part thank you for the morning winning the errors which charcoal is brought for your consideration must be considered in context and the context is that the penalty phase case about chuck hall was a close one and i'm not talking about the case about guilt chuck hall confessed his guilt initially persis gently and consistently throughout the matter what i'm talking about is that there is a close case as to life or death the jury note that came eight hours into the deliberation basically registered the jury's collective opinion that the case between life and death was close and the te held that a case is close if you've got a supplemental instruction that has to be given put it another way even with the advantages of the errors that we're talking about that were given to the of serious physical abuse and also torture but there was never any serious physical abuse proven what ended up happening was that they relied on torture in this essentially torture from the emphasis is put on the fact that chuck all strangled the victim by standing on his neck for ten minutes but both of the path  testified said that it was likely the consciousness would have been lost in about a minute and both of the path all of his confirm that death would have occurred in about three to five and i thought there was a dispute about that that there was a call but there are some medical testimony th that he put it back on did he let off as foot that he put it back on but when it came down to really putting even the government's expert to the point they basically said if you got stronger the compression for a period of time that's on there that you're going to lose consciousness within about a minute because of the lack flow of oxygen to the brain so but what about what about the stomping though i mean when you get that the the evidence of heinousness i agree strangulation case is going to qualify as hannah's that's that's clear right but here you have multiple entries to multiple parts of the body but in particular serious injuries to the knack because of stomping on his neck area which seems to me to be pretty close to torture us if and different what it's and you read the transcript just like i heard it and read it but it seemed to me that what the it what the experts were saying is that everything that happened can be associated with just the compression that i mean you're talking about a guy can lie in on the floor and you're standing on isn't that every one of the injuries has to do with that compression and what's happening because of that so in terms of anything that would not be associated with that for example the punch in the stomach is talked about there's no injury to the body on that literally every injury to the body has to strangulation compression take a look at every one of the injuries that's what that's what it's associated with but we have a bad issue about the about the sufficiency of this but gosh isn't that a close case compared to the kinds of injuries the kinds of things that come from heinousness cases where you've got hundreds of stab  bleeding blood strewn across the the room where this is all happening my point here that i'm trying to emphasize in coming to what i feel or might look to most critical issues the blindfolding and killing it's not ever the blindfolding and the gagging immediately proceed the the stepping on the throat so it's not a matter of he's left there for example the cases where the bodies are or the the alive victims are thrown into trunks and they're driven and different places and they have an extended period of time they have to think about it this is boom boom boom boom i think is what the fair reading of the testimony was so but again judge we're talking about if you compare that to other kinds of cases this is a close case this  jury found that this is a closed case the hallmark cases in this area are much more serious then you go to the whole idea of future dangerousness we've got the the the government is alleging that chuck was was a future danger and i've got three different arguments that i'm making to you all one asks you to look again at the jury in barefoot ideas in light of ninety percent of the results of future dangerousness findings and being that the inmates did not pose future dangers as with the study success but then you also have the fact that the statute does not permit for a an aggravating factor to be proven by any less then beyond a reasonable doubt but what you've got here is an aggravating factor that can't be proven beyond a reasonable doubt it's an aggravating factor that can only be proven by what amounts to a preponderance of the evidence and the argument is make well courts make these decisions all the time yeah by a preponderance of the evidence and it is not future dangerousness is a preponderance finding it's more likely that they're going to agree you mean interested you mean if a defendant takes the stand and says i will i killed and i will kill tomorrow and i will keep killing until you do something with me a jury could not find beyond a reasonable doubt that that person is future danger judge the whole idea is it's a perfect it's  the idea what you're doing is you're layering and they find it beyond a reasonable doubt that he's more likely than not to be a danger yeah i guess that i mean that's the whole idea i mean you've hit it at the head the nail ri judge it is a recognized aggravating factor under juric an odor barefoot and all of that but not under the f d p a with the arguments that we're bringing forward do they so this is entirely a use the any mitigating factor even though any mitigating factor is