and i was shocked to find that in some systems the judge is also the prosecutor i thought you can't be one of the points i want to discuss with you this morning is these are words from one of the four cases i wa every well the word that they use and singer and then do not talk and then van dyke is numerous so then tell me how many times the judge intervened in those cases but they reversed it because they said well the judge  can be overruled why does he think he need to wait for the other side to give its story thank you for the observation the answer is after a while it becomes the appearance  preference for one side of the of what's the most troubling comment the most troubling comment thinking on it is the judge says there's an objection and made lawyer for the defense and this is hearsay and then says would you please to ask the government to explain why there are a lot of why they want the seventeen may i have a ruling and you have to read between the lines but the judge says there is your ruling you can see the government to respond to the objection i just i really don't get it but they don't see it in federal court in a judge or a district judge can ask questions but we can examine a witness a federal district judge can even comment on the evidence that's that shit and this gets nowhere close to that well i think if you look at all the instances that we point out to you on page t otherwise if you look at thing or the read between the lines on this comment there's a ruling and wonder whether or not that shows a high degree of preference for one side or the other and saying or the the lawyer says i have a great deal of respect for you you're wrong and the judge said oh you're just brimming with well that's just the cold hard record you've got to figure out what the tone of voice was but if it shows a high degree of preference for one side or the other then there's a point at which  and it looks like a high gear high degree of preference for one side or the other and we just don't think he had a fair trial and they only saw in each one of those cases then thought maybe for instance well i've given you twenty four please look at them before you finally make up your mind i'll stop in time you won't let me look at each one of these cases and i'll give you a cite chapter and verse to the record in this case just so because the district judge explain why he sought sorting questions want to listen in here say  but were for not for the truth of the matter and explained why that i mean how does that show a preference for one side that's the judge's job he does it without an objection from the prosecutor on many occasions and costs i was asking earlier you know the the why bret's of of authority that the district court has where the understand district court can say i didn't believe a word out of that witness's mouth you can believe them if you want to but i'll just tell you i don't believe that witness and to me that seems much more like putting their thumb on the scale of the testimony in the with the case and then what you're describing about relevance sustained overrule that sort of thing how so why is tell me why this is different than that combined with all the tape such thing and there's that we know yes it's true federal judges knew got to comment on the weight of the evidence they even get to tell the jury what they think but this was so extraordinary that we think he just standing thank you like to go on to the second issue that i'd like to discuss with you after pointing out that the second issue is whether or not the trial judge cohen the lab technician who by the way is not here and doesn't testify and never gets cross examined elizabeth cohen told me the policeman that the weight of the substance did not match the weight the weight issue hurt you it's just assume for argument's sake that it was hearsay it was being offered for the truth how did the discrepancy in the weight of the drugs between the two when you hurt your client the which advances the prosecution's theory that my client and others stole the real drugs and substituted they used some chemical karma i took general science and sort of chemistry so i think i could get out of high school some substance and start with the purity hurt your client because the fact that he took took at the cocaine separated some out kept it and then put in pancake batter that's going to reduce the purity so i see how that hurts you but the testimony is actually about weight not purity is and it's that i don't see why and there was this discrepancy right between eighteen kilos and sixteen but i don't see how the weight discrepancy because all the way as i think were after your client caught the cocaine and the jury right judge agreed but how does the weight discrepancy as opposed to a purity problem urge your client i think she was talking about the substance rather than the entire way but there's another point that he wasn't talking about anything she didn't testify to enough and i rewrote prof but what he says what the witness says is elizabeth cole saying that the weight that was on our d n a found did not match the weight of the actual bricks  so that they could test it for purity so here's the judge in a case in which the prosecution says look this policeman knew that the state lab was not going to test for wait for him for anything more than way and that's why he sent it to the state lab so it would only be tested her way and then later on when they're doing the investigation they send it to the d n a lab and they test it for purity and say it's not eighty percent it's eighteen percent the judge is palmer that's under a different point advances the prosecution's theory that the defendants including michael on stole the real drugs and substituted the fake drugs so the judge's comment that's one of the ones between  thirteen and twenty seven of our library the judge's comment advances the prosecution's theory you're right judge all right of course that in federal court the judge can comment on the way the evidence but considered with all the other things that happened in this case like the prosecutor never never never even making anything other than a general objection and most of the time the judge making the objection would want to sell i just suggest that's like what we saw dicker of of finding the real truth is cross examination i understand about the way she didn't test and the policeman's testimony did advanced the brief you know when you read crawford they talk about two different kinds of hearsay and then they say and then they decide the case on on constitutional grounds based on their distinction between two different briefing i beg your pardon you know you as i do understand correctly in the united states richard allen is about remarkably poor briefing i'll just quote what this court said some of the your arguments were based on significant misunderstandings or misrepresentations of the record and they were arguments generally consisted of large block quotations and extensive transcript excerpts that were not even modified to remove the line numbers that appear in the transcript margins and you were warned that if you do this again you'll face sanctions my question to you is do you believe that you have satisfied this court's previous warnings i think so i'm trying to focus in on the two most important on the most important points that i saw in th that were not even modified or move the line numbers i think those large block quotations are indispensable to advancing my position that the judge intervened on numerous occasions numerous is the word that they use in do not go in hickman for how many times a judge intervened they didn't tell me how many so i just showed you all of them that i could apply i thought that a large block quotations were absolutely indispensable to a point where there's no objection made by the trial counsel and please accept my  of large block