glad to see the are up and well while i am well i had no idea that my yahoo email was automatically converting unread messages as read so i missed the notification and was not aware of the scheduling of the hearing again i apologize to all for the inconvenience thank you as far as this case is concerned your honor as i find that the massachusetts brief so i'm looking to ask this core to apply a somewhat modified standard of review at least de novo review would least in part and the reason for suggested and their analysis stopped there there was no adjudication the second part of the wrath weighed test as to the reliability of the identifications in light of the corrupting influence of any suggest yes but if if the message is what was right on that first part we never have to worry about the second part right well under the that's correct e state court did not address the argument that the photo array and the suggestive lineup taken in tandem was impermissibly suggestive and the appeals court did not even discuss the impermissibly suggestiveness of the start the line up there was a reference to the line up in a footnote i believe it was number three of the of the short opinion but the appeals court only said that none of the witnesses took notice of the order in which was of what was it he was number six in the photo array and he was number six also in the li case was a case decided in february of this year in which a pro se playing of had made a similar argument was a voice identification case and the petitioner in cooper asked that the court apply reliability portion and the court in persia ron specifically noted that the state court analysis keyed in and and addressed the reliability question and not only addressed the merits were as in here that is totally lacking at least as far as the impermissible identification of the in the lineup and then the two taken together as well as the reliability and are you also making an argument that even if we thought the court did address the suggestiveness own test in the lineup and as the rain that it appellate court in mass of the state court what he said was that well it's not impermissibly said just because there's no evidence that these witnesses relied solely upon the scar making the determination and i would i would submit federal law from holiday to castro to say though that that is not required that the distinguishing feature be the sole reason for an id and the eye witnesses hear more than one least two in addition to recognize you know they said good well they gave some general descriptions his facial features looked right but the scar stood out jeffrey erdem said that he noticed the scar in particular in addition to the angularity of his face whatever that would mean isn't counsel isn't though there another tweak in the path that you have to step over with respect to the photo array my understanding is that that eight people were shown the photo array in only two made the identification doesn't that end in massachusetts as i understand it in trying to determine whether it was in  ibly suggestive it's sort of a product based analysis you look back to see what happened and only two of them made the identification doesn't that fact by itself suggests that it was not in permissibl it one point i think in the suppression hearing yes she is all over the place as far as saying well you know i i didn't pick anybody out of in the photo array but i looked at number six and i said it might be him she sort of all over the road when it comes to now that the problem here is we have two two dates involved one is the date of the robbery going to couple weeks later  they see an individual looking in in a bank and a couple of banks and they trace him down and it's at a second date that i think it's missed the copeland one of the security guards noticed this guy has a scar and he's wearing it didas boots and he has a distinctive baseball hat and so there's mr moore in he fits that description when the police feel he's a homeless person and they go to st francis those and he's there he meets the description he gets the scar he wasn't wearing the boots or the baseball cap and not in the lineup no no he wasn't no but the what the  robbery bank employee yes saw was a person that the common thing was a baseball cap which is a pretty common article of clothing and that that is for testimony but if you look at what she actually said she comes in and the man approaches hands of the demand for money she gives him the money she's nervous  she's looking at the demand no she gives the money and he leaps hardly from her description two to three minutes i would submit that she could be off on that kind of question held up yes and this very nervous guy will certainly be hoping they will be yes yes i'm looking at it is if the robber was described as having red hair then you would want other people to light up with red hair it's that we would be the same principle that that this line up is impermissibly suggested because mr moore is the only one in there with a scar and that is the distinguishing feature of the rocker so it really stands out and it was noted these agent testified that mr war explained that he lived at the homeless shelter there was another individual who asked them to hold on to these notes for him and that was his explanation and i think that that a back to go entire picture and see what happened here in the key question before this court is whether the massachusetts appeals court reasonably applied simonson its progeny and here it did because what the critical element here when i was looking back to prepare for this case is that none of the witnesses when i went back to costello's testimony because