focused on a fictional account of what the victim in the case must the fall or heard in his last moments and it's that summation that argument that supplied for the wrong reasons if you will i believe that the cases that we have sided deal with the issue of time i don't know when that is but he just say in france south the question is and you say now which i didn't know either i mean that these words were said by someone in a context of an the question i'm trying to sort out here is were your you want us to decide this case on this prosecutor or this kind of but i think the court of appeal found seriously in question because i think that the determination of witness credibility and evidence would have been significantly different but for the question of whether it was a possible tactic i did i think that was just a corollary to the  points out at page thirty seven of the court of appeal opinion what the court of appeal is doing is saying there was no objection to these comments therefore the claim is waived or forfeited and the way the court goes on to address it is clearly and ineffective assistance of counsel hein their finding that the defense attorney might have had a reason the court could not figure a reason but the court said so exactly right standard this life and you said that but at page eight of the court of appeal of pinioned the court of appeal notes there was evidence at trial when a police expert testified to the defendant's prior crimes the expert brought in many just use them as if they've been said and there's just no nothing in the record to suggest those words were sent by judge i think there is let's think of the circumstances first of all the  to the final words it's borderline you're out of a california court appeal said that with some passion and it was totally wrong you're right but i think the focus of the court of appeal was the  appeal to the emotions of the jurors and i agree a prosecutor should not feel to the motions the emotions of the jurors but i disagree i can't spend too much time disagreeing with the court of appeal because they reached that really an unfair inference just to talk about what might have happened because in this case the victim was not from saying what might have happened judge didn't say what might prosecutor or what should be done about a person who tells a jury remote fiction when asking them to imagine the lies start for them of a murder victim and tell concerned the issue is is that great division and this is when this is unfair ok i'll just very quickly say that the shooting was inconceivable the man was on the telephone and all of a sudden the defendant  and was yelling and screaming and shot him twice yes it is kind of a mess actually your honor if i may summarize the strength of the evidence because in my brief at pages twenty and twenty one i summarized the court of appeal harmless error analysis and i supplement that with a footnote but the statement of facts and my final argument also give additional facts that i think make this a strong case first the eyewitness to the shooting saw the shoot from a distance of about forty feet he looked at the shooter for a full two seconds straight in the face one two probably the distance from the rail to the bench his head lights were on the shooter the eyewitness described the shooter to a police and army he did not i think to find in court or anywhere else when he did not identify him you're right but he described the shooter to a police sketch artist we said by the way the district court record either and i think the key reason i do have the exhibits if the court would like to see them but i think the key point is this the eyewitness described the shooter twenty to twenty five year old hispanic male stocky with a goatee and not fuss and so the sketch artist drew that picture and then that photo was shown the defendant's former girlfriend and when she saw  it's not arrested but you're on the let's think about it first as i said the shooting was absolutely inexplicable other than i gang shooting the victim wearing that horrible jersey with the number eight on it nancy after varia his former girlfriend said that the defendant had been at a barbecue in the neighborhood of the seven eleven on the night of the shooting he had been with other ls he members at the time she said that his clothing that came up through the prior statement that was in a prior statement to the detectives that and that did come out at trial furthermore the truck there were three eyewitnesses who said that there was a white truck associated with the shooter the defendant had a white coat a toyota truck now there was some question one witness said it might have been a ford he wasn't sure he thought it was a ford but recruiter who was with him went outside and he saw the truck stealing away he said it was a white pickup with a chrome bumper and i saw blue letters toyota on the back of it and he said that truck crashed into a traffic so i'm not sure there was damp i talk about fire or wheel but there was no dispute that either the wheels years later that it was but still  talking in january two thousand and three about that white truck that we got to get rid of a strange conversation and on cross examination mr below both admitted he had maybe i was talking about the defendant and maybe i was talking i say well to me that the very damning reference once he once there was testimony that he had made it shooting it or someone at the seven eleven that was a very damaging admission  especially in light of the evidence as a whole and again there really is little doubt i think this must have been a gang shooting because there was absolutely no other explanation for it and these gang members had a history of going out and intimidating people in the neighborhoods and when they did so they would shout out racial epithets specifically scrofulous and when asked and so i guess i'm coming back somewhat to the other point i do think that the harmless error analysis at the end of the day prevails and i i do acknowledge that the prosecutor should not have appealed to the emotions of the jurors that's where doubt about the evidence it was sufficiently problematic that was poor eyewitness testimony there was no physical evidence that had the jury not been exposed to this inflammatory and frankly egregious summation by the prosecutor  believe that there is a reasonable probability that they may not have convicted mr supplier and therefore his trial was fundamentally unfair and the prosecutor summation