please the court there is a serious danger in this case that an innocent person has been convicted jon burge was convicted of shooting garcelle despite his corroborated alibi based on two pieces of evidence one identification made by a drunk victim whose perception and memory were admittedly impaired into incriminating statements that byrd made while he was an alcohol withdrawal had been vomiting for two days and had been told he failed a polygraph bert's new evidence provides what was is of those two as to the shooter i am not talking about potential expert evidence at all i'm talking about the new evidence as to who the shooter is because the pointing out he didn't confess twice he made when incriminating statement after he was polygraphed that's it the first statement he made was completely a school bus tour he gave his alibi which was in corroborated the trial by one of the witnesses he was with and what i'm pointing out is how the new evidence would give the defense an opportunity to further undermine those two pieces of evidence that were already weak to begin with but that's not the test they have to show that there would probably be there would be a probable acquittal right right to this that the new evidence would create a reasonable doubt i thought the test is that the new habits would result in a probable of court well it's probably reasonable doubt because that's how that's how this little occurred he said that the evidence would undermine the government's case but that that's not enough you would concede that these to be at least enough of an attack so as to result probably result in a in a different verdict well correct but because the standard is so high on the government and all that we need to show is that district court require him to require us to produce the present evidence that would overcome the evidence of his guilt and you can see if you look at the order the way that the court interpreted the evidence he actually was putting the burden on us to prove the burr was innocent but that's not the burden the court required bird to prove with direct evidence that in the shell and ignored all of the circumstantial evidence indicating that then it could have been the s district court misapplied that weighing test in another way but by refusing to consider the weaknesses in shell's identification and birds can fashion and the court didn't consider at all the fact that father had asked her to lie and she said i'm not going to lie for anybody i'll say where he was i don't even she didn't even know when garcia was shot she was just explaining where bird was and you have to consider it's christmas eve and christmas day those are events that people tend to remember matches his but there's no reason to think that she had any idea what burke had told al when he explained where he'd been evaluating byrd's evidence under the correct standard leads to a conclusion that he should get a new trial because his new evidence tells for the first time first of all where show was and who he was with between dusk on christmas day christmas eve and then on christmas day that was something that was completely absent at the trial nobody had any idea and also shows that had a motive and an opportunity to shoot sh very drunk under the influence of other drugs have been shot and didn't and bird are very similar in stature and appearance and he easily could have confused them in his mind and here's what happened once he said once it was john bird at the scene then after that every time somebody talked to him they suggested to him who it was he's in the hospital room vomiting blood with his brother who's already talked to the woman who found shell at the scene and  specifically says was john bird there so this plants in his mind the idea that john bird is the shooter in the more he hears it the more he adopts that as his own memory here's the other thing dinnick has admitted shooting specifically refused to answer the question did you shoot show sort of the fifth amendment to that so that's in combination with the other other evidence that's a pretty compelling indication that he's the one who shot who shot he also was found later that day he admits that later that day he called for a ride from a can't ground that was a mile away from where shell was found that day so all these things together certainly give a jury reason to find reasonable the rule for a three balancing test to determine whether it's admissible or not and the government relies solely on branch but first of all it's distinguishable and second of all it actually supports our position because in branch the defendant was attempting to call witness soley to plead the fifth but that's not what happened here then it got on the stand he answered some of our questions and then the rest he pleaded the fifth to when the government cross examine them he answered a bunch of their questions he said just he said garcelle wasn't in the trailer when i shot it up so you know under those circumstances certainly the court is required to engage in the four or three balancing test and branch reflects that even though branch doesn't talk about rule rule four  defendant by requiring him to overcome the evidence of his guilt and even though he stated the correct standard at one point if you look at how he actually evaluated the evidence what he was requiring bird to do was to prove his innocence by requiring with direct evidence that the next shot shell and ignoring all of the other circumstantial evidence that shot that than it was the one who shot him and then again the second thing that he did was refusing to consider the effect of the new evidence on the old evidence at trial he basically said confession identification end of story we're not going to reconsider that stuff but he had to reconsider it and in light of the new evidence and that's what he failed to do i'd like to go back for a minute and talk about a couple of the evidentiary issues i know i know how to talk time to talk about all but i would like to talk about the spousal testimonial privilege because the court applied that in an unprecedented and impermissible way w carit to assert that privilege the supreme court in this court have never recognized a spousal testimonial privilege when the non test testifying spouse is not a party to the proceedings in recently and under seal case th specifically laid out the type of analysis that a court has to undergo in order to extend a privilege that has not been previously applied that test requires the party claiming privilege to make a strong showing that extending the privilege would promote sufficiently important interest to outweigh the need for probative evidence in the administration of justice and here the need for death for deborah harris testament money could not be more compelling because she and her husband are the only people