yes i'm ready when you were younger you know please the lord the primary issue in this case is the exclusion by the trial court of exhibit two a which is a contemporaneous we recorded video failed to heed mr pitman's request to seek crisis counsel and ignored that and did so in a very deliberately if not an outright few tensional way when he attempted to hang himself and became braindamaged the statement itself was contemporaneously recorded three hours after the event it was recorded in taken by the jail detective joshua press who was also a witness and who authenticated the statement as did mr ban of these bradley vanities the witness that who also authenticated the statement as it to be as the transcript as the original this statement is the case it contains the substantive information that gives rise to the liability against all the defendants through the two name defendants security guards defended  deputy werner and defended he it contains what i thought was most important and if the court reviewed the transcript i just kept going back to it a shark and definitive contrast between the demeanor of the witness band of these at trial he was a flippant witness he showed up he had a couple of the things that are actually on the record he said i am a fast reader and laughed about it and then took a half hour to read a twelve page document he accused the defendant's witness without a question and ending of studying their statement out in the hall and sa you know things like that that were just absolutely not unattested pated in a witness like that but just absolutely flipped and and he was just a train wreck really frankly my discussed with attorney gilbert the admissibility of this statement now it to tell you who attorney gilbert is he has handled more of these cases down there representing the madison county jail or at least as any as anybody and he knows what comes in and he knows what's going to come in and he knows why it comes and and he told me i'm right i'm not going to fight that battle we're going to admit the statement and you may play and the truth of the matter is he also told me that you may play it right away and that's a strategy determination that all defense lawyers make with the play that statement early in the case maybe the jury will forget about it after the whole case goes through and you put things on and it is out there and it blots the effect of the state of this case early on was that exhibit two had to be admittedly and played to the jury for us to have any chance of prevailing and that issue was gone months before the  the two guards talk to mr pittman about a request for propriety crisis and that they ignored that request of sergeant prussian press and poland in on that ask further questions on it and it was just an absolutely short sweet and rational for it was missed testimony very similar to what was on the no no i had really was not first off the demeanor with his live testimony he came in and indicated that he had and the first thing out of his love i have no recollection of the day that matthew warner talked to  to mr pittman well the that was a key for all the expert testimony and all of the subsequent what testimony mr pittman attempted to hang himself on december nineteenth and the day that this conversation took place w friday before december fourteenth so the fact that he didn't remember how many days before was bad he didn't recall the conversation the impression that he made to the juror is i don't know what's going on he could not transcript the judge excluded the video and i argued that that really was an error because they don't get to see the difference there's information on this video about not verbal information about his demeanor and that he was upset and that he was telling the truth is i think apparent from this video and the judge for some reason didn't want to let that inthe did he give every reason the judge the judge actually said don't remember the conversation at all the key to the case and then he said i don't remember the conversation with the other security cards guard sergeant randy eaton and the judge actually stated then in her ruling i don't think you have shown enough lack of recollection for past recollection record she also said in the at the court reviews the transcripts i was raising heck from start to finish about the stipulation of attorney john gilbert admittedly the stipulation on the record that this would be play even admitted on page eleven he admitted in a proforma objection that was sustained on page ninety two he then admitted it on page one forty seven of the second day of trial that i did say that and i understand why mr anderson thought the video would be played and i think the most telling thing was own case ninety two when he did his pro forma objection i'm just objecting for the record your honor but i know he's going to be able to play the deposition or the statement and that was his objection i know you're going to play it i just want to make an objection for the record he knew that was coming and through the stipulation and the most surprised guy in the court room other than me that the judge sustained this judge this objection in the presence of a stipulation that was admitted three times and then again on a fourth on day six lawyers have to be held to their agreements because of it there is just nothing that would prevent this from coming down that the videotape has to come in on the on the stipulation the judge said in response to that directly i and she was just wrong on the law i am not in a position as a judge to enforce an agreement between the parties to admit evidence did she know and had she seen the statement she saw the transcript we had that there actually had exhibit two a on the video machine and we're going to play it go ahead i said to the judge had the judge seen that she had not seen the video before which is in the transcript and then you had the transcript when is it been of oh yes there's name when ben off was testifying were you able to use the what the statement actually contains there were many pertinent parts one of the key parts is that band of b s in his statement immediately afterward said look i confronted matthew warner on the fourteenth and basically he implied that he told matthew warner he was whining because matthew mourner came in and said look i promise to put you on crisis as a result of your quote request but we're going to d er that until monday well every witness and in the case the jail witnesses the experts every witness defense expert said that's deliberate indifference if you've already made a decision that this individual needs to see crisis and you