district judge in the estrie c both agreed that there was an error there i think the most egregious errors were the attacks on the personal attacks on defense counsel and more  specifically using him of fabricating a defense and characterizing it as a bald face lie there were a couple of other issues that were raised i think probably for purposes of due process analysis this case rises and falls on the st one but i think the reference to the failure to testify and the what we contend is a mis characterization of the certain evidence or the sort of a gene for certain evidence that really places this in context because this is not a couple of isolated remarks in an otherwise exemplary exemplary  jury argument this was a prosecutor over the course of a thirty five page arguing argument continuing continually going up to the line sometimes crossing it and then about this and you see if i can find that specifically statement i have no idea where mr taylor was when he made those calls early in the morning of this day nobody does except for the defendant and then the next one was no one witness in this case puts the defendant martha lang's house not one that's a commentary on what he said that it's a he it's it's a commentary on what the defendant didn't say and when you say that he didn't say that he didn't testify and a jury could say could look at that and say you didn't testify and now again i don't contend standing alone that's an error but i don't think it's an error that rises to the level of due process but i think it puts in context know that the calm of characterizes the evidence is overwhelming and the history see in the district judge both say that it was a strong case against them however it was a there was a plausible theory of defense that it was martin mcra rather than the defendant the murder took place in martin mcrae's room and the commonwealth argues in its closing that mark mcrae had a lot of baggage and was less than ideal witness and there were yes there were inconsistency so i think there was a plausible theory of defense i think the by characterizing this as a bald faced lie is a fabricated defense into something that  if they look at whether the defendant objected you have said here was an objection whether the error was limited to collateral issues you know it was not have we went to the credibility of the defendant and whether curative instructions were given and they say well there were two purity of instructions given and the y say when they're at an error may have made a difference in the injuries conclusion and they say actually we we don't think so so wh never told them to disregard those improper arguments in his jury charge the following day he again said you know you need to follow all of the evidence you need to make your decision on the evidence  improper and you should disregard it i i think it was not but i'm not sure i'm not sure either i don't recall you know that there was a very strong objection that it was improper and i you know when you look at this when you look at the various aspects as to whether it's prejudicial as to how serious it was as to the context and strangling this young woman he confessed to mr mccrary who is the person that we that was argued to trial was the person who did the murder so i think you have to take that with a little bit of a grain of salt ok thank you  application doesn't point to any such case and in fact the facts here just don't approach standard that the supreme court has laid out out for this type of question which requires that a comment so infected the trial with unfairness as to use it make the commonwealth certainly not your honor but but the petitioner does have the obligation to show that it meets the standard set of supreme court and the cases that the supreme court has decided in this area that the facts here just don't rise to that level and if you look at for example the dart case in that case the prosecutor referred to the petitioner as an animal who should be on a not to do it we're now asking them about it since they do it and they apparently get away with it and what consequences should flow from that can you tell us whether there were any consequences to the district attorney assistant d a who were taking the aged in these practices well he did e i don't know the answer to that but i will maybe attorney general's office should know the answer to those questions noted your honor but i do think just just to come back to this case i understand the court's concerns but but these cases do need to be considered on a case by case basis and and this is is not a case that it is even close to that line there were perhaps comments that were on the rise the ball but but if you consider the full course of the closing argument court and i believe it was overshot which is the two thousand and six case in that case that the prosecutor claimed that was a lie that's a very similar to this case and it was a hideous case where and this court described it as a statement just wanted to clear that and with respect to that statement there was an immediate reaction and there was immediate sure it instructions soon as the comment was made the court told the jurors it will make their decision based on the evidence and the evidence only and again during instruction after after mr currence point was a different one that the comment was improper and that's what the court should have out to be so with that with respect to that comment the judge specifically told the jurors that it was incorrect the way it was stated and explained to them what their oath is so with respect to that statement we believe the instruction is quite clear and  supreme court as well as this court has has taken a lot of consideration looks carefully at what the instructions were in deciding these types of