all right moving to the last case on the calendar for human this morning united states of america versus james michael wells it please the court given a chance on behalf of jim wells i'd like to try to reserve five minutes for rip out all the government did not and does not know who committed this crime the evidence they tried to use to connect jim wells to this crime was weak the perpetrator stood directly over his victims and shot them but there was absolutely no physical evidence no blood no two shoes no gunshot residue connecting jim wells to this crime under the government's theory jim well supposedly drove into and out of the calm stay right during a shift change but none of the witnesses who testified at trial who  coming and going during that precise time saw him on appeal the government doesn't even argue that it's evidence was overwhelming instead they argue their theory was the only conclusion consistent with the strands of evidence they elected to emphasize rather than present their weak case to a jury and allow it to reach an honest conclusion the government overreached at every turn this appeal raises eight instances of such over race with the court's permission i plan to focus today on the profiling character evidence  the opening statement the government told the jury mr wells had a history of running things in south that people who supervised him would testify that he would like to be in charge and have things done his way the government told the jury that it would hear jim's well had a very high regard for his own knowledge and the government told the jury that our forensic psychologist would come and talk about targeted personal plans violence in the workplace and that they would decide whether this testimony fit exactly what happened here this opening was consistent with the notice that the government had given months before trial that it would call an expert to testify about the personality and psychological characteristics of individuals who commit this type of crime it was consistent with the government's explanations at both the expert hearing and the final pretrial conference that the way this would proceed would be the witnesses would testify as to what kind of person john wells was the expert would testify as to what kind of characteristics someone who would commit this crime would have and the jury would determine whether this was a match and the government followed through on its promise it presented character testimony closing they describe this as feeding mr wells to a tee the government's argument somehow opens the door to character evidence mischaracterizes both the law and the facts of this case i don't think it was an to expertise and the scope of what the expert would testify to that the government did argue in connection with dr moist testimony that there was a a forfeiture a waiver of the some arguments can you clarify that because because i don't think there was an objection to the government's proffer of dr malloy as a workplace violence expert but there were discussions on the inappropriateness of profile evidence so how  do we review the forfeiture waiver arguments provided that anything was closeted in this case i think that there were many many pretrial motions that were filed with respect to dr benoit and then on the very specific question that i'm raising on appeal there was a very specific objection where peter often back or at rejoin the case one week after he rejoined the case there was a final pretrial conference and what he object to and i don't want to get the words wrong so i'm looking for my like pages on i mean i think there was sufficient objections raised with regard to the nature of profile evidence but am i correct  understanding the defense position as it's ok to call dr malloy as an expert on workplace violence general workplace violence issues but not ok to testify to the profile type of testimony that dr murray did in this particular case so he has the appropriate expertise but that expertise has no relevance to the facts of the case he has expertise in something that's true he has expertise and something his expertise is when there's a mass murder and three people are shot in one place and the perpetrator is caught that means he is either killed at the scene commits suicide or is caught if you examine those people they have certain characteristics that's what he has expertise he doesn't have expertise in this type of murder where the perpetrator is not caught where the identity of the perpetrator is unknown and even if he did the way he presented the testimony be inappropriate when you say he doesn't have that type of expertise oh what's what's the basis of your argument that some of the experts testify that there are two different fields of study or one yes has all of the studies involved what's called mass murder and he defines it and for the purposes of his study and as where three people are killed at one place at one time by one perpetrator but that's not the main issue that i want to raise that's just an issue asked whether he has expertise into this kind of murder the main issue i want to raise is the manner in which he presented his expertise puter off my back are very clearly objected to saying to having a profile expert come in and right yes that's correct and it couldn't have been clearer that that was plugged into the profile because when there was an objection to that testimony the government said this goes directly to the character that we're going to be discussing characteristic of someone who would commit this crime in euro refusal to do something about it to yes it was a ten year old incident about a high being transported to ask to island and whether or not it should be brought back to the river shop or whether it should be left at accu island for a transformer to be installed on it and they brought this in arguably i have to tell you i'm not exactly sure what the rationale as to what this was technically admitted under but it was clearly it made it for the purpose of showing that my client is an arse you know what a lot of people narcissists some people think i'm an artist that doesn't make me a murderer and it's law i want to give you a chance to also address