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they ever said they they said things like it was positively contemplated that it would go to trial there were things that had to be done but everyone was on that path i mean these were the kinds of descriptors they
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get discretion i understand that if it's not weeks before trial and here it was four months before trial the supreme court didn't say weeks before the trial the latest trial date well that's what they said weeks before the trial the judge in department twenty two
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can get around marshall retailer for rata and the supreme court decision and i think it's marshal the rogers that says you use your own precedent to decide if this is a clearly established supreme court
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standard you did it ten years ago apply it here and this has to get reversed if the court of appeal should not have done what they did and it cries out for correction from this court i
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weeks before trial standard is invariably timely that's what they said the california supreme court read for retta to understand that the court the trial court can always take the
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of the case in front of it when the motion is made in ruling on the fred a motion so the first issue is is that ruling by the california supreme court objectively reasonable and if it's not then the california
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supreme court was objectively reasonable in finding that forever does not have a weeks before trial is necessarily timely rule then what do we do ok it seems to me
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i have to be able to persuade this court that this record shows that that that this motion was made not weeks before trial but when trial was imminent during the trial was close and i think the
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record supports that january eleventh it sent to department twenty two for trial forthwith january fifteenth the court states this case was sent here for trial but the court learns that
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mr jacobs the defendant's lawyer has another trial the court says i'm going to put this matter over until tomorrow morning and give counsel a chance to get their motions filed and i'm also going to speak with the master calendar judge about timing related to this
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case we know what happens on january sixteenth defense counsel comes with the severance motion and other motions in hand the prosecutor has his motions in hand but the defense attorney tells the court
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i have another trial no wait time waiver it's on calendar tomorrow we have to get out by january twenty eighth at the latest and i anticipate that it would take do more than two weeks to try the case
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january twenty third for the severance motion and we may learn then about what happened with mr jacobs case because there's no guarantee as we all know that the case would go to trial even so at january fifteenth the time the trial
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court is called the general sixteenth excuse me the time the trial court is called upon to rule on the for at a motion all it knows is it's coming back on the twenty third for severance and the court said will come back on the fourth to
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determine where mr jacobs is and where the cases so there was no positively definitive trial date but trial was certainly contemplated the motion wasn't made weeks before trial unless we do as
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well let me step back what happens on the twenty third as we learn that the defendant has had some physical issues so then that slows everything up that changes what's going on and then we have the severance motion granted so
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i could go and explain everything that happened after january sixteenth but that isn't going to answer your honor's question whether it did the trial court give this forever motion less dignity than the other motions and i don't believe the trial court did
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because california law allowed the trial court when the fred a motion was in front of it to take these other matters into consideration that the case had been untried for two years that it that it involved four or five different
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what our trial court did is use the windham factors to find that it was on time reversed on appeal the first time california supreme court decides lynch california supreme court says the ninth circuit rule isn't our
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rule we don't just look at weeks before trial we look at other things including the time between the motion and the trial day whether trial counsel is ready to proceed the number of witnesses the complexity of the case ongoing
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this motion was untimely now i understand this court may find that it was the california supreme court of appeal was wrong but that's not good enough this court has to find that lynch is objective leon reason
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well i could not disagree more the california supreme court decision in lunch is not before this court it is not for you to decide if the california supreme court in lynch was objective leon reasonable what's to
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be decided here is whether the court of appeal in fault tree was objective leon reasonable and they were for one thing lynch can be distinguished in so many ways from what happened here and the supreme court didn't say
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to the court of appeal we're sending this back to you because we think you made a mistake they said we're sending this back to you for you to think about whether or not this would change your result the lynch case was a death penalty case it
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was going to be about a two month trial the time waiver had been withdrawn on it by the defendant there were some sixty five government witnesses many apparently no particular number but many were elderly many were outside the
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area the defendant wasn't able to say how much time he needed to prepare i mean it was it was completely distinguishable factually from this case what happened here and i so urge the court to do
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something about this because forever is disappearing in the california courts if in fact it did not have to be honored here this was i mean the finding of the court of appeal in its first decision when defendant presented his
