morning ladies and gentlemen we have two cases for arguments this morning and so we will hear them in the order that they are listed the first check cases michael kirby versus robert coolidge would you step forward to the microphone and you have ten minutes if you wish as a tone and if you wish to save some time so that you can answer the other side after ask your question could you when you filed that first complaint and you never got an answer could you have gone to the next level no you can't go to the next level without without a stipulated that i should start at the second level ok as i understood your answer though to the chief's earlier question and you said that they wouldn't accept the filing at the second level without a docket number from the first level but if supposed to start at the second level then at any time you should have been able to just file something with the second level person that was there was out regard to the fact that you misfiled it according to them that's the actual fuel in this case i wanted to discuss first was that your structural matter which is on page two of the briefing and that's the argument related to title twenty eight united states coast section twenty one of five  because this matter comes to this court on an issue related to exhaustion of administrative remedies and because previous previously this court has found that exhaustion is not jurisdictional that was in rubble and then later and why is that it's a in this case money why are you saying this now the reason i'm bringing it up is because previously in the context of prison litigation defendant would often challenge exaction ministre remedy store twelve that's the point with fact and why should we order him to do that and i understand your point your honor this is a little bit of an odd case because generally that the where it comes up where inmates don't exhaust previously was where monetary damages were not available let me let me ask you let's monetary damages might be available here they they they would now they would not be available and that's the situation where when i'm talking about where federal nine hundred eighty three action and that's the end of staff and then i mean he's saying and i guess it's disputed that yeah it got lost and they didn't do anything about it you're saying he misfile didn't or something along those lines  with that you're not challenging the statement thirty thousand files are you well the problem that arises is we have no way to track it so he could say you follow that i'm not calling anyone a liar but he can say if you filed that we don't have any record of it i asked my client who at the time was out on  stake form and then the second level response and the plaintiff's response to that is why was out getting medical treatment and i believe he said he received it a few days later but he couldn't then even and he didn't care and my understanding was he didn't cure it but in any event because he would have to exhaust administrative remedies prior fully prior to filing his case the mccain what exactly is the i just what but if you did believe that that second one did he should have properly processed he should have attached the second level response which is in the record and he should have returned it along with the skiff report he was also pursuing a worker's comp claim so he didn't go he didn't he didn't do that and that's why he didn't exhaust is that what you're saying i don't know at this point if you ever i mean you can you point to me in the  sorry i don't have my actual for the record with me you came to oral argument without your excerpts of record i'm sorry your honor i don't do that  so that's when you filed the second one asking for investigation by it was totally separate it wasn't for his misconduct i wanted an investigation report so our so i can do my own investigation experiences you know find out what's going on with the case you know what they have and i knew i was aware because mates were coming back on medical what they traffic me they were coming back saying that they had investigation they took an investigation of what kind of stiff i usually have you are filing when you file you get district in nevada that he has certain rights among those rights for the rights to present witnesses the right to testify and we have the right to a jury trial mr prawle that did not receive those rights in this matter it's important to recognize the criminal justice system is not just outcome the parents of justice the appearance of due process and fair play is important before society can dance in individual prison before we put that moral condemnation condemnation on it defendant in this that if the jury believed him would have entitled him to at the very least in the struction on justification and perhaps even an acquittal as to occur are you arguing for the rule that a defendant should be allowed to put  any defense no matter what evidence he has to support it what does that do for the rules that basically permit the trial court to exclude from the evidence arguments  keeping functions extremely limited but the court records not allowed to make credibility to the terminations were not allowed to evaluate the strength of the proffer the court can only say this is a factually impossible scenario the client is writing or if i believe this fact is factual proffer that it doesn't support the elements of the defense as a matter of all there's no doubt that the court has that he can function but in this case our argument is this proffer did indeed meet the el judge said for example with respect to the third element i find that mr caroll that they'll to pursue reasonable legal alternatives he could have left the scene or he could have called nine one one to summon the police in order quell the situation with his brother and isn't that what the trial court did in this case but you're right it's different in kind because he didn't submit to the trial court factually implausible ridiculous story i mean what the court just talked about those are classic issues that the jury should be able to determine because this proper was i never had this is a rapidly unfolding accident situation that his brother was reaching for this gun the tool box he stopped and we  is that he was his brother who was previously been institutionalized as violent psychotic tendencies was in an argument with them punched mr prawle the started threatening him with this bill of harm he looked into