the next case on for argument is shallow and war vs superintendent morning there's no question in this case your honor that defense counsel essentially screwed up during trial the complaining witness testified to a suggestive lineup proceeding she was told  that there's going to be five men standing and you're going to have to pick one out and why do you recognize him the case law is clear ball from this circuit and also from the state courts and also from other courts that we've cited outside the jurisdiction  that it is unduly suggestive to tell a victim looking at a lineup that she is required to pick somebody out of a lineup that's where the line is drawn it may not be deemed error just to say that a suspect has been arrested or even necessarily that the suspect is in the lineup but a clear line is crossed when a suspect when a witness is told that she must pick somebody out of the lineup as well i mean there's some equivocation about how explicit that statement was there well it was actually explicit that she said that she was told by detective brutality there's going to be five men standing and you're going to have to pick one out and why do you recognize him there's no question that in certain of the subsequent in one of the subsequent question and answers she equivocated but then she came back very strongly when she was asked by the court and she says he told me to wait a little bit and he told me to come in and he told me there's going to be five men and you're going to have to see all of them and you're going to have to pick one of them out and you're going to have to recognize him that's what she said it paid six fifty  record page eighty of the appendix in any event there's no question that however you read this record there was a very strong basis on and unquestionable basis under the criminal procedure law for defense counsel to move to reopen the wa e hearing because if what she said was true this was a unquestionably suggestive lineup procedure the state court in denying mr schoenberg for forty proceeding said well this was just a strategic decision well quite clearly the state court based its determination denying the four forty one a a misunderstanding to say the least of the record because there is not the slightest indication in this record and the people never even argue that the failure of defense counsel to move to reopen the weight hearing was a strategic decision there's no there's no evidence of that whatsoever so the state court in denying the for forty motion simply did so based upon a clear  johnny these facts are not at all what the people represent them to be because the first thing that was told the night of this event was that the perpetrator was a twenty seven year old hispanic looking white person or white black puerto rican person or head hispanic person there was no evidence there was no testimony from either s v the victim or from her friend that whoever perpetrated this had  tattoos and she also testified for an id the car which was a distinctive car well actually it wasn't a distinctive car and she didn't really idea she said it was a four door olson abele and what she said was that she sheer blood all over the assuming that that testimony was accurate and true testimony but what turned out to be the case was mr schoenberg is not twenty seven he's forty he's not hispanic looking he's clearly white looking on there was no blood or other forensics in the car contrary the apparently claims that she had done schmear blood all over so everything that was of significance turned out to be wrong and this is what really happened dr this is what appears to have happened on the you you read in the people's brief because they highlighted this at the beginning of the brief that a week prior there was apparently an incident in the vicinity of the same park where somebody and apparently mr schoenberg's car that there was a person mr schoenberg's card let's assume that was shown burke for these purposes approach to people and ask them if they want to smoke marijuana they declined but they took him a picture of the license plate so when this crime occurred detective patella assumed immediately  that that this was probably schoenberg's doing so what we're telling did was the following and this is clear from the record of the trial and from to tell his testimony he didn't bother looking to see whether or not there were other holes in the beales that may have been involved in guy he ignored the testimony of s v in a statement of s v that it was a hispanic looking person a white black person a puerto rican person and put six white people into the the photo array he then had a lineup where he suggested we told her that he's indeed are you have to pick him out and to make sure that she now changed her testimony from hispanic looking or puerto rican or white and black hispanic looking she or he or his partner detective king told her that the guy that did that the guy that did it is an italian guy so they papered over all of the inconsistency is because he had focused soley on one one mr scho i'll tell her to pick somebody out of the lineup on make sure that all the people in the photo array or white so what that there is no blood when she said that there was going to be blood who cares that he has tattoos all over his arms when neither as he nor her her friend saw tattoos so the question here is not whether or not he would have prevailed the question on prejudice is whether or not he has made a colorable showing that he might have prevailed and most respectfully based on this evidence there is simply no question that he's made at the very least a colorable showing of merit to a renewed weight motion with all of what you just recited come in on the wave motion or one and only be we're going to go back and look at the identification procedures that  reviews well these the question post conviction is is is to look at the entire it's look at the entire body of evidence and if we only look if we decide to only look at what happened prior to the way hearing well then there's really no issue at all because prior to the way hearing we know that that that there were numerous improprieties that occurred both with regard to how the the photo array was assigned the the fact that by then by the time of the lineup they knew that there was no blood in the car even though the car that was used supposedly should have shown throw few slee blood all over it according to what s b told her tally and numerous other facts that suggest that this in fact was not the car schoenberg was not the twenty seven year old hispanic looking person who perpetrated this offense so if we look only at the evidence that we knew at the time of the way hearing we would have prevailed and if we look at the entire body of evidence now including the and typical to a conclusion of federal or as a stablished by the supreme court or a decision by the state court which differed from the decision by the supreme court when the two cases had identical facts description of him being twenty seven years old based on what he told them at town apart