serving the rest of their natural life in prison for an act that i think everyone agreed including the government was a tragic accident at the beginning of the trial the trial judge instructed the jury and let the jury know that that their case did not involve the death penalty and that neither bobby jo nor kenneth would have that sort of exposure he then went on and instructed the jury later on at the close of the evidence that sentencing would ultimately be up to the court we objected to that a trial primarily because it was misleading i don't think as a factual matter it was true in fact that their sense in exposure was fixed by statute and the judge had no other alternative if they were convicted of first degree murder but to send them to prison for the rest of their life done by the judge and well not for them to consider i think i think what he said is that and it was in keeping with the ninth circuit instruction was the punishment was provided the punishment provided by law is for the courts to decide right now for the court to decide there has to be at least some choice and the court didn't have a choice there was no decision the manik once they were convicted in fact that choice had been made virtuous action would never be a part of possibility of a downward departure not from a minimum mandatory sentence your honor it was fixed by statute and it was a minimum mandatory life in prison so there was possibility of a downward departure now the courts have have generally held that since the matters are not something that is for the jury to consider and that basically involves t that indicated if there could be an exception to that rule when misleading or otherwise irrelevant evidence concerning sentencing was introduced  case i think what the judge did here by instructing the jury that the death penalty was not on the table is that it's would naturally have the effect of setting the jury's mind at ease knowing that they're not going to expose these people to the death penalty and therefore would probably endure in the favor of the governments to avoid some sort of compromise verdict but then when the judge went further in and and told the jury through the instruction that the punishment was for it to decide later on the jury would necessarily believe that in fact there was some sort of discretion here i don't follow your argument that well when the jury is told the judge will decide why does that imply discretion well i would say that if there's a decision to be made it implies that there is some sort of discretion when it comes down to  cents that the judge can actually make a decision if the choice isn't already made by virtue of the statue and so that i think and in order for the prejudice of these two defendants it is it is i understand the logic of your argument which is not say that i'm persuaded by it i'm just not sure it really leads us anywhere suppose the only i've it wasn't the case that the only option was was life imprisonment suppose there was an option for fifty years  that would satisfy your argument in terms of giving the judge some discretion you really doesn't change anything life so ever for the jury if the jury doesn't know the bounds of discretion or the range of pos has to assume if they're facing a charge of felony murder i think that assume the consequences will be substantial does it matter to them are they affected by something that would include a variation as insignificant as  fifty years and we didn't i mean  i think i think that it would in this sense and i'm probably treading on somewhat on dangerous territory but nevertheless that is recognized the juries do in fact have the power to acquit if that's what they want to do and one of the reasons why they've for didn't sensing information from getting to the jury is for fear that it usually works to the detriment of the defendant rather into the defendant's benefit because if you allow information such as parole information things like that then ensure he is more likely to compromise on their verdict well in this case for example i understand the judge gave defendants the option of proceeding just with the felony murder charge or with the felony murder charge and arson charge together and i understand defendants elected to proceed just with the felony murder charge of there's no discussion as to why but the only  inference i have is that defendants figure they've got a better chance of avoiding an adverse result because they don't provide the jury with a compromise with something else a lesser offense like the dog whether that's the case i don't know but we all understand that  juries make decisions for a variety of reasons some of them may not fit the theory of the law i just don't understand why that's going to be a factor here if it's a jury even if the jury understands there's some discretion they have no information to think discretion is substantial or that the consequences to be inflicted upon defendants wouldn't be enormous in the event of a conviction and that they i don't think they can say that they had the belief that the judge could meet out whatever punishment he felt mercy called for the difficulty with this case and the difficulty with both sides recanted about this to the facts particular because the government elected not to join the factual argument with regard to whether in a perfect world where i had all the power i would would render the sentence in response to this conviction i mean the fact kind of scream out gee this isn't the result that you come out of these facts but the jury doesn't discretion but with no information of how much discretion the judge has so i come back to the hypothetical i start with suppose the statute says life or fifty years from the jury's respect that there's zero difference there i think and yet that would be perfectly ok under the argument you're offering so i get back to i'm not sure that that we have reason