respondents agree that the district court committed legal error when it denied mr davidson the right to attend his federal civil rights trial in buffalo davidson with the state parolee in the york city at the time of his trial hearing to inquire why the request was not being granted or even whether the request was being considered or addressed and as a result but davison was not able to leave new york city was not able to attend his five day trial to allow them to travel and fail to exercise it or or consider that question of a district which should have compelled to stay thrope issues to allow him to travel or at least to it's legal or at least hold a hearing as to what the facts and circumstances but through this all the district court in mid that is did not know the reason that they that was not being permitted to travel and the district court did not seem to show a lot of interesting pointing out why he was not being permitted to travel hearing so he couldn't either mealtime talking with his attorney listening to the witnesses seeing the testimony as it developed and as a king in looking at the credibility issues that were before the court he did have phone contact but that was intermittent it was  effective it was something the court clerk had recognized could be a problem when when this was addressed a pretrial conference the court said the cell phone call could drop i won't know that that's exactly what happened in this trial mr if you davidson had some phone contact but it was certainly not meaningful access for him also he was only able to talk with attorney breaks and sometimes not able to do that even that and sometimes after he was not david soon to come to buffalo and ask separately for coverage of travel expenses but if you're getting a writ of habeas d corpus then you know he's going to be brought to the says a courthouse by the government very many instances where you're talking about a person who's on the rolls it's generally a person who is in prison and as you say the prison officials have to bring the person to court now in a parole situation so if th the circumstances they would have had the opportunity to address the court and say that i know i understand i'm not i'm not asking about the boat in the arms of the pearl officials i'm asking whether this motion is i mean was that really a petition for is not being able to appear in his trial because of state action and also this is the state the state department jewels were under the same state department that the defendants in the case were represented by the attorney general's office or under and the state attorney general certainly had the that that was not what happened that's happened for one day of the trial the video and the davidson did it suggest a video hookup for the entire trial and that is not what happened what happened was the st day where he was testifying there was a video link for the remainder of the trial there was no video only he was on a cell phone and this was the situation exactly that the clerk of the court had at posited that he is going to miss some of the testimony and that's exactly it was but but the record was seems does seem deficient before the district court to show that the only way to provide meaningful access is in person or his own testimony in for the st day of trial and it doesn't seem established on the record that there was a necessity or in person present to provide meaningful access here so what am i misunderstanding we submit there was this is a federal civil rights case the defendants testified in the subsequent days of the trial and mr davidson was not able to hear much of that with respect to the superintendent he didn't hear you didn't hear his testimony he didn't hear significant portions of the deputy superintendent testimony where yes i was that he had a problem with  didn't the district court allow for recross that was outside the scope of the original director that he does have changed consult with his attorney was before the witnesses were dismissed d and ask any questions that might come out of his in this situation where the just record no no steps and again in addition to the motion or an order there was a request for a hearing at which the parole officials would have to explain why he or that would allow him to come to his trial before those the district court to ask for a writ of habeas corpus or at least what you think should be construed as a request for a tape recorders yes he did make those efforts and that is before the permission and he was not getting any reasons as to why he was being denied and we think that that would be that without a song would you do we're on the record should we look for that that would be in the application by mr brady and what i can do is i can find that for you i'm trying to widen right now but it would have been his pre trial applications board so we think the court has the authority to try to inquire about the travel restriction but we think any error in this regard if it was error on the facts here it's not really clear never really burst my arranging for him to testify by live video from the southern district of palace testimony was given by video without a hitch and addition to his attorney in the representing in the courtroom buffalo we had an attorney by indicated that he could not stay for the rest of the week d for the trial so it was arranged that the opponent would call in and listen to the testimony there were six defense witnesses who testified in person arbitrary exclusion by definition if the district court did not believe it had any authority to ensure in person presence because the court recognized over the court i think was mistaken in  thinking it didn't have jurisdiction to exercise here it was an arbitrary because the court tried to honor your parents desire to participate in this trial and food and to testify under the most optimal conditions the problem originally was with the fact that they do this they couldn't get a parole officer to speak to them and they couldn't get any responses and it was it was couched in the context the parole officer consent and so they were law well i mean how how he exercised discretion when he's wrong on the law he had the authority to order what and what of the decisions after that i think i think we're should have inquired i think the court has the authority to hire i don't think there's you know we're we're not arguing about about that you know and we respect to the waiver i didn't mean are we you know we don't know i don't know because the trial judge in the trial judge never never weighed i know i've i haven't argued this but you know frankly the showing here i thinking probably should've made more of a showing court presented the court with no evidence that over a decision that he received from parole authorities you know it's it's it's you know we haven't argued this but you know frankly it's not clear like think the question is whether or not this this decision this or lack of the solution this error impacted the trial you know and because the court then went on to try to accommodate him  discretion to deny you have this question i think i can just a legal heir i don't i don't think you would review it as an abuse of discretion he just an exercise that discretion that he had to make this inquiry assume we had made telephonic communication where he spoke to his attorney during the testimony of each witness no witness let the stand before he was even consult with his attorney and his attorney often posited more questions based on those conversations i don't see how this impacted the trial within a year if our position that there may have been there with the legal error he failed to exercise discretion but did not result in the denial of meaningful access to the court that it would be no need to send it back yes and not really able to articulate any prejudice you know and now with the benefit of that you know assuming mr mr davidson missed part of the testimony we know that but even now he's got the transcript he has an articulated how well if i if i if i'd known that so and so testified about this i would have gone down this road you know i would have suggested this but he can't because in fact the fact is that he had an opportunity to consult an attorney about the substance of each witness's testimony and members only two of the four witnesses that doesn't usually say that it's important to assess the credibility of the witness to be able to see their behavior on the trial to two to assess what is credibility i'm not sure how important it is for for for mr davidson to do that and he's got his attorneys represented you know by two attorneys often during this trial so i you know yes he was in there for part of it wasn't perfect but you know we were talking about whether or not he had access to the court and was able to participate with his counsel and and state grievances you know and any time you know all of that all that occurred even if the court erred at that initial initially to travel with respect to the issue that was raised by the due due process and the right to attend the civil trial he just fourteen and fifteen of our opening brief addresses that issue it is correct that we're to recognize that that the right to attend the civil trial is not absolute  case because in that case the court held that the district court had abdicated its responsibility to make a decision and exercise discretion by a long exclusively on what the state prison official said about mr davidson as an abdication of responsibility to make the decision exercise discretion which is just recourse here was it didn't you know we didn't inquire and the district court assumes the parole officials must have some reason and i'm going to let them decide so we think that was a complete refusal to exercise discretion in that case also as here the court did not conduct a hearing and we weren't you know that the judge failed to make a substantial effort to minimize the prejudice so this we believe comes down to is that the court was concluding that it didn't have jurisdiction it didn't have a need to understand why this forty plaintiffs who is being denied the ability to be in court because state action why he it was not in that it was as as we discussed earlier it was not labeled a request for writ of habeas at test the candle but we believe the court erroneous late refused to exercise any jurisdiction with respect to the request and we believe that the that that the request of the writ can be read within the application that was made by trial counsel