where there are a judge conducting a private interview a witness i would assert that's our case and the case is judge signs listen to never recorder who is the alleged victim in this case at the application for over here it was before the charges ever file he was in a free hearing was a preliminary hearing wasn't a pretrial hearing it wasn't a request for a warrant it was strictly a a request for him over here and it was in the situation where it was the best move on his part to talk to you brought her in and talk to the alleged victim in the case i think that goes beyond what he should have done and in fact it amounted to an interview of a private citizen or i'm asking just about their correct and i'm saying that are needed over here typically and in this case it was two it was actually supplemented or was supplemented to the record where the complaint was actually filled out  in a sit in normal situation you certainly have an officer going in there saying here's the facts of the case here is the complaint that i'm tendering to you that sign i am requesting over here and if you don't bring in the inconsistency between what was stated by the witness a critical witness in this case if there's any consistency with what she said there and what she said on the stand it could potentially makes him a witness and i'm not suggesting that he did that that he's been a judge of all i'm suggesting is it he took that away he took the possibility of a rebuttal witness away from the defense in that situation because the rebuttal witness would have been him there is nothing he could do and their interest in easy way around this obviously he could have recused himself and that would have been the easiest the other way is put it on the record you know if you're going to bring somebody in especially with this put it on the record tend to the defense now we've resolved all problems we don't need a rebuttal witness we've got her on we've got her on the record we've got that witness on the record so we can do that all i'm suggesting your honor is that be gotten rid of the possibility of a rebuttal witness which in this case could have been absolutely critical because she was the major witness in this entire transaction this entire case she was the main to the legislative scheme of preventing your views the second one was the purpose of the procedure satisfied despite the year and the last one with the steps toward a requirement to literally the word with the state gaining an advantage well first let me go over very briefly  obvious reasons so we've got an open over here which expired on june fourteenth of two thousand and eight many days ahead of that september fourteenth two thousand and eight defendant was notified on october seventh of two thousand and so it's a violation i am not here asking that is the world's worst violation i'm not suggesting that at all in fact the only violation i would say that the lesson now for which would lead to a suppression of you over here it's just not that substantial other than it was a clear violation i mean there's there's no question about the legislature put that in there for a reason and it clearly was violated but i'm not suggesting that was so egregious that we should suppress he'd be over here based on that but let's go on because it's the first of a couple of problems that this will revere application having this over this over here scenario when it was introduced to trial section one week a dash eight see ten day notice where you can't use the over here  trial that's the big one that is a big one because nothing in the record did indicate that notice was given there was a recording that was tendered no question about how they tendered good the cd but nothing else consistent with the sketch and the only time it was in the record was frankly when the state supplement of the record for appeal that they put in the complaint the complaint form over here so whatever they ask your honour's is what would you expect a reasonable attorney to do with the time when he was because we're going to use it in trial which will bring me to the ineffective assistance because the trial attorney said nothing and he had no objection to the over here going into it going into evidence but that's where we used t finalization of the eavesdropper were so everything was done they had on they had it on cd and for ninety days actually in excess of ninety days they didn't take it to the place were supposed to go they didn't get it clear violation of the requirement of that it's in the media and and there's clearly reasons for that immediacy because you know the possibility of tampering of the chain of now that it's issue we've got an issue where for over ninety days that seed was stronger and i don't know where it was and you don't know where it was you probably have sawn off the desk or in the back seat of somebodies car or back in there i have no idea but clearly it wasn't it critical i think you get to the point where you say you know what is it just have to comply with the intent and the letter of the law of stagnation and that's what i mean before today's said we look at those as it relates to the ro requirements and i believe they should have been suppressed then i believe this should be suppressed in the future of this matter is never tried again under rove the requirements for suppressions number one are the safeguards central to the legislative scheme of they're there for the reason of safeguarding the legislative scheme of preventing abuse not mere insubstantial violations we've got reasonable notification issues we've got a notice of music trial issue and we've got  issues all three of those clearly point to that first area of the of the road requirements the second issue were the purposes of the procedure satisfied despite errors number one and the notification and that's that over here and then suddenly they trot off the cd and say let's listen to the over here literally that was a violation so you take all of those into account the over here out of the search should have been suppressed and it should be suppressed down the road if this matter ever goes back the last thing i want to touch base on very quickly and i'm just about running out of time in effect in the systems and i'm not going to go over all the details i would assert that some of the things that are brought up under the last area of  also believe there are at the trial would have been conducted in a completely different way than what it was conducted as there was not there would not be proof beyond a reasonable doubt it led to a fundamentally unfair trial and a fundamentally unfair result which leads us to the conclusion that the matter should be reversed and some thank you  get to trial this is just the eavesdropping issue this time people can see it in their brief that there was no personal service on the defendant within ninety days sure did serve the notice on the phone after that period of time however defense attorney was provided with a notice of the overhear a transcript of the overhe the actual cd recordings of you over here related on this through the people's disclosures supplemental disclosure and this disclosure was within thirty days of the end of the over here period so the defendant had been provided with no issues  kind of citation to be over here evidence you're saying somebody else was there and he said you know very well and i'm glad you brought it up because in the police records it clearly states and i believe that it's also quoted in the first appellate court brief the police number one is that it would be a reason for him to refuse self in that whole argument but it would also bring up the ineffective assistance argument that you're looking at least of work and saying this person just when in front of the judge and frankly the same judge that is here in case now it testified in front of him or i think the word was testified in front of him and you don't take the next step you know the next step of either  that wasn't done i don't like the fact that this is the first time we have to bring you know to your arms it's news appropriate that we would have to bring that up this time but the only reason we have to bring up this time is because t didn't bring it up for one reason or another and once again gaston aspersions you know him he's a he's a very fine attorney but there were some things that just didn't happen that should have happened which i believe lead to a final story indeed over she tells the same story from the stand somewhat consistent with what was a change in the over here however not completely there are there are discrepancies there are differences could an attorney have made hay with with the discrepancies i would assert yes you certainly could have without the overseer i would think it is a completely different situation and i think that you have to literally why i'm a witness in this case and you have one witness and you can impeach credibility or you can show inconsistent statements or you can show there are issues with that one witness  without the over here i believe that there was enough there was enough evidence and enough of the in the cross examination of that witness with nothing to back around but in the over here that would have been different