a st amendment whether it's a th amendment fourteen amendment case they don't they're all meaningless those rights to meaningless is when you at the end of the day you get out and the defense can argue that the military career person heaves the decision maker or the wrongdoers the case may be because of his military career is unsaleable that he wouldn't the allowance of evidence into big case about military career the extent to which that went on and then allowing that use and in closing so even if we trouts and a whole bunch of issues but i think we should stick to what that evidence about the military probably allow and as the as the decision to allow it to go on day don't you have to show prejudiced yes i had you have you i believe that we can show we should prejudiced because i mean most of the case law out there looks  case look at the defense for natchez and several that evidence in favor of the defense was not overwhelming and given that the evidence was overwhelming when they granted a new trial so in between aaron byrd and kelly davis but not think that occurred tween the summer when he was saying things were going well and and october november december when things clearly were not going well so the only real explanation in the evidence was that it was to protect an activity and it ended we don't know what the jury thought you had now in any of these cases they will come out and tell you that it was because of the undue or the impact just what we can surmise from this case given the differ thought the jury could have decided a well he lied a little bit but didn't lie a lot or they could decide that we don't want to find against a guy who is the subject of the movie you just  just came out that well so as we look at the verdict form you would agree the jury did not believe him on question three the motivating factor question right but they may have believed him on question for that as they would have fired her anyway they may have a hard part of his testimony when to why she was alternately fired right know when you're in that in the situation can be relevant still because you know i i'm sure you're opposing counsel say well it's relevant for the jury to get to know a person so they can assess whether it's  improper it was it was it was not to get to allow the jury to know a witness it was to bolster his credibility and that is improper character evidence so there was that that objection could have been made to you know patriotism and to make them unwilling to find against this witness who was the the witness he was the only decision maker and the only one whose testimony about his motives really mattered when do you continually bolstering happened it happened when they were listening this testimony or is that the bolstering of her during closing argument well well i think all strangeness is considered about is we're going to about you know the purple heart award has the sixty minutes all that so it started in the preparation for it started in the  direct exam and as last said in this case you know there's a lot of he's talking about loose looks looking at the closing arguments and whether they properly you know used the appropriate inferences from the evidence and that's one thing but in this case we have to go back to the evidence that was injured whether it's proper and then also whether it was properly used in closing and i think  both of those are errors that come pounded each other so by the time we got to closing there was already this prejudicial evidence in and had it just been left there maybe we wouldn't be of the questioning itself tell us about your military history and being on sixty minutes or is it possible that that was was not an abuse of discretion but that there still could be an abuse of discretion in the closing argument reviewing whether the district court abused its discretion by allowing morris to testify about his military service instead it's reviewing whether the just record abused its discretion by denying byrd's most for a new trial the district court correctly ruled citing hampel case authority they quote maurice's background maurice's testimony concerning his military experience was relevant admissible as background evidence such evidence help the jury to get to know the witness this ability bert fails to cite a single case that would hold otherwise acacias to does support that proposition significantly the only for all three objection because none was made regardless of whether the conduct was proper or improper appellee should win this case under the wittenburg test in wittenberg this court said that the district court is in the best position to determine the prejudicial effect of improper arguments and that's whether any trial is warranted the district court in this case wrote a lengthy and very careful opinion and concluded under wittenberg in summary that the remarks lasted only a few minutes the court instructed the jury on multiple occasions that attorney arguments are not evidence and nothing indicates that these arguments clearly influenced the verdict or obviously prejudice had been counseled had the district court instruct the jury to disregard any part of the argument about in her wittenberg which is the effect of the improper remarks byrd's arguments effects are purely speculative she argues in a brief quote the testimony could have been construed by the jury to make them unwilling to fight against or as close quote she noted that all the district court may be correct in determining that quote any arguably improper attempts to bolster or vouch for morris his credibility did not work close quote it is also possible that it did work and that is the only reason the jury found this is all speculation this court is expressively stated that even if some statements are improper quote a judgment will not be disturbed unless it clearly appears that the challenge remarks influenced the verdict byrd cannot link the allegedly improper comments to the verdict is like the burke case where quote