an overarching term with multiple examples other under any aggravating factor that is a point that is made in a lesser is basically the last of sixteen alternatives of aggravating factors and so what you have is the future dangerous just it does not qualify under the e p a well let me ask you let me let me follow up on that point which is you seem to be making the point and i might be misunderstanding and i'm not quite following but that future dangerousness judge low can mention  case law it's recognized and it could be used as an aggravating factor we agree on that under the constitution but you're making the point that in the statute it can't be because it's not predictive when that same argument apply equally to the recognition of it under the constitution as an aggravating factor in other words if it could be proven beyond a reasonable doubt under the constitution why can it be proven beyond a reasonable doubt under the statute and maybe i'm not following you and judge the idea is that you don't necessarily have  this comes to the whole decision about life and death it is not the decision about life and death under the various constitutionally accepted schemes don't necessarily require a determination beyond a reasonable doubt as to the determination between life and death but specifically the f d p a rights wires a determination of beyond a reasonable doubt i mean it's in there so i mean that's the distinction on that again i disagree that that it's a legitimate one under the constitution but it's clearly not a legitimate one under the d p a but then you get to the whole thing of how lame the evidence was in terms of the future dangerousness and i can see judge locums point you know if you say i'm going to kill and i'm going to kill again and i'm going to kill again what happens when you don't do it how about chuck hall's convictions for threatening a judge with all kinds of terrible language in the bunch of letters that he writes from inside the jail cell from turning the airport in maine upside down because somebody gave him a telephone and gave him a telephone book to be able to call all kinds of people you know those are his convictions and essentially what you've got are cases i've miserably from district courts but basically th threats really aren't future dangerousness they aren't indicative of future dangerousness and judge loken i i get it i would listen to all of that stuff i've heard it over and over and over and over and over again but the guy just and do it he's got four years at the time of trial that he doesn't even have a write up for you know blowing his nose at the wrong time so my point here again is that this is  close case in the context then you go to the i realize that we have the perky case in my case that the court has decided that i that the instructions take care of that but there's a clear circuit split about that issue but let's take a look at the strength of that argument you have the victim's sister who came in and testified that chuck hall wrote her a letter apologizing for what had happened that she had been moved by the letter and that she forgave him that's in opposition to the idea of lack of remorse grave indifference to human life  aggravating and mitigating factors and then as i said if i got time later which you're probably won't we could talk about us not being allowed to use the proportionality factor for the jury to consider counsel i want to ask you about the duplication point you made on intact and actually the government doesn't make this argument but there are statutory aggravating factors ones that are actually listed that incorporate the defend arguably incorporate the defendant's intent and in particular knowingly creating a grave risk of death to one or more persons in addition to the next them if your argument is right that that shouldn't be there in other words in other words they've already said you can duplicate intact but it's not just the intent judge it was just the intent and literally this is just intent on the on the part of the the recklessness the grave indifference to human life it's a generality you're talking about intent that is followed by specific sets of circumstances that you're putting more than one person into danger it's back combination of thing that doesn't really make it and  it makes it a whole combination of factors i don't ask to be in ten plus something else in your view yes ok that that would be the distinction that i will see but the whole reason i'm making these points which i think are strong and i love them and if i had more time i talk about them even more is the make my point that this is a close case to talk to you about two issues the first one is one that's been before this court now by my counting in my using it this is the fourth time and that's the instructional error that  basically this court has said that if aggravating factors outweigh mitigating factors to justify a sentence of ten then there must be a death penalty imposed the jury is instructed in that fashion and that's the way that the model instructions are done and that's the way that all of the cases are done in this circuit but that's the infinite minority position on the subject throughout the country in the last ten years you know i've given you in and a dent into my brief because of their responses made by the government i literally have surveyed all of the cases throughout the country throughout the history and if you particularly a look at the last ten years what you have is that you have the eight circuit cases that are instructing jurors that they must return a death sentence and outside of the