed between friday and monday on whether the police talked cortez carr lock box i would think that any jury would infer from the witnesses testimonial changes between friday and monday that somebody would check at the witness between friday and monday what happened w can say is that it's fairly common for a reason the reason i bring it up is it bears on whether the evidence was so overwhelming that the jury would have reached the same conclusion even if morality to joe not at my killing is if if i back when i used to do this sort of thing if i ever caught a witness and that material exchanged between friday and monday i would expect the jury to be or if my adversary did was one of mine i would expect the jury to be very interested in that change of testimony and to hold that against the part of the property that's a fair comment and defense counsel fully argued that point but another thing that strikes me about the evidence for those keys in the car i don't know why but i would like to address the discrepancy between the testimony is true and the use of the car after the weekend break on cross examination defense counsel officer kim are there any other changes you'd like to make based on your on refresh my recollection with the police report he had never been asked either before the great war after the break by the prosecution about anything thrown out the window and he volunteered upon questioning by the defense counsel that oh yes one other thing i start he's being thrown out the window so it's not necessarily inconsistent he was just never this comes up procedurally maybe you can educate me what are we supposed to do with the misconduct exactly if there was misconduct and i think your honor was correct that to the extent there are eighteen prosecutorial issues in police lie that's another clearly improper nonobjective two things it's in this transcript and there's more examples of that it's going to need that tends to weaken the case because there's  do and i meet with them many of them every day but it never sees has helped me and help me on to things that are bothering me one is suppose we were to agree with you on the prosecutorial misconduct and suppose we were to have the same feeling as you had that four somehow on had the have prejudiced from ineffective assistance could you lay out explicitly what the chain of logic is how do you relate the prosecutor act conducting herself improperly to and there being prejudice i think that you laid out by going to the an that the only objective evidence in the record about what happened here and what may have happened on that day with the records of the super avenue elementary school wasn't him playing during the scene and all the surveillance from eleven thirty to one this the facts of the case including the fact that the jury didn't know that morality surely existed in that he claimed it was his so the only bottom line i can get to is that they were acting together i just can't see how logically at it could all be morality to sop aeration even if it was his inventory i mean if a fella works in a grocery store he doesn't own the inventory ralph does but he's still selling the inventory when he stands at counter and takes the customer's money and gives the customer the groceries at the prosecution i suppose could have presented that theory had chosen to indict both of them it did not i think it would have had problems but it juries of reached any other conclusion than that had the defense lawyer put more rallies on the stand absolutely the un contradicted evidence was that mr morality never met mr cortez until he was moving that issue is on reasonable i don't know if that's enough i'm pressing the maid at the hotel not to steal my stuff while i'm here on the bench he had no pressing reason to leave that day he wasn't in a hurry he simply stated in his letter similar to woodford vs where the u s supreme court said yes there's a possibility a different court could reach a different conclusion on the issue of precedence however the assume they have to jury would have to believe everything that was said to them by the police that's not reason right i don't think they stand that the jury would have to believe each and every one of those factors  like california court of appeal relied on factors that may be debatable doesn't mean they were unreasonable inferences based on the evidence and place on reasonable to think that the i don't think that's what the court of appeals do me i would disagree with that characterization i think the court of appeal was saying this is what we see from the evidence this is a reasonable interpretation of the evidence  one last point i wanted to make however was that you know around to testified at trial it actually would have hurt the defense because the cornerstone of the defense  any credibility the defense may have had at that point which was minimal due to the forged receipts they answered would have been completely obliterated by that testimony