really may please the court my name is jeremy gutman and i represent appellant lane hurley with the court's permission i would like to reserve four minutes for a bottle that's fine the issue presented by this case is what is the minimum amount of proof that the due process requires as a basis for a criminal conviction let me ask you a policeman every question that may or may not be of particular  november thirteenth twenty seventeen opinion the district court noted that hurley is in the ninth year of his ten year maximum sentence is he still in custody and if so it's so obviously we go on evidence must be sufficient that it's insufficient have no rational juror could find guilt beyond a reasonable doubt and the cases including coleman versus johnson recognize this court of review in court is required to defer to the state court unless and there are two exceptions and the one that we rely on is that the the findings of fact made by the s that she says certain events happened now obviously for some of them only she and her lee were present but you know that there's testimony from her family members there's testimony from people  school you know much of this testimony when looked at in its totality would appear to corroborate her story people you know early coming in at assessment of the crop aeration but we've been that aside for the moment what makes this case very different than the ordinary case that comes before the court for review is jessica's testimony unlike that of an ordinary witness in the typical case is not that something happened to me and i have a memory of it which i have had continuously since the time it occurred her testimony is that for three and a half years she had no memory of these events before a psychotic episode that took place in her junior high when she when she was outside of her class a worse in aiding my things but the state didn't present this as a repressed you know repressed memory case they put forward the evidence the jury heard about whatever the deficiencies were they made a determination you're out of this the state closes its eyes to the fact that this is a repressed memory case what makes it a repressed memory case is the testimony of the witness whose evidence was the sole basis for this conviction i don't understand you put on an expert and you say this is what it is and here are the deficiencies and this is why you shouldn't believe it and the jury comes to a different determination of what on tape is review or should we do you're on to the one that what we're urging the court to recognize about the testimony in this case is that by claiming that after years of having no memory of claiming that the memory was something she had no conscious access to suddenly as she testified it appeared to her as if a blanket were lifted or the clouds parted and suddenly the memories were there this is just scribing a phenomenon that science does not recognize and there have been as we talk about had said here's the reason that you should believe her this is a repressed memory case and let me tell you about the phenomenon and here's an expert who will tell you that repressed that when someone presents repressed memories there's a reason to believe it right now that didn't happen they put on she was subject to all the cross and the expert testimony help me what the state pretended that there were no men my question dad that i'm sorry on what you said how was it objectively unreasonable it is unreasonable because the in order to accept jessica's testimony one must accept a hypothesis which has never been proved and in fact is over decades than it was in their testimony that that she she kept it she intentionally suppressed it application of unreasonable findings they've nor her own testimony her testimony is not that i intentionally suppress this it is that just before her breakdown she was having dreams in which someone was doing something to her but she didn't know who it was and suddenly in this moment when she's whole goosen aiding and think she's being and talking in a little girl ways and she doesn't know where she is and who's talking to her in that moment the blanket is lifted again this is her testimony so the idea that she the state both the the commonwealth and the superior court pointed to her testimony that i didn't want to hurt my mother and that's why i didn't reveal this the testimony where she said that she was talking about why after this revelation three and a half years after the event that was when she spoke at that moment when her mother came to get her at school she didn't want to she didn't want to hurt her by telling her about it that day has nothing to do with three and a half years when by her own testimony and the testimony that's really the core of the proof here she says she's claiming the memory was not there until suddenly it was there and for that to be true one has to look at whether that is scientifically true or possible different than a situation as citation of the event right as i'm reliving the event because i'm being prepped by this overzealous prosecutor i remember additional facts and those are disclosed as remembering additional facts and i go on the stand and i'm cross and the cause examiner says you remembered this and then all of a sudden you remembered a whole set of additional facts all of which are of my to my client what's the difference between that situation in which credibility is judged facts are presented and in that case you might have an expert say that you know this is the latter inculpatory in my hypothetical is manufactured what's the difference between those situations and but that in mind how is it objective lee and reasonable so that tells you this too a traumatic event is very memorable maybe not every detail but the fact of it happening who if you know the party who is involved the identity of the party certain basics are very firmly remembered and of course as under questioning more details