on and oh that's easy the number one the opinion in basan was purely hypothetical because that case from an article determined to look at these two things in the alternative to look at them separately and to decide and to treat them as threshold questions not under those circumstances where the court looks at it in that fashion and chooses to dress in that fashion how how can you say it's dicta what the court said about h r sixty one sixty any time you have a case where there is an absence of article three case in controversy jurisdiction anything else is hypothetical and an advisory opinion respectfully i think there's an analytical hierarchy that's involved here and in fact the court went on to say in that precise regard that there's no oh man dettori sequencing of the jurisdiction if the court agrees that the statutory jurisdiction on alice's was an advisory opinion then the court has the opportunity to reexamine why that opinion without being bound by the question on what on what basis assume we agreed with you that and we thought the base of palin got it wrong there's a way we're bound by our internal operating procedures panel on the supreme court denying search but but but but they quit me ok the argument was specifically made to the base and panel this is moot don't decided they chose in the face of that argument to is do we retain her church or fiction second is moot in this they understood there was a move this argument they treated them separately that was the decision of the court to address it that way how could we say well you got that wrong ok but it got curt before the horse because and let's assume we agree with you it got the cart before the horse this panel can't tell that panel it got the cart before the u s it  moat which is a way of saying they were wrong no the court said the substantive merits were in the bases and we should just disregard it as dicta but we're not we're not required to disregard it no more half of a man versus madison was depicted i'm saying give it a good fresh look and i think we have good reasons not to do that the court did ignore i don't think it was carefully briefed was talking about  can't help but notice that the people are joining you you're kind of you're on your own on this one that doesn't mean anything here oh i don't know you got it it's good to have the people with you no and it's problematic for the administration of justice in the virgin islands and as judge she garrus is just point out evidently the virgin islands doesn't agree with you because they're not the ones who are making the argument that this prejudices the handling of cases in the virgin islands should that be troubling to us well no because i mean because the little unusual to have lawyer you mean and say hey this is hurting the people and then the people come in and say nothing about that i think the virgin islands its executive function and be reminded the attorney general is the usual position of asserting on behalf of the virgin islands parses ca and that the via bridge on a sparse o c she knows better what's right for virgin islands government than the virgin islands government right then the attorney general's office oka yes at least we recognize the interests of civil justice which they essentially are not quintessentially or are not so concerned with we also recognize the institutional interests of the virgin islands supreme court which as a result of this legislation was supposed to achieve parity with the state courts in absolutely wrong i think it's a pyramid i think there's an analytical higher we may agree with you completely but then we get stuck on the question of if somebody is wrong if we think the panel's wrong or we produce say you're wrong and can we just say that because we say because you're wrong it's dicta that that seems to be the arc of your are no it's because we had mitt and the basin court had knitted that the merits were they had met it therefore there was no article free taste and controversy that's the bottom very severe pyramid from that you could have dismissed on statutory jurisdiction grounds but you can't proceed on a analysis of statute and reach the merits because it's a castle in the air so to quote a song if you don't have the underlying bedrock basis for the decision all that means all that means is again that it's addictive it doesn't mean that it's wrong but i think i've given a great number of reasons it's wrong and there and that's at five twenty four us to thirty six so thank you counsel all right well thank you so much to address attorney barry's issues very briefly i know when you have a case you want to look for a case that's exactly on point we already have one base and i do not think there's any case or support the idea that there is a jersey fictional hierarchy that to consider at this point because it's already been considered by the third circuit as to the subs of issues in my case the first issue is whether the court's anti c s i instruction  cases where this court okayed the c s i instruction but the virginal supreme court is still free to determine that that instruction is improper in the virgin islands is not bound by the third circuit so the question i think this been put to you and it's one that evidently all three of us have been wondering about is if we if we look at the way the question was framed and we think the underlying assumption this the explicit assumption in the question is roni yes are we balance to deal with the question in that fashion or can we also deal with the assumption itself well of course the courts free to do whatever but the improvidently granted though isn't that if if and only if we decide that the instruction was perfectly fine well i mean as again i have to concede that this court has already made that determination under  so but the i think the short answer question is no because the court would then have to make a determination of the virgin islands supreme court is then not permitted to make determinations on permissible jury instructions in its appear but i think it's  a it's got to i mean if it were to say under virgin islands law this violates notions of due process but is that how it was framed or did it just say this this was error and didn't and the argument is that it invades the process of the jury as a as a constitutional matter that is a federal constitutional matter at that point are we rendering decisions that are within our purview to speak to if the if the virgin islands has got it wrong i would say no because the virgin islands i think the assumption has to be they're looking at it under a virgin why why why is that the assumption instead of that they are making a due process the terminations based on federal constitutional rights well i think the reason for that is that there has to be an essential when it's reviewing that was essentially a state law case that is doing it under their purview to say that the court was expanding it to say that this is a under federal constitutional law that this instruction is improper i don't think that was done here and i think if you look at what cases the supreme court relied on it was state court jurisprudence from various jurisdictions but the court having looked at the specific facts of this case have determined what judge dunston the instructions he gave were in propre and determining that in this specific case  instructions invaded the province a jury the i think we have to accept