arar's i'd like to reserve three minutes rebuttal right watch the clock and thank you on my name is frank grant so i represent mr cisco who's been sentenced to prison for the rest of his life for a murder he did not commit i like to acknowledge the fact that my client's family has traveled up here from about forty miles south of my two brothers several nephews and his two children and are all present in the courtroom today this case involves some of the most fundamental rights the defendant has in a trial right to effect of assistance to counsel only way you can when it in the easiest way to win it in the best way to when it is to get a concession from the expert that the prosecution or the opposition calls as their witness and in this case trial counsel failed to do but that's one way to look at it i suppose but we go see this witness and i assume when you're twenty five years of private practice you learned as i did that you were just your approach depending on the witness in other words you don't have general rules on how to examine any witness expert or not and here mr bevil who was was a central part sit here and you've got a meaningless answer from this expert and you have your own expert sitting in the wings are you going to give this guy chance to come up with an absolutely perfect answer to that question no no that's not the point i'm trying to make here on this sex justify that my client kicked this man and there's only blood spatters and now the physical evidence doesn't support that opinion and that's where counsel messed up the physical evidence if you want to kick this man there would have been smears on when we evaluate this we have to look at the circumstances at the time so in the light of the circumstance that time now the physical evidence contradicts the opinion most important witness the most critical witness that witness that the government relied on heavily as the court of appeal found is that everyone concedes this is the witnessed that really needed to be cross examined and counsel in closing argument did he make that point point of the instruction is they place the burden on my client to prove himself innocent before they can even consider a lesser charge and i think that's just the burden i also think the implied malice instruction in the state of california supreme court of interpretation of state by what the california supreme court says is the law in that area that's true your honor but the supreme court of california has also violated their own constitution our constitution by an unlawful and marg al statute and that's my argument yes you're bound by what they say but if what they say violates the clear legislative and them they've run wofully enlarge the statue testified that laboratories doing testing after cut off some of the blood that's number two number three he also was asked during direct examination why there weren't more stains on counsel might not have wanted to pursue that particular that particular question and in fact that all testimony was extremely damaging he said that there were over seventy  using that to kick a blood covered story and also the pattern on his pants mostly blood from the need down was consistent with the right leg being used to kick and the the defense expert was was quite a strong witness for for the defense and he testified that in his opinion if a person were to kick a blood covered source even once he would expect and these are his words i think it would be obligatory kind of minimized the evidence against his client clara stark did testify that she actually stopped the petitioner strike the victim her testimony was was credible she was only twelve feet away and she was a completely unbiased spectator and she did say that greg rich didn't kick or that she didn't see him but she also testified that she thought she remembered that he was there she wasn't sure if he was kicking because she was not in a petitioners credibility was called in to come into question when he was first pulled over by the officers and he said to someone else in the vehicle i didn't say nothing did you but i want to call to the attention to the court and i believe i did include the statement  in my brief that petitioner made a statement to officer gentry old on june fourteenth that what would happen if i did accidentally kill him i'm not sure that belongs in our in my brief because if you read the opinion of  and he kicked the victim and if any contributed to his death he would certainly be culpable for the second degree murder of the victim there's no question about that i'm prepared to answer any questions the court has or on any of the other matters i guess not thank you thank you  the reasons of you know mr bevil from oklahoma i mean do you think this is a california could afford their own expert i just question why they bring somebody from oklahoma b that right boot now trial counsel talk to his expert he saw the flaw on bevels testimony why didn't he pursue it his expert told them double was wrong why didn't he pursue it and because he didn't pursue it my client didn't get a fair trial and the sixth amendment doesn't mean a darn thing when your counsel doesn't do his job and this attorney have the tools to give us an important concession that would have made