castigated by the other side that he was unable to pass a rifle range test now he was not only unable to pass the test you missed often shots what you missed all thirty rifle range shots from a distance of thirty feet which i don't believe is much further from  mr enjoy is a gunner in the military and before he took that test he passed it i believe when he was a cadet and he scored a ninety seven he also took it subsequently and shot thirty five thirty missing ball thirty shots from thirty  evidence that he had thirty four thirty shots only three weeks later in a subsequent test and the drugs could be evidence at trial and i believe that evidence would have told the jury like what mr injury or argue that this rifle range test was not correctly performed that he believed that the rifle had no function and i believe that there's a tremendous amount of value to that because when if in history for their shots two weeks later history for thirty days before this it will thirty shots is unbelievable and the jury that never got to hear that hit over the shots on two subsequent occasions it's like in the open house so the issue openly isn't well that your client was a good marksman the issue is whether in deciding to terminate him they were discriminate against him because his status as a buck or so why so much emphasis on indicating his ability as a good marksman when that really is not over the issue at all because one of the arguments he made is that he discretionary the police officers discretion for instance suppose that he did he want to take a picture and start officer might want to take a picture with with a bunch of teenagers who are possession of stolen property his injury believe that they were potentially should have been arrested and he said well i'm saying that one of the things that they argued is that he was not properly fit to be a police officer and one of the argument they made is you cannot base the rifle range test in say an amalgamation of a lot of issues that he supposedly did not handle the rifle range test properly that supposedly officer would have referenced treatment over him in case there was cuts on the police force because back in two thousand i guess we all know there was a great recession back in two thousand and nine and even though no job  be executed by the police department that doesn't mean that that palpable feel fear was not permeating through the department for instance if i said today there was going to be still some of twenty inches and i went and bought a bunch of snow shovels and i went to bunch  of ice picks and all that other stuff and then it said the storm veered to the left and it never hit boston that doesn't mean people didn't have a fear that that's no storm was going to happen of course it of course that happens all the time where i live in new york we had hurricane irene the previous year and veterans on the force but having made this out of your argument now in the context of one isolated incident and now i'm not trying to figure out how you can also argue at the same time that it was terminated that year so it was not i don't chatter they claimed it was idle chatter there was a membrane that was circulated among the officers that seven members of the force would be terminated that you're alone that's approximately forty to fifty percent of the force and if you're not a veteran like off which he didn't give well here's one problem i have with that particularly matter and i just the last is why did he open an opening statement he said in the first three senses looking statement thirty members of the force of veterans he precluded of my client's counsel from ever objecting because as you know in the opening statements very tough to object in the opening statement courts often routinely will shut you up and say please don't interrupt opening statement he let the cat out of the bed at that point you couldn't you couldn't stop and the jury already heard it and even if you objected it would brought attention to an issue and only highlighted the issue that if the force was better it's i think what counts of it doesn't case let me let me ask you what i understand the logic of that you're focusing on officer moran no he he was not the decision maker here he he is not the one who cited whether your client should or should not stay on the force is not correct so i'm just please affect his ability to remain on the force in the event of layoffs and so acting out that by as he falls asleep reported to the decision makers all these deficiencies in your client performance and in that way accomplished the determination of your client that is that is that's sort of the theory of you're close to a certain extent i once ate exactly like that but i believe that the anti that animists was was limited to officer moran it was not a generalized problem in the department then there might be more force to your argument that it's not relevant and the court denied it that would be a big deal where in the record do you support the proposition that there was in fact a request for secrecy of asian well he clearly tells the judge that the witnesses and it's a question if you look at office understanding from my client that twelve or thirteen officers were in the courtroom that day and each one of them ultimately testified they had only the judge had received the motion had not granted it then you have a case but the motion w i said i don't see why the judge has to give you the fact that everybody in the courtroom could see there were with this is a potential witnesses present or just to a gauge it was basically a request that should be made well the party know but at the same time there are special circumstances and also i would argue even if even if you don't think the standard of review would be you know which we all agree would be here if you believe an objection was properly made you still have the play never stand it and you still have to say yourself jeremy silver fine i represent the defendant appellee his i'll address the issues that we just talked about it was absolutely i was trying to counsel with absolutely no request fact i was expecting the ex wife from counsel say when i make wait what about what about the plane your argument i mean the it's pretty basic ifs in terms of preserving the integrity of proceedings the notion that you're going to have an array of witnesses sitting there in the courtroom hearing testimony the pre sees their so that they can be aware of that when they testify in terms of the truth finding function of the court that's that's very troubling we why i why should the judge ok frank castle did a lousy job he didn't do it as to the whole argument about the number of veterans his complaint which is you sir a complaint was based on the fact that the department the very people he  chief the town of director had expressed strong and taken isms to were veterans plural and that they had a general bias towards veterans that was his case his case mr prentice not office  but as you run it correctly noted was only is field training officer for a brief time in the very beginning of his field training he ended his field training officer ran with m september october and during that time he had several i think over fifteen officers who trained him they all had input they all set up the chain of command and said this candidate has some serious issues and the reason why the rifle incident which they brought up as part of their case was important because his behavior on the rifle range was unsafe the officers who were doing the rifle range testing all indicated that he was sloppy that he wasn't paying attention that he had this trigger finger in the backs of the trigger he was moving the gun secondly chief rosa testified was that he could still remain a probationary officer and an officer if that came to fruition even without the rifle range test having been passed so it's irrelevant he said look he's got to be able to pass the handgun test which he did but the rifle range test we can retrain and we don't always get the rifle range basically use the local gun club the next time they come around he could use it so the idea that this had any relevance to his whether or not he became a police officer after this provision returned is not true in fact there's a long list of things that this gentleman could not do it was unsafe and the  we went out to me checked it out you know you can see there aren't a scavenger hunt and yet and she only wanted to prosecute everybody just you know sometimes you don't do that sometimes you have to use discretion be smart about you know we have the names if anything comes up you know to  but now he insisted he was giving officer miranda left and that always came back each and every one of these offices several whom were veterans and again the whole idea of this case was eighty veterans sentiment the veterans who work with him  say hey look it's got nothing to do with the fact that whether or not he's a veteran he is not a competent probationary officer to be a police officer to carry a gun and a badge and we have very serious concerns and we try to work with them we give different field training officers and it keeps coming back we're getting all this stuff that's why it was terminated they don't want in fact she crosses testified i don't want to terminate them we already invested money with him for the academy we spent months with him we had people training him i don't want to t in but i have an obligation as a chief of police of my community and my fellow officers as you do real harm so that's why i terminated your honors otherwise i believe this no the question is i think