whether in this particular case if we if we agree with you that it was an error to admit the sort of profile evidence whether the other pieces of circumstantial evidence would be sufficient such as the air can be found harmless you've got the missing gotten testimony from the friend you've got the fact that his alibi was debunked by the forensic expert you've got surveillance of a car that matches the s u v belonging to swipe and then you've got the fact that it's very likely side or job with a road taken by the murderer that very few people would know about how do we look at the remaining evidence in reaching the determination of harmlessness well first of all the government can even argue that there was harmless standard to review on harmlessness is that the government there's a it's not whether or not the remaining evidence would be sufficient and i argue that it would not be sufficient the standard to reveal on harmlessness is whether the government can prove that not even one one person and that person wouldn't hurt him well it seems to me from the very beginning the governments are loading up the scales here first place they do a jump into an article three question on the to do  representation and own their own motion when it's none of their business they try and move the second lawyer i'm going to be interested in the government's explanation for that if you have an were worried about their case and they wanted to weaken the defense's case i mean if they were so sure about their evidence they wouldn't have overreached in all the ways that i've pointed out in the br i understand that this was a terrible crime and i understand that the government wanted to get a conviction but this is no that isn't what the government does the government looks for justice it doesn't look for conviction i agree is it fair to say that the four four b evidence and dr malloy testimony essentially was the centerpiece of the government's case that that was the evidence around which the government built the case i believe it was a center piece and one of the main reasons i believe it was the center piece is every other piece of evidence that the government had they had for ten months the reason why they didn't go and arrest jim wells is because they didn't have enough evidence they couldn't understand why he would do this crime and so they brought in mr malloy to explain why an illogical crime would be committed and illogical crime would be committed because somebody has this kind of personality and if you have this kind of personality it's logical to you so yes the government's opened with it as the as the government lawyer stays in the middle of s q testimony this is the character that we're going to be discussing throughout this case it closed on it in its rebuttal scribed profile it's fitting jim we twitty the court raise you mentioned one two three four four other pieces of evidence one of them was a gun that was a forty four caliber smith and wesson so he may have had access to a forty four caliber smith and wesson fifteen years ago we're talking about kodiak alaska that would not eliminate a a single household on that island you talked about the car the s u v which what we understand is that you can tell what kind of car that is and all of the government says that it must have been that car it ignores the fact that any car coming from the other direction from anti marcion they would not be captured on any video you also mentioned that it was the car took a road that was it was not well known if you come from and how martian day that is the driveway that you would take to get into the com stays so it's not that it's very well known it's just that if you come from the other direction that's the one you take and then the court mentioned the alibi in that it was quote the pont it was debunked only because the government sees the alibi evidence and then this destructive testing is unrebutted that what i wanted was for them to tell pete rich curtain or that we're about to test your tide because the defense was already represented at this time they had asked public defender's office to start representing jim well so they could do these kinds of things that they could seize evidence they could make sure he doesn't leave the island etc so what harm would it have been done for them to have told rich partner we're about to do some testing on the tire if you want to have your own expert to observe it we'll wait for that do with appointment of counsel i think the government thought and under those circumstances that the keeping a second team of attorneys after the government had decided not to pursue the death penalty was not a it seems unusual in my experience this week pursuant to government motion is that a standard practice in your district or is this a one off well this is a death penalty case so i don't i suspect that there aren't a lot of death penalty cases but certainly the government had an government to spend a lot of effort concern over this expenditure over c j dollars but i have i have a a little different question i think this making that kind of motion actually puts the government in a position of you know i think ethical doubt on other words the government has a motive of decimating the defense team doesn't i mean it would make your case easier well we suppose to defense have the right to say you know i'm going to make a motion that the government be limited to two one a usa right i mean that's exactly what you're doing to them the that ethical conflicts i don't think there was an ethical conflict in this case that let me make clear though don't you think don't you think that's a result that you that you that you decimate the defense team you cut it by at least fifty percent that we made arguments in our brief as to why this wasn't preserved i sense that the court is not interested in hearing them but i do want just want to point out that the issue was raised multiple times before the trial began but it was not decided until dr malloy actually took the stand and if you look at the defendant's excerpts of records at seven forty six you see that when defense counsel got up to object it told the court i understand that the court still has is going to