significant issue in this case relates to the all suspect photo array that was presented to mr harris and the witness it was comprised entirely of known gang members let me say at the outset there's no dispute that the photo of a shown to harrison wasn't wasn't all suspect program it was twelve photos it was comprised entirely of gang members the issue is not whether the police told harrison that the air raid was a ga that all the photographs in the array depicted alleged members of the franklin hill giants that set appendix five ninety three and also that harrison knew the photo array depicted members of again even though the police officer had no reason to know that march well had assembled the raising photographs of people who the police believed to be associated with the franklin hill giants so this is a chrissy ger that's a range by law enforcement in terms of the united states supreme court decision in perry versus new hampshire that's not an issue or was unnecessary this offending or it was deliberately put together by law enforcement five months after the shooting in preparation to interview a witness w the police had arranged an appointment in advance so there is no exigent circumstances it's police arranged and it is a very peculiar procedure for putting together a photo array it's similar to the infamous duke lacrosse case which happened after the trial in this case now that at least there's at least one court  west perhaps there's exigent circumstances or it's none the less reliable neither of which are at issue here essentially and all suspect photo array presents twelve single suspects at the same time there are no fillers there are no known innocent persons within the iraqi so every every one of the photos in this it rarely is is a suspect and there's no possibility of noon ruled that the danger that a false positive identification will result in a wrongful prosecution is greater than all suspect there may and that the potentially unjust consequences are needlessly increased and that in the future no less than five fillers should be in an array for every suspect photograph so once the s j c found that that the all suspect or a was improper significantly increased the potential and just consequences reliability that massachusetts rule is the first step determining whether the cation was suggestive is supposed to be the same as the first step in a federal constitutional houses compared to the danger that a false positive identification would result in a wrongful prosecution i submit there's there's there's nothing different there that why why some of us to be saying he correctly the likelihood of the person making that pick to choose someone that is at odds with who they saw is no greater or lesser where all the people there are suspects are don but then it goes on to say that just seems to be indisputably true but then it goes on  what simmons says is that is that regardless of how the initial misidentification comes about the witness says that to retain the image in their memory it's going to be irreparable and that you know the the issue is here should we be worried about that and yes g c seems to say no because there's a bout of evidence that they actually walked on to this person in consequence of the peck given the quality of testimony well i think they're wrong about c found this procedure was somehow problematic but didn't want to go so far as to say that that counts as suggested i think it counts as suggestive whether it's whether it's an increase of the possibility of picking the specific defendant out of the photo array or an increase of the possibility of picking multiple people out of the fall away either way there's an increase in false positive increase in the rate of false positive identifications and once the witness has latched on to one picture there's an increase that they're going to continue that at trial and under symons it's the same thing and i don't i think the s t c sliced it too fine and should have found that it was  that the client just she told the client what her recommendation was the client said whatever you think is best i mean i don't think that there's any anything anyone can read that i mean the client is not legally trained he's just following her don't believe they address that at all why strickland leave should be my counsel's performance was not in effect a first as as we've been discussing this is the motion itself simply wouldn't have been meritorious so prior to trial of defense counsel looks at this identification and decides that the opinion is reasonable as to the sort of merits of the of the identification itself if this court takes the state court facts as they were found what we have is this we have an identification of twelve twelve photos all members of the array are reasonably similar in age and appearance the petitioner does not stand out in any way from the face of the array itself the police don't say or do anything to single them out and it is a material fact contrary to it has argued that the police don't actually tell harrison that this is an all suspect a way harrison doesn't know that when he makes a selection what the police to do is say to him let us know if you recognize anybody on the survey either because you think they were involved in that in the murder or because you recognize them because you live in the community where these people are all from and he doesn't recognize anybody so that's sort of a prejudice argument but i think it's relevant to show that the fact that this was an all suspect away doesn't affect the integrity of the of the identification procedure i would also note that  also suspect ray because who ever is it will be somebody who you could say ah well he must've really seen that person was if it was a filler and he picked the same person rethink that he was making two different types of arguments he was making an argument that one you directed me to pick among the people in the array into by even just constructing your rate this way when i didn't pick someone that is going to be the product of a suggested process i would guess he doesn't seem to disagree with that point i think this is i just want to a little bit of a different way that this court two years ago had a case more versus in which there was an identification and that was a standalone due process claim which is different than the strickland claim here but it's relevant in the sense that they're the test the police actually told the witness that these photos were of suspects in the court found that contention to be at least in terms of the suppression due process argument so i think in this this isn't even that close where we have a case where the what this didn't even know so i think the key here for due process suppression purposes is whether the police  person to the witness and there's no evidence of that happened in this case  the second reason that counsel the state courts found that counsel's performance was not ineffective and that is that defense counsel calculated before trial that based on what harrison was going to say if called she thought that his testimony and the identification would help her case and the the whole trial theory the whole theory of public she tried this case was that was that the police had done a poor job investigating this murder and that they had rushed to pin  blamed on on the petitioner and so in that case the things that harrison had to say certainly fit that narrative and it was helpful to her to have that come in and sometimes there are cases where there's an identification that has no liability issues know if the jury believed for example that he was intoxicated when the police visit attempted to make a selection or if the jury didn't believe that the police pressured him those things would have supported counsel's counsel's case thank you and this is it somewhere within appendix two ninety three to two ninety eight trial counsel agreed that mark tells trial testimony recounting harrison statements walker and helped prosecution  procedure it's hard to pinpoint exactly why it's an improper procedure i think because it's so improper it's hardly ever use it was used in the duke lacrosse case it was used in a case i found out of texas called mcrae  it's a blatantly improper procedure and it increases the risk that someone will be falsely identified even if not specifically pointing to the defendant and because of that it should be found suggestive other than commentary on the duke lacrosse case and the mcrae case i don't know what he's referring to there perhaps i'm misremembering it but i don't think this is a blatantly improper procedure and then there's no way it can be revived as reliable it's five months after the fact of leaving glance down a dark street from a distance that which cases are completely unrecognizable i mean every other aspect of  this identification is is just blatantly unreliable and i think once you find it suggestive under simmons which this court should there's no way it can stand and it was