quotations inappropriate but i think you're indispensable if i'm going to tell you the trial judge intervened on to me you may or may not be right my point is this court has issued a warning and i'm just wondering if you believe that you should have had morning i think i have thank you tom thank you court richard perry for the united states mr warner if i could i would essentially go backwards and order the answer to judge bell rod's last question is no there is no constitutional order and there is no does seem like it's hearsay and that but tell me why does it matter the comment about elisabeth's call arguably it is hearsay the comment about the drug analysis may or may not be hearsay it's completely irrelevant because the trial as i s page thirty six of the brief there was a stipulation between the parties as to the weight of each of the fifteen packets the purity of each of the fifteen packets the aggregate purity and the total weight basically from july twenty fifth and told that two thousand and twelve until the trial there were two different versions of what actually happened on the ground and then mendez and the other crooked officers version of the suture  mendez repeatedly overstated the seizures eighteen point nine kilos instead of fifteen kilos carlos gonzales testimony was unequivocal you got the drugs from subadult him solace i beg your pardon he got the drugs from carlos he delivered them to chop of the perfect snatch that were firm they were uniformed you could stack them like lego's and it was exactly fifty kilos of cocaine greater than eighty percent purity because in the valley you can't sell anything less than eighty percent when they were seized from the ford taurus well technically they were told saturday the twenty eighth when they were seized on monday july thirtieth from the ford taur it's sixteen kilos of i believe nineteen point five percent aggregate purity fourteen point seven line kilos of nineteen point five percent aggregate purity fact what i'm going to stand is why the different way the two weighings as i understand it both appen after the defendant has had done his thing with the cocaine so why is the two different wings after that i understand that what he did cause impurity to change but why would there be two different weights after he cut the cocaine and why why is that incriminating i just but i know that was part of the government's case i'm trying to understand because that's part of a fairly lengthy list inconsistency is between what hector mendez did in this case and what should have happened in this case you have to remember that mendez and officer valle and officer lopez were all corrupt and  or sponsible for the cover work that went with the cocaine well let me back up just a second if i may have mendez was a mission texas police officer but he was part of the federal drug task force and mission in the calif as he was the drug should have immediately gone to dallas they sat in mission for several months second they should have gone to dallas instead they went to the d p s lab and west like they sat in the d p s lab and weslaco for quite some time because the  looked at the cover sheet with the drugs and said eighteen point nine kilos looked at the package and said less than fifteen we're not going any further in fact they only went from the d p s lab in weslaco to the a lab in dallas after one of the usa is in mccallum and ask what's going on with the weighing the drugs what's going on with the purity of drugs and then discovered that they had gone to the d p s lab and said why didn't go to the d n a lab and dallas at that point the d p s transferred them to the yeah there was again a discrepancy with the paperwork mendez or someone working under him sent the correct paperwork to the d e lab and dallas and then the d analyzed it which sort of segues back to your elizabeth cole question technically that may have been hearsay but i would respectfully submit that it was completely harmless because the parties stipulated the weight opposing counsel believes that the strict court weighed in appropriately should yes your honor there's a section in my brief dealing with it's i believe it's his issues seven and nine i did put one lengthy quote in where d h supervisor champion is testifying in judge there's a couple of hearsay objections from defense counsel judge crane says it's not offered for the truth it's just offered to show that there was some regularity in handling it it doesn't matter whether it went to the d p s in the d n a of the d e a in the f b i there was an irregularity which was just one of many many irregularities in the case defense counsel objected that he wanted an explanation from the prosecutor as to why the matter was why the evidence was offered judge crane volunteered precisely as judge cost and said it's not offered for its truth interest offered to explain that it's true defense counsel then said you know i'd like a ruling on my objection and judge crane said over rule let's move on as i said in the brief it was essentially just the district judge saying let's move on this isn't that important obviously didn't say this isn't that important when you look at the cases cited in my brief concerning improper comment from the district bench there is absolutely nothing here that calls into question  it coming as it did in the seven day trial i would respectfully submit that there was no error whatsoever it was simply judge crane arguably conceivably being a little irritated in the flow of the trial  i believe that was the first if the court has any questions i'd be delighted to address them and if not i'll just stand in once in the brief i think  which noted that the drugs had not been analyzed by the d n a lab here's the discourse once it was taken to the d p s did it get analyzed at that point through the department public of our records the trial judge reiterated the rule of the defense lawyer says your honor i have a hearsay objection i mean if it's not being offered for the truth of it for the truth of the matter asserted the judge has overruled the defense lawyer w lengthy contention that it looks like do not go it looks likes hickman it looks like a singer who looks like van dyke where they just say this shows a high degree of favoritism and looking at it from the standpoint of the jury they must have decided that the judge favored one side or the other in this case the prosecution and we just think that he didn't get a fair trial well and i've offered for number eight which is hearsay somehow reversible did you want to get me to get too far afield from that well that they kind of go together because the judge ruled on numerous hearsay objections but his intervening in the process with comments left the jury with the impression that there was a high degree of favoritism for the prosecution probably not as artfully done perhaps as it might have been done but there is a i i do have to assistant they used in center they used the word numerous they just didn't tell me how many times at that and that's why i cited you to all of them that i could find in this in this record without i'll ask you to consider that there is a real case for the trial judge just assume the prosecution merilyn the defendant just didn't have a fair trial when you get to the and you get to the hearsay objection that i just mentioned to you i suggest that the problem that the judge is intervention the advances the prosecution's theory and their theory was this person didn't send those things to the to the d n a lab because he knew they were going to be tested for purity and they'd find out that the substance that was submitted was eighteen percent instead of eighty percent he sent it to the state lab where they only test for weight so the judge's comments advanced the prosecution's theory and for those both of those reasons thank you very much i'll ask them to grant the defendant in the trial thank you for you