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speculative more than that serious obstacles to the commission of trial within a reasonable time remained unsettled and it goes on and on and on and it completes with trial was at least weeks away that's right
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everything considering only the facts the deputies knew at the time they entered mr merrick's home and arrested him the law compels one result there were no exemptions circumstances in addition
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safety but what is in my correct that that's all they received and they did not also receive any kind of a you know audio or radio traffic communication from the dispatcher to the officers that's correct your honor based on the
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two declarations from valerie reese and i believe her name is denise osama in the record who are the two dispatchers on call that evening they transmitted over the computer aided dispatch system a brief summary of the nine one one call it did
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dispatcher is that right that's correct based on the record your honor none of the deputies stated that they received radio transmission or any other communication beyond the computer aided dispatch trainers and so the feared for her life part of this as i
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understand it is in dispute some of the couple of the officer said that they heard that or what is the record on that well your honor the deputies did submit declarations to the district court stating that they were aware of this
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however what had been the result would have been different had or should have been different could it have been different if indeed that was part of the record that she had said she miss america had feared for her life it's possible but based on this court's precedent it probably would
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analysis if we look at the facts of martinez harris and hopkins versus city of sierra vista in each of those cases we had nine one one calls that were reporting actual violence and then
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when the officers were arrived on the scene the house was quiet or they could visibly identify the victim see that she was physically unharmed and so the idea that
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discovered by i believe deputy burke after he entered the house after mr merrick was restrained and arrested in his front yard and was doing a search of the property so the fact about the broken door was not known to the deputies at the time that they arrived at
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me before you go past this you just said that the broken door wasn't known to them when they entered the house when they arrived at the house it wasn't known to them when they entered the house was it no it was an on your honor ok so those important point it's important point for me i'm not
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concerned about when they arrive i'm concerned about when they stepped across the threshold and just to be clear my understanding from the record is that door wasn't visible is that right that is correct your honor and he wasn't arrested for damaging property destroying property right he was
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when you raise that i have a question i didn't see it anywhere but this whole notion of the fact that he was a strange day as i understand it that in the call it was she said a strange husband a strange seems
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to suggest that they weren't living together now nothing seems to have been made of that but if he wasn't living there cleary whether he had the right to to not exit the house when the police asked him to can you speak to that a
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moment the reality was that there was standing to make a fourth amendment claim i'm not so much raising that issue but i'm really raising the issue of what they knew at the time and they knew he was strangely i didn't see that they argued that
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know that initially when they got there they did not initially but your honor is correct that neither at the district court level nor on appeal have upheld he has argued that the facts of the estrangement indicated to them that mr merrick lacked the consent to refuse their entry to the
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child endangerment but we have to consider both the california courts of appeals interpretation of two seventy three a b as well as the facts that the deputies knew at the time they decided to arrest mr merrick without a warrant again they did not know about the
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broken door at the time that they arrested mr merrick for child endangerment they learned about that after and the fact that they did know do not rise to the level of quote serious domestic violence against the other parent while aware that his while
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but they arrested him for destroying property what what do they what do we know about what they knew what property when they arrested him for there's no evidence in the record that the deputies saw any broken property when they arrived at the house or
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executed a leg sweep leaving him on his front lawn for about twenty minutes before sending him to the county jail and but the police is it not reasonable for the police to have been concerned because one thought is why didn't the police
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question her which was which we will i will ask your adversary here before they took the next step of taking him out but isn't it wasn't it reasonable to think that the children and the mom this is the woman who had just called the
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police and now she's sitting there mute on the sofa with her children holding on to her i mean isn't it reasonable that they would be concerned about her feeling intimidated by the man who's now at the door saying i guess something to the effect we don't need
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your everything's fine when that had been a reasonable reaction by the police it may have been reasonable your honor but it's not excuse their requirement for them to get a warrant or prove exigent circumstances and so the if we look at this court's decision and hopkins
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there the defendant appeared at the door drunk an officer was responding to a call that a woman had been beaten and screaming in the apartment the loud noises were coming from the apartment the officer asked to speak with the wife and the
