thank you good morning your honor smith please the court adam stephenson on behalf of donovan burress this case saw evidence on going ahead behalf of the defense in fact it was significant evidence on behalf of the defense of after the fact conduct supplemental instruction including after the fact regard for human life does not negate utter disregard otherwise established by the circumstances before and during the crime as well as it does not operate to preclude a finding of utter disregard for human life shortly thereafter that same day the jury came back with a verdict that in fact mr burris showed in demonstrated utter disregard for human life yet the the state where there was constant state quarter excuse me supreme court said there was no reasonable likelihood that this instruction lead the jury to be precluded from considering constitutional relevant evidence that being the after the fact conduct that was a significant portion of the defense's case  at the trial and in fact looking at the totality of the of the evidence which the court is free to do in looking at assessing whether there's a reasonable likelihood that the jury was misled there were statements made about how mr burris was actively carrying a firearm potentially waving it around but that was also impeached on cross examination with prior inconsistent statements about no he actually held it down by at his side and that the victim kemal in this case lung condition that he was so emotionally distraught in fact that he handed the firearm over to the victim's mother and said take my life i mean he was so emotionally distraught at what had just occurred and he's saying he didn't mean to do so and yet he essentially tried to commit  suicide due to his just extreme emotional reaction and yet with the wisconsin supreme court did here is it took this absolutely misleading instruction saying that after the fact condit could not preclude otherwise found conduct and yet it  legally accurate in that context but in the context of whether the jury could consider after the fact conduct and i guess the weight that after the fact conduct could receive it was not accurate and in fact it was  like you're asking us to disagree with the wisconsin supreme court of the question of wisconsin law no your vote we had to treat the instruction as accurate the wisconsin supreme court did not find that th the instruction was accurate in this case in fact it said that it was at a minimum potentially ambiguous it actually directed or suggested that the state jury instruction committee revise the instructions to make sure that the same situation didn't occur again and in fact the jury committee did eventually do so specifically with regard to this case it did add in additional instruction where if there is after the fact conduct presented at trial that a simple error a supplemental instruction to the pattern jury instruction should be given that after the fact conduct should be considered in a totality of the circumstances review and again the jury is free to give whatever weight in credibility it so chooses but it is considered as a totality of the circumstances whereas the acknowledgement that someone committed a crime and and even without finding other disregard here there was a crime committed of second degree reckless injury it doesn't necessarily show utter disregard for human life that that there was no care given to what occurred and and otherwise but what was shown was the extreme emotional response of the kneeling by the victim the statements of didn't mean to do it and again given especially that what led up to the shooting there was disagreement mr burris testified that he put the firearm under a bed during initial piece parts of conversation and only retrieved it later on as well as the fact that the victim in the case burris and that's what led to the shooting again the family members testified on direct that no in fact mr burress maintained possession the firearm throughout the incident that he was waving it around but again on cross examination that was impeached by prior inconsistent statements to law enforcement about how no mr burris wasn't waving the firearm around it was at his side about how come all in fact did lunge at mr burris and there was altercation that led to the firing of the weapon the one consistent point in there with regard to the entire case was the after the fact conduct and that's what led the jury to ask the two questions it did and again shortly after the jury asked the questions the instruction was given shortly after the instruction was given the jury came back with a finding in a verdict that said mr burris demonstrated utter disregard given that the instruction is is so misleading with regard to whether the jury could possibly consider after was the accurate law that it could consider after the fact conduct as a totality part of the totality of the circumstances and that it could give whatever weight it saw fit not to say that it had to give a certain amount of weight in fact the instruction arguably told the jury you have to give this less weight obviously less weight than pride during the offense for prefects conduct and that is not the accurate student we just ask you to address where those who are the problem for me we have the wisconsin court telling us this was legally accurate we have the wisconsin supreme court applying that to tell abuse circumstances citing and quoting the correct u s supreme court cases on the school into and concluding that although this there was some room for ambiguity here it just didn't see this prospect why is that an unreasonable application of the boy to sort of cases or is there an unreasonable application of something else specifically with regard to source side i think that's actually instructive here source i dealt with jury and jury questions actually just like this and i think that's that's an important similarity in that in sorest that the court was in the core pointed out that there was no other alternative interpretation to get the instruction in that case that could have led to the jury misson being misled here i think given the significant likelihood of of being misled to the plain language of the supplemental instruction in this context of likelihood was significantly greater again the wisconsin supreme court acknowledged that at a minimum there was potentially ambiguous again instructing the jury committee to revise the instruction to avoid just this type of situation again and i think the unreasonable application is that the wisconsin supreme court largely ignored the jury questions instead consider the context with a searching inquiry towards couldn't support the verdict the jury actually came back with instead of was there a reasonable likelihood that the jury was misled and precluded from considering constitutionally relevant evidence thank money my name is sarah schaefer i'm an assistant attorney general for the state of wisconsin and i represent respond in this case the issue for this court today is whether the wisconsin supreme court and reasonably applied control in federal case law when it determined failed to meet his burden of proving that there's a reasonable likelihood that the jury misapplied the jury instruction in unconstitutional manner i'm here today requesting that this court for in the district court which found that there was nothing objective methodical it was well thought out it discussed the cases combined fifteen times was not a cursory analysis or application of those cases to the facts of this case it determined first determine burden  ambiguity and then a determined was there reasonable likelihood that the jury misapplied this instruction in the constitution manner and when i looked at that it looked at boyd and looked at winds and says well what are we supposed to consider well according to these cases we look at instructions in this case more than once discussed reinvolved out and it put that reasonable doubt on the state document thirteen twelve it says the state has to prove every element of this case the burden is on the testified that the victim asked him to stay he says i can't and kept picked up the gun and he fled so there was the jury was able to weigh both sets of the story and it was also under the jury instruction to consider post jur and prior conduct of utter disregard and it did so and it found him guilty beyond reasonable doubt because the state's proved its case that's all the state has the most this court has questions  you your honor just a few points counsel for the state just indicated that the jury was instructed with regard to the state's version and mr burris doesn't agree but what's important and again with the wisconsin state supreme court did not give any weight sufficient weight to like what the dissent did then chief justice abramson was with regard to the questions the questions are demonstrative that what came before the questions asked quickly repeatedly and then led to the supplemental instruction was unclear and the risk and the is an instruction or a direction from the corps that doesn't give clarity when a jury ask the questions it is of no aide and that i think that goes back to washington versus seris out is that the instruction there wasn't struck if that was the united states supreme court said there was no reasonable alternative meaning that could be given that out instruction other than that given by the washington courts and what actually followed the law here that's not the case here given