might appear that is very different than what happened in this case this case the claim by the witness is there was no memory at all she had been in a hospital being treated by a team of doctors and psychologists and repeatedly was asked about her sexual history if she had any she constantly continuously and consistently said no that never happened and her testimony was in the weeks immediately before this breakdown when she was dreaming about something she didn't she couldn't really put it together then the quality lifted and it was there it's not like a person who for one reason or another has chosen not to testify about something and the a fair reading of the record is that that's not what happened here and the reason that it's unreasonable is that if  essence of the testimony requires accepting a phenomenon if the witness said i observed a crime taking taken place by looking through a wall because i have x ray vision the bu believe the court would hold is on the prosecution to show that that phenomenon could really have happened as as the present as a fiction because somebody said they had x ray vision and they saw it all that would be scientific research have not shown a single documented case where there's an actual documented trauma traumatic event such as the ones described here and a person can completely repress all conscious memory of it for a period of years and then retrieve that memory at some at some later date that phenomenon has never is verdict stand under these circumstances that that's correct your honor and i had no prior precedent to rely on well your honor though the wall is not new the law is be that there is a threshold of rationality what we're asking the court to say is to look at these facts where it's based on a and i phenomenon that has never been shown after decades of research to be possible to happen with human beings and on top of that to have it in the context of this particular case where it emerges out of  a tory experience and in addition just to go back to the the issue of corroboration the only there was literally no corroboration that any crime ever took place certainly this we wouldn't be making the same argument but in this case where the essence of the testimony is a memory was repressed for years no conscious access to it and then the witness gained access to that memory in the way that was described here that it is not rational and not reasonable to accept that in the absence of proof and again maybe just explain just a little more detail what your theory is i mean is your theory that she just sort of suicide by take came up with it or is it that she talked to her psychiatrist d somehow got it from her or somehow suggested or whatever i'm just wondering what your theory is on that the the what the evidence indicates is that the she claimed that the memories of this happening came to her in the hallway of her school and all of a sudden she remembered it all then immediately after that she was taken to dr  and and rather than taking your to the emergency room finding out what caused this psychotic episode and if she's going through any medical or or chemical issues that are causing state continued for a period of time her mother and others testified about continuing who was the nation's continuing talking in a little girl voice and so during that period the therapist reinforces her her but we've so her these memories and with which which we can see that she and she clearly believes are true based on the way this this court but it was raised in other context and in this case and there was there was a challenge to possible suggestion but it's part of the overall picture of why this falls below a standard the can rationally support a conviction in the record but you will listen from the doctor i actually i don't remember who the questioner was but certainly it in the record she specifically says that she did not use words to suggest she did not you know present questions in a leading question she talked about her professionalism and in this approach  so and i don't recall that being contradicted so if that's the state of the record then i don't understand your argument that the therapist in response the judge on appeal from at this point but the argument is not principly about a suggestion being created and fabricated by the therapist and and it being all about the therapist suggestion but the therapist's role basically helps solidify the the memories that a occurred and memories in quotation marks that that were revealed to jessica during this psychotic episode so it's one that's asking this court to make a finding specifically that there was improper techniques that with two suggestion but the entire situation and again i think it really raises the question who bears the burden proof when as as the the commonwealth says in their brief they didn't they they basically say it's an open question how she was able to remember these things in the way she described and the real issue for this court is if it's an open question and there is no there is generally no evidence that the phenomenon of repressing memories and in gaining access to them can occur as described who bears the burden of showing scientifically that it could have happened the way the witness says it have let me let me give you a hypothetical scene same testimony will in fact changes because our argument is where it is uncorroborated and what we have here is the absence of evidence like that even though you would have us you would have expected there to be physical evidence you would have expected there to so here there's there is no yes yes my position would be very different i don't think i would be making this argument if there were some corroboration of that kind the issue is you would not reasons for questioning this particular testimony but i would not be making precisely the argument in the or in the issue that was certified for review by this court is a go she said