when you came into this court room your life for an altar believe change your christmases will be an awful change from here on in you have an abiding conviction each christmas eve when you wake up and you will know that you did the right thing  but she did well you know when you're in that kind of a situation you don't know it was almost too much attention to if you do in the middle of the object for which she made the judgment she made objection and the judge attempted to cure the problem  was a little bit late wasn't well it's not late in the sense that she couldn't stop it in other words when you're in the middle of a of a closing argument trial you got to be careful not to aggravate the jurors by interrupting the other person but you have to make your record that that's an improper thing to do and i think there's no question that she did that that the defense attorney did that maggie didn't know this if it happened on christmas eve correct if you think that this whole incident involving the death of the child happened on christmas eve that's correct so what's wrong with the prosecutor put in the context of christmas eve was wrong with there is it it almost simply imports a religious significance to the jurors finding the defendant guilty of first degree murder every the number he knew that happened on christmas eve correct that's where the facts on fulton but when you hold it right but it doesn't it doesn't  everybody knew that bringing it up doesn't focus the jury's attention on the issues in the case where it did do it was a direct appeal to their passions this is a murder of run one thousand month old baby this is a pa most inflammatory kind of an accusation that you can make and what the prosecutor sought to do was to hitch the inflammatory accusation with visions of christmas and then telling the jury is the christmas who ruined if they don't find guilty of first degree murder the magistrate found it was wrong the now the state court of appeal said that it wasn't improper conduct well or improper argument that's why we're here while you're here on  a you know a very deferential standard of review as well yes but it's not it's not it's not abdication it's no i mean i had you know the the prosecutor i mean the prime sorry the the the the district court said this was improper correct but then just because it's improper you have to also look at all the whether it was harmless tackling prejudice and you know there's a lot of evidence in the case about what happened here true but it wasn't there the evidence on premeditation or torture was was woefully lacking this is not a case where i think this the defendant planned to but then it wasn't the evidence  this and then went on for over an hour i mean i know i realized that the argument below was that this was like you know heat of passion  not torture that there was evidence from which the jury could decide that it was murder by torture there was evidence that the prosecutor alleged could be torture but the fact i'm irish to say that took place over the course of an hour or that or the took place for an hour or two different things in other ways are met and the second thing is the estimate of an hour's coming from a seven year old and a four year old who watched i mean it's admission of evidence and one could kind of balance well if this piece of evidence didn't come in would it make a difference because through it all these other pieces of evidence and then there's a more dangerous kind of prejudice which is a general prejudice where it gets the jury so upset they said he thought we were going to find him guilty and we're not going to dicker over whether or not it was first degree or second degree we're just we're just going right to the heart of the matter going to find him guilty and that's what and the all the signs of torture murder that the courts used to distinguish between an explosion of anger were not here there were no statements in other words there was nothing in there like  there were no injuries that were actually less unfair i mean didn't i type see find that there were some older bruises and limbs but no one said my client no no one said that your client did that but there was this child had maybe she's rambunctious there's an interior stairway in this apartment and apparently there were level of untended for substantial periods of time one would be surprised if there were no prior injuries on a baby at that  age given those that situation also having to superman who are close enough in age to be older but not that far away that they wouldn't you know push the baby or do something improper but they're not of the thing you know for instance torturing it there are the different kinds of wounds that people do when they want to torture people none of that is present so none of the objective signs that you can say that this is torture is opposed to  me please the court just in riley on behalf of the warden the problem with a prosecutorial misconduct claim based on general due process is that the supreme court has never found a prosecutor's argument in any regard violates due process as a general concept of due process let alone in this particular case where a prosecutor makes comments on properly admitted trial evidence  zing that evidence i'll be it in an impassioned way what she really was calling on the passions of the jurors was unsure i don't know specifically what she was doing well first miss didn't have a  specific tied to any you were have an abiding conviction each christmas eve when you wake up and you will know you did the right thing when you find mr christopher burgess guilty of murder in the first degree yes your honor what more could that be than calling upon somebody's passion