little different from the certainly the run of the mill criminal cases we're trying to prove the action was civil in nature and it really in this case did not turn up whether the jury accepted or rejected the opinion testimony of the two doctors about there are some of their opinions as to what would likely occur in the future should this person mr kelly be released into the public well that was what it should be turning on your honor's that was the only evidence that the jury could consider here right so if that's the case and if the attack on the opinion testimony of the doctors included an attack on the reliance that they place on the previous convictions because the convictions were so remote in time would not be government be entitled to argue that there are other factors beyond those convictions which further supports the conclusions of these witnesses and isn't that really what been are doing the expert's opinion at sports credibility that fact they had relied on certain things made their opinions credible but that's not what happened here but isn't that a reaction to me as i read it the attack on the experts credibility wasn't really as expressed and it only evidence the only relevance of those convictions as the instructions correctly pointed out and repeatedly really once during the course of the case and once at the conclusion of the case that really the issue is these shouldn't be considered for any reason other than the reasons we're speaking of here and  want the instances where both sides were called sloppy caught less literal in in the how they chose to argue those factors were there are instances when both sides are really failed to expressly state you should only consider it for these reasons well in the case where the us needs arguments is based on what the day we're talking about credibility of the of his opinion he pounds on his basis and his basis unsound what is reasonable for that profession what constitutes reasonable sources for that profession to rely becomes important to treat it as if that line is in fact me you know but in terms of up a jury's impression whether it's something that the the the  f feeling here that the that the overriding importance in this case is really the question of whether you could stipulate to omit the details as subject to that question structure but i think the more meaningful question i think has is whether you could afford the details of some horrific kind of  made by the by mr kelly's counsel in closing it's quoted i think i'm page seventeen of the respondents before it says he had a history of offending that lasted from hundred seventy three until one nine hundred seventy seven and not the thirty nine years that dr quackenbush would have you believe he could have offended again while he was incarcerated or while he was on parole but he was never charged or convicted of anything with that attack the conclusion of dr quackenbush and his reliance on implicitly the reliance on this sole fact the people basically say that when responding had been free on parole he had reoffended or committed acts of sexual misconduct at every opportunity to prove the point they trace the response sexual misconduct while out on parole from seventy seven until two thousand and six and had that been said experience and in their profession and these other acts which they said they were right with there be an argument you are that would be a proper way to argue the testimony is what the experts relied on but that's not what they did they said this is what don't we have to review the arguments in their entirety and determine the context in which they were eight so that when we look at what the defense attorney argued these comments and one of them was pacifically that the jury should not give weight to his testimony because the amount of time dedicated to actual criminal offenses involving sexual assault was a four limited for your spam so don't we have to look at the prosecutor's remarks in their entirety and determine whether the court  discretion in not overruling those objections when it appears they were a response to the comment to the jury forget what quackenbush said there's only a four year history and then the state says that because it is a continue without a hook because he relied on a certain documentary evidence in the absence of words that you're asking us to really say that's really not what they meant they wanted the jury to consider this is substantive evidence when they were responding to the comment don't believe him there's no record here of any other salts except a limited for your time frame but there was no evidence of any other convictions off there wasn't but that's not what the  regarding the other misconduct or the actual convictions was only to be considered in determining whether or not there should be weight given to the expert's opinion and wasn't there also a further instruction to the jury and they got that instruction multiple times but they got at the close of the evidence and they also got the instruction the closing arguments are not evidence they are yet in your underwear so problematic here is that when an objection was made during relies upon informing the opinion to question the real liability of the information upon which the doctor real lives leaving aside the issue of whether those items would be sufficient to come up with the opinion you can also question the system so the reality or the correctness of what he is or she is relying on and that that really wasn't done here was that you know you're right and they were that nature the fact if there is really a meaningful contest as to the existence of these these items concededly not given through eye witnesses but only is this justice gordon was talking about through the basis of the wilson and clarke reliance isn't that also something that figures into the impact that these errors if they were clear by instructions repeatedly that they are not to be considered except for the proper wilson and clark considerations that these really can't be said to have had an overwhelming impact think that mental disorder made him substantially probably off to a refectory effect exactly and all the evidence that we have in this case but the opinions of july first and those opinions were not necessarily true something that he won't take the stand to say can make a stand shifting birds group so that's where it becomes important for that course area struction to be a means of witness quackenbush should be considered but correct me if i'm wrong it wasn't the jury twice it might be who are of or at least during the trial that the testimony of the experts and the information that they relied upon w people versus murphy where there was an improper argument made and it was the same type of improper arguments we have a evidence that was