look at this post trial decision and the rulings that lead us to the defense verdict because in my judgment mr wyman was denied a fair trial the numerous respects i'd like to begin in the courts at least defensible and most injurious r and the and why all relates to the that my understanding on that point is that you're just saying but it's wrong is that what you're saying i have the way i read lyle the way that that decision comes about is consistent with everything else that the prior decisions that i've cited in my brief hold and that's prior to the p t c oh with this case up to a seven day estimate in light of the number of issues and the number of witnesses that we both prepared to call for court the court never consulted with us as i think it should have should have had some sense from us a witness a waitress who i expected to appear on the morning of the second day of trial who promised she'd be there was under subpoena and then when my luck went to get her she just refused to attend i could have cured that if i would have called that witness or she just let it lie down well no no i did not and in terms of her nonappearance i did make some arguments about what the importance of that would this is one where i could do to cure and had at the time that's in the record family which i thought was a very important witness because remember jail a friendly on the videotape communicates with mr mr fineman at the jail and she wrote out the additional medical screening form in which she refutes every allegation of objective symptoms that mr feynman allegedly demonstrated according to the defendant and we now know that ms demas the second jailer went back and changed all that and i think that the protocol you heard testimony would have been far more significant to hear out of her mouth as to why she filled out that form and was asked to determine whether he says he smelled of alcoholic with an object symptoms that his speech he was taken slurred all the things that went to depose that witness did not ok so if you depose that witness and would say those things that you're saying right now and put that in the record that would be a better argument for you could the answer is yes in hindsight that's absolutely true but i had a form that she filled out and i knew that the jail or the second jail or the codefendant had actually changed she admitted to changing it did you have a statement from an investigator as to what that witness would testify to i had her form the answer is no directly but i had her her doctor and i thought that was highly probative using that document and bringing that gel it to court and having the jailer explained and took an aggressive stand toward what turned out to be c s o custody on o c c and shaking his hand on the videotape i would have brought him in to do refute what officer mariana claimed was his was mr fein his attitude that you make that offer i did not ok well i guess i am having been a former trial judge i'm going what you know as a trial judge when you you know you're cutting people off as it were at a certain point that  if you know you could still change your mind a judge can still change his or her mind but there needs to be a showing as this is what i would do this is why it's important and here's my offer approved and if you don't do that and you just wait until later you know you don't know what the trial judge would have done the trial judge fined have given you if in fact that was you had an offer of proof but you didn't do it that makes it that makes your question that rock uphill little bit harder i don't disagree with your assessment however it was obvious to me in the judge's comments throughout the trial especially when i reached the five hour limit that he was going to cut me off no matter what i did and that that disclosure to me made it a few tile to discuss what i would have brought and i did bring it in i said i had these witnesses there was a dispute over whether that showed up on a one should have testified she did show up we had to pick the jury so i sent her back and put her on call and that for for ultimately precluded intimidation and coercion employed by mr mary any officer mary only on the videotape and at a minimum it raised the tribal issue of that element of the claim as to the shore you argument as i said moment ago show it was misapplied by the court notwithstanding what's recently happened the third argument it in my view of importance has to do with the proof of income past that the total proof lack of proof of which is a key point to the fifty a and b rulings and on the jury instruction that all center on that key point california law requires case law doesn't anything that a person to be arrested under six forty seven have must be incapacitated by virtue of that in the british there was no evidence and the defendant never testified or ever wrote that mr fineman exhibited any signs of incapacitation he doesn't use that court erred when it did not grant our at a minimum give us our jury instruction because on the face of the statute you'd never know that incapacitation was the law the language of the statute does not include that and that's why i oppose art gave the model jury instructions cracked it gave the model within which it read the text of six forty seventh and my point was in the instruction i proffered was in addition to the text you should apply with the case law says it means that jury never understood that in california an a false arrest for allegedly being drunk in public and i have a former alcoholic this religious proselytizer with whom i had some contacts and it's understood off the videotape that he was prohibited from testifying  witness he just couldn't testify expert and i didn't i you're right as a lightweight this is still pretty evident from giving that testimony i mean it's a lay witness can say i know alcoholism when i see