may place the courts i'm beth mccann i represent willie thompson the petitioner in this case i'd like to reserve two minutes for rebuttal please when the prosecutor began his closing arguments here he knew he had a weak case the jury had heard about a late night shootout where at least one of the deceiving us was armed with a gun the chief witness here was about a cent and inconsistent and to the extent that there was another witness her testimony conflicted and his with his on critical point it simply wasn't clear what happened that night the prosecutor knew he had little clear evidence of intent or premeditation and motive so he pursued a pattern of misconduct to push the jury to convict for not evidentiary reasons i'll just a minute before you give me this good jury argument you're trying to make what's my standard view on this case yes your honor well you are you're going to look at whether the court of appeals determination was objective leean reasonable so i'm really looking to see whether they applied principle easy principles on reasonably right that's correct because they look at these cases the same way i do they apply the same supreme court precedent i do and so it's only a matter if they're totally unreasonable in their approach that i can overturn them even if i don't agree with them right that's correct your honor but and in this particular situation let's just say on your call for justice at that point don't i look at us the williams which suggests that the prosecutors appeal to the jury to act as the conscience of the community is acceptable unless it's specifically designed to inflame the jury isn't that my standard well your honor i think you do have to look at whether it was designed to inflame the jury isn't that what williams tells me i have to apply well yes but if you apply that standard you'll see that in fact that was the case here the will and then go on i also have to apply the standard of the united states  of counsel generally carry less weight with the jury and new instructions with from the cork well even though that's the one i have to do that too it is in fact the case and didn't the court in this case instruct the jury not to be influenced by sentiments sympathy passion they must to follow the law in any statements by counsel conflicting with the instructions must be disregarded all questions of fact must be decided based on the evidence yes or no isn't that what the juror who is now with the jury was instructed yes but and then at that point you want me to say given the standard or review i should overturn the state court well your honor yes that's the case but there have been cases from this court where even though these plans have been given it hasn't been completely  positive because it's just a factor in the analysis if the evidence overall is weak and the the ever gwent to change let me rephrase that prosecutor responded to and in fact the prosecutor said himself this case is not about cleaning up oakland it's about cleaning up a neighborhood it's not about cleaning up the neighborhood it's not about sending a message is trying to figure out the best of our ability whether we can determine beyond a reasonable doubt that the crime was committed yes isn't that the evidence it is that what is there supposed  right but as i stated you know in money i mean they have the opportunity but if if if if it taints the if it still has the potential to push the jury to decide for reasons that aren't evidentiary because it's getting them to focus on things like you know cleaning up the neighborhood and there are cases from this court where it's even in his contacts where it said that the prosecutor's job is not to you know speak in the voice of the victim or exact prevent tell the jury that their job is to clean up the community or to exact revenge or to prevent future crime that they're supposed to focus on the evidence strictly before them what what part of counsel's argument ever suggested he wavered from his focus on the evidence at trial well when he because i didn't think he ever looked for to appeal to the passions of the jury i think when he said to the jury that he should send that they should send a message i think that's the best you gets the best i think that's the most egregious of his conduct but i think if you look at it in the context again of the other areas in the trial and in his argument i think it's ties together a theme that he's basically asking the jury to you know in this again a case where the evidence is weak to look at the community as a besieged community that needs help from the jury and if you also consider the comments comparing the defendant to animals and felons i think that it just crossed the line or and even given the standard view i can get there yes  the defendants got out of the car and there was evidence and conflict about whether or not they saw this chief a witness mr cobb's gives the gun to one of the seasons and they this question of whether the clients had some kind of agreement to run and go get their guns at that point when he talks about the felon status of them he's explaining that that's why they went to get their guns were you under were you know  spontaneous notice that the court that the prosecutor had violated the motion in limine a but he at the end of it when he did the final instructions to the jury he did make that instruction was  the reason why i think felons was to make more logical why they would stash that which was seemed you know on the face but you don't stash guns all of the community but right now he was trying to make that more logical that they were felons that's correct but he was drawing attention to their felon status and defiance of the order of the court so what was the objection that was made there was no objection made at the time but they did object to the using the evidence as they were there was an order of the court a pretrial order that that evidence was only supposed to go to the felon in possession of a gun charge and that the prosecutor was not supposed to bring up the felon status in the context of the murder charges i see that my time has expired so well your time if you want to get through minutes is by ok thank you i will turn to the other side let's somebody else did you have for the district court judge i've heard a lot of prosecutors arguments new closer and closer to the line and i understand they're trying to get a conviction but the idea that justice is only putting a person in jail is is a little problematic or tell me what do you think that was that due just to swiss air and if it was here was it harmless i think you have to look at the context of the case and what the prosecutor have a jury of normal citizens in the case of the prosecutor as an experienced prosecutor going to hear two things number one is going to fear that in this context or all four of the principals