have come forward and now you're going to delay that until monday and vanities confronted warner and said look i know you're not working mond i know you're not on the schedule and that's on the statement and then over the weekend two other guards according to a man of peace were advised that he was spy band of bees that you better watch out for this guy and i think this is serious and he might try to commit suicide they did nothing and then according to band of bees ethan was also advised that he needed to seek crisis on the eighteenth and he did nothing a jury could reasonably conclude and particularly from these three abbess that the guards had something have immediately changed the order of witnesses and we've got band of use in here and that and along with his idea he wanted this video played earlier but that's if you look at page eleven if you look at page one forty eight he's all over the place like knowledge in that he made the stipulation the exercise i can see why ross would believe that this is going to come in how did how does the district judge said it did she had a list of exhibits that were going to come in no we were we had just we did our objections and our briefs a month earlier on the objected to exhibits and our february second preacher february fourth pretrial and we had some hot arguments and this thing we didn't leave the party addressed because there was a stipulation that was going to  in what happened is a judge the judge just in the law she said she's not in a position to enforce the stipulation and the law is just the opposite the court the trial court is bound by stipulations of this stipulation of an hour before she rolled against it and the only intervening about it she made a ruling that she thought it was hearsay and i know what happened is john went back to his clients he says his clients instructed him not to will his clients or a couple security guards and an in house insurance agent who's a lawyer they didn't know anything about this it's almost absurd he went back he said by god if i object i'm going to be able to keep this thing out i think by the way the judge's ruling and the judge actually said on page one forty eight when i was trying to get it in with past recollection recorded she actually said she was so dead set against the statement she actually said even if you who put the foundation out there that does not mean this is going to come in promised that they were going to refer him to crisis and that puts additional psychological pressure on the guy because he thinks crisis is common and that they're messing with him which is what he said in his suicide i told the guards that they're  about this i want to see crisis and the reffing with me is what he said and they think i'm joking and what have you and then there's much testimony about the joking nature judge with respect to the rest of the case i also want to bring up briefly before i sit down the supplementary report we had a supplemental report that was the subject in the pretrial conference of much dispute it was eleven months earlier one of the defendants defended eton wrote a supplementary report where he had for a year not referred anybody to a crisis and that because he thought somebody was joking joking with reference in the suicide note that's why the guards i'm playing to us and the guy actually said if an inmate they're in another inmate and begin and also they said the policies that we would never do this every witness said we would never do this and mr reagan said i would never do this my sas everything and then he wrote to the bureau of standards on a thing eleven months earlier and said i didn't take this threat of suicide seriously because i thought he was joking the judge excluded that is too remote if there's anything that is just right on it's that and furthermore he had ignored depression remarks for a year before that because he was joking i took more time and i thought judge i'd like the court we have to look at the big picture this is a deliberate indifference case it's a case about whether prisoner who ended up attempting to commit suicide unsuccessfully and asked for crisis intervention and whether that was ignored and whether that was ignored in a deliberately indifferent way that's the question that's all we have before us that's the big picture this was an eight day trial here saying he didn't ask for crisis intervention there was evidence that he did it the suicide note itself was literally exhibit one and in exhibit one he indicated that he thought he wasn't being taken seriously that was in front of the jury that was over our objection so plaintiff's theory was there the themes that play are you saying he didn't ask or crisis i n i'm saying that the jury apparently you know the answer my question yes your honor i don't know your honor whether he did or not i know that he did say in a suicide note that he asked for and he felt that he was ignored i do know that whether he actually did make the request or not i don't know i know there was evidence both ways and i can only assume that because the jury ruled in favor of the defense that it decided based on all the evidence and heard after eight days that either he didn't make the request or if he did make the request the guards did not believe that there was a risk of imminent suicide how can a guard make a judgment of that sort that strikes me as totally irresponsible well you to the guy right and find out what is he complained about and why they can make a judgement the guard can't make a judgment this court in pippin once said that a crisis or question of itself is not enough to cause a guard to have to do that your honor with that's a legitimate request by the people who are who deal with these problems of prisoners it's not a guard again your honor it's a card now about the mental state of a prison in pittman one this court said if you simply require a statement by an inmate i want to see crisis in another itself as enough to require the guard to do that you're sent nice essential of setting up a strict liability standard where if there's any request like that it just has to be done period there's no discretion for the corrections officer and that's not the law well what's the problem with that with you with having one of these crisis intervention people speak to the guy well let's look at th video i think the best way to answer that question is to look at what inmate benefits actually said about what he heard the i mean look at the video the video wasn't admitted in the trial you want us to make a decision on th message the video was an admitted because judge gandel thought that it was hearsay and that