it i know a drunk when i see it i can smell alcohol i know a person that behaves that way and the case law supports me on that the fact that the gentleman had a better understanding of what it would have a public intoxication on its neighbor related person might look like smell like and behave like he was barred from testifying  to i find it absolutely incomprehensible and then mr fireman's own case i asked him to think that if you had been severely intoxicated that he could run as you watch him cross with a heavy harp in his hand across arizona street and i got a sustained objection to that too i mean that to me tied my hands behind my back and deny my ability to prove my case and mr fein is claim fairly leslie and i think it's tertiary importan time on lyle based upon your honour's position that it is dispositive the five hour time limit while i was there i was there at the pretrial conference mr back did not object to the five hours i pointed that out it was in the transcript i ordered the transcript for the pretrial conference he did not do object to it when trial conference he did not oppose the five hours and that's when judge banal said five hours each side then we get to trial and when we get to the end of his five hours then he injects this isn't enough time your honor and i need more time i wanted to cross examine their expert and it was mr cope and judgment all said fine you can cross examine mr cope how much time do you need oh i know him i only need ten minutes and then i put on our jail manager and he had opportunity to cross examine her and i think i only did for two minutes he was given an opportunity to do that and he made no offers of proof relative to rios relative to ember made saying i need more i need time to cross examine how much over the five hours did the trial actually go i believe he had an additional ten minutes with mr cope he could have had more he just told  judge oh i know mr cope i don't need more than ten minutes and then also the jail manager and that was it he had the opportunity to those were the only two additional witnesses that we were bringing and he had opportunity cross examine them now as i put it in the record regarding amber family i happened to be standing there outside of the courtroom when she appeared on the first day of trial and she had been subpoenaed and she was summarily and in my opinion rudely dismissed by plaintiff counsel at that point because she had come to a subpoena that was for the first day of trial and she had driven from the l a p d all the way to riverside and he was she was sent away by mr fine and counsel and i was not in the conversation that i was privy to that conversation and i watched her leave that court room and  she asked when he said i don't want you today she said well can i have a note that i can take back and let them know that i came all the way out here and he refused to give her a note so who knows why he did not mr finance attorney did not then pursue her as a witness i don't know what his mental thoughts on that were potentially maybe he had upset a witness that maybe he thought would have been a good witness was there any offer a proof at that close at the trial about that witness absolutely not and also mr fineman said are in the time and indicates in the brief that he had contact with amber finley in the jail but when i asked him about it was  or demas he didn't know so there's no direct proof that he actually had direct contact with her in the jail so she could have testified that's just additional point and likewise he never deposed her and never made that offer of proof as far as bringing on other witnesses oh rios rios didn't appear and we actually had downtime in the trial because everybody sitting there waiting and the judge is not real happy because we're not supposed to have down time and it is determined that the proof of service that was prepared was outdated and it didn't include i believe it was a fee it wasn't appropriate and judge brinn also said that plaintiff's counsel at that point you have opportunity to supplement that subpoena apparently plaintiff's counsel never did and miss rios never appeared at trial neither was she ever deposed and also no offer of proof was made at the end of the trial when judge manaul was listening to the request to cross examine cope and to cross examine correct why didn't the trial court's limitation on the time for trial prejudice mr fineman by limiting the number of officers he could call who disagreed with officer mary on his assessment of mr fineman excuse me you said that agreed that limited the number of offers he could call who disagreed with officers mario nice assessment of mr fineman i don't believe there were any officers  disagree well but isn't that that's what he alleges in his motion right but he has no evidence what they would be even said right so but i guess that's what he's saying ok that's what that's what he's saying where he was prejudiced right but your first you have your argument that he didn't make any he didn't object at the at the pretrial conference that he didn't make an offer a proof at the trial those are all arguments but let's just say we get over that hurdle we actually look at his motion why wouldn't why wasn't he prejudiced by not allowing those witnesses he if we assume we get over this i'm just asking you to assume that i don't believe he was because there's no evidence there's anyone that would have testified contrary to officer mariani or officer mccowan or officer chun that there's no evidence of that and  also he he had opposed them he didn't know what they were going to be saying and in managing the witnesses that put on i did not count the time i just know i was sitting there mr fein on the stand for a long long long time and then plaintiff called his other witnesses he certainly in those five hours could have managed that time a