who call recall chanel's whereabouts during the eighteen hour period before he was found shot on the banks of bunches creek and in it has avoided testifying by pleading his fifth amendment privilege her testimony at the very least creates a reasonable doubt about perts guilt that's true but some aspects of her her statements were always consistent and here's another thing the government keeps talking about how she recanted her statement but the only time that she she did not say that he told her he shot shell was when she was talking to our investigator not to the police she was talking to our investigator in the parking lot of mcdonald after her husband who had been released and was living with her again and she just she denied it to him but she never denied that to the police so i don't even know if you can properly call that a recantation she was under no obligation to tell a private  that type of information but allowing kara to assert privilege here does little to advance the interest of marital harmony underline the privilege because she had already provided information implicating dinnick four times to police and to our investigator and he had been informed about this by law enforcement and since he's not a party and he can't be directly harmed by keros testimony any additional damage to the marital relationship would be minimal especially since the government has never also like to talk about this question the dinnick asked james allard if i did shoot him in self defense can you guarantee me that i would not go to prison one hundred percent you know while the jury could and should draw the inference that this question reflect consciousness of his guilt the district court was wrong when it concluded that the probative value of this question makes it hearsay under rule i don't want to utterance is hearsay only if the person making it intends it as an assertion and if it is offered to prove the truth of the matter asserted and this question fails on both fronts first it's not an assertion because it's a request for information would a self defense claim keep me from going to prison and second it doesn't say anything that can be t court gave no reasoning for and the government does offers no argument to defend the exclusion of key incriminating statements by denying to allergan al these statements were that didn't end kero were drinking with shell on christmas eve and christmas day two day at a campground that was a mile away from where it was found on bunches creek that same day but furthermore when the court did offer an explanation it failed to take into account the required factors for determining whether statements good morning i'm don goes to resign the government this matter the district court did not abuse its discretion by denying the motion for a new trial because it found that none of the new evidence was admissible and but it also considered that even if it wasn't considering all of the evidence even that the gist of it found to be inadmissible this is not one of those rare circumstances where the evidence weighs heavily against the verdict against mr byrd even though the original case against mr berg was strong when this allegation came forward the government did all it could to pursue this claim but to pursue this new evidence i strongly disagree with miss hester that the government never targeted mr denning that's just simply not true when with this one miss carroll came forward the government issued id investigation it opened a matter on mr denning it worked very closely in cooperative with with investigator allard who is the investigator for the federal defender's office we did in fact to cherokee officers came to near here to go see joe carroll the left left cherokee to go find him to track all this down so it wasn't for a lack of trying that the government pursued this but at the end of the evidentiary issues and then issued a fifty seven page order so no one can say that the government didn't do is build due diligence or the defense didn't do their due diligence or that the district court acted arbitrarily or rationally in this case to exclude keros initial claim which he related recanted and then just contradicted just re explained reformulated just simply could not orders the preceding page were for the judge made that statement it was clear that he said cited the correct standard and the standard is under chavis that would probably result in a new acquittal that the new evidence probably was old an acquittal and he understood that burden  and strong evidence would be required in this case to probably result in acquittal because this was a strong case from the government's perspective we have the victim positively identifying the assailant and and knew him by name polygraph again in violation of the motion limit i so we did it twice a trial even after this new evidence came forward we in our abundance of due diligence went back to mr cell and said hey these people have said these things does this r byrd who was in the summer time but in any event you know he had he mr shell had been shot in the face if he'd been hit with a skillet i don't know if that would or you say he didn't why i'm saying there's no sense indicate that ever occurred or not but we did ask him do you remember getting you know did this occur and he said no in fact he said hell no it did not occur right she said the record what you and again when you look at the strength of the government's case because of course the government's case is based on simply three things one is the positive id by the victim and this is not one of those cases where he was picked out of a lineup this is he knew him by name  and then you have the defendant taking flight upon first making eye contact with the detective when the only evidence the only information that was out in the airways be a scanner police scanner was that there was a wreck on bunches  creek so there's that flight and then he hid in his closet while his father who also swore to live for him to provide a false alibi for him and told the police chief three that he was not in the house when in fact he was hiding in the closet and then you have the confession by the by the defendant mr burt now to sure you can attack that confession that idea and then that was fully vetted at the jury trial yes  of alibi that didn't pan out it was conflicted with this little chance testimony the second day was the polygraph today and the way the polygraph examinations work is the polygamy for the f b i agent smith he does the polygraph and then when they when the result comes back then they confront the person with the result in this case that's what happened he confronted mr byrd with result and then he said ok i did it and at that point this the agent then turned him over to the detectives who knew more about the case to get the details that's the common