we've got virtually the same evidence presented in the second trial and we would have said your honour's at a minimum determine that the evidence was closely balanced we would also as your honest find it is that it is entirely insufficient acknowledge that there's a very high standard or reviewing service is the the evidence is what we argue is that in this case there was insufficient evidence to convict mr belknap because the only direct evidence implicating him w jury's germination as to the credibility of these informants these problems of worth thirty one the problem and the problem with the prosecutors injecting emotions into the into the arguments that are played into the jury's terminations the credibility of these of these jailhouse as us and in particular we emphasize the prosecutor's statements in closing arguments in these statements asking the jury to enter into a sympathetic relationship with the victim served no other dose of emotional statements playing their passions and it's certainly could have influenced your determination as to the credibility of the individual your honour's this case basically came down to whether the jury believe hours we direct the course attention as we did in our preta the rivera case we believe this case is directly on point for a number of different reasons the basic thing that this repair case stands for the writers is the furious determination as to the credibility of jailhouse informants is not cannot be the end of the story the rivera or correctly determined that jailhouse it's testimony should be treated with a great deal of caution there's a number of very this jury was exposed to two very strong arguments falling away from the elements of the crime and and inviting the jury to enter into some sort of sympathetic relationship with the victim so we have a jury your honor we submit it went back buttons that he pushed in order to amp up the jury sympathy for this victim and that respect will your honor this is why we think this is one of those cases where where this court can say that know who to know there is there any other evidence that supports the defense in the second trial that would weaken the state's case more because we have i think just heard decision we have the determination of the first panel that substantially the same was sufficient so the hootin the dare officer is additional evidence is there anything else in the record i cannot recall anything off the top of my head there there there there impaneled by the first it goes back for a new trial and the prosecutor doesn't guide the court to avoid the very same error but now and in the second  concern is the air in the impaneling the jury which should have never heard i will say that personally isn't it here once at the conclusion of the evidence the court silent those principles during the during the jury instructions if i recall correctly in the first case the problem of the four thirty one three principles was that the jury was not given a chance to respond to and then the second wrong is substantial injustice let's focus on the second prong now pulls the balance of the second wrong whether there's been a miscarriage of justice here how did the four thirty  one weaknesses in this trial the second trial compromise the jury's deliberations because i don't see anything in your briefs or this record to suggest that the jury did not follow the judge's instruction should have been admitted in favor of that how that could tip the scales of justice in a closely gammons case that this is a purely procedural error that doesn't have that the weight of the evidence have the right yes as a major for justice carter found in the first case that the evidence was closely valence what is your position with regard to whether we're how that plays into your argument  as far as our second argument we would say that this trial court is is bound by this is as far as the first argument i'll concede as a little tougher argument to make but we would argue that evidence in the first trial was enough to convict him yes she did and in the second the second time around our argument is that because of these laws doesn't these flaws and point out in arguments two and three that the jury went back into that more do we need to say or do and does it require reversing the murder conviction involving a very young child or prosecuting agencies to get this message about four thirty one with that said  the case is not cloaked with the presumption of prejudice the error is actually prejudicial not presumptively present prejudicial when there is an error in a closed case we choose to err on the side of fairness i can see the court deviate from the two process i know i'm aware in white they sort of talk about how the federal standard that was rejected earlier by justice fitzgerald and they talk about last week when with it really doesn't apply to this area they so they never really rejected the court not so were does that leave you in a case like this when it's the same air that's coming up in the same case and the same didn't peeling and that's the second part i think the reason why i didn't appeal that was nothing much necessarily because i agreed with you because doug struck a deal but there was a second issue in that case and saw the determination had you fact that the player in fact when they say you've got to find air or has the plane and the air must have affected substantially right what does that mean that means prejudice now how do you go about may dictate the outcome of this case in that he found the evidence of that was the balance was closely balance can be now and this record the evidence was not closely balanced because there were two additional pieces of evidence introduced by the defense in the second trial that would have made the scales just purely main facts tip a little more in the direction  frustration the first trial but the thing is and this is where i want to go with us because we had a discussion in the first case with respect to well you said none of it what you were saying is you're saying that thank you you're saying that basically the balance was the same as reasonable doubt and your honor rightly corrected me on that ok but if you take a look now at a woman's has at that time it really wasn't much of a case much what i said the same story the same way the injuries occurred the same reasons it seems to me that this is really not posting about this case and i'm not talking about the weight of you have nothing i'm just talking about the nature of you know that this evidence really is not points of counsel made about what mr belknap said at trial i don't have the record right here in front of me so i i don't have the example but what i have addressed in my reply brief counsel's argument that defendant somehow convicted himself trials cases and i completely understand this is a horrendous case this is awful awful stuff the law is the law or thirty one the problem series were thirty one the problem we have those details that evidence there needs to be a trial it i would also argue that your hours respectfully should think very seriously about this in this case outright these jailhouse snitches as i've already explained had lots of lies and oh it's a lie plenty more both of these individuals correct but in this case we we also have the additional problem of the prosecutors injecting these inflammatory and sympathetic and emotional arguments in a closing argument so that this jury walks into that jury room having difficult questions from the court during the spirited discussion this is exactly what arguments are all about because we only have one opportunity to ask you questions face to face so i greatly appreciate i'm sure that what does the level of preparation you