lot   i actually brought the brief that on page forty begins the questioning that the court allowed  court say that that witness there was a motion lemony correct and where as the court's ruling the court ruled that he would not be allowed to testify if he would have known plaintiff not involve scientific technical or specialized information the court noted in the motion in ruling that lay witness testimony about whether someone appeared intoxicated is generally admissible right quite i can say someone struck i mean i can be cross examined about that but a lay witness can say that what the court allowed as opposed to saying i know he was intoxicated starting on page forty of our brief there are thirteen questions that mr back was allowed to ask of mr cardio for example in your dialogue with him was there anything to suggest to you that his speech was thicker slurred no was there any additional about his person that would suggest he was impaired in any manner i objected leading in the court said you may answer the witness said not that i recall then mr back cast you have some experience in a den of fine drunks yes and then at this point i objected and the court said let's get to the symptoms mr back i don't want to elicit any kind of expert opinion from this person so let's just get to the symptoms then mr beck asked was there anything about his manner in your presence have suggested he needed something to stand up to support himself no mr beck did you smell alcohol on the person of this man in any degree answer not that i recall no question are you familiar with the scent of alcohol sir an mr carr deal yes question by mr back do you drink alcohol or did you once in your life answer yes question by mr back did mr fineman speak with slurred speech answer no mr beck a thick tongue answer no mr beck then lowly deliberately answer as clear as any normal person you know would speak question by mr beck can you approximate did he have like blood shot or watery eyes answer i don't remember that by mr beck was he agitated and behave like he was agitated answer a little strange like anybody else that's down there that i deal with you know the answer is you know people don't like and he talks about his preaching question by mr back did you perceive him as being threatening or hostile no so he was able in that of saying i would have known he was intoxicated he was able to go through each observation that one could possibly make two in there like witnesses though could say whether someone was drunk or not i thought there i thought that's what the law sat as a lay witness you can say whether someone's drunk or not i mean obviously it's the issue really were resolves around what that officer thought when he arrested him however if he thought he wasn't drunk why couldn't he say wasn't drunk i believe the distinction was that he wanted him sonner did allow him to say that he would have known he was intoxicated known as opposed to about person appeared intoxicated but to say that you knew he was intoxicated as a ok so you couldn't form a conclusion as to an absolute fact and yes but you could have an opinion of whether they're drunk or not right where it was he wasn't allowed to say i thought a lay person could say he was drunk i believe that's what the fourteen or thirteen questions were allowed for him to describe everything possible regarding his  well ok all right and there were individuals that smelled alcohol on his breath and mr cardio was able to go through w the most effective testimony was the cardio could have given was the punch line i'm a drunk a former drug that man was not drunk the case law doesn't say that he's got to be an expert to say such things based on facts says that it's not expert testimony at all and if it's not technical police i had the good fortune of having a person who had this experience in the past and i felt that that was would have been very effective if he had been allowed to simply come to the conclusion and state that this man was not intoxicated as counsel yes he does well what the strongest case you have for the proposition that someone can say definitively that an individual is or is not intoxicated as opposed to giving an opinion regarding whether or not the person is or is not intoxicated what's the strongest case i can cited to you right away off the top my head i drive brief that there are several cases that take that position and i would ask the court to take a look at the brief because i didn't memorize the cases i also want to address the the the time element while it is true that i  didn't make it objection to the five hours when it was sprung on us at the pretrial conference there's no doubt that in the record there was an objection preserved and i raised it throughout the trial when i was running out of time what  record i can't off the top of my head here i'm sorry but it's there i mean it's in the brief i made sure that it was there and there is an ongoing colloquy between myself and judge fernald of various points along the way concerning the fact that i was felt feeling rushed and that i needed more time and that and the ten minutes he gave me for cross examining the additional ten minutes he gave me for cross examining their defense expert  i got ten minutes but that doesn't address the issue of the tear and that is i had a least three other important witnesses perhaps four that i couldn't possibly put on because i was given five hours by stopwatch to try the case i mean i'm looking at this clock here and this is the way i felt during the trial throughout the whole thing that was an that was a huge burden on me and that experience trial or trying to get this case to the jury on a treadmill and i don't think that was fair and i don't think it was right and it obviously hurt the pla that's all i have to say thank you counsel the case just argued will be submitted for decision