the two defendants of the two victims lived in the terrible dirt neighborhood in oakland everyone knew was an awful neighborhood in one of the victims fathers testified that hear gunshots for five nights a week people shooting at each other right outside of his window so i think this is make a difference that this happened in oakland and stead of pleasant hills the point is  that a jury may look at all four of these people to the defendants and the victims as people that are beyond the pale and not be sufficiently engaged in the extremely difficult task of finding guilt beyond a reasonable doubt that they might just wash their hands of the whole thing and say the victims lived in that neighborhood we don't care about them it's too much work that's the first concern the prosecutor have the second which piggybacks on that is that the jury is they sing these two cold blooded killers even if they found guilt reasonable doubt totally properly they have to look at these two fellows in the eye and bring back a verdict of guilty when they knew that these came these two people came from a neighborhood of extreme violence and the jury could very well except the experienced prosecutor could very well think process that the jury might hesitate to look these fellows in the eye and sentence them to jail for the rest of their lives i mean they would fare retribution absolutely and there was talk in this case of other people in the neighborhood who were allied with these with these defendants i think it's not unreasonable for a prosecutor in that context in that courtroom say this jury has to have their backbone stiffened a bit by saying this is your responsibility as citizens to do justice in this case to take it seriously to deliberate seriously to go all the way to find if the facts can take this case to the guilty beyond reasonable doubt and then come back and sit in this courtroom look these two fellows in the eye and say you two are guilty how many is how many of these years now do you know and i can't i can't answer that but my worry is that if i buy your argument is he trying to inflame the jury is this pacifically designed then to inflame the jury i think it's pacifically the opposite it's to tell the jury to engage to do their job to deliberate not to say these victims don't matter it's the opposite that the prosecutor is worried that the jurors would not be in gauge that they wouldn't take the case seriously because they wouldn't care about the victims he's saying no you have to take it seriously you have to you are the the responsibility you are the representative the community you have to do justice in this case you can't just say i have and i don't care enough about this to to get involved and that's clearly what a prosecutor in in this courtroom was worried about i don't see it i don't see  repeatedly thereafter said don't worry about them send messages community look at the evidence evaluate the evidence bring back a just verdict based on the evidence if you find its groove beyond reasonable doubt have the courage to come in here and say so and bring back that evidence and look at the the defendants in the eye and say you are guilty i think that's what the motivation of the prosecutor was but the entire two justice strain of argument man ask you during the selection of the jury was there anything about the panel that gave the prosecutor pause to think that they might not do justice i don't know since since that issue was not raised in this appeal i don't have a clear memory of the jury of our gear but i know from experience based on these cases with cases in this sort of neighborhood that the jury is is always on edge about what is one of these defendants know about this with all of us what do these defendants to these friends have friends who could try to influence us there's all in this courthouse in this sort of environment with in a terrible neighborhood where people are doing this sort of thing the jurors are always concerned about that sort of thing but don't you think the jury could also take what the prosecutor said as something you say you don't have the courage to do what you want to do i want you to get the currents i mean why is it that the that wouldn't inflame the jury the other way if he being insulted by the prosecutor because the prosecutor thinks that they would be afraid to not do the right thing you find the evidence proves guilt beyond a reasonable doubt then it's your obligation as members of the community to do it but to do justice which is bring back that verdict he never won over and sat anything like these fellows are too dangerous to be risked to let them on the street he never implied anything like that he always came back and the judge repeatedly instructed the jury based on the evidence based on the evidence and after the objection when he made that one slightly question will statement about send a message he came back and said no don't worry about sending a message based on the evidence that the judge said based on the evidence and i don't see in this record that there was any risk of the jury didn't understand that the other question anything else i hesitate to go on beyond the court's interest but i would like to emphasize at the gate that the proof in this case was not weak the proof of this case was extremely strong and eye witness who knew the defendants who known them all their lives a woman who said something very interesting s i wasn't always a muslim meaning i wasn't always a righteous god fearing person said i know what was going on down there she was in her apartment watching this happen she called nine one one and said i hear the way they're talking to each other i know that thompson the fellow i've known all my life is about to kill these fell she called that nine one one before it happened as it was happening and said that she hung up the shooting happened one woman called her back and said what's going on she said it's too late they already killed him there was other evidence too there was a dying declaration of  mooney coleman killed me and there was cobb's as long testimony which was sketchy because he's a sketchy character but he was more or less corroborated by almost everything else the fact that the dying declaration which totally cooperative has his statement and  witness in many key ways as i've outlined in my reply brief but i would also add that i think the comments put forth by my by the attorney general's office actually support my argument i mean he's talking about a bad neighborhood fear of retribution juries on edge this is precisely the conditions in which it's dangerous for a prosecutor to invoke you know societal ramifications of the verdict as opposed to urging them  improper for the prosecutor to comment on the social or societal ramifications of a verdict ok thank you very much case one six one five two or three is submitted