quote we always do nighttime prayers with the kids so i'm sure i encouraged him to go in and have nighttime prayers at least occasionally now you know you 're right there's not corroboration i saw you know but you know having all of the family members say yeah i saw i  saw him in the room i saw him go into the room or whatever that scrub rate because you you want as as i understand it you were talking about the factual determinations the error of the stick with the factual determination so you want to say the factual determination is made by the court were objective leon reasonable and when you say no corroboration i mean you know any prosecutor would say the more evidence i can put into the record that makes the witnesses statement more likely than not is corroboration i would disagree your honor because it does not corroborate the commission of a crime because there's no question he was in a hallway and the fact that he and this is a she only spoke about the brother remembered one time where he saw her early go into the room and as as you mentioned the mother encouraged him to do that to say prayers to check on her at night so that's like saying you know if someone claims the murder took place and it was next to a tree and you can show that there was a tree it that doesn't corroborate that there was a murder so  going and again on a single night when allegedly according to her testimony this occurred seventy five or more times and mother do this by about a single night  she believe i believe the mother didn't testify about ever seeing him go into the room the brother testified about one time seeing him go into the room but again he swept across the hall if this was going on night after night in and  other people into that hallway to use the bathroom no one ever saw him coming in or out the i do take take issue with the idea that an innocuous observation or there was also testimony about her locking her door and again there was no evidence that when her parents said you shouldn't do that because it's a fire hazard that that she protested or will upset one would expect a much more substantial form of corroboration if in fact the occurrences that she testified to did take place that that is just an additional layer of why this is irrational but the fundamental irrationality is that we do not have genuine corroboration of a crime and the only evidence is a witness claiming to have lost and repressed all memory of these events and then had them come back and there is no scientific evidence that that is any more possible than the x ray vision  when hurley has twice been convicted of brutally sexually abusing his then ten year old niece by two separate jury panels this conviction has been up hell of a multitude of times by half a dozen state courts yet the defend fact that it's simply not a record as your honour's previously stated there are assuming that this actually was a recovered repressed memory which is not supported by the trial record  this is not a repressed memory case when you look at the trial record there is an in depth multi day taint hearing conducted by judge all where prior to the trial at that trial multiple defense experts testified in this case at that time judge older mean a determination that the defense would be allowed to present evidence on repressed memory and how repressed memory may be scientifically unreliable but that the defense experts would not be allowed to comment on jessica's credibility at that time the cook experts were provided some redacted medical records and it has borne out that once the court has reviewed the unredacted medical records that the did those records did not show any inappropriate therapy practices that sought to induce recovered her precious memories which is something that each expert testify that they thought would be borne out by the records and it just simply wasn't also in this case your testimony from jessica's treating psychologist that she only asked open ended questions such as what do you remember our how does that make you feel the law i'm sure you said that that was not in not be part of our consideration because i presume told me if i'm wrong that the the i would that he is seeking is error as to the factual determinations in the second trial i testimony from the defense expert at that time about his review of the therapy records also there was testimony from jessica trooper kelly her mom and her dad that no one coach just a car i'd like to say either t mom's testimony as mom testified that she would see the defendant go into that jessica's room at night and that this was the kind of behavior that she actually encouraged this was a very close knit family she wanted her children to have a good relationship with her brother who at the time she was very close with and was thinking that he was going in there for nighttime crackers at that time i believe on cross examination there were some questions asked mom what about the set up of the house and whether anybody would have only go into the victim's room late at night but there was nothing contradicting him going in there for nighttime curls with the kids and i believe that this is something that hurley may have even admitted to trooper kelly at the time during an interview looks like on cross examination the victim seemed to adopt the language of the council that she had lost her memories of the sexual molestation sounds like that sounds like the press to memory or the way the victim actually phrases a is it when he asks her if it's lost she says she says that she wouldn't say that that to her she says quote it was like they were under a blanket and the blanket was lifted so i guess if you want to call that lost you could say lost at that point the defense attorney process her on her memory between the time of the assault and when she had the disclosure at school and ask her about whether she had remembered at all in between that time frame and at that point she