here started only if we start there i mean the massachusetts appeals court found that there was an error and then they went to harmlessness what i couldn't figure out reading the briefs was what you argument is as to how you were prejudiced by this other day and the speculative fashion in other words i totally agree with you that depositions versus trial testimony have different meaning different reasons but what i can figure out is at the point you knew you were dealing with a hard nosed judge you didn't seem to want to be flexible as far as moving the trial date and he went so far as to be present when this desk deposition was going on and you did have a chance to cross examine what did you know when you  conducting the deposition that you may later have known at trial could i couldn't figure out you know what what was missing at that point that would have prevented you from conducting objection of defense counsel but also with the understanding that dr springer may still be available to testify in late may or early june so i would suggest that defense counsel goes into this and i think reading the transcript of the medical examiner's testimony is helpful in this respect he doesn't go into great deal about your various points that might be able to be brought on a trial specifically for garcia trajectories locations of guys talking about more importantly about the locations especially of the intermediate examination and that can be debatable as to whether or not that was a good strategy or not but then obviously you know putting aside the issue of live testimony versus your deposition the ability to check the mannerisms and the testimony of particular individual here this is not a case where it's overwhelming evidence against mr risk instead we have a very typical situation it's a late night car people over drinking doing other things and you know there may be a half a dozen or more witnesses none of whom do seem to be able to know right afterwards and then some of them speak the next day and change their testimony and we see it grand jury testimony changes color them try to change their testimony days before trial and then they're threatened with perjury only to come back and then say something else a trial so we you know contact but in terms of location of anybody what does he say he just says intermediate which means six inches to a couple feet right correct but it's there any other long who was aware and i think part of it is the question of what could be done on cross examination at trial because it used to be sense but i get the idea that maybe you could have found out a lot of great things for your case and you can undermine some factor the inclusion of the testimony permitted which fact was prejudicial so when i look at the one fact that the m e testifies to that no other witnesses seem to talk to speak to and would be authoritative about is the distance but i'm trying to present how is that testimony prejudicial to you and what is the indication dead by virtue of your lack of opportunity to challenge it prejudicial ok so our question is how is this statement that it was an intermediate range so different from he didn't do it that we get into the box of saying all well that's a highly prejudicial statement so the fact that you never opportunity to challenge it is a big deal and i'm having trouble getting a sense of what did the m e say that is of that kind of prejudicial quality because it's not obvious to me that saying it was an intermediate range is all that prejudicial that you when you look at these two areas and they do i think have some hand shape to them because of you know in the greater context when we look at these cases we're trying to determine you know whether or not there really should be granted you do have to consider the strength of the commonwealth's case and i was just he re there was not any particular great strength to it and so that's what magnifies these particular  in the medical examiner's testimony really addressed that issue other than arguably this issue of brains report now well and on that issue if anything it was helpful in my rage that when he testified it was intermediate and she said anywhere from a couple inches to a couple feet necessarily a likelihood but was there a reasonable possibility the cross examination would have resulted in the medical examiner saying might have been two feet six inches might even have been three feet might even have been three feet six inches can argue that how can you how can you argue that it wasn't that evidence that the prosecution introduce wasn't relied upon the same the blessing the prosecution introduced irrelevant evidence no wonder i'm learning that it was really hurt the prosecution introduced a number of the government of it's a theory that they were on top of one of the other descended advances a theory somebody shot him who came up and was not on top of the medical event the seven examiner could testify to many things if the bills examiner testified to this could not have been within inches it was definitely within feet that would be highly helpful for the fed and for the government given your theory that if they said it was only two inches that be very helpful to the government bad for the defendant expected that this is last shot and he didn't expect that and he extensively cross examined her in court with the court reporter and out with a judge present there's no nothing that happened at the trial would have was very strong the conditional was fighting with the victim right before the them was shot that the petitioner put forward a theory that was just not credible given given the testimony and that was the prosecutor relied on person on the ground the shot came from the standing person and then a number of the other witnesses describe these two people fighting where one person was staying and one was on the ground then tax money the petitioner which was that basically there was a large group that was beating him up and then someone and then his cousin came over and shot the victim was not corroborated by any other testimony and case beyond that the petition other evidence in the case and then they have a footnote when they list it and i guess my difficulty is in what sense was the testimony by the medical examiner that it occurred with him could have been could within two inches cumulative of anything because it just doesn't seem to be any other evidence in the case that you could really say that was cured of a but maybe i'm wrong and then if i'm not wrong what is what do we do with respect to h i think as you are to touch my proximity is important here and i think that when we look at the scope of the comma loss i mean it's evidence against mr gross guy you know what we have here is you know not just evidence that these two are fighting but there's you know which puts him directly there  oftentimes underneath the weak and very close proximity to the neck down but we have other individuals and i would suggest that the rally to risk that defense is not as on a reasonable kamel might suggest there are multiple individuals who you know some of  of those are the witnesses on expert witnesses but wouldn't they be witnesses as to distance and it is that with the mac is referring to when they talk about humility if there was other evidence of distance i would think not because you know the estifying you know that someone is standing up and then shoots or that they see sparks and they never see who exactly is doing it but here i suggest that when we're talking about proximity we're talking about you know two feet is one thing but as the court is narrowed down to two inches is a whole different story