determine whether it's admissible the admissibility of that testimony has not yet been decided so the objection that and the court thought that it had decided it and i think the substance of it was argued that when likely to go on for for certain this case get to the top so let me get to the substance of it the defense had two main themes number one this this is not the kind of guy who could have committed a brutal double murder like this he's a nice guy he has no history of violence he has no criminal record that was a central defense team not prompted by the by the identification of dr malloy they opened on that scene they cross examined virtually every government witness who had worked with mr wells they then they put on a substantial defense case they called witness after witness to say he's nonviolent when he's been when he's had issues at work he hasn't he hasn't exploded in rage he was santa claus and he was he was a baseball coach he's a nice guy and he couldn't have done a thing like this that was a central aspect of the defense and under those circumstances the government it wasn't a rebuttal witness this was a witness in the government's case in chief but everybody knew this was coming this was not but i have a problem with opening the door in the sense that look the government gave notice it was going testimony they mention that he would be testifying yes so the government thought it had been decided you know expecting that malloy testimony would come in that's not true that the government counsel asked the judge before she opened you know i it's not clear that you've ruled on this and i'd like to mention it in my opening and he said go ahead and mention it so she put specifically stop permission to mention it because the issue had not yet been decided and you can just you can see that if you look at your arse seven forty six the defense counsel gets up and says you know you i don't think you have permission you're drunk driver sherman tank four for to me you profile period so i don't judge walther i do not think that the record supports that and i think in order for the court to really decide this issue you need to take a look at what the testimony actually was and not what defense counsel characterizes it to be there is an exhibit in the record government exhibit ten which is a power point presentation that that basically reviews what d to and you have to review dr malloy testimony as well defense counsel says that what we did was get up there and say you know the person who committed this crime has characteristics a b c d and e and lo and behold other people testified that he had those characteristics of a ten year old disobedience a word let me just finish this and then i'll talk about that that did not happen in fact to the extent that dr malloy testified about the characteristics of people who could perform this kind of violence they did not match up to wealth at all and that is why the defense was the one who relied probably more than the government on his testimony in closing the to the extent that there were demographic characteristics and that was not the thrust of the testimony dr malloy talked about how workplace homicides are rarely committed by coworkers how two thirds of people who commit multiple murders are psychotic how often the people who commit these murders are in their fourth decade of life way too young for mr wells how typically they have a psychiatric history not true of mr wells how they are typically single or divorced not true of mr wells and how forty you know i really don't know what the of the objection if you go look at that place i'm citing you will see that the only objection was relevance and that's critical in the one circuit because this court has held that if you're objecting on the grounds of profiling you need to specifically identify the ground you're appealing and you can't object on one ground and then appeal on another so if you go look at where the objection was finally made when dr malloy took the stand it was a relevance objection and you cannot stop the district court for not doing a four o three balancing when the objection was relevance so let me just talk about the hot this was a workplace homicide the government's theory was that mr wells murdered his to coworkers in cold blood as a result of an accumulation of grievances in the workplace we cannot be expected to try it workplace homicide without putting on evidence of what was going on in the workplace the hut incident what did occur earlier but it showed a pattern and in particular it showed how mr wells had gotten away with this kind of thing in the past how he had been repeatedly doing these kinds of things he had a new supervisor in a way with this kind of gotten away with with acts of disobedience towards his military supervisors he had a he had an auric and attitude of his importance in the workplace that cost and in that instance to willfully disobey a specific order in years before yes but it was important to the history because it evolved about two years before these murders a new supervisor came in mr reckoning and and had enough he read the employee file and he said you're just not going to get away with this kind of thing and that decision led to this accumulation of of setbacks for mr wells in the workplace one after another critical incidents in which he was found to be stealing firewood accused accused of misusing a fuel car was told he couldn't go to a conference that he wanted to attend one after another an accumulation of grievances that ultimately resulted in this very violent end and the government we cannot try a workplace homicide case without going into the defendant's history at the workplace and talking about how he related to his coworkers and how he related to his supervisors because that was the history of this case that just the district court considered whether these incidents could come in and found them immiscible both because they were in extra completely intertwined with the offense itself and because they were relevant to motive and that's clearly correct the motive for this offen arose out of frictions and grievances in the workplace explain to me again why dr malloy testimony is not prohibited