he's the one who interviewed the witnesses and none of the witnesses to the december ninth robbery mentioned a scar on cross examination the defense significantly cross examined each inquest still and he said the first time i heard about this car was from  the two witnesses who said that there was a suspicious person outside the two sovereign bank branches who had a scarf so there was no reason for him to have what's this i think you can get there anyway what's the significance of that legal matters is the point that you can't have he said justify enough unless it was intended to be suggestive because i don't think the case is this is a that all of the supreme court's line of cases look at the big picture and they intent on the part of the officers to put together the right is that i think that yes well if you look at simmons if you look at neil's versus beggars and all of the cases they all talk about police conduct and they all talk about looking at the totality of the circumstances comes the conduct as i put together a red tape in which the suspect stands out amongst all the others i just can see that he circumstances and so did this court holiday right but there are certain circumstances where the police can't help but put together a line out that is suggestive is it impermissible however and then  number one because he had no description of the december ninth robbers but that he had done so a lot of might not be all the more reason why putting a band aid on all the witnesses would have been no great burden on the government since they were trying to put a just to rid of is the point you're trying to put together a lineup in which the suspect has a scar it's a problem to cover you're suggesting they were not trying to put together such a lineup so why not put a band aid on everybody and every person in the lineup one of the these precautions maybe in certain cases it might be wise here it was this was not such a case and he had no constitutional duty to do so so what i'm saying is that when you look at the entire picture and you look at the photo array itself what you see is that although mr moore may have been the only person with a scar the sky was not so prominent and in fact two of the witnesses to the december as recently as have an inquiry or for example is that the officers to determine whether procedure was an impermissible he suggested you have to determine whether the other fillers in the array or the lineup were sufficient similar sufficiently similar in appearance and hearing that's what the officers did and that's what the massachusetts appeals court found that he did he put together a  photo array with people who were similar in height weight ethnicity the shape of the face the scar wasn't so prominent you can see from the pictures the jury had those before the pictures before them it was testimony  at trial the defense had ethel and fair opportunity to cross examine the agent and let's let's say that if we can get past the question of whether it was unnecessarily suggestive let's say we find that it was the next step would be reliability yes your honor and what would be the standard of review for that particular on so i look back at my brief and i think  page thirty three we say the massachusetts appeals court didn't reach the merits of the reliability issue and but i'm page twenty two we said that he did write so you know the massachusetts appeals court decision you know could have been written a little bit more clear but under cooper versus perjuring i must say and harrington versus richter that this court and other federal courts must presume that the state court did reach a reliability issue again it's a holistic approach and in thinking about all the cases that the supreme court has come out with and harrington and cooper  you know cooper was right you have to apply the simmons principles in the context of hey vs and you have to read that decision pragmatically and when you read the appeals court decision here  it's clear to me that in looking at these just the procedures they did say that in determining whether it was him permissible he suggested you have to give weight to the witnesses  testimony that they didn't rely upon the suggestive element but i think that goes to also the reliability because here there were findings by the state trial court judge in  his decision that the witnesses had ample opportunity to observe mr moore he came in on two weeks prior to the december ninth robbery inquired about opening a khan was within two feet of him when he did that inquiry there was ample opportunity the bank was well lit you know all of those circumstances as we lay out in our grief were there and it has to be you have to look at the totality of the circumstances and because the supreme court recognized that each case presents different scenarios this was a bank because here the witness this each gave a description of the suspect that was similar african american about five feet ten inches tall to six feet that his height  witnesses couldn't none of the december twenty second witnesses were able to positively id although two said it looks like the suspect that we saw there were factors when they didn't identify him because of the scar in this case we had witnesses who had the opportunity to see the defendant two weeks before the december ninth robbery because he came ample safeguards for due process were there the defendant put his case before the jury the jury heard all of the reliability were secret i sussed the credibility of the lineups and the lineup in the photo array and under perry versus new hampshire we got a look at everything here and everything on this record there was there was overwhelming evidence