thank you for accommodating my conflict in another court in this morning  massachusetts and other us supreme court cases which have referenced a standard of determining what are the critical stages of a trial part of the record in the federal hadiths corpus petition so we don't know what the content of that statement was the statements that were on that recording played to the jury during the what was on that tape with the same thing that was played in the court that's correct that's correct however our argument is somewhat two fold one the violation for his fa to be present during the payback for his presence of added well our position is because he had agreed you're talking about are you talking about the playback of the tape itself yes in our brief although the attorneys had listened to a portion of the taped audience statements that had been played during the trial the record is void of any indication whether or not that was on a reel of tape or would agree except for the fact that although the judge said the court asked the defense attorney and the jefferson d h to listen to the part that was played for the jury that they did nothing in the record i did not see anything in the records that led me to conclude how long on one thing the audiotape statement was there is information in the records that there were audiotapes statements by other prosecutor indicated to the court when he asked to reopen for the specific purpose of admitting these audiotapes statements that it had not been recorded unbeknownst to both the defense attorney and the prosecutor and as we argued it's our position that this audiotape statement played at that point in time first of all we don't know when exactly it was played we know that was requested we now go to the clerk's transcripts of october the twelfth and we show that they resume deliberation about nine fifteen in the morning and had a verdict somewhere around noon  defense attorney knew that they had lessons too much they had signed off on that it was the saying that they had listened to that was played in court but we still don't have a record reflecting to an attorney who was not representing his best interest arisen to create a circumstance different from what had previously been heard when did the judge first know about it the judge knew about it when the mar there has to be that claim in the petition now i think the reason it came up in the c e o way is it's the same transaction essentially so you can make that argument and maybe it's a good one  that it wasn't necessary well actually i think thing else is to go the other way around first you have to find that it was a critical stage of trial at the time of this crime and as this court has already held in the across the curren and the court held that that was not a they didn't use the phrase critical stage but they found no you know due process violation and it was very interesting the court said counsel never objected to this and never recognize it is clear the counsel at least twice for both parties verified that this was exactly what was played to the jury and was admitted so this is not a situation in which evidence was orders it's the october eleventh in order and it's very clear and there's no difficulty in reconstructing the record you look at the minute order of august eleventh you read the transcript they fit pretty well within minutes well i'm not going to force it on i'll just let them know it's available to bring back the jury instructed on premeditation and the judge says by the way there was that audiotape play and that is where the tape was admitted and it must have been given to the jury after that that's the only way to understand this whether they actually listen to it or not who knows but of course that they didn't listen to within there's no pre of the jury asked to hear everything bearing on the sequence of events of the crime they didn't identify whose testimony they want to hear tremendous amount of discretion there was a the cases are so different counsel could have made a difference in future this is a situation where you have your playback of an edited portion of a tape that was played to the jury was it made it counsel twice  situation in which prejudice can be found at all and  uncertified issues can be brief they can be brief but they cannot be just they cannot be resolved absent the opportunity of the opposing party to