classic profile evidence because what the government proffered was i'm going to call dr malloy and we're going to basically have him describe the characteristics of individuals who commit such crimes and he said that it was narcissistic and all that stuff and then i'm going to call late witnesses who basically talk about mr wells having to squabble characteristics and that's the government says that the inquiries going to be doesn't fit does it not that isn't that classic profile evidence that is not what happened and i asked the court that's why i'm holding the government because the government's proffer to the district court as to why dr malloy testimony would be relevant when paired with lee witnesses testimony is does it fit does it not fit yes but you have to look at what the it is that fit and i would the defense team that we identified a number of specific characteristics and said he has all of those characteristics is not true one of the reasons we introduced this evidence is to rebut the claim that people who commit these kinds of crime snap that they just you know in a fit of rage murder their coworkers because because a certain incident has caused them to snap and what the government was talking about when it  this we put on evidence that he had a conflict in the workplace and then well to cross examine a witness and say ok i had a conflict in the workplace but did i blow up did i explode in rage and one of the critical aspects of this testimony was to show that that not all but a minority of people who commit these kinds of targeted multiple homicides engage in significant planning and premeditation and that they do not they are not snappers they they let an accumulated grievance result in planning and pre meditation and they do not they do not the eighty percent of them do not provide any evidence that it's going to happen in advance and so the that that we're responding to there is not some demographic characteristics it's the idea of planning and  premeditation the suggestion that we presented a profile and said oh he fits is a misrepresentation of the record and i would urge the court to look at government exhibit ten and to read dr moise testimony so you can get a sense of what he actually testif to and what the what the what the basis of it was it was not an effort to identify demographic characteristics and as i said earlier to the extent that it was it overwhelmingly favored the defense instead it was an effort to talk about ho some multiple murders are the result not of an emotional reaction but of targeted or intended violence that is the result of considerable planning and premeditation and it was also a discussion of the pathway to violence it was sought to explain to the jury the jury could reasonably ask themselves how could anyone do a thing like this and particularly in light of mr wells's defense this chief defense that he was not the kind of person who could do something like this  talk about the pathway to violence he talked about how an accumulation of small grievances that to to an ordinary person wouldn't seem sufficient to trigger something like this can can cue me late to the point where somebody who has narcissistic tendencies would allow it to formulate into a plan that then resulted in premeditation in significant planning so i don't think the testimony has been accurately characterized and i think if you read it you will see that it that it related to two modes of violence two and two the significance of targeted and intended violence and to the description of the pathway to violence that an ordinary juror might not have understood right wouldn't wouldn't hurt rich if the government had disclosed that entirety it was not relevant it's only relevant as an accusation by the widow to alter that it's not true it was actually relevant to both defense teams there were two defense teams right he's not the kind of guy who does something like this and and it was relevant to show that other people in the workplace were aware of the conflicts but the other theme was that well what happened was she was asked who could have done this and she identified wealth that's relevant both to what was going on in the workplace and to this idea that the government had engaged in tunnel vision because the question was and was that the next day then later but the whole thing came in and you know to the extent that this harmed anyone i suspect it was not very high i guess what was the point in asking the question to begin with that's what i'm saying it was the  fact that when asked who could have done this she identified mr wells was relevant she works and there's that she was hysterical and she burned down a name where do you know that i don't we were in fact what happened was she was point the point when to both of the two defense theories first of all it rebut in the idea that the government focused inappropriately focused too soon on jim wells the defense said that his supervisor identified himself a suspect at the very beginning and the government's investigation inappropriate and i can't pinpoint it just now but i my recollection is that she wasn't asked who could have done this and then she blurted out to him well it was who did he have a conflict that worked with that man she said jim wells he wouldn't hurt a fly i can't i can't pinpoint it but my recollection sitting here differs from that representation is i want to give you a chance if you have that handy to to clarify the record ok ok so the question whether they had any problems with anybody right now was them who could have done this that's quite different but so did the government miss lead the church or attempt to mislead the jury by by asking the question in that way i think that i think the way the question was posed and the way the answer came out with potentially misleading but that was not intentionally misleading given the record that we've now just clarified it was misleading and certainly instances where it was misleading i think the government needs to concede that so we don't waste too much time on it let me if if the court has a questions about anything else let me just move on then we can see that if the courts interested in hearing about about the sufficiency