issue three and public trial which was issue one of those sets of sensors the third issue in the briefs of like to address it first today it's a fact based issue that requires further development and then address the public trial which is primarily an judge didn't consider all the following things in calculating the sentence and sometimes the judge actually said up but you know age is something that it's right in the home there's no doubt the judge knew how old this person was right drove right into it  consider that just presume that the court says consider proper factors in mitigation absent some contrary indication on the record now here the court actually said virtually no factor in mitigation comes into play over rehabilitative potential is a factor that should have been alcohol and it set fire to the house that they lived in on three separate occasions as a result brenda suffered from post traumatic stress disorder this is terrible social environment is something the courts also can serve significant if people emotion tina in delayed maturation reduced learning ability or inadequate social adjustment and then the issue are we relying only on the number seventy five or seventy two whatever it might be not necessarily running sure the very definition of mentally retarded  but do we have another doctor with a conflicting opinion somewhere here with us in this set to help us determine that he was not mislead retarded for purposes of psychological assessment however that's not how the term is defined for purposes that's here undisputed information however this only misled you this investigation a very brief period of time when he was confronted with conflicting information here mediately confessed and told them where the gun was up just to consider that mr jones took the gun bac shooting but as i said over mr jones actions were basically there was evidence that they were performed under the threat of violence of the hands of the gang that controls walk from looking at the record it seems that he a major precipitating factor information over again but only misled the investigation for a very brief period of time i think only a few hours when he was confronted later with conflicting information he immediately confessed and when that's weighed against the litany of mitigating factors that the court time you have a situation here we have three jury sitting simultaneously it looks like the solution twenty six and calloused split the forty or up among three different judges wrote so you've got judge stevens doing this work here i have a feeling without you know have watching the video of the thing which we don't have of course you know it was a little bit chaotic in front frenetic and judges were moving around to different realms and you make an argument about the public trial and the fact the three jurors  requestion partially in the clue should have the judge's chambers all right but don't we have side bars all the time i mean where do we draw the line i mean this is not an issue i've ever seen before right but how is this different from every other this was not sequestered watch here in this case this was closed proceed so she questioned what here for three three jurors it least a portion of it nobody ever says that this was not sequestered well dear and actually the cases cited by the state show that cannot question jurors in the presence of the defendant in the presence of the defense attorney in his chair in your best case yes or not the supreme court cases united states supreme court cases in  necessary you could have gotten a run on this panel based on the answers all three of these people gave the questions that were made in open court anybody who's ever tried a jury trial knows if one member of the panel comes up with excuse as to why he can't see it and the other members of the array hearing all of a sudden five of whom have the same excuse so it's commonplace for the judge to take it you're who is the answer to question that could be except in this case there was no objection in fact are the defense got the benefit of this of this procedure by by happened to jurors be excused and they haven't done outside the presence of the rest of the n again based out of the state constitution of prejudice and what it was was for through this i might also add in their case the washington state supreme court mentioned that the procedure was unclear exactly what and gave them a false information and there's that one piece of evidence to support that he was under under threat of violence to take bad acts whether or not he was under the threat of violence in order to take the gun and hide the gun the culpability in this case because it just so happened that one of the other defendants hey clean and gave the police the correct information and that never was a why this investigation went back at amtrak i proceedings and continued quote in camera but with counsel present and on the record here the court closed proceedings and continued in camera but with counsel present not the record just because it was transcribed does not mean it was a closed proceeding second the record additionally suggest the suggestion to state that the pres overriding interest of the court considered in closing the court was met and the brother in this is exactly the type of post hoc justification