the procedural argument is that the concern i have with the court of appeals opinion from the state of california i think is pretty obvious and it's i feel it's an undue and overly rigorous application of the president's principle from str everybody know strickland has the two prongs the president's principle is very hard to get over it's been that way since the decision came down i did some reading on strickland last night and justice o'connor and deciding on the proper standard a prejudice defines it this way in the court of appeal states it correctly but i don't think they apply quite fairly the defense must show that there is reasonable probability that but for errors the result of the proceeding would have been different a reasonable probability is probability sufficient to undermine confidence in the outcome i think courts oftentimes get a little wrapped up in the bu not an incredibly recognized application of prejudice needs to be shown also i know that just as o'connor in her opinion she has explicitly rejected the government's argument and strickland that the the standard ought to be  give substantial amount of deference to the judgment of the california court of appeal in applying the strickland standard is the that really what we have to wrestle with as a federal court of appeal of which we would have to declare that the conclusion by the california court of appeals was so objectively and reasonable one it found that there was no prejudice in order to grant you the relief that you're asking for sure well that takes  substance the substance of the argument and the interesting thing about this case is that you have such a can the declaration from defense counsel i don't know if that happens a lot in this court does in fact we sometimes get defense counsel arguing that they were ineffective i there for just trying to counsel in let me be honest the fifth amendment issue i don't think is terribly persuasive i don't know if i would contact another defense lawyer and say hey want to have your guy take the fifth amendment but that's your issue i don't know that's a tough issue but interrogation he didn't need this evidence during the trial i think the way that you would have to get it in would be to have i think you have to call the detective to the stand and have you come in that way as a character issue with i write i mean i have ten minutes every answer to that place and yeah the fifth amendment issue i'll concede i don't think it's particularly strong character evidence is such a problem in this case and in the closing arguments they kind of all dovetail together the defense lawyer here who's been practicing criminal are practicing in front of the bar for years says exactly aeration i didn't know about the opening the door principle and that's scary i mean he he calls these witnesses to the stand and he says i don't know about it about the good character he comes out the prosecutor does the sidebar and says well then i think i should be able to impeach them with this prior bad act stuff the judge says to the prosecutor i think rightly unfortunately you can ask about the crimes but not the substance of it witnesses who are prepared now is the say they think because in the to convict an innocent man who thought the respect in the court i don't think the standard his innocence but i do have a serious concern with identification here in this case was not a dead thing when are for the prosecution and so then you get into the closing argument where the prosecutor makes almost a sort of quasi griffin error where the prosecutor says to the jury well you know i in it's in and the trial court was pretty troubled by all this and so i think the i think that the prosecutors argument first of all i think the prosecutors are asking them about the substance of the crimes three times i think is is awful i mean to me it's almost a mistrial is she right there i why mr jamo didn't object i don't know but i think that's almost mistrial right there and then he talks about a witness does in every witness who never even testifies just it wasn't a fair trial the defense side of this trial the direction of the witnesses weren't the words per pair closing argument was a fiasco and i would respect just quickly you know i that's the one i have with the i want to get to the narrow issue in this case and i i think the narration in this case really is just exactly must what must you show regarding prejudice in light of the california court of appeals opinion i don't know you and i go back to the question i asked you when you were up the last time if we were on direct appeal that argument would have greater force with me the problem i'm having is i've got to look at it through the homelands and the question is let's assume that the california court of appeals did exactly what you said they took a very rigorous view of the second term of stric d the question we have to ask is is that an reasonable application of strickland an objectively reasonable and i would answer that yes that is now that's what you need to help because justice o'connor when she defines the prejudice prong talks about the reasonable possibility test and in getting to that point she does a sort of intellectual exercise exercise in how to get there and she talks about how you standard regarding materiality under brady which i think the rule is essentially if your prosecutor and you believe this evidence is it spoke for you have got to disclose it you have an affirmative obligation and so my problem i understand it's kind of a complicated argument my problem is that that the court of appeals opinion of prejudice in and mandate on prejudice is so strong in terms of how to show prejudice it's almost like you have to disprove the people's case and i can't be the problem i mean it's find out fly state law you say that's the state of california is parotid it but i just think the state of california and the california court of appeal has got to get into more of what prejudice requires under federal standards to do