to think the jury was led to believe the court had substantial discretion in a way that would have affected th  as to the ultimate outcome of this case you know the problem is that in a perfect world they would have been charged and they were charged now maybe and i'm casting a court order on review to grant really in this case well yes i think i think any number of the trial errors are taken together or looked at separately i think eye center of attention was focused on her and her family that she didn't have kids that her mother still had that father and mother were taking care of these kids she didn't have that the consequences would be problematic after i follow  the fire also testified that the hot spot in the fire could be because not only by where it started first but also if there was more fuel around and the testimony was that there was more fuel around there and that furniture was there and that the outside basically to explain why a confession was made which i is she felt that this was the only way to take the focus off of her family what she what the two points that we tried to get into evidence is number one how she felt the day prior to her confession how she felt after mother had been interrogated by the f b i for five hours and no one really in dispute i think everyone agreed her mother had been there for five hours and also how she felt as a result of agent edwards play and play it playing to their common racial heritage and that sort of sense of it he he testified earlier that time he had done that to build reporter with  and so i think that's that added fact combined with the fact that she didn't believe that the repercussions would be as harsh as what they were and her desire for amalie i don't think were explored and not and enough evidence an objection to that kind of question but the material facts the circumstances which led her to confess that she claimed falsely were in the record well enough before the jury in a vacuum y without her testimony about the fact of the acts upon her and her emotional state i think is where the problem lies here was that argued to the jury that she had she was under stress and that's why she say when she was that was asked a question how did you feel i felt i had to protect my family if you got out and that's i think that answer following through doesn't mean it's not true means i came forward and tell the truth because i didn't want my family to the input through all the things they looked through sure don't you see that conclusion i think that's going to be a conclusion and perhaps that's why it's so important that you be able to explain how she well problem but the question though these from one perspective everybody who commits a crime after it's over has some thoughts about it and if you ask if if it becomes important then they get how they felt how they feel now may have something to do with what they say about how they failed th good morning it's a horrible case don't you think it is a horrible case why did it get to be so horrible well i would like to answer some of that will be outside of that record but i'd like to answer well no don't go  reckon indicates your vision was all right that's tough but if the child had been dead wrong she might have been able to get out of their lives i agree judge farris the one thing that i disagree with is that the government's position situation that they had intentionally committed an arson and the result of their actions was that the sixteen year old girl had died we had confessions oral and in writing from the defendant b this case is a classic case of how much a confession will do for you in front of the jury when you really have enough corroborating evidence but conflicting evidence and of the arson charge at the last and the record shows this that everyone submitted jury instructions for both crimes expecting the both crimes would be tried what you had here you know in hindsight we've got a guilty verdict against both defendants that wasn't a shirt at the outset with this record at all what you had was a situation where the conduct here violated t now because of the choice of the friend and it was their deliberate choice to only go forward with the felony first degree murder case that's the conviction you have and we're here on appeal for various legal issues that really are not fair at all to say that this is the result that anyone wanted is not right judge clifton is exactly right this is a difficult case for both sides and it was a difficult case throughout the course but there is only a certain amount that was in the hands of the government to do in this case should we not have charged first degree felony murder at the outset knowing that we needed something to get the defendants to plea to help police so there would not be a trial in this case the mistake we made but we try to get the defendant by adding the arson charge to do the right thing or to have the jury have the choice and that was taken out of our interaction with them across the courtroom and through their attorneys that it was a situation where they did not want a verdict against them at all and that it was they just didn't believe the jury would return this verdict and quite frankly i don't know that anybody in the courtroom did it's a it's a difficult time every moving pretty far from the eyes until everybody thought about interesting that he talked about the death penalty at the outset that was of concern to the government if it's not available to the government in the district of montana in indian country cases by statute reasoning more difficult and he wanted that off the table because if it wasn't it wasn't an option was in the penalty option you know that serves me and this insistence right in the court was he took that off the table did he have some obligation to say what is on the say that the supreme court says no in shannon the what we've talked about in the distinction