practice and so the two confessions that you might be thinking of is two to agent smith he said i did it or something somewhere is that a fact and he just leaped at that and yielded the floor to  detective al where he got the more thorough although even that was only fifteen twenty minutes because as mr byrd indicated subsequent he did yeah so it was all within the same hour  but it was so it was two different people or three different people because the tech to his detective panther detective al who interviewed him following the polygraph exam so yes he did say i did it and then on his second one he provided details and one detail in particular he said was in the mountains which is relevant i understand you can attack that because of course the reservation is mountainous but the downtown tour he's in the valley and up to up big cove is up is up the mountain  the most telling circumstance in that question was he he told the investigators about how mr shell cursed him and invited him to shoot him and that was a detail that was not even known to detective al at the time that he was he was  conducting the interview mystic to balad didn't learn that from mr shell until two days later because one agent said well from the f b i interviewed the victim admission hospital he was undergoing treatment he was in a very bad way  i don't remember of his jaw was wired shut but his jaw was fractured he had been shot in the face and so his ability to articulate what happened was limited and so that basically what agent said well got out of  accepted a false confession and prompted fed him the answers he didn't know the answers to prompt him and that one detail particularly mister right mr bird's statement that mr said something like shoot me be used to swear word or something similar go ahead and shoot me b and what mr shell said was he said hell you've got the gun you might as well shoot me if you're going to kill me or you might as well kill me  to shoot me or something like that these are the wording was slightly different i mean i get the point you're making that we've got to pick them has been rock solid and is identification of course this wouldn't be the first time that someone who thought he was rock solid identification turned out to be incorrect and what troubled me about this case is that it did not appear to be a motive at least in the trial for this for this you know for the shooting it just seemed to be as random sporadic that it appears that later on somewhere in this record there may have been a motive identified but that wasn't presented to the jury's out right it is right that we did not know about a motive at the time of the trial that's right  the you know we're certainly not saying there wasn't a motive i mean shell was driving was driving drunk all day so it could be cut him off in traffic who knows what it was and the court is correct that the post trial mr shell learned and this is in the record this is part of the interview that we did as a follow up to the carroll disclosures we submitted on our brief to the district court that he that he mr shell learned post trial that there were there was talk on the reservation that the reason byrd was mad at shell was because shell was in treatment with birds then girlfriend whose name escapes me  at least have one for the purpose of this hearing was that presented the judge writing it once and that's something that we're entitled to consider i mean it's it's in the record well what i'm asking it's the defendant's motion for a new trial based on new evidence are you saying decided is whether there's new evidence in this case that probably would result in an acquittal and the evidence of the of the motive i suppose would be new evidence as well to be honest i don't really care if the court gives it up that a lot of stock or not perhaps an abundance of caution you shouldn't because i think it really it really doesn't matter much writing well the court said he considered all of the evidence even that which was not admissible and know we didn't call mr shell and i'll be honest i don't remember if i moved to admit that piece that that follow up interview of him or not i know i attached it to the government's response to the motion for new trial so the court had up to interview at some point i don't remember if i moved  admitted that hearing or not you ever look at the scene of the know you're out of that area that preserves some three thousand acres and what happens is at the end of bunches creek there's a gate that they keep closed at that time the years for the vehicles don't tear up the road and mr shells testimony was that he had been out there wandering to collect locust nests to carp to make masks he really could have been anywhere and really i don't fault the cherokee police for not expanding the manpower to look for it because let's say we had gone and put out a couple dozen officers and found a shell casing well lots of people shoot out there so there's testimony about that so there's matter that was thoroughly vetted in articulate and indeed that was the sole substance of the trial and we've had that trial and this new evidence the question is does this new evidence with this new evidence probably result in the quibble given those facts and again you can attack the confession and you can attack the witness identification and the government has strong rebuttals for both of those things again you know you could attack the identification as one would normally would routinely about people get ideas all the wrong all the time as we see in the me not all the time but it happens occasionally but those tend to be occasions where it's cross racial and it's from a line from a lineup this is in fact the cross racial aspect of this case of a new or to the benefit of mr shell because of been out in the woods hunting in and saw him and he was mad about this in detail or think we just don't know we have homicide cases all the time or we don't blame the government's case because the victim was unable to articulate the motive and in this case he was we don't know it was because the alcohol because he was shot in the head and so to some extent you know we have to give the guy a break for not remembering when he's been shot in the face but also you know it's one thing to say we're going to check the confession and then to say and then attack the identification but to say we've got to beat both of those and with what we're trying to complete those with statements that are all over the place by miss kero that are not consistent i mean they're christmas day and he was it was january ninth because remember mr byrd was in hiding in his father's closet for office for a couple of weeks with i might add mr littlejohn who was the sole to this alibi and i will say i also disagree with the characterization that this alibi was ever corroborated in fact it