between ten fifteen and ten thirty so those of you that are in the second panel there's no need to wait around and i can assure you that we will not start any earlier than ten fifteen it might even be closer to ten thirty are there any questions about the scheduling of the two and i don't we don't disagree i don't think one of briefing about what was said at trial we disagree so we about what are the constitutional implications of the evidence that was presented in whether as a constitutional matter the previous supreme court decision in thompson talked in terms of a constitutional threshold protection of constitutional rights that was based on this review of no evidence if there was no evidence supporting the conviction that was appeal and it shows up and it connects to the corroboration jury instruction question is in testimony in the complaint inherently improbable and that's why i'm focusing just on the first four counts the deference that we need to give whether as a trial judge or as a federal hate me as appellate court to the jurors credibility assessment covered in the jackson standard that says you have to look at the evidence the light most favorable verdict any differences of opinion about the testimony you assume  jurors found in favor of the government and go in favor of the verdict during that i have to say what we need to look at is a factual matter is what it could tina bruce say what did she complain about and what actions took place and  all the disagreements i have to put aside so for example when she says that there were two incidents where she angela amanda jamie the son and dawn slept in the bed together and there were two incidences and identical people in this bed when she was  assume the jury found what katrina said was true and when you look at what containing what this is where i think what the state court judges and again what the district court judge did with this case where it was objective leon reasonable is that it did not look at the of the charges thompson said that would have been enough and the supreme court in jackson said no that doesn't satisfy constitutional standards we have to look at not if there was any evidence or no evidence to support it but we got this case an appeal i don't know i don't have the exhibits on automatically part of the are going to be even more removed from right now you that and i realize that there there were exhibits in diagrams that were done that jury saw it's not clear to me whether the juries the jury actually saw the photographs i know that they were made part of the clerk's transcript in connection with the motion for new trial any connection i think they were actually attached to mitigation statement for  three vertically she's on the left hand side two across the bottom that they're not touching each other and that into this bad mr gross a five point ten man which they were aware of that thanks are him he was everyone had fallen asleep there's no there's not there's no timeframe as to whether it was post midnight four in the morning to the warning there's no evidence of that it was some time they were in the bathroom watching movies or television that the movie w that they when you read that paragraph their rationale for finding sufficient evidence is that one of the facile matter in a legal matter i guess is to john corroborated catena statement was only after the crime was completed and mr bruce had fallen asleep that she had fallen asleep and then woken up and it was at that point she rousted i believe it was a man on the other bit because it ties back into your jury and for writing the jury instructions you know the fact that even if there had been nobody else in this bill and it was keen as word against your client they could find beyond a reasonable doubt based on what the on the evidence right so now we introduce that there were other kids in the room one of whom testifies and doesn't fact corroborate some of what the tina testifies the porno movie and some of the other things and she in fact says she recalls hearing her call out her to say something about no no maybe could tina didn't remember so i mean a reasonable juror could reach that conclusion i assume that maybe dan had a somewhat better recollection seen it as not irrational so with at the end of the what it would do what's the constitutional absence or what the problem at the end of the day and it goes and it does tie into the jury instructions were california law and it's the same with federal law when you look at federal direct reasonable doubt jury instruction means anything is that when you've got five kids and at that so you've got four sleeping kids in the pattern that she says which is three this way too across the bed i don't care how big the bed is it can the second one on the calendar this week and it is the molest a child trying to be examined about what happened to her and the adult male who's  in prison for many many years ok so that's a problem but that doesn't mean you can't prosecute him doesn't mean you can't take the case to the jury and all of what you said so far with all respect socor strikes me as a very would be convinced to near certainty to know that none of those children would have worked at this scenario actually took place that the only thing i want to mention about the jury instruction problem which buttresses the problem with the with a reasonable doubt is what the jurors were told and this is what really  the heart of that issue is they were given only part no corroboration instructions the instructions to the the lawful federally it's in california is that the testimony of a single witness is sufficient as long as it's not inherently improbable it proves the point beyond a reasonable doubt the reasonable doubt instruction wasn't there they were told if you believe good tina that's enough you don't need to cry break her testimony and in the context of this case the jurors can say look we've got this poor pitiful girl on the stand i believe something happened to her and then if they're going to wrestle with what does reasonable doubt mean and and that obviously was the problem with this case that's what they had to focus both sides agree it was a credibility contest so you've only got three and a you believe that that one bank robbery with testimony convinces you beyond a reasonable doubt ok the way jury instructions come in as you well know what has happened in this case they're put together as they will all right and you've got to go back and somebody the diagram is always a very good depiction of what went on in the relationship so that's why i was asking we can look at the record and see what it's true this was an issue that was lost on the jury and it was argued to them it was also argued to the trial judg trial motion about inherent probability in the trial judge made the comment that i understand your argument and i'm not in a substitute my opinion or even if it's different than what the jury had decided r after they and in fact been watching some movie about an indian or something to that effect earlier in the evening so that's not the tape they left in the v c r and the crime rate the fact that the defendant had been drinking heavily that evening or at least smelled of alcohol that's for the jury instructions the only thing i would like to say about that is after the sufficiency of the evidence single witness is deficient establish a fact immediately followed by the reasonable doubt instruction and beyond that i don't have are only two comments that i would make one regarding the trial judge's decision in the motion for a new trial i think if you look at that that you will read it and see that the