the prosecutor conceded there are so then the issue really what we have here is whether it's harmless or not and i think it it amounts that two of the issues involve a closing argument a statement made in closing argument and one issue was actual preserved but the reason rod your question a focus on seven thirty one because of the fact that this is an unusual it's unusual when you look at all the other cases here we don't have an argument somebody throwing an argument and he actually played a physical to eat or something and and i don't think this is exactly what the other tapes it's true that there are a lot of evidence in this case and i would be remiss in saying otherwise and i actually did put that in my brief there's a lot of this in this case but this is the only bit of evidence that tops about the highly sophisticated nature of the probably the amount of knowledge this person has about drugs in general this tape was an actual tape of him saying to the actually argued so after the tape was played he then made an argument to the jury about the stay and focused on seven thirty one and said you know ladies and gentlemen this tape shows that this was just not an accident this tape shows his knowledge and his business acumen so that the the prosecutor focused on this tape so it may be true that there were other tapes but this is the take that he he focused on this is an audio tape yes  some of the other kids were admitted were fifty or so the videos were of the transaction themselves and yes they were admitted there were three of them the first one did not show the cocaine the second two actually did show something passing that that look like ok and the defendant had succeeded in getting through the trial without being put in evidence you think that the defend not defense counsel would be the first one as soon as that takes started playing to say whoa what's going on here and is it i record correctly defense counsel just sat there and listened to the tape with everybody else and said nothing at all you read the record correctly but but then that's that would be another issue was that issue preserved but even part even even putting one side preservation issue it kind of sends a sign that it wasn't really important evidence around somebody would have been falling all over themselves well so let's be honest if it happens the tr counsel doesn't catch catch everything i know and i try cases i don't catch everything the minute but he did file a motion for mistrial immediately after the rebuttal testimony was over yes she didn't show up and down right at that moment but he did write he did file a you morning well defense counsel likely didn't notice the error of the time precisely because the tape was like every other tape that had been admitted at that case in the case and indeed the defense attorney himself moved the admission of two to there we think are almost indistinguishable in terms of the defendant talking about his drug sources not having adequate supplies and and so forth well he discussed a number of tapes and videotapes in his closing if you look at the sequence he talks about exhibit seven dash thirty which was admitted and then he says at that point now i'm going to talk about exhibit seven thirty one which is that tape that was not made it i think it's not totally clear from the record but one problem was the numbering scheme chosen by the prosecutor for these exhibits that are all quite easily for you i think on the seven thirty seven thirty one seven thirty two in the future it might be better to just number them eight nine ten eleven something like that but so was a mistake the judge found it was inadvertent the defense attorney in the district court conceded it was inadvertent the evidence obviously was overwhelming there are three actually four videotapes of the three crack cocaine transactions the defendant made a confession and the surrounding tapes according to the defense attorney in his own closing argument left no doubt about the defendant's guilt there's actually a unfortunate statement in the closing is about as bad as i can remember and the litany of improper governments aikman stering closing it's bad on so many different levels what is your office doing to prevent mistakes like this from happening we're beginning to see this in some of the other districts decisions including most significantly closing statement type issues so we do that in addition in all of these cases and there haven't been that many from rhode island in the last fifteen years  where closing air remarks of come up after the court we wait for the court to decide the case and then we do refer it to the justice department and they have a look at it typically we hold off till this court has given in opinions that they have the full context but those cases are reviewed in washington now in this case i think the record fairly indicates that the prosecutor lost his cool  context to their remarks maybe doesn't mitigate them but provides you with an indication of why the prosecutor lost lost control at that point now the district  apologized on the spot and i understand that you can you made question the sincerity of his apology but he did apologize and he told the jury to focus on the six seven years ago but dumped in that case the prosecutor also self corrected in his arguments and the court found that to be significant so this is a prosecutor who was essentially a review i would say almost by the judge and who fell on the sword said what he had done was wrong and asked the jury to focus on the evidence so that can i ask a related question that i don't think you've addressed in  this response so the related question doesn't go to the personal remarks made which you you now are are addressing and i reacted the same way that you judge lynch actually think that there are additional problems with it that are not identified in the briefs but is that conceivably a reference to the way the investigation and the whole thing was run in fact i took it as such and  you know there are a lot of good things about having assistant u s attorneys involved in in these investigations so one of the bad things that comes out about it is in its rarely if ever spoken of in the cases is  that it's that almost strategically or in even if it's not strategically it it casts this power over the entire prosecution in terms in actual terms of but a jury sits there and says it's the entire government that believes in this especially the person presenting the case and i've always wondered why if that isn't a bigger issue and although it's not something that was brought to the fore here jumped out at me and let me say i agree with every one of judge howard's words i thought that was even more distressing and the first ok i took the blame me remarks which incidentally also appeared in the potter case the same case had blame me remarks of the court didn't focus on them and focused on some adjacent remarks but frankly we saw the blame me remarks in this context as being part any inappropriate sort over personalization of the case making it a contest between the defense attorney and the government attorney you know at least he had the courtesy to wait you know t yeah it is funny i hadn't focused on the word investigation that's why we're mentioning you know i know you didn't focus on well well yeah i i i doubt frankly that the jury would have focused much on that one word  bandage in the first set of comments and then in his apology such as it was he's also seeking an advantage he's come pounding errors rebuked again for going down that path he finally begins to get it well you know as you can tell the court is unhappy and concerned and i