a minimum mr jones is entitled to a new trial and the maximum his convictions must be overturned and he must be discharged we've raised three issues that  seem to be very important in this case and they revolve around whether we can trust these convictions the first issue up the rate that was raised in the brief pertains to the quality of evidence and the testimony from the two major witnesses by the government clearly show that the quality of the evidence is highly suspect given the level of intoxication from both mr birthmark as well as the complainant miss kane i raised that issue first not because i necessarily think it's the strongest argument but that's the focus when we asked the court to consider the other two arguments the question that is paramount is whether a judge had an on the facts in this case should have provided written instructions to this particular jury given the fact that i asked twice for those written instructions to be provided as well as the fact that they jerked at least two jurors were writing down the other limits for the judges really instruction what happened was the judge read the report read the instructions he refused to provide the jury instructions written form then the jury had a question please delineate between the two charges attempted abuse sexual abuse and sexual contact abuse or sexual contact and the jurors were writing notes and when they left i again begged the credit pleaded with the court to provide a set of instructions and the court said it understood my concerns but nonetheless going to provide the written instructions and that argument seems to be paramount because those sort of simple the provide the written instructions so that we can be required well that's true  trial judge i think it's up to the trial judge in the cases that that were cited by mr rector who wrote the brief for the government cited a sixty seven case a seventy four case in a one case none of which were that factor those that issue into its justification almost as a by the way that was part of the evidence to convict the fellow anyway so i think it's important plus in this day and age with the word processor and  those cases are at least twenty years old thirty some of thirty years old it's so simple to do to provide the written instructions that there is one of the old guys in the courtroom i can tell you it wasn't difficult before the word processor came along to have an extra copy of the instructions to give to the jury well i understand that but i'm trying to think of why why wouldn't it be just why couldn't they just do it why couldn't they get a lot of stuff to the crowd and some some judges i've heard him say that i think that that gives the jury a chance to over concentrate on the instructions or one paragraph or one sentence or one phrase in the instructions to sort of looking at the whole case so they say no i won't give them instructions they have a question they can ask me why is it that totally describe what converts it into an absolute duty from a discretionary power of the judge whether because i disagree with the fact that that the jurors whether it's testimony that's stressed during argument or instructions the jury in this case your honor the jury in this court case they asked for to the definitions of the two charges and the judge had and that only gave them the definition of the charge but gave them the elements so they're focusing you know they're focusing and if there are no other focusing why not just provide them with a written set of them so instead of feel like they're taking serious and so it's i understand that generally the courts the other courts of appeal that i've dealt with this years ago have said that the judge has discretion but i think that because of the constitutional implications that we're not certain of the verdicts we're going to make you laugh from this discretionary review the constitution hasn't changed you're arguing i looked at your grief again you're arguing constitutional  violation here but it has nothing to do it is generally you've got to prove facts beyond a reasonable doubt the stories you've cited you know make this a constitutional violation you're arguing that it's the best authorities that you're going to argue to us for that in your brief questions pointed questions and they're taking notes so part of the judge's response and counsel asked for it why can't it just be provided in fact the sixty seven case if i can't is the legal argument morning or honors may please the court i'm call rostered from the u s attorney's office in montana i want to first thank the court for accommodating schedule this morning and putting these two cases at the bottom of the of the calendar i think that the issues ra on in his brief the first two are sufficiently covered in mr richter's brief regarding sufficiency of the evidence and the exclusion of a witness or they or the exclusion of d n a testimony regarding d n a appearing on the throat of the victim th donna anyway so that kind of leads us to this jury instructions issue which i think this is one of the more interesting issues there is only one in preparing for my argument there was only one case that i have found that actually found it to be give instructions in a particular case and the court looks at just what the court here has has looked at the certainly an abuse of discretion standard but the discretion can be abused if in a case where the evidence long the k trial is long there's multi county lightman there are certain factors that make it more difficult for a jury to to deliberate with a view of the law that would certainly present in this case where there's only two counts the trial only lasted two days i did not see the the logical connection a mystery illness argument between the fact that there may have been a lot of intoxication in this case and how submitting the jury instructions would have been helpful in that regard i think judge haddon's view as expressed on the record is that it is a discretionary matter with him and he prefers not to do it and therefore he didn't for the first same fears and i'm confident that expressed in some of the case law which is that the jury may have a chance to pick  out one page from all of them and go over and over and over it and either convict or acquit based on a focused view of one instruction rather than considering the evidence or the instructions as a whole you're honest i think everything else is covered in  that goes to the biased of mr birthmarks testimony and of course the able case talks about bias is almost always relevant so we think that that's that's my brief but i just want to point that out back to the point about whether this this case the evidence was overwhelming or not it's clear that there was very conflicting testimony the reason why that's relevant to whether the jury should get the instructions in writing form is that the other cases that the government itself  in my opening grieved the difference between when it's unclear whether the jury is properly instructed or when the jury gets the wrong instructions as was the case in this rubio case and i think that that the analogy that i i'm hoping to get through because it is such an important issue and it's so simple to remedy particularly when the jury just has to instruct that they write read back when they're relying on their notes particularly when it's twenty seconds left particularly when they're told don't rely on your notes rely on your memory when it comes to testimony and they're writing they're writing notes and so mr