court's order that the district court already agreed there were at least some instances of improper vouching a trial that's already a given from the district court's order maybe not as many as i argued on the appeal but the district court grudgingly had to admit at least a few of the instances were either misstatements of the law or when mr soltys was arrested i was his criminal defense attorney we went to trial it's always been too close to terminations of what the story is mr sillies runs out of his house at two thirty in the morning with a rifle thinking you hear some intruders outside his garage doors grown up going up he's holding an assault rifle as he's doing that ops are tompkins in his driveway he just pulled over a couple of people he was the one making the noises and so you got to the vents happening the garage doors going up so lisa's looking down a neat holding a rifle you have the officer out in the driveway seen the silhouette of a man holding a rifle and both of them take two different actions my client's story has always remained the same since the criminal trial which we won which a jury of twelve unanimously found him not guilty of assaulting  threatening officer tomkins and that has always been the case this case went to summary judgment the district court judge heard all these facts and summer judge of the same facts and denied metro's motion for summary j tainted appeal on the issue qualified immunity to this court which one of the honorable justices actually sat on those facts stayed the same even among circuit opinion from that previous appeal what's what is in i put in the experts the record even that opinion you can see we've always had just two stories and that is a close credibility determination because there were there were other witnesses who testified in this case including an expert but we don't have the benefit of that part of the records that there is no x there was a crime scene analyst for metro but not on not an extra what and the we don't have a right we don't have a transcript of the trial testimony anybody no no you don't and that's what's key right the trial testimony that's already not reviewing the summary judgment declarations  right we're reviewing the trial testimony ah but the whole point i'm trying to get across is under to supplement the record with a trial transcript is not necessary this is a distraction by the respondents in the case the evidence what i'm trying to get across is since the criminal trial which was one summary judgment which was one the appeal which was one for all for mr sillies all three different instances the facts of always stay the same in effect even in judge dorsey's order excerpts to record page three if you read that first page judge dorsey summarized everything i will right now wait a minute when it when the witnesses get up on the stand and testify sure right now cross examine the direct examination cross examination and the jurors are just watching the witnesses and listening and then they get to decide who's truthful or who they believe right sure of course but here we have a case of a close credibility and you're going to find what you're saying in what you're saying is that judges you don't need to look at the transcript because it's just so obvious it's obvious what the vouching was which was the difference maker in this case because the stories of the two main witnesses officer have never changed since the criminal trial it's always been the same story that's why this court does not need three days of trial transcripts to rummage through to see that what i'm saying exactly true and what's been said by this court in previous appeal by the district  to the garage with his assault rifle he didn't have those glasses on no it was two thirty in the morning then he was point two three to draw on he had been drinking inside his home which i  terms about police brutality that are never defying that have to do with vouching because of police brutality it's an improper argument it's an improper argument it's something that's not in the record vouching includes arguing things that are not on the record you have a very generous definition of what we were seeing in draper result of the way i read draper i mean draper talks about bringing in evidence bringing in matters an argument that were never presented during the trial police brutality was never presented there is a jury instruction instruction number five which is included in the record which talks about excessive force excessive force and police brutality are two different things police brutality the way it was portrayed officer tompkins was portrayed as the idealized officer almost apollo with a badge he was an officer who could do no wrong in closing his reputation was a prime importance he was the kind of officer you want to come to your house and protect you and your family and children this is what was argued in closing and so you had this idealized officer excuse me who could do no wrong whose reputation was improv important and all these things are matters outside the record were not talked about at trial and counsel would admit that it was even stated in the judge's order and then you have this idea of saying this idealized officer would never commit police brutality police brutality excessive force or not one in the same police brutality is multiple offers in l a beating a man in rodney king almost to his death with batons that's police brutality and this is a case of excessive force and whether officer tomkins was justified in shooting nine bullets into my client's garage two of them hitting through a race tan and one through the back his backside there is a difference and this refer this phrase was hammered in closing counsel gave a very effective closing and i know and the whole contention is that when you have this close credibility determination these two stories that have never changed they are impacted by an overly aggressive over the top closing argument that predicated on numerous