allegations were true they were shocking to the conscience because he was placed without any clothing for three days in a cell that had no fissures was made only of concrete and steel in the middle of winter and the allegation was that there were broken windows on the defendant's treatment of him in placing him with absolutely no clothing with no regular access to running water in a bare sound for three days amounted to cruel and unusual punishment and that is so because there was no  and in this case he was not and in fact he and his counsel can see that he and his testimony and his counsel an argument that mr mahoney should have been put in some kind of modification for his behavior that night so that really is not part of the substance of his claim  defendant's were correct to put him on some kind of my high incidence of confinement the question in this case for the jury and for the court was whether the degree of that modification is consistent with standards of decency in modern society and that was the substance of  amendment claim and the standard as the court knows it's deliberate indifference and that's why defendants closing argument which took the most critical and the most complex legal question in this case which was the deliberate difference deliberate indifference standard made it simple but got it wrong in a way that i think is highly likely to influence the jury deliberation i'm a hearsay point and i appreciate the court's request for a letter brief because i think it really clarifies how ameri testimony as to the existence of the diagnosis and i'd like to make two brief points about that if this court were to accept defendant's arguments he would demolish the hearsay rule affectively what defendants are saying is that we need the contents of the hearsay statements in order to determine whether the statement was actually made and and under this kind of reasoning a lawyer could always say if you have a conversation with x and if the answer are yes what did x say to you and notwithstanding the obvious hearsay contents of that answer it would be admissible in order to determine whether the witness was being truthful when he said that the conversation took place and there is no authority for that proposition for a good reason because it really runs and it's an end run around he that if he had gone beyond the question that would have been his problem that was my point i think that when in a way witnesses asked what was your diagnosis and has been told by psychiatrists i think you're faking it i think you're lying the lay witness would correctly understand that lying will linger and it's not apart from the diagnosis but actually is part of the diagnosis especially when you're being diagnosed and can action with an insanity defense so i don't think that his answer went beyond the question i do think though that the twenty years later felt the need to write an entire opinion because the lower federal courts are so confused about it and i think that the confluence between the word deliberate in the standard and counsel's emphasis on intentional and purposeful conduct w prejudicial i also want to point out that it was unfair to mr horn in another way his counsel to not try to prove intentional conduct on the other hand defense counsel to try to disprove intentional conduct and for example at page six motion to strike in fact there were two objections which were both overruled which i think underscores the prejudice the jury would have to believe that this evidence was particularly important if two objections were overruled to two other quick points we're not talking about an ordinary defendant this is the state of washington and as this court in the supreme court has sent a number of context jurors are likely to give more credence to the words of government lawyers than typical litigants and that's why government lawyers have to be especially careful that they state the law accurately anonymously the jury as to their past finally on their plane their review was not a scientific process as i told you would know from having its case this court has laid out factors in that case and each one of those factors i think points to why this was particularly prejudicial the nature of the comments they were directly contrary to control of the supreme court precedent their frequency say five times where there are statements that were on their relevance to the real issue they concern the central legal question in this case the manner in which the parties in the court responded that there was no correction by the court in this case and the strength of the caves and i do think this was of course case i think depends councils emphasis on mr mihos credibility in the closing argument shows that this was mahoney counsel made a motion to strike the entire answer and the court overruled that and in the high text of this entire proceeding is very revealing to see how mr mohan conducted himself on six different chose not to confine his responses to the questions asked despite the fact that even at the parties and instructed counsel during a recess to explain to mr mahoney the danger of failing to confine his responses to the question being disorder and the cult the courts indicated that it was appropriate for counsel to ask mr mcmahon of his understanding of his medical diagnosis in fact this was directly relevant to the credibility  weight that the jury clearly afford mr mahoney testimony on direct not because the truth of his diagnosis was that issue counsel was not concerned with like that diagnosis actually was however had mr mahoney tested fight  used by the jury to conclude that he was entitled to greater weight with regard to his testimony that he suffered from a substantial national disorder his sole portions of his testimony that coun discretion the court was present and it determined that it was a proper question within the context of mr muhammad's testimony on the rack that he suffered from a substantial mental disorder and counsel is entitled to could be somebody says i had a broken arm but for the fact that x rays were conducted and that person would not know that however they would have had that information because they are a doctor but the prior testimony was that he suffered  sounds like you're saying certainly i see that i'm out of time thank me and with regard to the weirdest exchange the fact that we have all these questions about the diagnosis what it was what people's understanding of what it was really underscores the need to bring the psychiatrists themselves before the i the time that the district court considered his petition that his final order was at that point six seven months old since that time another twelve months has has run and more perhaps most important y full eighteen months ahead is that crude since his last request for a travel document there's no evidence before this court there's no evidence at all that mr louima was anything other than forthcoming in the january two thousand and two travel document request there's been a lot of discussion in the briefings and a lot of discussion before the district court of misrepresent alleged misrepresentations that he may or may not have many but that's over the course of h an ethiopian citizen and that's one of the factors i think this court should also take notice them in the course of this litigation it has been established that the law he makes him a citizen and that wasn't clear before  that document what how difficult it has been getting any cooperation from the ethiopian consulate people should not be locked up and incarcerated in this country because their home countries are with foot dragging or bureaucratic regulations because a business representation of perspective is nationality the body is currently and mr lee in this court and that he needs to try to contact the embassy to clear up the issue of his nationality we would also point out parts of the misrepresentation i mean even the fact now that these claims that his father is from a tree it is very questionable because in his original application for refugee status he indicated that his father was born in ethiopia if so why not he mr lima filled out a form that was submitted along with the travel document request from the ins in january two thousand and two you know if it was part and parcel of that want to emphasize that all of his denials are not based upon any kind of lack of cooperation in january two thousand and two there's no allegation that he didn't fully cooperate in that process with the ins the allegations are in the past  misrepresent misrepresented yourself we don't agree with those allegations but those are the only allegations there still as of january two thousand and two you know our position is he has fully cooperated in this case is outside of l h which my recollection i'm