given the strength of the evidence that is a tall order and that is the overwhelming evidence that this bird was terminated for legitimate non protext role reasons byrd says it's a close case which implies the jury could have gone either way and ruled in favor of the apple lease based on the undisputed thousand and ten because of her insubordination and her inability to work with davis or direct supervisor that that fact that he makes the decision to terminate her he said solemnly made the decision press about andrea the cat was a substantial or motivating factor in the decision to terminate birds employment is somehow inconsistent with its response to the th element of the garci or city pick that st finding the answer to question three shows that the jury did not believe morris his testimony as to that point therefore if there was an attempt to bolster or v hartmann was not the but for cause for the discharge the claim fails for lack of cause of connection between the unconstitutional motive and resulting harm despite proof of some retaliatory enemas in the official's mind because but for conservation is critical in a mixed motive case to prevent an employ from being in a better position as this court as a supreme court held and bound healthy as a result of the exercise of constitutionally protected on deck than she would have occupied had she done nothing well the fact that this is as you said  plaintiffs insubordination a refusal to work with davis and the complete breakdown of their relationship but i think it's instructive to look at the types of cases where he trial has b granted and if you look for example at the wittenburg case there the court ordered a new trial where in closing counsel referred extensively to evidence not in the trial record and without apparent provocation counsel flooded his argument with abusive references party in council and moody the plaintiffs council violated multiple in live in the rulings and made personal attacks on opposing witnesses in council trust which was important to the court in deciding this and this is what he said and i'm just going to quote a part of it it goes on to some plain this is war harsh cruel murderous war there are those who right at this very moment are plotting your death plotting the death of you and our families it is a fight to the desk to pin down the american people or plot reliant upon you ladies and gentlemen for their protection against this sort of crime just as much as they are found there was no bolstering but presumed to bolster it and still held it didn't rise to the level and i submit that as to the improper conduct as far as i did not make personal assurances i did not express a personal belief that morse would not well you said he would not lie well yes a man with this military history would not lie he's relying on and you're saying it there based upon who he was based upon his his his life what what the jury knew about him but your honor this case there is overwhelming evidence to support the reason that he was terminated according to the city instead of terminating her in december th as morris desired davis gave her a memo wonders of understanding that could her on notice of her deficiencies her failure to support davis or subordination and byrd admitted at that point she knew her job was in jeopardy and she did nothing to improve on october thirty one two thousand and eleven morris was in a meeting with davis and byrd and it was obvious to him that byrd absolutely loathed and detested him and could not work with him that the relationship was completely broken and he confirmed that with her in a subsequent meeting on november th in the meantime byrd's real complaint about davis was that he belittled and bullied her and she filed a formal complaint about the had on november nd and in the following day she met with the human resource manager surely george to discuss that in meeting burton she recorded b s it was some of the hot over one hundred hours of conversation she says she saw repetitiously reported she said six times that she could not even look at davis she could not look him in the eye and she said her interpersonal issues with davis could not be resolved this cause george to testify at trial that the media broke her heart quote as a human resource manager because she didn't know what else she could do she had talked to both of them over the years given them counsel davis had made an effort to change byrd never made any effort and and that meeting byrd gave george a recording that she said showed how he bullies and belittles me we can't case well the movie was in closing argument i never said it was the movie was about him and if you look at the transcript that's what the court concluded this i mean these were the life to find it in experiences tha improper valjean and assume is a district court to hear that there was a poster here it does not rise to the level particularly when you have such overwhelming evidence this court itself concluded after reviewing her employment record at the following conclude this is a quote the city discharged her because she was a difficult employee to manage treated her direct supervisor david davis with disdain refused to follow his directions and saw discord and anxiety animals shelter closed it then stated quote the stated reason for firing birder insubordination for example was not the textural post and later held quote no reasonable could conclude otherwise cause both that's the law of this case and what you have that sort of evidence whereas the court held in trent the person would have been fired anyway the fact that there was  some were telling tory animists simply does not carry the day particularly given the level of the alleged improper conduct here credentials makes an unassailable and that's the kind of thing that we can't be putting in front of a jury because the reality is a lot of people feel that way that that's not it doesn't go to whether cla persuasion case shall be submitted and counsel you know excuse