instances of vouching albeit without the necessary twenty two objections in front of the jury i've tried many cases i won them and i've lost them to state and federal criminal civil and trying to gauge whether a jury would be you please the court craig anderson on behalf of officer scott this was not a close case you tried this case i did try you made the argument that's my argument yes you can and it was not a close case and i would also submit that was not val it was not a close case because the evidence was overwhelming there was only one witness testified in favor of once at least yet and that was once at least he has his story was taken apart by the percipient witnesses the two gentlemen in the car and the crime scene analyst once we see yes the story was that he stood for three seconds with his hands raised and then took a bullet through the hand and then was turning to retreat took a bullet in the buttocks the crime scene analysts established that the bullet that hit him through the hand was two feet off the ground where he was holding the rifle crouched and then the other bullet was when he turned there was no evidence supporting the story even the two percent in witnesses said that they saw the gun pointed out an officer thompkins but more importantly to disappear is that there was no the there were perhaps some statements i could have or some things i could have said more articulate but there was no nothing that the jury was asked to consider that was outside of the record the only the closest call would be the statements that officer thompson's reputation was at issue but that's a common sense statement when you're considering that someone is being it's sued for excessive force the four statements do not rise to vouching and then the other two statements i don't believe were in accurate statements of the law but those statements were words when i used the term incompetent officer but i would argue that an unreasonable officer is incompetent and that was their burden to show that he acted on reasonably i think a reasonable officer is competent and an unreasonable officer is incompetent so i don't believe those were inaccurate statements of the law but if they were it's certainly evidence about what is an incompetent we usually responder you know would normally respond or how they might respond in a situation like no other times you see these police experts testify and what they do is they come in read the policies and procedures to you and so what we had was officer tompkins testifying as to how he was trained what he was supposed to do how he was told to act in these situations and then i compared his actions to the training and the the instruction that he had received as a police officer but no there was no expert witness that testified to any of that but there was evidence in the record of that because the policies the procedures and his training with that i think what i've learned from this appeal that the more i talk the more trouble i get into so i mean but answer judge bates question i do not let me ask do you think we really need the transcript of the trial in order to make a fair assessment absolutely the standard is whether if misconduct did occur that a permeated the entire trial that that misconduct basically tipped the scales in favor of the attorney committing misconduct and in this case i think all you have to look at is the special iraq tori's that the jury answered they found every one of them in favor of officer tompkins which means had i have lost the trial i more than likely would have received a rule fifty motion on qualified immunity with those facts being decided by the jury and none of those facts had anything to do with the balloting they found that officer that mr diaz was an immediate threat that his hands were not raised and that he was still touching the gun when the initial shots were fired so i don't think you get to play an error on this case because there would have been a qualified immunity granting i believe based upon the jury's answers  me that you've left office and the posture of believing you that this was a close case or the district court judge who said that it wasn't a close case in that the finding that the and part of the ruling believing what i'm arguing that's predicated upon a procedural history that led up to this trial which was always in the favor mr de dia isn't always indicated a close to terminations of do you believe officer talk is do you believe  that so it's not just me spouting off up here as a lawyer trying to make some sort of argument it's a procedural history that is always found certain is clearly summary judgment the only question is are there are there tribal or there are genuine factual disputes about what happened sure than script in the criminal that say that if you have the only reason why you have that but one reason i bring up the criminal case is just to show that there's there's been a long history and the story itself has always been consistent it's always been do you believe what happened  those a few seconds outside mistress lisa's garage is two different versions of events that have always remained obvious apolo holes to two thousand and ten when this incident occurred and what is a police officer to do when he finds himself confronted by ok and so what i'm trying to argue is that that conduct by officer talk and and the comic by mr sillies was so consistent and so close as far to close in the sense that it is never changed it's always been the same story since eight years ago that's why i come back to this idea which you raised in the beginning of well why don't we have the trial transcript when you have this record this is a unique case you have this unique record in front of you which which taught documents a sequence of events that has always been the same even through the civil trial and if you find that the evidence is close then you don't need those trial transcripts because in a close case then you look at the seriousness of the vouching and