that in my view is a extremely close case factually this is a case where there is absolutely no physical evidence connecting my client to the crime this is a case where one would expect there to be blood splatter evidence and then shot residue evidence connecting my not what your body but i believe that it all is relevant because that gets down to whether or not these errors require the rich to be granted understand what we're dealing with issues of the law here you've got certain things that you've raised in your brief reasons there was no challenge to that evidence was because the prosecution provided the evidence to the defense and other proceedings for the defense was not allowed to call this defense expert to offer the testimony that was critical to the defense to refute the testimony of the prosecution's gang expert that had been strenuously objected to by defense counsel and even though the trial court uttered the words you can call any other expert you want when defense counsel tried to act on those words by arguing or asking to be able to reopen cross examination of the government gang expert to go into the areas that he want to do his family through his again expert cannot be called the trial court said no to that extent it that what happened in this case is that my client was denied his right to produce any evidence on issues critical to the testimony of the prosecution witnesses police and this is going to be based in part on him on some of the experiences for which he was currently in prison i understand that also to be part that was part of the offer of proof and i believe that was going to be part of the testimony that defense counsel wanted to elicit to explain why gang members would tell stories to police that favored the prosecution's case and here's my question was there any evidence or any was police misconduct there was absolutely no allegation with regard to that red herring argument first thrown out by the court of appeal in california mr was not called as a witness to testify that any witness in this case was threatened likewise the gaming expert was not called as a witness for the prosecution to testify that there had been any threats to prosecution witnesses the prosecution again expert was called to testify to bolster a reason to believe the prosecution witnesses although this gang expert had never even talked to a member of the relevant game in his career defense counsel wanted to produce the evidence puranas solely as an expert witness he was and he never at any time claimed that there was any misconduct by the officers involved in the particular case but that's totally irrelevant to the legal argument that's involved in this case the question the reason the government wanted to call their gang on cross examination and it's and defense counsel pose the judge look i don't want game witnesses i didn't want the prosecution to call again witness i'm happy to submit this case without anybody calling again witnesses i can remember guy and my client can live or die with the verdict that the jury is going to reach after watching these three or four individuals on the stand and what version of their statement the jury wants to accept the prosecution couldn't live with that state of facts and they called they witnessed to try to make these witnesses more credible when the defense counsel said ok i want to call a witness that explains why that witness's testimony about the gang members being credible is bull the court said no you cannot do that we're not going to allow you the same courtesy that the prosecution had to try to bolster their case you may not bolster your case that there are liars by calling your expert to testify that there are reasons why they're liars that has nothing to do with them being afraid of members of the gang or anything else they're just lot of other cases that were coming down the pike and los angeles the judge said he was an inmate and said therefore i'm not going off like you call let's say five but that's not what the penal code section box about you know let's say hypothetically  and under the california code that that really was a decision for the trial judge the trial judge was concerned there's going to be any quote circus like atmosphere it's on in light of mr perez as background and are you saying that opinion the outrageous reading of the california penal code section i understand that different people may have different opinions about the penal codes it doesn't matter for the by the trial court in direct violation of the united states constitution council meeting extremely clear for the trial of that this is the only guy that i know of that can offer this testimony and i'm making the offer of proof based upon four thousand pages of discovery given to me by the prosecution because i'm representing other people in other cases where presidents going to be a witness i would almost bet you evidence rulings can arbitrarily prevent the defendant from presenting his defense and i believe that that applies right here here what happened is there is an there's a state statute that arbitrarily peril only unreliable and nobody can produce the witness no matter what in our case the statute doesn't say nobody can produce the witness no matter what in our case the prosecution under the facts of this case got to call their expert that presented their point of view not only did they get to produce am i so i will get to subsequently defendant as opposed to whether it's your parents could just find her space right i believe absolutely that he could testify in the first place and it was unquestionably a denial of his second amendment right to not allow that witness to be called under the so you're saying that if if the defendant has a witness that's incarcerated and that person the defendants as i need to have this witness testify that under no circumstances undoubtedly have brought a lot of or shall i say new involvement media and others into the trial that would have changed the whole dynamic of the thing at least potentially so but i don't think there's a lot of courtrooms of los angeles county and there's not a lot of reporters hanging out in a lot of courtrooms and los angeles county and certainly the way this was case was tried tried defense counsel wasn't calling reporters