that the supreme court is correct it's the terminations for the virgin islands that that instruction is improper but then you have a tough time ever getting over harmless error right it's kind of curious even if we were to say well look under federalism principles we think it's it's fine albeit  say this way it's a roni yes as a matter of law for the virgin islands to be doing what they do in maryland with the case that you cited there but we respect the virgin islands state law a constitutional lawyer if we've already but it's not it's isn't it non con stu show i mean i mean if it is a work cause if it were a constitutional error then we get in the you know we'd be deciding the matter right you've just argued it's non constitutional that we have to assume that it's a matter virgin islands law and if we do assume that then how do you get around which i tarnas just point out which is it sure looks harmless for the to determine harmlessness in a case where the trial judge admitted on the record that i understand that this lack of d n a evidence is the thrust of the defense case that how can someone be shot twenty one times at close range and there not be any blood spatter d n a from the deceased on  there i don't think that a harmless error to a determination can be made recognizing that this was a huge part of the defense and it certainly could be one that was harmless beyond a reasonable doubt where you have you can got to stick with us like i don't think you can have a both ways you can't say we have to apply chapman style cause to tional harmless error structural error harmless beyond a reasonable doubt review on the one hand which is reserved for const to federal constitutional error and then on the other hand say to us you have to presume that this was not the site is a matter of federal constitutional law you have to presume that this was decided as a matter of or john saw i don't see how you can take both those positions in the same breath and understand that you're on it when the verge now is made its determination the supreme court said that they this this age struction invaded the province a jury even though this court might not agree that it's a constitutional issue the virginal supreme court has already made a determination that this style of instruction is constitutional in that though it's federal court so now you're saying it is federal constitutional law it's ok so it's that then it's our obligation to throw the flag and say you know you're wrong it's not federal constitutional law you've misinterpreted the federal constitution well i would disagree in that once the court made the determination that this was incorrect ok they can then so they made a state  right to have guilt determined beyond a reasonable doubt it became the standard view that became one that had to be harmless i got i don't want to be redundant but i really if you want to understand your logic and i'm use you have argued that we need to presume that this was a ruling made by the virgin islands supreme court based on virgin i was a law not on the basis of the federal constitution but i understand that correctly one hundred percent correct ok and indeed bolstering that argument is the fact that the virgin islands supreme court applied a nine constitutional standard of review to what it said was error correct no doesn't that doesn't the fact that the supreme court of the virgin islands applied the non constitutional standard of review imply that maybe you're right they were applying virgin islands law not federal constitutional law  you can do how can you how can you do maybe we just need move because i'm just not following that i don't see how you can say it's virgin islands law so you've got except that it's virgin islands law don't apply federal constitutional law here and then say it's constitutes federal constitutional error therefore apply the higher beyond a reasonable doubt standard of review harmless beyond reason how do those two things go together where's the connection action is once the version on supreme court determined that this instruction did x and the x is it invaded a province a jury that converted it into federal constitutional law that what what what are you relying on for was with him i was with him until just now now i think i got it you tell me if i'm getting it the state system thinks it's a matter of state evidence i e non constitutional but because at the end of the day the state we've already decided i think it this court now you want to get us back to state law you don't want us to stay in the federal realm or we go we got to flip the switch very quickly back to state law and protect the federalism concerns of the virgin islands of adventure i think once we except the determination of the supreme court that this did invade the privacy of your you have to apply the constitutional harm is going to resolve that standard even when it was wrong to say that i would disagree wholeheartedly that it will but our case law says it was the law and you say does the we i mean i guess you had me with you when you were asking us to respect the right of the virgin islands to control its own evidence but like i think you have to or not once once you flip the constitutional law switch they it absolutely becomes our duty to opine as to whether or not the virgin islands supreme court is correctly federal constitutional law isn't that what we're here for well yes and no with the with the search for jurisdiction i think you do somewhat more than just determine the constitutional issues for the court but in this particular circumstance you have a court determining that the province of the jury was invaded that issue was not before this court whether or not that was correct it's if that determination is correct what is the correct standard to apply we and in some sense is to advise or to teach the supreme court while develops when or you have a situation where the court says this involves this invader the province's jury we can't go back and tell them that's fine to apply an isn't it a fact though that after ms kelly testified that they sought to put the aiding and abetting back into the case absolutely that's correct ok  why was that improper using see if that's wrong to do but if something emerges in the course of the defense case which arguably makes another theory of liability proper why can't they seek to on the basis of what the defense itself has chosen to do in presenting evidence and of theory of liability to the case well it's still not the government's theory that there is a thing but if you read the government's brief they agree that they did not proceed to the jury on aiding and abetting theory although it was they did and they didn't but they seemed to be saying in fact amended the information to provide for that because of what the defense put on in evidence that something they're allowed to do isn't it if the defense comes forward with another with an evidentiary basis that would support aiding and abetting why can't they go ahead and amend the information and say put this in for the jury that's not that's not our theory of the case but it's a possible basis on which the jury could decide the case there are several reasons for that for one in this case who is the alleged aider and abettor that's the any or better so that's the only person can be as come on francis who the government i propped up as an accessory after the fact who argues in closing