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breaking complaining witness property she wants him sent on the way so it goes back to the trespass idea if the police officers were incorrect but understood that he didn't live there and that he was drunk and that she asked him to be removed could they have done what they did
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here if that was actually the police officers reasonable belief that he was an intruder but the record does not support that your honor none of the deputies testified that they understood mr merrick not to have a right to either not consent to the
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search or to be in the home but they said this other thing and that's what we're struggling with i think or at least for my part they said which seems to be on support that they understood she feared for her life and they didn't as far as we can tell they didn't know that
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fact that's correct your honor they did not know that fact and the deputies have not explained why or how the facts of the strange man does relayed by the dispatcher factored into their decision at all but based on the he said they didn't know they feared for their life i
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apologize judge kristen i just want to be sure of this i thought the police somewhere along the line somebody said they thought she had reported that she feared for her life in their declaration to the district court your honor the deputies to state that they believe that possible
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issue with what the court the first thing is in the record it is true that the deputies did testify or declare in their declaration is a part of summary judgment that they did know that there was a door that was broken and that
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was obviously some time after after the incident so she stated that i would my practice would have been to communicate all critical information to the officers via radio so you see there at line twenty four on page sixty eight she was assigned a radio dispatcher i believe that the record supports
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that the officers did receive a radio call and that is supported by their declarations where they turn around and they testify hey door being broken down callers in fear for her life property has been broken it was my that's why this is my
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from radio transmission yes your honor obviously there is some speculation involved in that given that given the fact that the radio dispatcher simply testified that she communicated all relevant information however when you couple that with the with the
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also that she was in fear for her life so there's two to fax you yes i wasn't speaking about the door i was talking about her statement about her personal safety and when you said you didn't think that mattered i well that's what i meant i'm getting to that
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just just now so i don't think it matters because i wanted to to examine what they did know all right and this is why it doesn't matter what they did know is nine one one call ok a strange to wife and we can
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not necessarily that he wasn't living there but although that's a that's a certainly a valid possibility as well i don't think that matters either other than to the extent that the officers knew something was going on in that relationship all right a couple that with the nine one one call with
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information that property is being broken and specifically her property also that he's drunk and she wants him gone all right now obviously that's what they knew at the time you couple that with the
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information that we've all learned after the fact and what the actual nine one one call it just confirms that but but as to the officers knowledge that's what they had when they over rived ok then we also have another situation developing which is what
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argument the seizure or the arrest in this case being the crossing of the arms if you will and perhaps a foot over the threshold of the apartment door ok he was clearly standing at the door within the swing of the door
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now the intrusion by the officers was very minimal to go across it but that's what i consider the breaking point with their knowledge prior to that prior to reaching across what did they develop at that point in addition to what they had when they arrive
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not they were not informed that there were children present through either the cad or all information would would support that they were told over the radio they didn't know there were children involved until that moment they're still outside they see
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s unit patrol kat's eleven fifty nine or thereabouts if you look at the an interview or two later it says i think twelve o seven midnight zero seven one detained one detained so from the from the
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moment of eleven fifty nine when they arrived moments later really in that developing situation he was detained so this is a rapidly developing domestic violence situation which the officers knew and drawing from their experience they knew going into this before they even got there this is a
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absolutely yes yes fully uniformed obviously armed typical deputies situation a patrol deputies two of them at the door at that time talking to mr merrick who the evidence supports was
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immediately abrupt in the change of his what we can say was a calm tone during the first few seconds of the conversation but that immediately changed and he became aggressive he was intoxicated the officers confirm the signs of intoxication all
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of this prior to entry but after the cad and the radio dispatch so these are these are factors being developed by experienced patrol officers on the scene of a domestic violence dispute and they are intentionally taking this information in this is what
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they saw drunk and that was reported by the way your honor is that your honor stated drunk intoxicated breaking property standing at the door now yelling about god given rights and the fact that he did not want to come outside which in the
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officers experience is amply supported by the record is the law enforcement technique ok tried and true separate these individuals so that we can get a handle on this situation in my opinion this is all about securing the scen
