deficiency it seems and the a b a model criminal rules say that it's important to preserve issues and to make sure that the jury understands and largely the issues will overlap that's what he said to lawyers at that stage they still recognize that they have an obligation to their client i still recognize they have an obligation to their contacts to quantum that's correct or there will sure but there were a lot of other issues in the p c r hearing where he was not willing to for example one day i asked him why he did it object to certain questionable remarks about the relationships of the various witnesses he said i don't like case where the only issue is alibied not to tell the jury this is an alibi case this is how you evaluate alibi it seems like that would be enough to suggest that it would be fun for you argued about alibi yes your honor although the only time four or five witnesses that's correct on the questions did the jury the jury heard the alibi plus my i don't think the question is did the jury understand what to do with it what do you do when i'm presenting one side of a story now  that's correct your honor but the court never told them the point which is which multiple courts have said is confusing which is that even applies to disproving they had to proving a negative to proving that he wasn't at home and you know this court and hicks said it's almost constitutional error for example not to deny such an instruction when requested because it could be confusing first the second circuit said similarly that will normally look at carolina the there wouldn't be discretion as the government admits it would have been reversible error if if trial counsel had requested an alibi instruction would have been reversible error to deny one so that part that he would have got in the instruction is it's clear from the record i don't and i think the government admits as much that it had it been requested he would have gotten that the only question now is what the effect would have been of that instruction  he need to think about this that there could be a case where there was and will be a good jury instruction run specific instruction but yet the jury instruction generally which we always say we look at generally together to get might not lead to prejudice because in that possible absolutely it's possible as a matter of law or serve for example the easiest case would be if the if the if the facts here were one sided then i think would be easy to say the facts are all one sided but the facts here are absolutely mutually exclusive for you today that's correct  honor that this is true for every alibi i agree that no it's not that's not correct it that's not correct at least not that is all for this alibi because sometimes alibi evidence you'd have a case and quite frankly  historically about this point of right there if you give a general reasonable doubt instruction you could still say that the defendant has the burden of proving where he was that even though you're correct that logically these two are mutually exclusive and logically which is why constitutionally a statement that alibi is an affirmative defense is problematic constitutionally because it would take away the government's burden reasonable doubt that's the question of what to do with two stories isn't always so easy even though you're right logically that would be correct and if the panel were all judges i agree they would probably have figured out what to do with the reasonable doubt but i just think that you know alibi we know there's so much confusion that it doesn't but you're correct that it logically that should have been able to get it but that doesn't mean that logically they did or doesn't mean that it's likely that they did i think there's a reasonable probability that they were thinking well the state has put on this prima fashion case the state has done what they've done isn't the fact that this there was  said he said split in this case with some pretty weak evidence from the prosecution highlight the fact that that instruction would have been very important to the defense and they are therefore prejudiced thank you are on yes that's exactly right and i think the supreme court and taylor said in a swearing contest you have to be very precise with album structure so there for example the supreme court said presumption of innocence and beyond reasonable doubt are connected ideas but still even though they're the logically connected juries we don't think we understand them and in this case the supreme court said which was a swearing contest they said we want to make sure every instruction is there we want to we want the jury to understand clearly and here as judge stacker said the case was this government's evidence is troubling there's always the real evidence is the testimony of two criminals who are covering favor with the government doubt the burden of proof is on the government to be honest that's correct but we but it's just such a confusing concept when you have two stories to not just say that the government has to prove its case but it rested beyond a reasonable doubt but that then once the other evidence comes in that's not a new question of now have you do we have enough evidence do we believe by a preponderance of by some other standard the mr hopes have it and the real question  is the jury has to understand is what they're actually still analyzing is the government's original case and that's not so trivial and we know it's not so trivial courts have said it's not so trivial south carolina has an alibi instruction precisely because it's not such a trivial and that of it if they believe the testimony of his friends and his girlfriend that he wished he could not be at the scene of the crime they would have convicted only because words you think there's a possibility that these jurors those people were telling the truth he was not at sea we believe he was not answer any other questions for sure so the question is did they say the question is not sorry i lost my train of thought they needed to understand that even if they when the government first insist on the album instruction when they request it they would need to add they would need to understand that the alibi is not a separate story it's all part of the same story and so the