eighth circuit you've got one case in which jurors are instructed that they must return a death sentence and twenty four told that they never have to return  western district of tennessee saw the case saw these statutes in a different way that that's a two stage process that it's consideration and weighing of the aggravating and mitigating factors but then a separate determination that the death penalty is justified and that's the position that has won the day in the basque majority of the districts throughout the country now the not only that you've got the jones holding by the united states supreme court in which justice thomas literally quotes a verb eight of the language in the instructions used in that case that the jury never has to return a sentence of d then you've got united states versus brown of the eleventh circuit and then i just brought this court's attention united states versus a card and it is not a case that is directed specifically to this issue but it is the case in which the exact language that a jury never asked to return a sentence of death is seen as one of the protections of the e p a and the argument is made by counsel mr valentini that there is that that can somehow be harmonized without and they just can't because alan said you can't use the term never because all of this is in the context of the weighing about aggravating and mitigating factors not counsel i don't like our instead instruction i don't like it i think it's confusing i don't go as far as you and say that you know it tells them to return a death penalty but i do think it's open interpretation for the jury and people could deter pretty different ways what are we now and i were run on sunday it is but we're bound by prior decisions so there's nothing this panel can do about it right now and i get you on that my hope for you guys is this which is that the rule of law and that's the additional issue that ivery is which has not been addressed by the court so that is the one way that if you're so that would not conflict with the previous holdings of the court but the rule of land it is not for instructions the rule of lenity is usually for the statute of conviction interpret in a particular word in a way that favors the defend it i sometimes seen  it applied to sentencing statutes but i've never seen it applied to an instruction well in a judge it's not just the instruction the idea here is that the statute is being interpreted in and into basically diametrically opposed ways so that in one part of the country you get a heck of a lot more lenient c possibilities from the jury then in our states for the eighth circuit so but frankly i agree with you that it would be better determined by the court in back but that is the one place where the court in the previous decisions have not been have not looked at that what you've what you've got here the is we go into the other point that i really wanted to talk to you all about and because the instructions were as clear as they were using the term must it's clear that the district court erred in refusing to accept the jury's no as its determination against the death penalty they were reported that they are hundred percent certainty that we are unable to reach a unanimous decision in regard to defendant hall go through how they were instructed you start with instruction number eighteen and that's in my appendix at appendix age that they the jury must unanimous if the jury only if the jury get i'm sorry only if the jury gets past baffle can they even consider life imprisonment and that's an instruction number eighteen then the form of verdict though the jury can return a life sentence only by a unanimous verdict so don't you have to read instruction eighty judgment instructions absolutely and that's what i'm just about to get to judge process because then when you when you do that you go to instruction number nineteen if the jury cannot unanimously agree on either of the sentences then the district court is to is to make that determination but now you've got the jury confronted with a situation that they don't have an answer to now i cited two united states riches that united states versus richardson out of the northern district of georgia and they took care of that situation by basically giving a third alternative to life and death which if they are not unanimously persuaded on the issue of sentence in that case they could've done that but that idea has been brought to the powers that be on the instructions committee by me and was rejected so that's not one of the alternatives here so the jury was in a position that they're not returning a unanimous verdict obviously but this is not a deadline either what you've got is that this is  determination against death given by the jury in the only way that they came now back in the district court and in the briefs alone feel vs phelps's brought up as suppose y countering our position but the trouble is low and feel versus phelps deals with a system of penalty phase implementation that's completely different if a non weighing system in other words the jurors are presented aggravating factors and mitigating factors and then make the determination about death or life and so what you've got in that situation is it's very similar to a classic situation of guilt versus not guilt and so you have the same kind of law that applies in that situation to the situation of a penalty in a non weighing system but this is wayne system that we've got and it has the steps that we've already described and so what you've got is that the jury is making a determination a non death determination that they're trying to report