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answer let me answer it this way again let me let me read it refocus you on the amount of time that we're talking about here minutes less than six minutes counsel this is this is not a persuasive argument it's seven or eight minute that's a long time they could have asked her to
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itself may not provide probable cause if that's all you are looking at is a person's passive refusal or exercise of a fourth amendment right if you will to read to to decline to step out of their home of their house in and of
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itself that won't form the basis of a one forty eight losses in that art that's not what we had you have to couple information that we had coupled with the fact that the court specifically found that he was impeding in the case law supports you can you can decline consen
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but you can't impede it lawful investigation the lawful investigation was the officers had a duty to look into this domestic violence situation they could not have and this court has a pond in other cases probably would have been a dereliction of duty at that moment to turn around and say we're leaving but here's
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i would say in addition to observing the issue of the children and we know that two seventy three is the misdemeanor version of the of the child endangerment it just says that a child must a reasonable belief that the child may be in danger or may be
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take the mom and the children out why not say in this merrick please step outside i'd like to talk to you good good question i think they were concerned and i think again we're talking about the facts of this case and obviously in hindsight now this is what the officers in my opinion
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were were thinking through through the decorations were focused on mr america has become aggressive belligerent he's drunk he's intoxicated they were focused on controlling him and the immediate scene between them he was between the nine one one call around the children and the
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officers so at any moment as we know in domestic situations they had a situation where they had to keep him focused on the officers and not turning around turning something into a potential hostage situation or something worse than they were already in countering so that was the deputy's focus
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the foot goes in the door within within seconds mr merrick according to the officers two officers stepped back toward the family that coupled with what they observed to be children in distress and a reasonable assumption and the court
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we have to control it the actions of the officers at that split second moment was to make a decision and reach across the threshold actually control mr merrick with the least amount of resource possible remember they didn't have weapons drawn they didn't
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anybody they didn't taser anyone none of those weapons were even presented to mr merrick it simply was a developing situation that the officers had to make a split second decision in time in terms of controlling him at that moment which they had reasonable grounds to
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believe that in that situation in their training and experience they had not let him go back inside so they grabbed him escorted him out everything after that is in the record and we're really not here to talk about that in my opinion so you
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district court on the claims of fourth amendment arrest and entry seizure of mr merrick california constitution claim article one section one which provides protections coextensive with the fourth amendment
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undisputed facts in the record support that there was a fourth amendment violation and lack of probable cause as a matter of law then the trial court would be able to determine damages if however this court determines that there is a question of fact that needs to be determined prior to
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pelleas argument first judge christian i need to clarify it appears from the record at sixty nine that valerie reese did operator radio and that was my mistake at sixty nine she also states though that she believe
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to the deputies before they spoke with ms merrick after arresting mr merrick in addition the deputy burke specifically states that he actually reviewed the cad transmission in his car so he would have had that same
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i believe alvarado described mr merrick taking a step backwards but none of them describe that situation as posing an imminent physical danger to ms merrick and this court has been exceedingly clear in the case of domestic
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available at the time that the case was i understand that it goes for a different time period right it goes for a different time period but the disabling condition was
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client's last insured date and i hope you're going for something better than that ok i am but also i would say that the cognitive impairment grows out of a stroke and the stroke
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brain damaged individual and it was important for him to to put on the evidence of his case it was important to have other people who isn't isn't it true
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to do something he did have all these medical records then i want the case and says i've got to have a live testimony rather than written testimony but even if there is such a case why is it not harmless
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relied heavily on the testimony from the brother it's important if you take a look at the i'm not going to look at what the l g a did afterwards i want to look at what happened he
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the brother's written statements do not describe symptoms any more severe and the claimant's own test
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consistent with the medicals so why is there error that is not harm us well the third party evidence in the record says the claimant is easily confused and often
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the witnesses to come in and testify then they ignored the statements from the family members which were in the record now judge this court has
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