reasonable doubt even if they think even if it proponents of the evidence reasonable doubt because they would they would have failed that the government's failure to meet as a burden of proof i still see that you can get around that no matter how you talk about that about witness and i agree as to south carolina folks  judge could have believed the alibi witnesses were telling the truth and they still would have convicted under this charge just a charge that was given again i take issue with the word believe because that sort of the different contest and this is sort of the tail of you can talk and we also this court has done this and levy clark and united states good luck when you have a very close case that if the jury doesn't exactly understand what it is they're deciding that deciding something like in luck they decided that they trusted the informant but the point was they did it think about enough or that wasn't clear enough to them when they were thinking about what the informant how do you approach how do you analyze an informant this court said when there are issues that are in that in here in a specific context it's critical that the jury understands what they're deciding and yes on some level they believe they believe the story i agree with that but the question is did they believe that beyond a reasonable doubt that they believe and this is where the south carolina instructions very important that they believe that the government had this proven beyond a reasonable doubt mr hope's alibi witnesses and that's where that's why we have alibi instructions is because this issue was so confusing you know for their  instruction going in great detail quoting from the instruction it found that a lot of the instruction that was given the friend that was not prejudiced because it was clear why does south carolina have been require an alibi firms that the jury has a full understanding of who has the burden of the right and here alibi was the defense and i think you just said without it the jury doesn't have a full understanding of who has the burden of proof disagree looking you insert you've said it like three times now that the alibi defense is so that the jury will have a full understanding of what they what the burdens of proof far and they didn't have it in this case i don't believe the fact that they didn't have it in this case by the jury did not have a full understanding of what the burden of proof was on the state the only heard that it was the state's burden of proof and that's what you hear in every case right i mean that's those instructions and the fact that the prosecution has the burden of proof repeated throughout every jury instruction in every criminal trial so if that's the case i go back to my first question what's the point of alibi defense in south carolina such that they find it so important that it's reversible error not to give it if request it there's no need for it then in your in your argument because that reasonable doubt instruction is always and the burden instruction is always always given painfully given if you're at the prosecutor's table was as i've  identify mr hope or anybody really in this case so that that what your strongest case you've ever had was it also i don't know you want trial counsel probably i wasn't trial counsel i would say that in looking at the in that video but that was it j a twenty one because he met the right in this game asked because he's six feet tall and two hundred fifty pounds and the witnesses all said this guy's five ten five nine five ten back the testimony of the ever codefendant who was the goodwill driver and looking at the video because the video did show that run of the individuals who was of medium to jump over the counter and take the money and the other who was by a federal law issue right yes is there any supreme court decision over the federal that would show that this would one person said he that he was five nine this man is six feet tall and almost two hundred fifty pounds i'm not a medium bill so and the descriptions of the witnesses were not consistent with  what what the robbers looked like let's happens i'm looking at the descriptions i did describe the one that was holding the victims of the armed robbery  we're looking we're looking at the question of prejudice here on this review i'm just puzzling if we are getting ourself in the situation of saying overwhelming evidence of guilt then we understand that even if there's a little bit of a mistake the alibi instruction would not change anything it's only where we can your honor so the course can tell that there's objectively a case that could come out there could have gone in the jury's favor in other cases does not you don't have to wait for exactly those facts and this court and levy clarke said you got some of the heat of passion instruction but you didn't get the full heat of passion of our case is not the supreme court no i understand i'm saying th for instructions and still the jury needs to get this specific presumption of innocence instruction because they may not understand the nuances of the law even if lawyers would and that is a supreme court case about the importance of even mr from the trial counsel but he but that we have in the record heat there was no point in the proceedings where there's a video played so well it was a video record of the piece you are court i didn't to my knowledge no but i may have mistake no stocky build another one described him as one hundred eighty pounds that's a huge difference from a two hundred fifty pound person so to me that the state's evidence really if there is going to be the point is if i understand the government's case and i understand that there are you can imagine cases w be lawyer say something that barely ever gets said and then maybe in that case you would say prejudice but basically in every alibi case if you're saying to be simple boilerplate reasonable doubt instructions cover it then there's never going to be prejudice which is the state's position which loft and the prosecutor they to sixty five said you'll get your instructions from i don't have the quote right on him but look at the instructions from that man up there pointing to the judge so that actually did happen if there is a case the state admits to then this is the