you know the government also brings up jones versus united states and what they are saying there is that that the language they are supposedly block's us but in that case it was a completely speculative argument that was jury comes back and says well you know we think we're one hundred percent deadlocked we're not going to be and that you know this is hard stuff and it should be hard stop deciding whether to put someone to death and you know the district court said you know want to try again exactly you  ten your deliberations and try to try not you must or should you should try to reach unanimous for x didn't say guilt didn't say innocence and so wasn't this in the nature just different than a lot of these other cases that the trouble is the consequence what you've got is the jury giving trying to report that they have made a determination against and their toll no we can't take that what i'm saying is that in that context no matter what he said other than what or no matter what judge fenner said other than accepting that determination is leading the jury to believe they got it wrong they circumstances it makes sense here though this is not this was not a matter of confusion this was not a jury deadlock this was a jury determination that's what i say you for your interpretation of what how the judge had to have interpreted the know how can it be anything other than it was an abuse of discretion for the judge to construe this note as a reflection of deadlock and not not your your take on it well don't you think the judge will open that it could also be basis for de novo as you put it given the context well and i think the preferable one would be abuse of discretion yes but i think that the and that's in my brief but the but it you know just you have to construe it just if you're asking me did i give i don't know when or as much detail as i've given you in front of the objections i did not what i said to him was that the may please the court i would like to begin the governor's presentation with the issue of the supplemental instruction that opposing counsel just discussed in the district court hall took the position of along the lines the there is instances in which the district court in which a communication is not does not convey an intractable that block our position is under the s e p a the fact that the consequences are different does not diminish the interest of the government and of the state in securing the unanimous verdict that it is a fundamental concern that the supreme court highlighting jones when he held that the that is not required for the jury to be informed as to the consequences of a deadlock there the supreme court explained that the state even if the consequence of a  mistrial the state still has a strong overriding interest in ensuring that the verdict reflects a unanimous decision by the jury so insofar as there is a any insofar as the claim is based somehow in the language of the p a there is no basis for that as for the instruction as your honor also pointed out instruction nineteen makes crystal clear crystal clear clear to the jury what the consequences of not reaching a unanimous verdict would be that is the instruction that enjoins the supreme court said is not necessary but in this case instruction was given so the jury had the benefit of that instruction and the verdict form there is some there was some discussion about the verdict form not given the jury an option to record it would have to record a a final not unanimous determination to answers to that first even if the jury subjective intended to convey that determination and as in any case the district court will retain discretion to not accept it and send the jury back to deliberate but even aside from that the language of this special verdict form make clear that in order to a the jury was perfectly able to record that result by checking no in response to question in section six a and then moving on in answering no to the question is in section s  structure simply lacked the hallmark of what an opposing counsel referred to as the hammer instruction it did not invite minority jurors to re examine their decision and in addition to sequestration or any pressure or lecturing the jury about you know the potential outcomes or the potential consequences of  that was required of the jury was to make an effort for that reason also you know there's also additional circumstantial evidence here to strongly suggest that in fact conclusively proves that there is no  perceived need to reach a unanimous verdict no matter what the length of the live deliberations i think we discussed exhaustively in our brief both after the instruction and overall i would also point out  that importantly after the jury received the supplemental instruction the jury asked for three exhibits that meet that is the hallmark of a jury that is continuing substantive deliberations it's not a jury that's given up and it just sort of really modest supplemental jury instruction that was given in this case opposes any course of ness or especially question lets your honour's have any further questions about that particular issue i will move on to some of the issues that my opponent just discussed first of all there was some discussion to the fact that the facts of this case as presented presented to the jury was not a strange case and was not a strong case  a rag in his mouth and then either hall or coons blindfold what's the story i seem to recall and maybe i'm just misreading it maybe i'm confusing the amount of time that he was being choked but on consciousness what was the expert testimony on that was it more than a