mastermind and ringleader serving only eleven years by being tried in the same trial on the same evidence obviously different result mr wingate a serving fifty seven years because from counsel rendered ineffective assistance the civically with respect to the here the only identification made by an independent eyewitness that placed mr wingate at the scene of the crime was made by heather cabot a pharmacy and boy who only looked at the on mass farmer for a brief period of time who could not provide the police with a description of the robber at the time she was giving her initial statements and who provided her initial identification of mr wingate based on a lineup in which she was singled out for having the physical characteristics of a full beer and looking like wrapper and this is individual juxtaposed against a series of great varying shades of gray or washington where you're trying to tell whether the skin tone is lighter or darker we're not dealing with shades here your honour's this is a full say when cases colored in by mark are so bad and it looks like wingate is darker than he also says it wasn't a good photo spread obviously so if you're looking at the lineup itself without even considering the circumstances that led to the lineup you can tell that it's just and this is like the black coat that you haven't seen for which the line up focuses on the one to think memorable thing about the person which is the fashionable  and moreover if you compare the so case like washington or watson which is referred to in washington you don't have any evidence in the record that suggests that the police had taken measures to ensure that  suggestive in washington you had an officer who took care to make sure that the facial hair on each of the lineup members were comparable and that there was a similar glare so that nothing in particular stood out you don't have those and i think everyone would agree that it's very hard to tell from this particular line up this is the polity of the photograph as you know reprinted in the record is not perfect but when the fear does stand out as compared to all the other individual and this moment was framed it was important because he saw the gate closing and but if you look at what she says on the stand she said she just turned around the gates were coming down and while the gates were closing the unmasked robber was putting on his mask and if you consider her ability to view the robber she was on the floor and we know from mosquito testimony that any time that they tried to look at the robbers they were time for such a traumatic incident this isn't like peterson where you had an eyewitness to bang photos that allowed her recollection of what and rather it allowed her to gain a recollection of what she saw at the bank and she remember look to whether there is a reasonable probability that the offense can be committed in a nonviolent way we submit that there you know in those other cases in the th circuit the th circuit those courts in address what we think is a reasonable probability or at least  one of the robbers gramp or and she didn't remember at st when he showed her statement she said yes yes i did say that no other questions were asked of her as to whether she had mentioned does china how sad he thought that man she was really paying attention so what was going on and that she had an adequate opportunity that's a credibility judgment that he ma identification by any statement