offered well it was a lot of money and time and money to friends murphy because there state's argument was proper because those objections were over walls and we can't say that they only consider the audience in this case and that there really was a tainted by the improper argument and we have the very least the a parents of impropriety that they were allowed to do you think that if they had said that the doctor based his opinions on this that the verdict would have been different allowing the jury to consider those words as true so if you consider that these were things he did that these are things that make hand actually dangerous because he did  he believe ability of lack of bush should be accepted he was there is or there were other actions besides the pictures i mean it was a response if you read provide an independent base but here no one contests it as being a proper basis for the expert testimony therefore we have to consider the mix of well based expert testimony he from two experts plus whatever additional evidence came in including the evidence of the last crime for which if he was convicted plus the fact that there was an earlier question area structure which could have pointed the jury in the right direction regardless of the where the prosecutor failed to take it as of being up overwhelming so backed up the g the cardinal principle mentioned by the court is that allegedly improper comments in closing must be reviewed within the context not only of the entire closing argument but indeed the trial itself here we have the closing argument by the respondents attorney very aggressively and properly going after as it must the credibility of the two state's expert witnesses dr quackenbush and dr gaskell as part of that overall attack on those experts credibility the respondents attorney made much hay with respect to the chronology of events that defined the respondents history of sexual offense beginning again in one nine hundred seventy three and as our experts opined continued through to me two thousand and six  closing the state the respondents experts tried to pick that testimony apart and it did so by indicating that the sexual offensive behavior exhibited by the respondent only encompassed about a three or pages the prosecutor wrapped things up and he maybe could've done a better job in this regard to but he read things up on page two or six of the record when he said that we're asking that you the jury weigh the credibility of the witnesses how they testified how they are how they're consistent and reach the right verdict in this case in this way they attempted in some way to wrap up the entirety of their case and in particular the comments they made in their rebuttal argument in response to that to the respondents anything other than this was offered to support the the opinions of these two witnesses again we probably wouldn't be standing here today certainly didn't say anything as expresses that they didn't say  all came about in the defense closing argument when he said you shouldn't believe dr quackenboss because the defendant had no real history after the assault history was limited to a particular period in the context of dr black and bush's opinion and why it wasn't worthy of belief that's correct your honor and with the inclusion of the clause that  would have you believe there is at least implicitly him after he was not an expert but was indeed an advocate yes which always is a dangerous line for for lawyers on both sides to to be aware of crossing because when you do that you're implying that someone is being less than truthful as opposed to someone having an opinion which is not borne out by  well and apart from me the context of these remarks which is all important of course we do have the multiple the meeting instructions the instructions were given on three different case the oral instructions were given on three different occasions once after dr gaskell testified once after duck requests which testified at the close of the evidence and in writing and these instructions properly instructed the jury in these instructions were agreed to by the parties of course  that the testimony and the bases of the experts diagnosis was not to be considered as substantive evidence but only to support their respective opinions on the paraphilia or whatever other diagnosis they arrived at and to make matters even to make sure that nothing else want to stray during the trial the trial court boat orally and in a written instruction told the jury that closing arguments do not constitute evidence and that it should error not just because the state didn't say that's what the experts relied on of what is evident from the trial and from the motion for mistrial is that the state knew that it should have said those words the state defended i think i mean your follow up was a mistake dance that we did do that wouldn't that point the other way and i asked that because if there was a willful violation by the prosecution it may fall into another category and it and johnny require that it be prejudicial yes i understand what i meant to him very was that the prosecutor knew that it would have been our argument only if she had said those words from people persist murphy and i believe the trial court also recognized this when he will there was certainly a basis for the motion for mistrial and that it was a close call the fact that we now have the record for us to review in light of what was actually said weighs in favor of writing to find error but as you know what's interesting about your argument mr johnson is that the that the judge just by saying that it was a close call  it implies is that when he heard the argument and overruled the two objections that he didn't take the meaning as overtly be arguing the substance of it because he was fully we all aware of what the line was between permissible argument and in professor ball argument i know wilson versus clarke set of facts and we know that from the instructions that he gave and if you jump ahead to his ruling on the motion for mistrial we know that he did he was aware of it at that point too by overruling those two instructions in the course or if you knew two objections in the course of the republican one can infer that he just didn't hear it the way you're now arguing that it that it was clearly arguing the substance of it rather than the use of it wouldn't you say no there are we're not what we do is that what he did when he was with a controlled environment doesn't that leave one to some conclusions about the impact of the in artful statements the impact was that the arguments conveyed to the jury that mr kelly was a bad man who if you let him out  examined because the ten you ation between the original statement and what was being relied on was already clear there was no need for