minute or as posing council right that he would have been conscious for only about him that so the the testimony of the expert was that it would have taken between three and five minutes for  evidence which is if to the extend that the arteries in the knack had been compressed that could have led to a loss of consciousness within less than a minute but then he also went on to say and this i think  page either seventeen thirty or seventeen forty in the record or thereabouts and also went on to say that he did not see any evidence of any of the  consciousness right so i think it's a right it's sort of could have been longer than a minute i think there is base that i think the testimony is a bit stronger than that it suggests that the absence of evidence and this is one of those instances in which the absence of evidence decide well and then and then i had a conversation with opposing counsel about the stomping my understanding the records at least there's some evidence that it wasn't merely stepping on throughout that there were some stomping on the throughout that occurred as well and maybe that if it came  that is how you decided to kill castro you could have broken his neck i mean there's other you know there's a lot of argument which frankly the story about how you know this is the only way it could have killed him and that's why it's not heinous i mean there's off the put your foot on somebody's neck but if that's all there is then maybe that's not heinous enough to warrant the death penalty or to be an aggravating factor what's what's the government's response to that the response of the  understanding on the neck is far from the only evidence in this case as a measure before there is evidence of psychological torture they you know one of the some of the some of the factors that are considered as part of the heinousness inquiry is whether the defender was friend him and then after the killing also visited unnecessary violence on his body he punched the stones last one last time in the belly after that and these are all factors that are relevant to the that that goes to the to the deprived cruel nature of the killing in addition to the premeditated premeditated and deliberate nature as well opposing counsel also discussed future capital defendant in jorak in the supreme court did not address it explicitly but densely rejected it when he said that determining future dangerousness may not be easy but that's not a reason not to do it and just more generally as the supreme court pointed out predicting future dangerousness is something that not only the courts do every day but jurors are asked to do every day your honor pointed for instance the question cements read another context in which which we cite in our brief which i think it's clear determine whether a certain a certain crime by a coconspirator was reasonably foreseeable while that asked the jurors to put themselves back in time not into the future but to sort of put themselves back in time in the position of the defendant and make a judgment as to whether as of that time it was reasonable reasonably foreseeable beyond a reasonable doubt that other coconspirators would have committed the substantive offenses is there a difference between a that the jurors to determine something that's really hard to determine somewhat predictive in that but it's in the past versus asking them to do something that is unknowable at that particular point time because it's in the future i mean there is a i think a theoretical difference i think if anyone if anything i would argue that that cuts the other way because it's probably more difficult to construct for a jury to construct a counter factual and put themselves back in time to run a predictive judgement so i did but you know to extend the difference exists i think it would cut the other way as with respect to the evidence that there was some claim that unclear whether my opposing counsel was saying that the evidence of the threats made by defendant counsel by defendant hall should not have been admissible or whether they're not whether or not particularly probative the fact of the matter is that counsel mention the lack of remorse non statutory factor that was submitted to the jury that claim i think my opposing counsel recognize this that argument is squarely foreclosed by the scores decision y concern and finally as to the grave indifference mitigating factor first of all aggravating factor first of all it appears that they find a whole misconstrues the grave indifference to human  life the function that is played here with the argo the government offered in support of that aggravating factor is not just the conduct the intent or the conduct in connection with this particular murder but just the othe exactly the opposite there was a proposal that would have limited the the use of intent factors as aggravating factors and not the purpose that that proposal that is the reason why some legislators oppose the proposal and the propos presidential they also reflect a different judgment they merely reflect the judgment the some district court decided whether i would have an abundance of caution or within its exercise of discretion to give an instruction that says nothing as to whether the instruction was require which is of course the center of review under which any claim of instructional error would be reviewed in this court to the extent it was preserved unless your honour's have any further questions we will ask the court to affirm the very good thank you for your good counsel once again the case then very well argued and thoroughly briefed and we will take it under advisement