of the evidence we do believe that the that the evidence was absolutely compelling by time is running out so let me just talk about but address with counsel the question of whether it's harmless error and she pointed out rightly that the government really does not focus on that briefing where we believe that the plane error standard applies and we said that the plane our standard applies and under plain air it's the defendant's burden to prove prejudice so so we have our good plain error and and we're talking about the expert testimony issue it's the defendant burden to prove prejudice and for various reasons that we've identified in our brief there is no prejudice to the extent that this was profiling it was overwhelmingly helpful to the defense and to the extent that it was something else it was it was clearly in response to one of the main defense themes about how jim wells was a nice guy and couldn't have done a thing like this so it under the under the plain error test prongs three and four we believe that this evidence that th defense cannot prove that this evidence was harmful and if it's not play in their review because it was preserved below world then then the harmless error standard applies but we but we believe that it's harmless for the same reasons and i do think if you take a look at the evidence that was absolutely overwhelming he was in the vicinity of this crime to thirty four minutes and with respect to the tire issue which which is a minor issue he had no alibi he was there was a videotape that showed that he headed north at six forty eight and did not come back until seven twenty two and on the second day after the murder he says he's confronted with this he said look what you said you went home with this with this nail in your tire you're in the vicinity for thirty four minutes and he pauses for fifteen seconds and then he says i have no reasonable explanation for that there was never any reasonable explanation offered if you live if you read the defense closing very eloquent goes on for three hours they never provide any explanation of what he is doing in the vicinity of the crime for thirty four minutes and on top of that there was substantial evidence that he created a false alibi that he had access to the gun that he had a they had he was the only person who had the motive to do this and that the crime was undoubtedly an inside job done by somebody who understood how this building worked basically came into the building in an extremely short period of time executed two people and  left and on top of that there is the videotape of the blue car we know he had access to a car the blue car in the videotape and i suggest that the court take a look at it closely matched the car of his wife and you see it arriving minutes before the murder and leaving the court has any specific questions i'll answer them and then otherwise i just have some references to the record on this issue of whether or not the defendant opened the door because he cross examine witnesses the government explain repeatedly be free trial that the way this would work would be they would put on the witnesses and then they would put on the lawyers so they put on the witnesses and the witnesses are allowed to say things like this ten year old incident showed that he was a narcissist and etc and defend it cross examine this witness is that is not opening the door cross examining the government's witnesses that are proffered to show a character are not is not opening the door the government asks you to read my wife's testimony and i ask you to read noise testimony too because if you do what you'll see is that he said that this crime would be committed by a male a narcissist with an inflated view of self grandiose strong sense of entitlement self focused lacking empathy and the government argued that this was a match and finally as to harmless this if one juror relied on the testimony that the jury emphasis that the government emphasized as the central piece of evidence in its case then the error was not harmless this trial was riddled with error all of the conviction should be reversed i think the of the hook for the government opening the door argument is that the district court had not ruled and so that question was still open in the usa have to still ask for permission to mention that in  done deal until opening so the court said i think unless you convince me otherwise i think this is coming in but i'll look at the again he said a look at it again before the parties open yet and so the government the court asked the government to proffer to the court what this testimony would be so the government proffer to the court what the testimony would be and it was you know the personality and psychological characteristics of someone who would commit this kind of crime and then before opening the government said i'd like to mention  loy in my opening i thought that was not decided yet and the judge said i thought i had already decided that but ok go ahead and do it so clearly the court believed even decided the facts of the parties kept asking the court repeatedly has this been decided doesn't mean that the court hadn't decided in the fact every time they asked the court the court would say yes that's already decided and you have a continuing objection and sit down what is your you have a response to the government's position always has an obligation to do a four or three balance thing and in this particular case it was presented by the defense it was clearly mentioned in the motions in limine that this would be highly prejudicial character testimony so the fact that the defendant may not have said for all three we don't know because a transcript is garbled at that point it doesn't relieve the district court from controlling its courtroom even if it were on play on the air revue this was not prohibitive at all right so three it is a probative value substantially outweighed by the prejudice this was not probative at all so the court never even really needed to reach whether it was prejudicial but if it had it certainly would have found that it all right thank you very much to both sides of the argument in this case lots of interesting issues matter submitted for d