the tool his brother started looking in the tool box and reaching toward it believe my brother even though he moments later turly retreated into the house still pose a confusing threat not only to myself but to himself into these neighborhoods children who we have just sworn at you know a few minutes before it would have made a difference if the evidence is shown that he downloaded the weapon but you know out of that one that's something that a jury could say well that would have been a reasonable thing for him to do and that the jury could have said it wasn't reasonable for him to think that for all that was still a threat and keep the farm that he should have taken some other course of action but doesn't the of all it was a clip that's in the gun maybe didn't know how to unload it we don't know and there's an important point here here is that there evidence are gaps here because he never was able to testify and tells the story his dad was unable to testify and and rare cases and if the court is well aware the government's case is really the benchmark case in which the justification to defense was used in that case there were absolutely extraordinary conditions that were put in place there and if you look at the wofford in the has to reach is absolutely extraordinary when you look at the time frame in this particular case and the facts are very very important this case this defendant mr pearl to possess this handgun that was fully loaded for over twenty five minutes twenty five minutes from the time the seven o nine and they testified in the record that they got the call they arrived there sometime between seven ten and seven fifteen but they met three streets away the three officers they met there and they made a plan for how they were going to approach the residence there they made that point and they met they essentially didn't arrive at the defendant's residence twelve seven twenty around there so if you look at the facts it's twenty five minutes and when they arrived there the defendant next to his motorcycle with that same gun in his waist police were called by the victim damien echols at seven o nine the testimony is that mr ackles had his children come home at six forty five in between six forty five and six fifty on that evening his children report to him the man down the street just customer here mediately walks down the street giving him the benefit of doubt let's say it's six fifty he says he's only down there for two to three minutes that's in the record he goes down there he's the defendant waives the weapon at him and his children  he not only waved the gun at the that the victim and his children he also otters language to them saying i'm not going to put up with this ass and stuff today so that incident it's about two or three minutes once he walks back with his children to his residence he's distraught and angry thinking about revenge calls his sister what should i do go after him no seven zero nine he makes the phone call to police non emergency number they then relayed th that he does nothing but sit in his front of his garage works on this motorcycle with a fully loaded weapon and this is a two time convicted felon that does this was part of the twenty five minutes was taken up with the confrontation with mr eko well i disagree with that your honor if you look at the where he and for all to have a confrontation and for all to at that point waves the gun at him and yell something about i'm not putting up with this today then probably goes back to his house sees me eccles goes vacuous house and call nine one one correct ok so it's and then by the time the police get there peralta is calmly working on his motorcycle with the gun stuck in his waistband correct ok and that whole period of time is about twenty five minutes correct ok when he questioned the proffer and so when you look at these four requirements laid out by the lemon case and also that was looked at in gomez we believe that none of these four are satisfied in the first one that is absolutely not satisfied as there was no least reasonable legal alternative number three as i stated he had so many opportunities during his twenty five minutes to get rid of its weapons do something this weapon secure this weapon go to police did not do that on the fourth element in looking at the fact that there was no causal relationship you gotta remember when they arrived there police which is in the record the defendant was under no immediate threat or death of our of death or harm he was sitting next to his motorcycle working on it and if you look at the record when police arrived he was reaching for the weapon and was reaching for the weapon he wasn't immediately spontaneously telling the police oh my just took this from my brother i just did this never mention that never made any statement to police when he's arrested simply is reaching for the gun he has to be put in an arm hold in order to be arrested because he's reaching for this particular weapon so i don't believe there's any causal relationship under number four from the threatened harm that happened twenty five minutes before and him possessing that gun at that time looking at the first  rationale that is on the move i would also argue that he was under no immediate threat or great bodily harm when the proper was put forth there's no testimony in that proffer by defense counsel that the defendant's brother ever said i'm going to kill you i'm going to murder you i'm going to do this i'm going to do that there was no evidence of that whatsoever so looking at the first problem number three and number four they are not satisfied whatsoever from the facts that are put forth  probably our weakest point but nonetheless we believe that the the senate was not able to satisfy that factor that that that he did not recklessly place himself in the situation obviously judge hunt  stretch i think it probably is and i suspect he can't just his brother yet he has a delusional brother whatever to say that he can't go visit him i would agree your honor that that's probably a little bit of a stretch the government could see that but when we look really at the other three factors there's no way the defendant can meet th twenty five minutes he just came up here made that up that's not in the record at all it's contrary to the proffer he can read the record you know and they also are mistaken that he saw me he did the same thing in their brief they said all this defense only pertains in extraordinary