she wasn't required to accept a purported stipulation that she could still look at it independently and make her own decision as to whether it was an important stipulation it was stipulation right your honor i'm not clear from the record whether there was a stipulation or not i think the record is unclear and judge handle stated as such when she made her ruling she referred to it as a purported well according to mr anderson and she's thought she didn't have the authority to allow the stipulation she did say that she also referred to it as a purported stipulation in the record so she indicated simple that sounds like total confusion to me it sounded to me your honor from the record like she wasn't sure whether there was a state that's ridiculous right of course she couldn't force the stipulation i don't know that a federal judge is the basis for thinking that a judge can and for if a judge has concern about evidence i don't think that he or she it's not the question what makes you think a judge cannot enforce a stipulation between the parties in a trial there's nothing that prevent reasoning that's just saying what happened question as to what is the reason for not admitting the video the reason for not have been in the video is because it was hearsay it was it was an out of court statement which was attempted to be admitted for the truth of the matter asserted but let's you know of course hearsay is not automatically inadmissible true right that's true and so is there a disc what is it related to seven or whatever that allows hearsay that they admitted if it's reliable yes that's right was that issue addressed it was your honor the evidence was offered up for various reasons as an excited utterance and on other grounds the judge found that she disagreed with the bases that were stated for allowing it in while she found that it was not an excited utterance because there was no indication of excitement to get the excited utterance i'm talking about reliability sure is unreliable why it was made three hours after the incident he was sleeping when the attempted suicide occurred that is in me benefits was sleeping when the attempted suicide occurred  was someone who had been in this facility fifty times and he had reason to reflect he had time to reflect before he made a statement three hours after the incident occurred while he was sleeping those are some indicators of unreliability but if we assume for a moment that video should have come in we have to look at the question of would have made a difference for the jury and the answer is no and i'll tell you why if the video had come in the jury would have heard a question from the detective so the guards treat him pretty good yeah nobody talks down to him i mean disrespects and no and then he was asked he also said all the guards been real cool with him then he was asked his reggie that's mr pittman has reggie said anything to you that would indicate that he was a citizen what's this i don't when you were talking about hurting himself at all he made a comment one time but it was just a joke joke but it was he was like i'm going to kill myself today you know like just  or this is all from the video yes your honor and there's no indication to whom mr pittman said that there's no indication that mr benefits himself then said to a guard hey i just heard mr y ou're saying you're saying the video really sports your side ok i do your i don't know why did you object in hindsight perhaps the objection should have been made but yes my position is that even if the video had come in it would have made a difference for the jury because you object i can't speak for mr gilbert but i believe that mr henderson is accurate when he says that the client indicated at a certain point during the trial during a break that he had reservations about letting the video  we still have to look at whether there was prejudice and if you look at the transcript and i've studied it carefully i've also listened to the audio if anything the judge helpful to the defense i certainly don't think that the video would have caused the jury to do anything differently and that's the bottom line even if the court believes the video should have come in either because of the stipulation or otherwise it has to make the determination whether there was prejudice in this negligence standard i don't think it was negligence so plaintiff didn't make his case plaintiff had eight days worth of evidence and in one form or another the evidence came in i think the best indicator of that is the suicide now the fact that mr pittman himself got to speak if you will by virtue of his suicide note to the jury telling what he thought happened and the jury found that there was no deliberate a difference i think that's powerful i mean he indicated he felt he wasn't taken seriously that's what it's  suicide note indicates the jury got to hear that but the jury still found there was no deliberate indifference i would think that any time a prisoner talks about suicide whether it sounds like a joke or it sounds serious given the long history of jail suicide the guards would report this to the you know chris the crisis that important to know why the cockpit asked the lawyer to withdraw his freeman stipulation it would be helpful to know so that i could give an answer now yes your honor but you're stuck with arguing this case when you were a person making those decisions not me and the i would say that i feel it's the way it works i'm sorry to interrupt your honor i would say that i feel stuck with this at all i mean i felt it was an honor to write the brief in this case and to be public person to answer the questions that we've been asking is not where you are right now that is true your honor you know that's the right answer though that what's his status now unfortunately he has severe brain damage and there's no question he sustained an injury in the attempted suicide and there's no question that he's in bad shape you see and in some institution that's my understanding your honor and obviously it's a very costly condition right now it is who's paying for the taxpayers are  to mr anderson also addressed the supplementary report that was written by mr eaton approximately eleven months earlier that did involve an earlier in may this you referenced judge mannion and so could guards impose significant costs on the government that's not the way that i see it under what i see it over eight days since what they did they treated his joke may have been a joke the only as a sort of thing when people joke about this about certain certain matters you take it seriously you worry about it kind of prison kind of jail what kind