procedure violated clearly established a supreme court on the second whether it's previous there to ninth circuit cases of course that deal with the issue of whether  fisher and across is that at least the defense counsel has to be present to watch what's going on somebody has to keep an eye on what goes on during these read backs and w tried to make the point quite clearly that when one looks at the the clerk's minutes of what went on during these read backs which is it actually in the record  thirty two minutes as an account with forty minutes obviously we don't know but that's why it's something that we have to ask you that this second set agreed that actually you've got the same court reporter on these numbers and there's no reason to believe that the clerk got the numbers wrong it's impossible to believe that the court reporter actually read exactly what the jurors asked for in their in their various  that there was any prejudice that it was denying a fair trial the way this court characterized the supreme court standard and fisher which we contend is is controlling here the way the court characterized the supreme court's standard is that it applies to the defendants presence is necessary to it when there it's necessary to the full and fair hearing that is an opportunity to defend against the charge that's the supreme court's candor that flows from the snyder case to gaghan case that the russian and so forth and that's the case that this court that's the court's cases make quite clear that if there's going to be a week back and then of course the law is quite well established in the ninth circuit that this is a critical stage the very keep your eye on what happens here they had with there's going to be a read back and ask to be balanced  court didn't hold a hearing on this issue either so i think it has to as to prejudice in general unless you infer prejudice your and i think you can but if you don't then there ought to be a district court hearing where evidence is taken where we find out exactly what happened during those three backs and then figure out whether how the the testimony that was actually read the facts my client's  my client's guilt and participation in the crimes in and i would say that and then we come to what's the evidence against my client the owners against my client was was rather weak it was  if they had nothing showing that he was actually at the scene of the crime they had nothing in those surveillance tape this video camera thing didn't pick him up nobody said he was there there seems to be almost  prosecutor was able to bring in the fact that he had tried to fabricate tried to fabricate an alibi so if you if you if you look at all the circumstantial evidence here which is exactly what this redirect testimony was about it was about it was circumstantial evidence having to do it with among other things you know what was your free supine and stuff placement at certain times people whether he was present and so forth and i submit that if it's if it's not apparent that there isn't a problem here given the circumstantial nature and the fact that nobody inexcusable that the lawyer that the lawyer was not there to monitor what occurred as to me exploitation of the confession which is the second issue of course that also plays t the standard under the he is that under williams versus taylor is that where they the the district court or the state court in in alstead and then also in the check on any case which also talks about talks about and that's there is no case your honor and i'm not going to contend otherwise that is directly know it all we know from the record that we have before us is that she she showed up in court her testimony appears to be somewhat tentative and what that which is there we don't have we don't have the sense that she's testifying in court involuntary and voluntarily but it's quite clear that the product that is the testimony that she's giving is the direct whether it's three years or a year and a half a week or two days that it's the product of this this sort of dog and cat confession scheme that the that the police use of that police station and there's just no way i don't for anyone to say that it's at the court which may have the last word the word there's no way for anyone to say that you know she was not locked into that at the time and that it's such as it was such a simple proposition that is was that they are my true or was it false that once she she made that statement at the police station there was some place you she was going to have to live with and i don't believe that three years that's because first about all the evidence was very substantial respected field synonomous scene at the cafe when the initial leader of this group the whole shop the killing of the three victims he returned with the other defendants and participants to the residence where they rejoice gathered and left to go kill those people when he also testify three years later he was her talking to her about putting together a phony alibi that's evidence that came in iraq regardless of the testimony by lance about three years later when he was arrested for he initially gave the police a phony alibi that was inconsistent with all the repeated testimony by everybody in testified with respect to his presence at the gathering after the shooting  the cafe and then later after the killings the place where they had originally gathered and he was wounded and this witness told the police that he heard savannah and this woman trying to pavlik eight come up with an alibi about being shot so the jury heard that from a separate witness the jury also heard that he told the police before the court statement he told the police that he had three years of past her identity was independently known the police said they knew about her independent are unrelated to the core statement testimony voluntary the prosecutor had stated on the record that he was not going to use her earlier false and retracted stated there was no reason to rationally expect her given the fact that there was already evidence showing that  front of the jurors that this story was concocted so i submit that that the attorney general's contention that there was nothing evidence there to that was the issue of these purposeful violations of miranda in seaford versus missouri and decided in two thousand and four the supreme court of the united states i'm dealt with the these roundabout means of trying to get around rhonda and break down the free will of the defendant or not can be tolerated by by the supreme court and and there the key issue here over her so whether it's through now i get to the tape where there was three years or whether it was one month doesn't make a whole lot of difference because what the supreme court looks to is was a voluntary and was it the product of free will