that day his name paul pulley from the bronx that is what they told him he told the children on that day no blood in the car if you consider the testimony of diane allium one of the suffolk county forensic analyst and nurse dunseath the young girl's  that's something else that is there seems to be an argument that it was a strategic decision by his lawyer at the time not to seek a renewed road i'm sorry wade hearing is what could be the that she instantaneously identified him at the photo array which had taken place week earlier ten days earlier and she had instantaneously identified the  at the two lineups in which counsel was present the fact counsel was present at both lineups mr duncan himself was present eleven months later when the young boy joe he was given an opportunity to view the defendant in the lineup so reparative counsel was there and there was no evidence of any type of police misconduct that is the answer that there's no way we'd win the row with the weight hearing so why it why we're asking for is that your officer is inappropriate and is suggestive and is potentially problematic there response to that judge is that this court has in lynn held that despite inconsistent statements made by a witness when there's simply no evidence of improper police conduct  there the person who did this to you is one of them picked him out is that inappropriate detective patel he didn't say that i'm giving you a hypothetical you could answer yes or no if he said the person what the p initial description that wolf assume sony one teen is gets on dispatch and she's the first officer there and when sarah is describing this defendant the issue of his ethnicity background may have come up and so when you watch it as the officer specifically asked sarah venus about his skin put complection and she said white and that's what she wrote down in a scratch no this is a testimony to cross examination and that's what you went out with on a roll points bulletin detective britell use initial notes on cross examination when defense counsel asked him to go to refer you to counsel mr detective patel referring to your september sixteenth and seventeenth notes which begin with sara white male paul sarah said white hispanic fine she gave the basic description of the defendant of the of the suspect as did mr putra and that's what they had to go on until the formal statements were taken on the twenty first and the twenty ninth of that of september of that year and oldsmobile with black lettering wacko blue lettering on the side that he'd like to fish and he had shown the two children his black purse with the knife in it the day of the which he used to cut fish which is ask you this  the colorable standard or he would have one standard would he well he would not have one standard that's your that's your view of the law well that's my point of view of the circumstances  so i'm just a follow up on judge drawn his question what's what is the standard that we apply you know of oh i'm sorry the it will really be colorable we ask you my opinion my opinion is that he would not have prevailed of the way here i understand that but but what we were reviewing as in terms of i think mr leavitt's argument and of course he will correct yes yes wrong that if there was a colorable chance of prevailing then he should have in reasonable viewing that he would not provide have prevailed in that the prejudice if if there was prejudice that he would could possibly have prevailed the trial given the forensic even the  that was the that was the testimony the these nurses could not know i'm sorry the d n a expert cannot testify to a statistical probability but she did find his genetic profile on it as well as clarify the standard issue the issue is not whether or not we made some showing that we would have ultimately prepared prevailed the trial but whether or not we made a colorable showing that we would have prevailed with regard to the weight motion itself had it been made i think the question of prejudice then don't we need to look at whether the outcome of the trial was likely to be different now no doubt that i have another question is whether or not the outcome of the wade motion would have been different not whether or not the outcome of the trial would have been different the my of my colleague makes many arguments i know i can only respond to a few but let me give a try here just knocking out the evidence you're still left with a mountain minus a tables l i don't believe that that's so but that's not the test in any stand that you guys keep arguing with my hypotheticals but don't do that please it can't be the law that just prevailing on a on a surprise to a motion if there's other evidence that comes in hand this goes to the issue whether whether the well president the court i know will review all the cases and i'm confident that the court will find that the issue in this kind of case is whether or not he made a c identify him in court that may or may not have been tossed depending upon the finding that would have been made below but again that's my new issue finding that would have been adequate here but that's not the issue the issue is whether or not he would have prevailed on the way hearing which in the first instance is to keep out the the the line up identification itself and i just have a moment to to make a couple of other arguments please the there is no d n a evidence that's meaningful in this case because the forensic expert testified that she couldn't conclude with any reasonable degree of scientific certainty that the victim's d n a was on the shirt that was found in the car with regard to the daylight viewing of the park by s v well her friend j p also made the same daylight viewing in the park and could make an identification the photo array identification with that was done after patel e had determined to to use to essentially tell her or king detective king told her that this was really an italian guy and then put put six white guys into the the photo array rather than any hispanic looking person and when my colleague says that she was quite clear that this was a white guy here's what she she said told officer mon martinez that it was a white hispanic looking male and then detectives king and brutality she described a person of racial mixture puerto rican white and black puerto rican and or hispanic looking  o and she told the essay and a nurse later on that evening that the person was hispanic so you had brutality draw a conclusion and then essentially what he did was he pigeonholed all the facts into that conclusion and when he was having difficulty with it what he simply said outright was the guy's account instead of hispanic hispanic looking or puerto rican so that's respectfully how this case happened and it patel we were properly cross examined at a four way hearing i think it would come out that he manipulated the evidence in this case in order to draw a conclusion at the very least we've shown a colorable basis to conclude that we would prepare prevailed at the way here thank you very much thank you both we will reserve