scuse me ms i was i'm so sorry to interrupt you i'm having a really hard time hearing you except sometimes you're coming through the might be leaning forward and backward as chair microphone or something but i'm i just want to make sure i don't miss any of your words you hear me out i and sometimes your picture is freezing that's no problem for me if you could just keep your voice up if the just say you know the problem on my end is a volume problem we'll try to turn it up here too and i'll and i'll try to sta misstate how one was to consider the evidence but then corrected himself and then the judge corrected him as well this evidence was clearly not to be used for the truth of the matter asserted this evidence was to be used only to show what the police were thinking in response to the initial investigation so why are you privy to this if it was made very clear to the  jury even at the time of fab the mistake made by the prosecutor if that evidence was not to be sued or has evidence in regard to the defendant prejudice issue even though they found the evidence irrelevant for the purpose of explaining what the officers did they looked at the fact that the jury didn't send out any notes about the question and that's not one of the factors ever identified by federal cases the court also said that the evidence the weight of the other evidence was not insubstantial which is also not a factor a factor is whether it's a weighty or overwhelming and so if we look at the factors that the california court of appeal considered they don't match up with what the federal courts have said were to look out for purposes of prejudice for pro push back on that a little bit we found darden error in our case called dak which is you know we don't find our narine very often and one of the things we did look at is that the jury was misled by the prosecutor statement as evidence by a jury now what about what about that peal is relying on the fact that the jury didn't ask the question as opposed to evidence that the jury was mistaken because they asked the question and that provided some information to the court so i'm just saying it the absence of that should not be a or you know specifically because it's not evidence and instead in this case the court gave a very rote repetitive instruction of what the lawyers say is not evidence but it happened so many times i think that it's clear that any jury member would begin to think that you know it was meaningless that the court kept saying over and over again if you got evidence from the prosecutor immediately thereafter would make the same statement had to i actually thought there's some admonitions number one that whatever a lawyer says is not evidence but the but also really addressed that particular piece of evidence and events that's the evidence of the defendant being identified by various people at the time of the shooting and it going out on the broadcast and it becoming a hearsay piece of evidence th judge continually said that evidence is not being offered to prove the truth of the matter asserted its being offered to show what the officers were thinking as how they  a basis of how they proceeded in the investigation that's what he said and you have an objection to that particular instruction to the jury but i think the thing in this case that is is troubling and distinguishes it from other cases is the fact that what the officers did in this case was irrelevant to the evidence that was being produced so i'm not sure that that instruction really clarified when the comment was made so many times from opening statement through the closing argument to the jury that it couldn't rely on it especially when the prosecutor ended their closing argument again with that constitutional prosecutor on this conduct was not contrary to or an unreasonable application of the united states supreme court law and i'll just immediately rebut counsel  that i've been issuing the evidence was admitted and he gave a limiting instruction on how to use evidence for limited purpose this right can i stop you there i think you're right there were several sessions and quite right there were several times the court said no offer to prove the truth the matter sir just offered to show what the officers the officer state of mind and i think the record is very clear on that point and then the thing that was may or may not matter in this case  will circumstance where on appeal the state court said well actually that was wrong i was wrong i was not permissible so could you speak to that what do we do about has sort of unring that bell given that there is there wasn't another legitimate use it for proof of identity and if the evidence was the relevant for the prosecutor or the police officers subsequent condo then and no other relevant then the jury would just regard that evidence during its deliberation identifications in this case and both the prosecutor and the defense attorney during closing argument repeated to the jury that this is evidence of identity that it must evaluate in focus on goalies all three i would  shooter he didn't have a motive to lie about the identity during that phone call and then also sees me sees me i thought he did have a motive i'm not sure that is going to change the outcome i'm just ban thinking did didn't isn't the allegation that there were rival rival members of groups certainly a trial by during a phone call and even in the being transported in an ambulance and he's telling someone else that it is the shooter that is objective evidence that he was not biased and not moment guarantee against the defendant committing another murder and this was in the guilt or innocence phase of a death penalty trial the prosecutor in that group created the word animal into his characterization but the defendant in the whether that makes the trial fundamentally unfair in this particular case it really is fairly gross prosecutorial misconduct during the course of the trial the prosecutors told repeatedly that this evidence has been introduced for one particular purpose that's the intent of the officers not for the judge of the defended and yet the prosecutor begins the summation the crux  oh this case was settled was cracked within five minutes i mean it is a pretty extreme rejection of what the district court what the judge had been doing all sessions that this is extreme it was repeated and i think it looks to me always tough on appeal to look back at the record but this was not a subtle point and the prosecutors reminded repeatedly and it looks intentional to me absolutely intension prosecutor knew what he's doing so when you say we don't factor that again i'm not so sure that's right i'm not so sure i'm all of that notion prosecutors are human and they slip up an egg and they goof  you know that's one thing to attempt to let something slip of course but is it really the position of the government that if a prosecutor is intentionally crossing that line we should ignore it or the court and not the culpability of the prosecutor that matters not that were fifty five to nine to nineteen so i thought that was right so why doesn't this make this trial unfair that we're getting at is it is it fair that the prosecutor should repeatedly purpose or what the evidence should be used here and in position is that in light of the repeated admonitions including the prosecutor's own correction in the strength of the other identity evidence in this trial that the trial was not ren substantial weaknesses so i think that even the california appeal court of appeal thought that they had substantial weaknesses and to turn to darden the u s supreme court found that there were several reasons why the comments did not prejudice the defendant one they said that it was fair comment in response to a defense argument that the prosecutor did not misstate the evidence and that the weight of the evidence in darden was heavy and the court instructed the jury and so we don't have that situation here and i think that makes it clear that this case it was an unreasonable