think that it is extruding important in this case that we realized that this was an extremely close factual case for the jury to decide the prosecution relied queen like one in three am and one in five am the other one had a broader range because it had been so long since the temperature was taken and the coroner estimated that the time of death was one or am that that he has had plus or minus five hearing was read to the jury even the california courts concluded that this was improper indeterminate whether or not this constitutional error or was harmless the california co applied to the wrong test the california court says well there was some evidence by another witness stock that mcdonnell said he committed a crime yes there was that evidence and there was also  came up and mcdonnell said yeah we killed him some time later after that point in time stocks with drug or retraction recants the statement with regard to incriminating mcnairy with regard to that that the victim was going to thank people and that a t m attempted murder and that a t m attempted murder the prosecutors argued was a premeditated attempted murder with no statute of limitations not provided for life in prison that the one that was never charged that's the one that was never charged macdonald was never allowed to question starts with regard to whether he participated in that which he may have admitted he may not have any was never allowed to bring out this testimony that they could have used to go forward with the case and the defense is prohibited from cross examining stocks about robbery that he had also committed with mcnairy the other was cross examination of some of the other  only testimony that came in was what was read from cast and eager stocks was asked i allowed to be asked about these two robberies not what mike mcnally resume as his mcnairy wasn't fair but the the point of the matter is that two people that are critical in the prosecution's case mcnairy in stocks their relationship was never disclosed to the jury because the defense is precluded from doing so and the california court of appeal never looks it best they ignore the fact that the defense wasn't able to put stocks in the setting that he should have been put in for the jury to make a decision in violation of the right to confront and cros then the prosecutor in closing argument with regard to cast an ada argues about what mcna be an ace of spades but that was the only support at all for that would have been cast and he just testimony then she doesn't mcnair use a witness then she comments on the defense failure to call mcnair right and say was a witness at no time is the jury ever told to disregard the argument of the prosecutor that mcnairy and there would have been called  there's food or other people that are supposedly have some kind of proof of your connection to the us and it goes back to the stone piece of electronics equipment every one of those school people are called and raef we can find something somewhere that supports it then we get to the prosecutor in argument and arguing about the time of death and not interested elation the prosecution had proposed the stipulation before  because the prosecutor argue both contrary to the bad evidence and to the stipulation to the jury when she had no reason to believe what she was arguing was true and the reason she made that argument is because it was only a way that allowed her to convict macdonald she never once tried to explain how macdonald could be guilty alex had made the calls at the time reflected on the telephone bills to these people because she couldn't because you're down to less than three minutes if you want to reserve yes i would think  well the facts of the case germany was in the army german have had a beef with with the victim german directing these people to kill these people then in turn recruited mcdonald's to participate in the killing t victim was still alive at that time nine fifty and one fifty three pm the prosecutor does not agree to that stipulation it's not that seems to me that was rest of the jury at the first trial we have different defendants here we have  change in trial strategy and evidence and in any event as your honor pointed out that testimony from those two you know witnesses who received those phone calls was read to the jury so there was no evidence from which the defense could argue that those calls were in fact made by the victim the prosecutor on the other hand argued that those calls were not meeting them and those witnesses were not to be believed because of the fact that there was a problem call made from that stolen phone the victim's phone number which had been previously disconnected so the prosecutor's argument was well the victim wouldn't call his own home phone which he was disconnected therefore it's not likely that he made that phone call and therefore it's not likely that he need those other phone calls and those are simply reasonable inferences which can be argued from the evidence that is not m on the record in front of the jury the prosecutor i'll make this very easy all concede that the phone was stolen that alex had a stolen phone and respond records relate to that phone and that phone calls that phone calls were made on that phone by alex and maybe we can move on in a short discussion they talk about whether or not the person who had the function from them to name was greek as in the country or crete as in a screen the court all right may be so mark if you accept that stipulation one of the council sure does anybody not except when there was a question the court  california law it's clear that a stipulation and one case of stipulating a binding of others and l so there was nothing in there about mcdonald doing anything to be a member of the ace of spades for stocks involved in this criminal prosecution as a man named otherwise that was never that was never clarified how appeal thank you counsel for your time's expired the case just argued will be submitted for decision and we will hear arguments in the last case for the morning which is