outcome of the criminal case and if you look at the timeline of this case if i could have a minute we have the end in january of two thousand and two the trial court rules that the calendar notes and computer spreadsheets can judge ineffectiveness of the time you feel that the counsel act so i thought well you know that's not the rule here but then justice scalia right of the very end of the opinion something that is much broader than just in the fact of i don't see how this court could consider whether counsel was ineffective in allowing the timeline to go we cannot go in without looking at all the stuff that happened before that which is the attorney client the  the police to curing of the attorney client privilege material pretrial finding out that it was privileged not returning it and then subsequently using that built their case against  there's just no way to divorce the aspect of how the time i eventually came into the trial from how that time i ever got into the into the prosecution's hands in the first place and i ran for that you're saying well but we're not just talking about the strategic strategic decision as to whether going to come in as evidence we're talking about a strategic decision or non strategic decision of failure to raise at the very beginning that it was taken in violation of but once the police learned that it was privilege they had every obligation to return that they did not and that had counsel pursued that act and then i see argument would be independent of whether or not there was a violation of the federal constitution because perhaps more broadly but i don't believe that there is any limitation on the words stating a rule in necessarily broad terms yet a huge number of facts that otherwise we're just going to sit out there and isolated a little huge amount of assumption necessary to bring them into the story and i don't i don't speak for my colleagues i don't know what i think on that but i have to say that i thought if we get the harmless er certainly i can't say that the prosecution didn't use that evidence in the second supplemental lexer if you have the prosecution's closing argument for you there was reference made to it however what  one should consider is that well perhaps created a situation that was easier for the prosecution to use it present certainly the prosecution could have presented that information in other ways several second supplemental excerpts five to six the prosecutor specifically noticed that gerry fox the d n a expert came up with the same numbers by looking at the checks the evidence was certainly before the jury and i think it's speculative to say that the prosecution couldn't have taken evidence that was before the jury in this case and in the course of argument tied it together without the day planner  spreadsheet i think the evidence was there this was a skillful prosecutor i think this individual could have argued that information to the jury in that fashion fashion could i ask you before your time pretty clear in their actions how that has happened but there was no to my knowledge there was no separate state he's petition filed in the california supreme court only in the california court of appeal and i have a minute remaining so initial that council should have done something with the time i was initially seized and then later on when counsel agreed to the mission of the timeline at trial and in fact always difficult in these icy cases because obviously we're at a point where whatever tactic was utilized didn't work out the defendant was convicted but was the son reasonable it doesn't matter even that counsel didn't do  but it certainly i don't see that there's anything in the record indicate that the prosecution was able to go out and get additional witnesses that it wouldn't have otherwise had an opportunity to get because it was  off that this alibi defense was coming or anything like that because it did use the item the trial but again counsel specifically knew that was the greatest it was going to be there for both of them to use but i don't know that it was used specifically to assist in the investigation of the taser that it that he had to allow the prosecution to present evidence other than the timeline itself that they wouldn't have had