on every man this case forward three independently sufficient we said now just tastes at bottom is about systemic failures of safeguards what is on this you did about this up until the the time that he was attacked in fact he was such a model prisoner that he essentially had gained all of the privileges that he had that general population three days after he was released it was attacked by different inmate and again it was placed into mr segregation and the undisputed record is that  lieutenant connor performed an investigation where he heard and understood from at least one source that mr  believed to be a snitch in the prison mr mr know when i have a couple i do have a question about their record on this as i understand it and help me make sure that i understand that the five folks that you're appealing their dismissal were my  st question is none of those were on the classification committee is that correct none of them on the classification committee that's right ok so then then my follow up question on and watson who i believe was the warden at the time is that correct what evidence is there in the record that he had access to or read the report that you're referring to i'll call it the con or investigative report and why and what is in the record that shows his knowledge of this substantial rest so in the record what is very very clear is that  and so these thought it should have gone through the official channels ultimately ending up with but warded and you know essentially the state just making this argument that you know the  report was only made for the classification committee it should have gone take a body else but i think that that argument is essentially untenable because the sending the left hand doesn't know what the right hand is doing lieutenant connor record is that that he knew the information that was in in the conner reported or independently knew that mr rastle son was labeled a snitch by fellow inmates i won't acknowledge  x and with no longer permitted to discuss anything with the court and so everything had to go through counsel and that's counsel made clear in his motion for a continuance because of his personal and family issues he had very limited time to be able to visit mr x or send it to discuss these issues i believe they were able to meet only twice at the very most and that's the other reason why he asked for the the record reflect if there were limits placed on trial counsel at the trial or was it was or was a i don't recall that so i do recall the comment that just cross reference just minutes ago i don't recall if that were there any limits on what counsel could do in his representational the court did not say so much as like you know you cannot do this you cannot do that counsel but before trial at the trial the court said well you know your role is such and such and such and and and  and the court the trial court in this case acknowledged that he the eight it from what he normally does i quote the court normally what i do is let the parties make the argument before i make the ruling but what i'm going to do so this is the way for several reasons because st i submit that you know when judge the what the trial of course is i'm going to rule and and then i'm going to but the lawyers argue make a record of what they disagree with i think that the court has already on bank said you know when the question is a question of law and this is very much a question of constitutional law the rule favors taking the case or or a and actually the opposite is actually true is that you know that the rule against not taking cases that are not preserved does not have much appeal in ryder versus morris the banks one hundred and eighty five of patent this court says that you know even when the case is not  and meaningful opportunity to be heard i was going to his entire case in chief to a jury mr x and raises for the very st time on appeal i challenge to the manner in which the district court handled the directive perhaps her around his plea that he had murdered his wife and the inmate was not given an opportunity to respond to that or object to it and the court granted an exception even though he had not raised it in the lower court gets in this case including nine witnesses during those witnesses testimony he relied on their discovery responses he introduced it in support as mr x assistance case in chief he did jury he was not and barclay versus gabrielle brothers oh stand for the proposition that no formal motion is required for any party before the trial court can make a legal conclusion and grant a gentleman as a matter of law pointing to the court's observations when the court talked about the way it was going to handle the directed verdict motion for the nonlawyers in the road this is howard i normally do it but this is how i'm going to do it on this whether that discussion was driven by the courts who is on t v and so he should not be adduced counsel if you look at the actual rule for judgment about as a matter of law how do you read that rule to to give the district court of the super spontaneous florida a and it says it just as you note if a party's been fully heard the court may resolve the issue and judge somehow that the judge observed that prisoners have won these cases by themselves but indeed in the st five pages of the trial record the court can see that judge the trial court sa he knew of one post a case where the prisoner was one that is not a great record and that that does not stand for the proposition that post a letter gets no matter you know somehow this experience that they can do the nd thing that i want to address very very briefly but very emphatically is that due process controls and and in this case due process requires respectfully request that the course of the core of arson remained thank you very much for the opportunity to be here thank you both for your arguments and we will take the matter under advisement