and prejudice you know i believe what the prosecutor was doing there are what a fair minded jurors could argue the prosecutor was doing there is to describe the reasonable doubt standard abiding conviction well it seems like what she was really did i tend think she was really doing with saying if you don't reach a guilty verdict you'll be haunted by this forever and i think i actually think that's pretty improper my my i guess  would like to mention though that the supreme court has warned that in a prosecutor's argument specifically that can be interpreted in two different ways the court must interpret it in a way that is permissible so i put to you that the permissible way of  interpreting the prosecutor's argument was that not on the one side it is a very logical interpretation that this will haunt you forever if you don't but what she's saying is this will not haunt you forever because it is the right decision this satisfies the reasonable doubt standard and remember reasonable doubt in california is abiding conviction forever and always you will not regret your decision is what she's saying and that's wholly permissible process violation due process is such a high standard even with regard to prejudice that you look at the curative instruction for example in this particular case immediately upon hearing and objection from defense counsel the trial court issued a curative instrument will happen the next day it was the next day in terms of court time it was immediate they broke they came back to court she finished her argument correct yes and then they broke for the day they broke for the day yes and then some something happened overnight defense counsel decided he better object or right or did he object after the jury left the courtroom the didn't happen the next morning when they all came back the record counsel said i have a i have an objection i'd like to make yes defense counsel said actually requested a curative instruction and immediately the trial court gave that curative instruction did you give it right then or did he give it as part of his package of instructions when he instructed the jury because he was about to do them right then and stand alone and did he included of did he also include his packet of instructions right after i can't tell you how much time occurred between the stand alone listen don't don't pay attention the sympathy or prejudice counsels argument is just argument and pattern instructions i can't tell you how much time passed in between ok was i didn't really understand said the prosecutor at the trial put forth three different theories of first degree murder is that right yes and appeals just analyzed the thing and they're probably the hardest part yet the hardest thing to prove right not the other two means of getting to first degree murder conviction here ground i didn't brief in the state court so i couldn't speculate any further i'm sorry i would also like to just summarize remember this is mostly a claim argument so in ash and so inflamed the jury that they had to rush into the the jury room and convict but remember that the arguably impassioned plea was regarding autopsy  forehead and it went on and on her skull being thrown down the stairs the fact that a six year old couldn't do it he was the only one there above the age of six at the time this happened and it went on over the course of an entire evening and possibly into the next morning this was the kind of backdrop that the jury had when they heard this very short paragraph of a quote impassioned plea and this was no different than the trial evidence than the gory hard to listen to the trial evidence this wasn't going to prosecutors argument wasn't going to am passion then any more than the trial evidence did and remember this is all an analysis briefly this was done this argument was a very and a rebuttal as someone who's done many many trials that's where you you you you let out all the stops trying to get a jury to come to your side and that's where the prosecutor chose to put this argument she kind should have visions of the baby at the christmas of the year before and now the baby's in the refrigerator this was you know this  calculating flying the jury the fact that the baby had injuries on it does not mean that the baby was tortured the california the significant thing about the court of appeals opinion one of the reason i think it's one reasonable is that they really didn't discuss the holdings of the two major california cases on this issue which talked about you can't go by the injuries alone because they couldn't inflicted it in an explosion of anger you have to find something more than just the injuries and we we don't you know to say that it happened for an hour is not supported by the evidence that there were things that happened during that hour yes that it was an hour of constant leading no there is no such thing the point of this isn't i mean i understand you're going about this isn't a substantial evidence question well there's substantial evidence supported that in a jackson kind of question whether  correct but even we're talking about prejudice here about whether or not the van was prejudiced by the argument and that's where it comes in to whether or not the evidence of torture ok so overwhelming that no argument would have made any difference and the really dangerous thing about this kind of argument it gets the jury is so upset that they don't make those distinctions that they were called but i'm not saying my clients not guilty of murder of some sort wh am saying is that the descriptors argument was entirely improper and that it inflamed the jurors and that they that's the reason why he got first degree murder and not second or some variety