ok thank you well if you're anything like me it was a sign this case for appeal your initial reaction when seeing the facts you may have been was not looking too good for mr lockett he's would point out that at least for jurors who are prepared to acquit on a day into deliberations and from my point of view your honor i guess where i come out is how far does it get get you how far they get the state but there are some pretty good circumstantial facts weighing in in their favor here because the truth of the matter is that by my  present now no front of but the cupboards in the record is not clear at all whether the judge was present when the read back occurred therefore he wasn't i'm not sure i understand your now now it seems i'm saying it's not clear from the record whether he was there all we appears of the judge may not have been here on underwriting versus deeds and fisher versus route i mean that's very very serious we know the judge doesn't follow the rules in this regard is to me was this race in the state court the absence of the judge i know it wasn't your honor it wasn't we do you will hear yeah it was raised in this appeal you are well we haven't exhausted the time well that maybe i think maybe it's appropriate to remand for evidentiary hearing this is been represented austrian the issue before the state court system and if it hasn't been presented to the state court system i don't know no evidence or here is going to make any difference we can consider it all right i mean you did and stipulated that we'd best to take place without them being present there was no such agreement here the the fact is that the read back that took place was of the entire harrowing experience of the victim rather than simply particular witness's testimony rather than just certain sections you can because it includes the entire testimony about the flight that was inappropriate to begin with because there is no evidence whatsoever that mr luck and it's a good argument but as i said i by my count there are ten other errors that took place in a trial that lasted about a week and that's disputed and it seems to me that when you just look at all t things it's reflective of kind of an attitude that well we've got our man and you know what let's we don't have to we don't have to reverse the california courts on the basis of an attitude now no that and this course holding in dominant that what we have here is an identification that took place for the first time at a preliminary hearing not by means of a shell a proceeding or a lineup or a photo lineup that took place at the time of the incident but rather three weeks later and i have no problem if the state wishes to make a tackle decision not to show a line up to the victim at the time the incident because her view may not been very good but once you make that tactical call you don't get to have it both ways and a preliminary hearing say now is that the assailant and she's looking over the guy in a blue suit chained next to his attorney in a courtroom it's not very hard for a person say yeah that's the assailant all right and then the compound that basically fourteen months later and with enhanced recollection testimony to me that's very troubling very very different proceeding might be a very different argument but you'd like to argue to us that the california courts are still wildly wrong here in their understanding of what's under the suggestive that we ought to step in and correct their judgments for well that would be great i don't think it's necessary for the court to say that what what what would be the rule here remember again what you'd have to do is come up with a rule that you can find yeah but i think what would be the i understand the rule anytime you show a witness the defendant and you know the soft situation that's constitutionally so teens only one choice i'm saying what what comes next what flows from that well in this case they were thrown flowers you would not permit the victim to give testimony identify now things up for the jury but she still remembers that this is the guy that you saw in the manacles and the blue jumpsuit right away and she gives additional testimony to about remembering a whole bunch of other stuff about fourteen months later point and defend and you know he's the one and therefore she can't make up testimony relevant to the issues of the case or what exactly in your view happens if you have one of these if you say improper show us i would not allow the passion on it at the trial because the jury can't assess the right that's what i thought you were saying yeah i just wanted to make sure you use or careless so what you're saying is i exhaustion whatever is appropriate here there are some issues that were presented in the state courts but which did not produce any rulings by the state courts are you waiving any claims with respect to those you're not really not raising it you know what your honor i did not raise me in my briefing but if in the discussion that the court had with counsel if that show up procedure understand the claim to have molded into that claim but that is an aspect of the claim that has not been exhausted and we would not be rape and we not be leaving that issue and as to the other procedure i'm sorry i forgot what what was the question about the other procedure besides the expression issue well i assume what you're telling us is that you are not asserting that any of the issues that were raised in the jumpsuit when they kidnapped the victim and started away with her in the car but as to whether or not the defendant had on what clothes he had on at the preliminary hearing the record  brief indicating a series of undisputed errors that in stark certain cases singularly in other cases collectively suggest that there was a violation of due process here and the state saying it looks my dad repeatedly in their br