responds how i kept them under a blanket what i didn't eat i would run an exercise and it was how i kept them inside so she specifically sets that she was taking to not deal with this trauma that happened with her and as evidenced by the record although the eating disorder didn't get to the point work hard inpatient treatment and tell all my she was in eighth grade this issues with her having an eating disorder and starting to exercise and control her eating happened almost immediately after the defendant moved out of the home so this was a problem that started to develop immediately after the abuse and it just didn't come to a head until several years later there was also collaborating evidence in the trial testimony from other witnesses besides just mom both mom and dad testified that jessica had very strange behavior that summer they both testified that jessica started locking her doors which they had told her not to do because it's a fire hazard and they also both testified that jessica on at least one occasion if not more had actually kicked out the screen of her bedroom window and exit her bedroom and went out into the yard in the middle of the and this behavior stopped immediately after the defendant moved out there is absolutely no indication that jessica kept doing this once the defendant and the threat to her was removed from this home  and as your honor mentioned there was also testimony from her brother who he was seven or eight years all the time that he would see the defending go into the victims were room late at night as a seven year old he didn't think anything of that but after his sister made this disclosure evidence into i'm sorry but was it objectively reasonable to admit this evidence all together right correct so  which would mean that the trial court would have made an error considering the considering allowing jessica's testimony in given what the experts it said that but but that seems to be a legal error so i'm not a lawyer i'm a little confused i'll get him on the bottle but i want to know what your understanding of the argument is if if the question is given what the expert testimony was it's error to have allowed just as testimony in that seems to be a legal question and not factual question correct your honor and it's my understanding that the defense originally raised both both of these issues and then expressly abandoned the issue of the admissibility of jessica's with the district court this testimony and heard this victim testify and they also heard testimony from various defense witnesses and an expert talking about whether her testimony was credible or not this jury believed her and i do not believe that we trial court to exclude the evidence doesn't change the need and the duty of a federal reviewing court to consider the sufficiency is is my analysis off i mean this seems to be a legal question in the legal question is given the expert testimony on one side and a lack of expert testimony on the other the court should a clue did her testimony because it's  right that seems to be a legal question which your adversary has said in the papers would seem to support is not why we're here and the reason that we here is the on the factual determination is the factual sufficiency does it meet the standard of jackson the virginia there is the fact that there was a related issue that could have we think it properly ruled on excluded jessica's testimony altogether is a different question and it's not either or but but i'm but as i'm thinking about this question the sufficiency argument is just look at what's before the jury and what the jury determined and the you know obviously the court after the jury determination to done sustain your objection is objectively and reasonable i get well that the position that we are advocating and we urge t court to to adopt is that where the testimony that the prosecution chooses to rely on is the sole basis for conviction involves a memory process and a description of a memory process for which there is no scientific support that there is no that does not according to scientists  have has never been in peer rick we established and many scientists are highly skeptical and debunk the theory that that's a possible get that if we if that's your argument that's a legal  commonwealth's attorney a theory that the eating disorder was a means of rip of repressing the memory that's another  unusual phenomena and if so if that's their position if that's what they want a jury to base that its conclusion about why this is testimony you can rely on is proof beyond a reasonable doubt the burden of showing that there is a scientific that there is some kind of scientific support for a theory that this is the way that someone can willfully repress memories by developing an eating disorder and the only evidence on that subject was jessica's own and whatever else she was she was not an expert on the processes of memory the issue is when the prosecution role law is an evidence that involves unusual unproven theories and the fact that they didn't articulate the theory doesn't mean that they didn't rely on the theory because you can't accept this proof unless you accept the idea that it could have happened the way jessica said it did if it's not what you have did objectionable i guess and if it weren't for the jurisprudence that makes that not a viable issue on a petition we we would be here arguing that but the fact that we can't argue that doesn't doesn't take away from the validity of saying there's still a burden of proof and when it's when the proof requires that being a  phenomenon of human memory that is not only unproven but very strongly disputed the burden of showing that this could have happened the way the witness testified it happened that the memory could have come to her that way that's a burden that reasonably should fall upon the prosecutor in the absence of evidence that can show that there is science that would that would