devastating cross examination because of who they were and what they did and that they were under the influence but we really do have to find prejudicial impact that so infected the trap with this one instruction on defense counsel but it doesn't affect the prosecutor they don't really hold it against the prosecutor even when the defense puts on witnesses it's hard for a jury to really look at them the same way that it does the prosecution witnesses even though he got all kinds of credibility problems because everybody was constantly you know hopped up on all kinds of controlled substances well we still have to find it was prejudicial as the deprive them of a fair trial but the one good thing that you don't often get was a scientist you know we have scientific evidence of the gunshot there they did a scientific test so normally in a case like this where you have problems with credibility and you have some times it's worse first of all there's nothing in the instruction that tells them that this that this instruction is not going to affect the burden of proof or it doesn't tell it just basically it sounds kind of clinical when the court instruct given it's not given frequently because recently there have been some some new cases on this instruction and the california courts have instructed i happened to have them if the court wants them  why they've reversed recently because of this instruction this is a modified instruction the instruction is count two point two eight and i've run a search on the ninth circuit i don't think the court has dealt with standard instruction the instruction tells the jury that the failure to produce a trial may not be considered against other defendants but yeah that doesn't help but w what the courts have said is that there's nothing in the instruction that tells the jury that it doesn't affect the burden of proof beyond a reasonable doubt that's what a lot injects things into the trial that the jury doesn't know about the court's giving them facts outside of evidence that the defense did something that was against the law but there having it come from the judge making a factual determination that the defense violated the lawn the california discovery law and the jury doesn't know that it's not supposed to be not just to consider this kind of instruction  that it's not just interesting l t or anything from the instruction it seems to me exclusion is a tailor versus illinois was almost a a better a better way to go and that was limited to the facts of that case because the jury didn't really doesn't know the jury doesn't get to hear that witness but to have the judge comment on any witness to single out a particular witness it's always judges rarely do because they know what i mean in the federal system we don't like them to do it all right probably  yes but in this can use in particularly any time the judge comments on the evidence it hurts it really hurts especially if it's a negative comment against the defense because the jury's play so much weight on what defense is required to disclose the names and addresses of persons and comment on the substance of her testimony right but in fact she was able defense was able to present her and present all of her testimony  the aggravated first degree murder charge in the hope that the jury will have a reasonable doubt as to the elements and in fact there was no  g i'm sorry couldn't repeat the question i get which what supreme court case would require us to find that there was a constitutional due process violation where defense counsel said i don't want it that there's an affirmative this case where they were exceptional circumstances under the anti terrorism effective death penalty yes we have to look at the clearly established law by the united states supreme court just asked which with the possibility of parole that without the possibility and that in this case but we're wondering why it can't be extended to those to those circumstances i mean and even the courts have said it i want to roll the dice you know california courts hold otherwise and we'll hear yes they do yes and before i leave my time for rebuttal i just wanted to say that it seems in this case that the california court did find a number of errors and a number of unreasonable errors but nevertheless it seems like just due to the circumstances of the they just couldn't bring themselves to overturn the case because clearly might might mr cummings did did fire the shot but again it was it was the circumstances of the case that we're seeing that he didn't get a fair trial on and particularly in light of the fact that the one that's a scientific piece of evidence was singled out by the court and and cast in a shady just  mentioned in the reply brief bell lost in income for all also two point two eight is wrong but that was not the instruction given the problem with two to eight is that it leaves a jury rudderless they are told something bad happened and you must evaluate the evidence and you may do something with it but they're not given guidance on what to do with it that those pens that paragraph and a half was left out of this instruction so we don't have a case of a rudderless jury those cases still something was wrong and they were told what to do and the problem with two to eight is it goes on and and tells them go forth and use the evidence explicitly and then doesn't say how to use the evidence that's the criticism it's not criticised by do they just don't decided on the language used in the instruction they have decided on based on the facts now we're going to look and see if there was harm beyond reasonable doubt we're going to look and determine was this an overwhelming case by the prosecution some of the cases say yes it's on that point i would like to tell the court counsel i spoke about this this morning there was an opinion in this case by the state court of appeal and then there was a modified opinion modified opinion cleared up from absolutely comprehensible  paste it twice and we believe that that is to be inserted at page forty seven as the second paragraph and if you read the second half of that modified paragraph the court is using is saying assuming argument even if we had to say mongan said that she did the sodium our test and use the microscope i'm going to review what she said and i'm going to look at it carefully he did that he then testified in the rebuttal saying i can't say my original opinion based on what she said based on the test she performed she said the gun was six inches away he found it was the distance of four feet he said it's inconclusive that really helped the defense because you had the people's don't believe in her results so much in her capabilities of flying test that i'm changing my opinion and now i'm going to say that we can't make a determination as to what distance the gun was away from the victim the time it was fired and never did the court address or credibility in that instruction or in any way zero nine kidnap for the purpose of extortion so trying to turn back have this court extend back you know take it away from what it's done before and say that the lesser included to require it even though says no thank you and please don't we really don't want them it the fact that this was an l wop certainly has no bearing the extension has only been made in capital cases i would invite questions from the court if i could just briefly respond what really hurts about the instruction is that he is is that they talk about the failure to disclose evidence in a timely manner and they talk about what the law well then and then we wonder why the court again as this court has noted why the court gave the instruction but you know as a trial attorney i have and i've had this instruction given and it just makes