to show up in a courtroom to do that was resolved very quickly without any concern about anything the prosecution was allowed to call their expert well the defense wanted to call the only expert they knew that could offer that testimony after the prosecution had already been allowed to do so the the judge needed to look at the case at a different way and under these facts and the cases cited brief he clearly abused the sixth amendment in saying that you cannot call this witness and  or not gang members are afraid of the police whether or not police lie several of those areas he asked to go into he was told he could not go into them after the trial judge said you may not call paralysis of witness you may call any other expert you want defense counsel been sent to the judge your honor i would like revisit your earlier rulings about the extent of my cross examination and i would like them to be able to ask  questions of the good of the prosecution expert and the judge said no the rulings stay this one individual is the only person available who i think can testify on this issue and i think that that's creates a problem for the court because in any case involving any game crime i just find it can simply s page i will allow you to call any again expert that's currently a member or formally informally a member who is not an inmate of the notoriety of rafael perez to present the testimony that you have proffered the court specifically sa again there was a lot of media coverage the next phase and that could and i think would have confused a lot of the issues in this case confused the jurors got them to focus on something that was not at all relevant in this particular case just move forward with the crown at that point game they're not going to implicate a member of their oh i'm going to save someone or to avoid blaming a member of another gang given the culture of the gangs and again the saying well these guys are testify against one of their own thing and that's so contrary of the culture gay members to testify against members of their own getting when he testified when he started was that due to the fear of retaliation they're not likely going to testify against members of their own getting to present to prevent you know constitutional dimension to the imbalance between the experts on the one hand you could be and was allowed to testify for the prosecution to perhaps about if you follow our judge canby's line of thinking on that  and yet at the same time the defense is a star witness to try to undercut what was said was denied are you aware of any constitutional case and u s supreme court that deals with this issue and if so how supreme court has decided that would bear on this issue whether denying one side it's expert when permitting the other side it's an expert on the circumstances of this and and so i think we need to look at whether or not you know these two asked first you know why it was praised an arbitrary way this wasn't something that was necessary was this testimony relevant and i think you know i think that there were other after the passage quoted by counsel on page sixty twenty one of reporters transcript counsel for mr kim said just one other point your honor if i can just go back for the record for a second if we can call any witness we want to testify to the very issues that i raised other than rocky operate as why am i precluded from cross examining this witness on these issues the court you are precluded well i'm not going to go over any rulings i made and i made that last week defense i'm asking now for permission to be relieved of the court's ruling regarding questioning this witness concerning the issues that i brought up before the court denied for the reasons i stated previously defense counsel not only wanted to as as the witness to testify about what games why games are afraid please he right there said judge i want to be able to go in and ask the questions that i could have asked yes counsel  follow up questions he was not allowed to ask about the gay members whether or not police threatened gang members whether or not at least the guy about gang members there was no you told me on your opening argument that there was no basis for that there were no allegations here that the police threatened gain members credit police misconduct you're absolutely correct but and that's a complete red herring the whole point of this question is the government called a witness to say these gang members are really telling the truth because in my opinion blah blah blah blah that's counsel sought to counter that opinion by saying there are other reasons that would influence these gang members to not be telling the truth when they talk to the prosecution it has nothing to do with who knew what about the facts of these officers in this case certainly the prosecution giving expert knew nothing about what the officers did in this case the defense was never alleging that the officers in this case did anything what he was saying is that gang member state of mind is such that when they are interrogated by the police they are afraid of the police and they will lie to the police because they're afraid and they want to say what the police want them to say that is the son in substance of the expert testimony that was shot by the defense that completely countered the testimony that the prosecution was allowed to give struck out twice on two of them i don't think that if and the court never said by the way although and the defense counsel didn't ask they never sent over with journal trial for a week for you to find somebody that was never ever offer so i think that it is extremely misleading to say that this ruling was based on the fact that only you can recall this witness the judge didn't want to go into this area of inquiry he didn't want the jury to hear that there were other reasons why the gang members might lie if they were really afraid of that they could have limited the questions that were asked by parade as the prosecution didn't have to go into all the underlying relief reasons for pereira's opinion they didn't want to be stuck with his opinion because they knew that they would get a not guilty verdict if it happened and that's what this case was all about thank you counsel thank both counsel for the argument