correct perjured testimony by witness and if i may have like to just go back a little bit with respect to the history of this case to set the stage in this issue this is an appeal arising out of mr one second trial and improper comment that basically that was a comment about the failure of witnesses of the worked in some witnesses to become involved or to come forward the score did find that the prosecutor's reference to a personal an closing argument was improper but found that it did not warrant reversal because it was an isolated comment although the court did say that this evidence was closely balanced as it was during the first trial with respect to whether this was an isolated commandeering not in fact there were other instances of prosecutorial misconduct that took place during the second trial and that were not raised by a pellet console so it was not in fact isolated conduct during the second trial the one issue that was specifically raised in the pro se petition and argued by post and diction powerful was the fact that the state's attorney particularly mr mermelstein who had believed was the prosecutor both at the first trial and the second trial that she failed to correct perjured testimony to her witnesses and that was brooklyn irby during the first trial brooklyn irby was actually not a very good witness for the state miss irby when she got on the stand and with a question denied that she had seen the shooting at all she was impeached by the state with a letter she had written to a friend of hers who was in the prison and then she said she had seen the shooting and she dismissed him on the move in the shooting however during the first trial she also admitted that second trial and had said to them that her initial statement implicating the storm was a lot she also admitted at the first trial that the reason she when she talked to the state's attorney in the press and the investigator she told them trial they had her and their full statement that she had told them it was not you get to the second trial and she is i would say she probably turned out to be the state's best witness that the second trial because she testified consistently throughout the second trial she never knowledge that she had ever recant and in fact that's the issue that's brought before us and in the post conviction put it when she was asked on cross examination whether it was true that she had spoke to the state's attorney's investigator and the various systems these attorneys who one of whom was prosecuting the case he said isn't it true that you told them five months after the show that by not acknowledging that she herself had been told by the witness that she she essentially managed to bolster this was credibility and she treated it both in her examination investigator walter and later in the closing argument she treated it as mr irving being like all the other witnesses in this case that it wasn't really a recantation at all what it was was here's just another example of a witness who was reluctant to come so not only did she not that she didn't have any obligation to correct this testimony even though she knew it was false that she could sit back and with it but in fact the state has an obligation when it's presented with testimony uncommon but i think it's uncommon to have a prosecutor fail to acknowledge when and when it's within the personal knowledge and made to the prosecutor i have not seen a situation before where the prosecutor simply ignores the mermelstein did with that was to say of all did she say this when you served her with a subpoena and and peter said yes and was she hostile yes she was concerned she was upset so again it was it's not quite the same thing for a defense attorney to try to impeach a witness as it is for the state who's now looking at this witness who's refused to acknowledge any inconsistent it's a much different thing for the state's attorney not to get up there and say mr p you spoke to me you admitted to the obligation murdering a record you know there isn't there an effect not pool which was decided some forty some years ago in that very case there was an issue with respect to the prosecutor a cook's i believe said oh i heard it happened on the day of the shooting she won the walker said i heard that the that lariat pitch they sent over the head with a gun and that was the reason for the shooting there's not jackson to this the jury heard it the other evidence of motive that came out of trial was pretty weak the other witnesses couldn't even recall what the altercation was couldn't recall when it happened so this hearsay evidence went a long way toward trying to explain why there might have been a motive that didn't otherwise it's so certainly that should have been raised by helicon still and should have been raised by for the other instances relating to cross or misconduct were first of all have been introduced because brooklyn there never testified but the prosecutor when i don't know about the letter about the contents of the other suggested not only that the contents were true but that mr b was a more credible witness because she mr hanson you may respond her greatly on that this idea of unlawful or i'm sorry improper testimony untruthful testimony being corrected by the state sure that should be done but the point is it must be corrected and it was done here justice mccabe referred to the supreme court cases same simply have to do it true enough they do say that but they don't say it in the context of a case with facts like this where even though there was untruthful testimony given the defense lawyer brought it out to the jury the point is that the jury is to know if there has been untruthful testimony and although i feel really it would have been done by the state on redirect examination here the defen lawyer made more hay out that indeed that's of benefit to the defending all sorts of times we all know was lawyers if you've got bad information out there you try to minimize it to the jury by bringing it out yourself that that would have been a boon to the prosecution to bring in ou that they said that in the case where the matter really didn't go correct it get corrected here it got corrected the state should have done no question that state should have done and they didn't do it here on redirect when the so the prosecution said isn't it true that brought out to the jury beautifully by defense counsel who then hammered it in closing argument and he should have he did an excellent job should before they can posit it in the least harmful manner to the state whereas here you bet defense lawyers talk on a positive he said positive in such way and so the point is the jury was given this information and really hit hard  cross examination i'm somewhat misspoken it's the defense lawyer presented walker's their witness who really brought it out he hammered it as he brought the state's investigator as a defense witness think how wonderful that testimony looks to a jury with the state's prosecuting the defending their investigators a defense witness and that i'm probably being somewhat redundant in my point and i often spoke of cross examination on cross examination he set her testimony of miserably i think you'll see m recantation and then brought in the investigator made aware of kirby spurling your claim that she gave the statement implicating the defendant under the threat that her kids would be taken away counsel says this method of dealing with this was not as good because that did not come out that's incorrect i was threatened by that my children get with the fact that that information did not come out in this case is simply incorrect it tomorrow and i'm i wrote down our four hundred seventy it's certainly in the neighborhood that have no defense counsel had no obligation to bring up those other issues and ice i knock you over the head it's in my brief they ask west said that court need the counsel need not refresh or  on bases a and b means counsel has to look for other claims and come up the cd a need as to the hearsay evidence of motive it's redundant there was proper evidence admitted again this is all very clear he said in my that one month earlier the defendant struck the victim and sometime thereafter after the victim punched defendant in other words the idea of motive evidence was properly brought out as to the burden of proof argument your honour's please look at that argument in its fullness no seized on the defendant for no good reason and this oh this was based on a story the policeman cox said no we came across this letter ms irby wrote to her boyfriend saying what she  now the big knock on the statement she says in the letter ms irby the boyfriend the hearsay you know i saw the defendant she looked in the back true enough that seems to be in there although it's kind of old weakly in referred to just not its contents obviously the jury was gone i think that that letter was consistent with her testimony and further as counsel appointed pointed out the judge quickly intervened told the jury to disregard the substance of the letter and cite all the usual law that usually cited that anything on these arguments might be questionable is cured by instruction saying that arguments are not evidence it's a state that has the burden of proof both the prosecutor and defense counsel hammered the jury with  i'd like to i the state's arguing with respect to the state's presentation or the failure to correct perjured testimony this is a case where this very prosecutor was chastised by court in the last opinion for prosecutorial misconduct she was able by not correcting what she knew was false testimony which was in fact evidence that had been presented to her if she' advantage took great liberties and was able to impeach early because he did the first trial transcript and fact that first trial transcript was never brought out so all he was able to do call he didn't do let me say that was put on the investigator who very reluctantly gave evidence about well she did say this so but she was hostile she was concerned she was upset thing actually made use of that in her closing argument she went on and on about saying things like this none of these witnesses there were forty to sixty witnesses there they didn't want to get in clown she talked about her so she said at the scene she never owned up to the fact that this witness had told her that she lied when she implicated peace and law that was her obligation she did not meet that obligation