right i have i have reviewed the transcript of what the instruction the judge gave to the jury has the judge been asked if in fact that is what he said to the jury that he  because the the language in the transcript is not good it doesn't make sense you have said there are six in there and it doesn't read appropriately in the because objective and subjective could easily four were the courts said something like yes the defendant was not the aggressor and had reasonable grounds to believe and actually believe he was in imminent danger of death or serious bodily harm four times prior to the mistaken not withstanding the question maybe judge roth has raised about the actual transcript there is a mistake on page eight thirty four giving giving a lecture and he's telling you the students of about the subject matter and then the professor says no this is going to be the test as a student i was like you're thinking doing i'm going to listen i'm going to focus in on what he's about to defendant must have actually believe he was in imminent danger of death or serious bodily harm and that deadly force must have been used to repel that force that threw so yes there is a statement of the thank you so what what why under those circumstances when we when we do have the obligation to review the instructions as a whole and we see statements like this repeated throughout the jury instructions why should we find if there was error in these instructions well but where is that fault and instruction i don't see that you can make an interesting argument because you know some could look at this and say well this looks like a seven sixteen that counsel actually objected to the even the inclusion of the instruction for a lesser included offense of second degree murder and attempted murder so that makes it seem quite unlikely particular in the absence of any evidence there a virgin islands case recognizing imperfect self defense recognizing that as a as a valid plea to get away from first degree murder we before we go into the merits of it and i'd like to get the the government's use on this as well how should we think about where we are with where we place the issue of the strength of the evidence when we're considering the due process now assessed or is it a harmless error analysis in other words in various we said we look at the prosecutor's offensive actions in context we assess the severity of the while it's not overwhelming evidence against my client and then you probably have to have a sliding scale between the way the evidence against my client and the result of the fence across is how we have a sliding scale i think in this jurors are like students and they just spoke up and they will listen to what the court said the use of the word objective belief will certainly prosecution and starting with statements in the opening not not simply referencing home where the fact that right that the victim was he in front of the home but sticking in the first person plural to the jury and saying we got to be safe at our homes we got to stop these awful mills from coming to our home and ruining our lives we have to be safe at our homes repeatedly how is this kind of suggestion that the jurors should fear this defendant and need to have this have him locked up to be safe in their own homes not misconduct know argue that it's harmless but truly are not arguing that this was a legitimate thematic device to reach out to the to the jurors and suggest that they need to lock this pers gun was left in the area of not one but two schools two schools where innocent little kids walk and travel that path they live in that area they travel all the time what if one of them finds that gun  casually threw away what if one of them accidentally shoots their friends what was the defend your being tried right i mean it's really these these kinds of statements it doesn't seem like we're talking about  to i wouldn't let the prosecutor out there like that i was not the prosecutor is that your office is position that in a murder trial that it's appropriate for the prosecutor could make reference to innocen there's no reference to the alleged misconduct about this the these statements of the gun near the school shouldn't we then can siddur that conceded by the government also includes what happened in closing on separate from the the statements about we need to be safe in our homes and the innocent school children and the record reflects that there was a gruesome prosecutor and candidly when he was asked by the district court of out why this photo was was up with the district court remarking  that it was distracting that the jurors were looking up there they were watching that that rather than the argument they should be listening to and when he's he asked the prosecutor the  prosecutor states very candidly that it was a strategy to provoke sympathy now that the government concedes is improper purpose for showing a photo  correct and and here the district court reflects in his statement whichever photo it was that this that the prosecutor picked the photo that's going to provoke the most sympathy he calls it a gruesome autopsy photo when we look at the totality of the circumstances and we look at our case law that describes the range of wind highlight those i'm not commenting in any way on how the how those who decide this case but whatever the decision is i think it would be helpful to pass on to your office inflammatory language of this nature is improper by a prosecutor's office totality and that the misconduct even it was it was harmless error that's easy to argue but in this case this seems to be a pretty close case as to whether or not this wasn't just a fight and then all fisher's question we are we have here i thought a question of whether he was involved in the shooting this is a case about self defense he took the stand he put on a self defense defense so his credibility is the central issue there under those circumstances shouldn't we be even more concerned about misconduct that is directed to jurors sympathy that that law in barrios there was also the presentation of a photo we puzzle of the victim that was put together and there was the reading of a commemorative poem things that were found to be misconduct they were they were yet given the instructions and given that particular evidence and how briefly it was shown to the jury it was determined to be harmless why isn't this case more like various given that we do have some instructions from the district court that the jury should decide the case from the facts and not on bias or sympathy right or left my prepared for oral argument like this one through the openings and and the