of people talk about suicide joke about suicide judge the jury got to hear a lot of evidence over eight days they got to this was not well administer even if so we have to look at whether the video would have made a difference and it wouldn't have in the situation there's no deliberateness here even if you believe that the it guards heard the word suicide and should have  referred should have referred to him you still have to find willfulness and wantonness you have to find deliberateness you have to find that they had some animists here or something of that nature and that evidence is just not on the record you can't speculate on how the jury it would have honor he referred to it according to him a fan of it so it was referred to a few days before the attempt occurred and that was the reference that i made earlier from the transcript exhibit to be in which he in which i benefits said he made a comment one time but it was just a joke joke but he was like i'm going to kill myself today you know like just a ha ha man or that was me a few days before the incident occurred my question really was it had pittman earlier some weeks months whatever said something about suicide to anyone it's record no there's nothing in the record that indicates that there were that either of the two guards heard a comment from m pin and to that effect oh they did testify to some extent where that and suicide issue is raised they don't want to say things automatic but they are required to report this looked at on its own it's not a hard and fast policy that if the request is made then boom you have to go that's that's not the way that it works and with it which was their testimony in this situation in this situation that was mr eaton's one of the guards testimony to the lawyers and other staff in your office joke about suicide alive now we don't  i beg your pardon it's an old trial or habit that's terrible i want to crack a lot of things that are being said here the first office mr pitman's benefits have now been cut off and his mother is taking care of him twenty no no government no government money anymore is going to mr pittman with respect to the statements that were made that the client made the decision i just think this that i thought there was facetious at the time and i think that john just saw that the judge was looking like she was going to keep it up and that's what he did and she was wrong about the law one of the things that the court has raised here is the suicide statement band of these testified generally the statements were being made to him but he also said that i told two guards over the weekend that there are that that there were suicide everybody has said in this record that that's an automatic the court in the previous and jury instructions against these guards and she just refused that so i was not able to argue the suicide commute communication from ban of peace to these guards to the jury and that it and who it's a direct violation of  what i was trying to do foundation there or that actually served as impeachment because that video never came in and it really was a train wreck the way this thing came in and then john gilbert did just a brilliant cross examination on this guy's criminal record as he's testifying and destroyed his credibility like you wouldn't believe from the opening statement on judge and it was wrong that that opening statement didn't serve as a basis for me to bring  an underpass recollection record those are admissions counsel binds his clients she said no they're not and he went all over the credit criminal record and that thing came in on her past recollection recorded i want to say that i made a mistake in my first brief the decision to enforce a stipulation this court reviews de novo and not as an abuse of discretion and i simply corrected that in my in my brief with respect to confronted warner and said look you're promising to goto crisis and you know you're not working on monday and that we brought it out kind of by me forcing it through with past recollection but it was the most the biggest training record of all time in the proof is in the putting judge what was this jury hung up i was getting my evidence in a dead gun they almost they hung up anyway and the jury what's the one piece of evidence that the jury demanded to see in order to resolve its differences this statement they actually sent a letter out to judge and on said i want to see the statement if there is ever a case where the exhibit to a is a critical piece of evidence it's this with respect to the rule i have a few other things that you know i've cited all the rules and i think she was wrong and virtually all of what's wrong with this coming in under present sense impression the argument i was making through all the way through this was this shows his demeanor judge it's a piece of information that's in this recorded statement that is authenticated and real why doesn't it come in just for the acts of the jury can assess these things my whole strategy in the case because i didn't hear what bennett he said was the contrails when i was going to present this case i was going to say all right mr brand of these is a inmate he's a rough customer but look at the difference between his demeanor on this statement and his testimony here in trial and i think that would have been spectacularly powerful evidence ok you know you'll have to wind up are a judge i just want to say that she also excluded the it in a trust that's all we wanted to do i know i'm forgetting something all and i do think that this there was ever a case and i think it's very rare and most lawyers don't even include it in their notice of appeal but if there was ever a manifest weight of the evidence if you really take into account the evidence that suicide was mentioned by vanities to the garden that every expert said that if you do for crisis you and the guards  have we have no recollection of this in contrary to what he says if there was ever against the manifest weight of the evidence i think it is this case but the truth matters the jury wanted to see that state and they were fighting russell back there and they didn't get it when you said the jury was hung up and you mean it took a long time knew they actually sent a note out and said we cannot reach agreement would do as it was or mr a no judge scheana gave them a mild hammer and when they came back would you say you gave him a mild hammer type of instruction that said you have to decide your case based upon the instructions on the evidence before you and she also told them that she's not going to send statement back and then they decided after almost two days for the defen