is for today is case number or sixteen zero or nine one and we are missing one of our panel members just disconnect he is unable to be here today he will still pretty supply in the resolution of these cases he will listen to the recording o argument and we will conference and resolve the matters but he will not be here today and ask that counsel step back and say  really only one person who allegedly saw your client stabbed the victim is that correct perhaps and that was one of the people who we believed to be on the recording requirement of prior identification we can outrun if we find that i do for a case is appropriate if you don't have to identify the person she immediately identifies him and the offender so her statement that that was here and that it was the offender but part of the identification process because we're all really and i doubt haitian of the bandit so because this case the person who identified him prior to trial did it in one fell swoop in didn't need additional help or steps five police to effectuate the identification that's why complicated well no no i mean the state should bring their witnesses but the thing is the jury this is somebody who is familiar ok this is somebody who saying that somebody committed a crime and i saw somebody commit crime but still earning position but when there's a verification of that that yes this is the person who i'm accusing being able to point that person again and say this is the person  meaning of collateral the sense that this is not directly related to the question of whether defendant was the person who stabbed the victim julian randall so in that sense the judge was concerned about to his credibility although in a sense that he's not being paid to identify the defendant to testify against him he's being paid not to show up happens to be the only  would be accountable for whoever sat the person so i mean it seems like you've got two games here and i'm just thinking you know run of the mill citizen and i would think that some serious suspicions and as you indicated serious credibility issues would arise for the state if this type of evidence came in yes that is true as terms of witnesses being paid with respect to the case with testimony adequate opportunity they initially request for continuous waits for the purposes of team transcript they got the transcript i ten am sunday morning which was the deadline in the end it started happening monday morning and then the information on the figure out what other steps you need to take to address it do you think there is no time for that but there was enough time for the defense to introduce a transcript and that's a transcript the actual tapes and provide a witness hand video you had on you as well is that right and that correct well essentially the fact that these are tendered in discovery does not mean that these things necessary for the defendant have a fair trial i mean the prosecutors could everything even if it is only marginally relevant is not necessarily constitutionally required to disclose that but it is disclosed in the prosecutor's going out of their way to exceed their brady obligations in providing everything that this central here was the allegations that witnesses were private and those are contained in the initial jail recordings which were received before the weekend and the defense requests this time begin transcribed gets to transcriptions during the weekends and have more time and they have asked for a mistrial earlier you think it's pretty clear that the judge had no intentions of greed to continue it's it's obvious that the which is explain exactly what was necessary for a further continue because they don't know yet because you've just got a table in which they can't really decide ok he goes to some group in california telling us what they say the defense still doesn't know what they said but we know that the state says they've got somebody who's going through these tapes identify the speaker and perhaps help identify the say this is  but if even if they had trouble with that this should know that before one pm on monday and there's no request for further continuance there's no it's first this records can be shown it just appears the defense selected not  suit that evidence after further consideration of the issue because there is no indication from the defense that they believe that further continue says were absolutely necessary and explain to the judge kavanaugh exactly why you need to keep the jury waiting longer  somebody from the sheriff's or whatever but he had talked about having a witness how to authenticate you know well he had these tapes before that week and she could have obtained a witness counsel because how do you proceed when you feel like you're in adequately prepared you don't really understand or know what's being stated on the tape and so do you just highlight the cv of your aunt to take a risk that way or do you numbers here it's going to be worded with a mistrial in a case where he didn't even request additional time and in doing so state the necessity for that additional time when the judge obviously extremely reluctant to hold the jury waiting five minutes after one right to a fair trial we don't have the index showing from the defense to say we have the defendant essentially on appeal complaining for the first time that it continuous was necessary to preserve the defendant's rights to a fair trial when the offense counsel oh should have done that to the judge and explain what happens so to resolve this sort of on the first time an appeal with inadequate record where there's no request for further continuance to say they say ok will dismiss trials for granted even when the defense counsel didn't even ask for more time that's not an appropriate attorneys we've all had it hammered into us the importance of the defendant being able to test the credibility of the state's witnesses and i can just envision the headline let's say someone is convicted and then the headline is you know evidence now rises that this person was right or this person took money to testify it would be so shocking and alarming and to prevent the defendant from presuming that but see he's also about the perp the prior consistent stated which would prevail take his credibility and there's also the video which would show the defense president seen as part of the group that was involved in the melee so to think that he would not be convicted by accountability for being involved in the group perpetrating mob action there is anybody shown on the video even a g and is just point out we were not here on the accountability issue but just for the sake of discussion is he shown on the video actually aging in the melee i don't remember exactly which on the video investigation by not for not requesting a continuance for the purposes of further investigating this issue of the of the payoffs that is the claim there has to be prejudice established which means that further is sensitive to keeping the jury waiting and without an affirmative description of exactly how much time you need to go on monday and what else you need to do and why and how that was important to convince the judge was soon left to continue it seems like that would be it is not appropriate to refer some the grounds of the abuse of discretion of the mistrial request that was made on friday when he was just asking for a transcript and i understand more things come about but it doesn't it's  more tangential to the question of the payoffs which are referenced and in the recording didn't ask for further continuance i just i don't remember if you asked for another you might have  to identification of the defendant as key so when you have like her go to the hospital and see that person say yeah he's this person and this person here is keep that's a different identification from when she tells the police he again move for a continuance and ask for transcripts and i'm just that and the court spent the remainder of friday addressing another issue regarding juror which really isn't relevant to this hill transcripts he did not move for a continuance or a mistrial on monday but it was clear based on the comments of the judge on friday with regard to the jury waiting saying that we're going to finish this trial that he was going to have to proceed to trial with or proceed with the rest of the trial the state to clarify there's fifty minutes of audio recordings from the jail calls there on monday after  the wall video from the no the video the court room video of him walking into the path of heroin lying in the bathroom and the seat was disclosed at that time and then i believe that there may be a mistake and i was going to believe that there was another short recess and then the state comes back again and