was not miss littlejohn's statement of the timing was inconsistent with mr birds and interestingly her where her statement of the of the alibi time fall short is exactly the relevant time period the relevant time period as described by miss mccoy is that eleven to twelve o'clock hour on christmas day and her to testify falsely and while on the stand she said i'm not doing so she also and she also said she herself has medically induced medical problem meant recollection problems and that's important too because on this alibi she didn't even get asked about where she was on christmas day until june and her test when the stand was that you know there was lots of talk about what happened what didn't happen and who was around and then so you know i mean ask me you know in june what i did on christmas day i would have a very difficult time doing that if i was asked for the first time in june but what's also telling is that you know miss littlejohn even if she did have a corroborated alibi which of course was not corroborated by anything but if she had an alibi she let her boyfriend's son sit in jail without bringing that to anyone's attention and of course that's just not credible if someone has an alibi witnesses the keys the to the jail you would think they would go and use them rather than sit on them until the day of trial so and as far as mr shell's recollection it is not we have to show not just that his memory is bad i mean to be sure he had some memory issues again whether it's because he got shot in the face or because the alcohol but we also have to show for going to square that with the hero accounts of which depends on which one you're talking about he not only didn't remember but he affirmatively remembered something that was incorrect wri to the defense in order to justify getting a new trial has to get a jury to bite on the notion that the skillet thing happened the night before the night before and that he got as he was taken down there and it's not just  he doesn't he mr still doesn't remember that but he remembers something different and that's a whole another order of memory problems or it's easy to scribe that to memory problem is very difficult it is not that he simply failed to recall but he recalled something different and did so adamantly and if the court just remember there is a victim in this case and that victim imagine how frustrating it must be for that victim who consistently said i know who sho and then somebody makes some an incredible statement i'm sorry i'm over time thank you makes an incredible statement on the side and then change that and change that and change that and then to have to go back to that person say we might have to have a new trial over this that's got to be into i think it's important for the court when you're thinking about the amount of the new evidence to consider the fact that the first trial the defense had no alternative theory for how our shell got shot because he had no recollection of where he been the night before there was nowhere to start and when you go to a jury and you say i didn't do it but i don't know how it was done that is a heck of a lot different than going to the jury thing i didn't do it and here is the evidence about how it actually happened that g jury a reason to disbelieve the statements of garcelle and the admissions of john bird both of which were already attacked at the first trial but now are even more subject to disbelief because of this new  evidence and the government makes it sound as a deborah kara's statements that her husband told her i shot bars is the only evidence that we have but there is a wealth of evidence aside from that first of all you've got the nig making a statement version of events to police and to another investigator who's repeated that version of events over and over again as far as the alibi is concerned the government says that the miss littlejohn did not corroborate the alibi but that's not correct because the only difference in the two stories as what time they left miss littlejohn's daughter's house after having breakfast and opening presents and what miss littlejohn said was he was our he went back home and he stayed there until his grandma came to pick him up at twelve forty five that's story remained this thing so there's no question that she was saying he was with me the whole time and as far as her not coming forward earlier she didn't know when our show was shot so she had no reason to know that it was important for her to say that jon burge was with her on christmas eve and christmas day if she did not know what time he was shot our talk for a minute about shell's new statement every time garcelle gives a statement or testifies he adds more information to his story and i'm not saying that he's doing that on purpose but i think he's being influenced by things that he hears in the community and then he adopts that as his recollection but if you look at his new statement and compare it to send a taylor statement which is on six eight sixty five the joint appendix he was not in rehab linda taylor until two thousand and eleven so it is impossible that the story about trading purposes for sex could have been the motive for any shooting that happened in two thousand and eight and that's just an example of how unreliable his memory is not thr any fault of his own other than having been an alcoholic for fifty years but he also how some damage from the shooting he's under guardianship now because of his his disability so i think you have to seriously consider his you know his inability to formulate an accurate memory when you're looking at the finally as far as byrd statement to police the government points out that he said something to the effect  that shell said shoot me that before before he shot him and the government asserts that al did not know that that was that that had been something to that effect have been said but that is not true if you look on page five nineteen of the join agent sidwell's report which was dictated and drafted on christmas day the same day that he talked to shell and it just defies belief to think that after al asad well an f b i agent interviewed this witness  that transcript of the conversation would not have been sent to al afterward and we know based on what al did during his interrogation of john byrd that he showed him photographs or sell the him facts to him from said well so well must have  him also the december twenty fifth report and in fact al admitted that he specifically asked for when he was interrogating him did shell say anything to you before he shot him i mean that is some pretty strong evidence right there that all in fact knew what had been said and it's not recorded so we don't have any way of knowing exactly how he asked that question so it's entirely probable that he suggested that detail the jumper and just about time