be categorized somewhere between under whelming and constitutionally insufficient as to mr mourdock skilled in the three primary areas of deficiency were the time of death evidence militated against the finding appellant was the perpetrator back and the d n a evidence which was a significant part of the prosecution's case at the at the two thousand trials was crime scene the only actual blood of appellants was found in a gym bag in a closet that had no identifiable relationship to the to the homicide and the third point that i emphasize regarding the insufficien evidence is that there was ample evidence of third party culpability based on the d n a of other identified males on the clothing that was removed from the deceased and and from a cigarette ash found on her inner thigh where she when she was finally discovered particularly important given that neither she nor appellant ever smoked strong evidence of third party culpability they i would like to a conversation occurred but was precluded from testifying that the decision told her that the children had gone with appellant and that she was using the weekend to pack this is so but by the time it got to the trial her testimony as i read testimony of hers that you think was improperly excluded because she did get to testify about something about the weekend yes the crucial thing that she was precluded from testifying was that i'm here i'm packing about what they had happened yes primarily you know your honor your honor accurately characterize the testimony as a whole as something of a mess but when it's viewed in context of the other testimony it's compelling appellant pick them up on saturday and twelve hours later so the plan shifted but your original plan was for him to pick up on friday and that may well explain why i was confused mistaken about we know from we know from the undisputed forensic testimony that she was killed between two and four hours after she had breakfast if appellant was the now these statement by young elise is extremely reliable in the sense that there was a police officer present when she made it close in time to the occurrence the aunt was there was an aunt asking her the questions and she was responding to well it's not the question i don't have the real reliability question whether she made that statement the real reliability is what to the four year old mean you know when she says right after respect for the jury to be able to sort out the wait to be given testimony like this now but there's a there's a gatekeeping function that the trial judge jazz to determine some minimal threshold you know if that witness comes in and says i saw the defendant in cincinnati on the night of the crime that occurred in california that's totally admissible even if that person has fifteen felony convictions jury question at that point there's only a balancing we can come in if there's something that outweighs the probative value and here the common sense tells us that if breakfast was completed between the hours of six thirty and eight thirty i have had you last child would have done other things to watch the video play with your sister done something and the last it was there would have been no reason for her to say that he came and picked this up right after breakfast because there was an had to be according to the forensic testimony a good i want to have to two hours or more of intervening time when other events would have would have occupied the child's attention and would have been her time marker for when this occurred can i go back to the other one for a second the bunny testimony so so given the fact that by the time of the trial she was saying that the statement wasn't on saturday it was on friday the court reporter got it down wrong all that you wouldn't expect or i know you went to trial or but the trial there wouldn't be expected her to say from the stand at trial that it happened on saturday so how was that was was the other statement going to come in through just putting in the grand jury testimony oh if it had   i'd like to reserve a small amount of time for rebuttal all right well you're from the government and under johnson the williams we would have to say well i was too insubstantial or inconsequential for this a court to mention that it is and what you're arguing that yes and very soon it evidence rule when you just explain the grounds that the state court relies on were purely stink or evidence tree grounds right they didn't address the constitutional issue at that point can i ask you about the merits of that can i ask about the merits of the neighbors testimony so what was it or what is it that made the testimony that the defense says was wrongly excluded unreliable what specifically twenty years later twenty five years later when something happened that there's going to be some uncertainty about when the we're going to be born well but that's the that's what the disputes about i guess my point is that when you have a trial that's taking place along after the actual events all of the testimony that's presented is likely to be tainted is the wrong word but it's likely to be affected by the fact that so much time has passed and i guess i'm questioning why this particular bit of evidence is singled out is being unreliable when when the jury in dealing with pretty much everything it had to deal with during the trial would have had to deal with those same kinds of issues about passage of time and i was a kind of a convoluted questions are about that that we've done prior to the martyr i believe the record also show that the defending drop to children are on the sunday after that the statement that if she thought that the kids are with the defendant and he will bring them back on sunday while they were with the defendant the we've done before and he brought them conceivable that the death could have occurred as early as ten am on saturday morning but in terms of the weight of the evidence and the persuasive power that militates in favor of a of an acquittal the fact that it's conceivable that it could jury are given and on appeal this court has to weigh the evidence that was offered in support of the evidence to see whether because the jacksonville region is standard and when determining prejudice from unreasonable to conclude this is evidence then this double deference is kind of like a legal fiction that doesn't really it's the court's review that's that's my view in this thread but with respect to the other two as to members of this court are very familiar with when the california supreme court denies they have used corpus petitions the petition to night that's presumed to be on the merits of all the federal constitutional claims there because that's practice  and here we have a conspicuous absence of any reference whatsoever to the two constitutional claims and at least two members of this court i am asking to take somewhere in the nature of judicial notice that the unpubli the federal constitutional claims that that's my argument in favor of they know who are you by by this court when the the court of appeals and you're obligated to address all of them they addressed less fewer than all less than all of them there's a presumption that it didn't address the ones that are not mentioned as opposed to the california supreme court instance where that i could really quickly with respect to counsel's emphasis on  was that a pilot would pick the children up on friday and bring them back on sunday we know that there was a change in the plans because he picked them up one saturday morning a day later and the clear the obvious inference is that well he was go statement the fact that he didn't bring them back on sunday is very consistent with the shift from the pick up on saturday friday night to the actual pick up on saturday my last point relates to you're out of time so please but my last point is one sentence one and i have to say when there's an unusual passage of time like this it's it's a it's a real violation of due process in the right to resent defense when the inherently increased lack of recollection is uniformly applied to the defendant's detriment and with that