i tried to make in my brief was that of the jury or in fact finder and the court and so in this case that instruction which is approved by this court and in direct compliance with the supreme court law is to recognize those roles and that the jury has no sentencing function at all so that in following through with that purpose this this instruction did not mislead it was are pretty straightforward on the law the law of slower cases and longstanding hooker doesn't change mandatory minimum sentences the only route out of a mandatory minimum sentence in this situation would what information could have provided substantial assistance to the government in this case so by virtue of that it was a mandatory minimum of thirty five fifty three am booker does not affect by the cases that have come down post booker in the circu although the government is candid that the evidence in this case was controverted and difficult it certainly was sufficient that confessions given in writing and orally by the defendants were corroborated by the experts who did talk about the burn patterns in the still played loosely and then there was one witness who actually observed mr r k  lighting the car in the carport early and at the same time observing fire that was burning in the house which would corroborate the confession of both women are can the fire that was started by hannah has the vote which was going to be a difficulty for us all the way through that there were three witnesses who were in the house who watched or set the fire and watched it be put up and were there by their accounts from  government as you saw a lot of number of questions to go that really did go to state of mind the objection came with the question how did you because it was a question it's hard when you're not in trial to express why you think that a question is a bad question and you need to object to it sometimes it's a gut feeling how do you feel question in that situation in my view was they got this is an inappropriate question how and obviously the district court agreed but when you're looking at what was allowed let's just assume that the judge should have allowed her to and not only the day that she gave it but also those things that they argue affected her such as her mother's confession and how long that took through if you can answer that i felt pressured that would be cumulative to what she did that exactly because i it was in their view not a product of voluntary knowing conduct on their part was that they were trying to save their family and then at trial they pointed the finger directly at a family and that was really a discrepancy that i think could not go unnoticed by the jury it's just that that just didn't ring true as a reason for why they would have falsely in fact just it if it wasn't certainly excepted by the jury alone knowing what we know and what the jury didn't know if it begins to make some sense because surely they were advised by the time of trial that they may have elected to roll the dice so young they can make it that time and suddenly at age twenty five i'm going to be locked up for the rest of my life maybe we ought to fess up that it was not have been legally their house but it's not a hard inference for somebody to make thank you somebody not versed in the list so i don't have a lot of difficulty reconciling out why absolutely the problem was then that went right to the heart of the factual defense which is that mom did it now let's go aside from the fact that that's why they falsely confess they wanted to protect a family member but now they're pointing the finger let's go to their defense mom did well they had to overcome the evidence that we did have and that evidence was pretty consistent from the three people who watched her do what she did i mean in fact those witnesses wouldn't even go as far as saying it was setting a fire you know they were as much as they were cross examined about it was a flying you know it really wasn't a flame it was a little prick nothing ever nothing ever came of that we were there ten to twenty minutes nothing erupted so on all fronts that defense just didn't work for them at trial and then again we are trying to but the thing that variance tells anybody is that you quite often think of this absolutely and and that was a good argument that was made by the defense the timeframe of ten to twenty minutes i certainly wish this decision would have been a differently by the defendants at a time when something could have been time speculate why didn't they what is it because they are uninformed it's that no isolated no they don't understand you they had like best representation and i guess in response to that i would argue that the confessions may very well have rung true had the jury been in porn that hannah has equal had started another fire at particularly in conjunction with the testimony that she threw a lighted piece of paper tried to start this house on fire and even even with the testimony that that fire burned itself out it doesn't preclude her from going someplace else and starting yet another fire that together with direct testimony from bobbi jo ing about what she was thinking and and how she felt and why from her heart she decided to take responsibility for this may very well have have resulted in a different outcome i would also take issue with the government's reading of shannon case i don't read it to be quite as cut and cut and dried as the government says in that the shannon case does state that although the court concludes that the court should not give an instruction concerning the consequences of it tics and it should be given as a matter of general practice on that it should in handy in certain situations such as where iranians information is place in front of the jury  indicated that there was some sort of discretion rather than this was like this was it and that was the instruction given at the end of the case