was not involved at all in the in the murder itself was or i follow your line of argument i'm not i'm not lost in the woods on that one the way i was on on your  theories about state yes federal constitutional law etc but i i take their argument to me and they'll speak for themselves that yeah we presented a theory of the case that proceed on these fashions they put ms kelly on the stand she used the words they they shot him multiple times they did that this and when she said that that creates another basis on which the  could find liability and we want the jury to be able to do that if they believe the defend you know they're free to believe her and us a little bit of both if they believe that francis was involved then there's an aiding and abetting basis that's i take it that that's the way they're approaching it like i said in a moment here as walker will come up and tell me if i'm wrong respond to that why is that improper wrong because they would have if you present two theories of the in this case know what happened instead of for the third guy was acquitted it's not just you know pleading to a different charge a guy was acquitted in supreme court said no non lethal collateral stop this is this is different because in this case you have a determination the factual and legal determination that mr francis is an accessory after the fact he pled guilty to that charge so that's all he could ever be and i understand if mr francis was a it was tried in this case and law say in the brief establishes that you can only be one thing as a matter of law you can respond to stand for that but they'd stand for there was an acquittal at a trial and there's something that could be consistent but here you can if you're saying it's ok to have inconsistent verdicts when there's an acquittal but not when there's a guilty plea to a lesser offense or a different so this is a strategic move by the government we want to put this person up and make them as clean as possible so they'll be an accessory after the fact they made that determination before trial and say we will have this person and present them as an accessory after the fact once they made that decision and his guilty plea that sometimes the government makes a decision to in a drug case instead of putting on you know three or five drug transactions they only will put on the one that involved you know ten kilos right because they like to get the big conviction right but then sometimes when the when the jury faced with you know did this guy traffic in ten kilos or not you know it's interesting you get a jury verdict that says he's not guilty of that but he is guilty of you know one to five kilos happens all the time because it's a compromise verdict it's injuries are allowed to do that right absolutely and if that was a serious case i wouldn't be having this issue before the court and once the government makes a tactical decision to have someone determine to be as a matter of law one thing they can't then ask the judge in the case but in the high school i just gave you the judge the the prosecutor made a strategic decision only try to get him on the on the ten to twenty kilo deal and they they didn't but they still got a conviction on the lower court and that's where a jury is making that determination in this case the determination is made by a judge a pretrial decision by the court to have someone as a matter of law become something an accessory after the fact rendering him incapable of becoming another thing and any better the government has to live with the decision it made it doesn't get to come to court and say well we're going to problem up as an as especially after the fact but  but the jury still had to find him guilty they did but we don't know in this case if the government concedes or actually contends he was not convicted as an intern or better despite the fact that the judge instructed the jury they could convict him as an  better we don't know the answer question they should have never been instructed on aiding and abetting because that is not the government's syria case and kemal francis cannot be an aider and abettor and their governments not saying well there's maybe some third party that wasn't indicted i 'm still a little bit challenged because what you seem to be saying is that if the government accepts somebody pleading to something that that binds everything that goes forward from there that it's impossible for a jury looking at all the evidence to make a determination that no we think francis had a different role we we think he had a different role in this that that that's for didn't as a matter of law and i'm looking for the law that says that so the case law that i cite in the briefs say if you're an aider and abettor that's it so to have them come back and say well it doesn't speak to judicial  your argument is essentially judicial stop larkham it is having said francis is an accessory after the fact he there is nothing that can happen in a different prosecution right a prosecution of a different defendant for the same set of events arguably but in a separate prosecution it cannot be the case that other people are involved as a percent better so in other words the government is judicially is stopped from taking that step and i'm trying to find where you've got law case law statutory in kind a law that says judicial stop of functions in that fashion i'm not saying that the government could never present saying we did not present aiding and abetting theory to the jury and if you read the closing argument of governing this case they never say well maybe come all francis was involved too they say look he did the wrong thing at first he was just trying to talk this man out of the shooting so the right and the people who argue below that it was not improper that the instruction was proper and we do maintain that it was just an instruction and not judicial commentary opposing counsel says that is traditional commentary to turn in that yes the supreme court is well within their rights to that that it was a state level argument that they made and that it was it considering the federal implications for our constitutional implications i think if you read it the opinion as it's written they are reprimanding so to speak what they consider to be an invasion but it doesn't based on the fact that these two cases did come out and the instruction is very close to the model instructions from the third circuit it does seem difficult for this title to say no it was not an error for them to find that it was error when what do we do for the people if you decide to determine that the supreme court was wrong and that it was ok it was that the instruction was proper that's fine as well i think what's important for us is that it not be taken to a heightened standard that we say that that question was a question as to which was improperly granted because it has a bit within a default presumption i think that's fair and we did argue against h r we did we do and still maintain that the supreme court is still young but they were granted the ability to make law for the virgin islands and not every single thing may be correct the first time around when the supreme court in fairness to the supreme court of the virgin islands it didn't have the benefit of or decisional law on this issue at the time it made its decision that is correct it and there wasn't very much law i mean the crux of it was the necessarily as clear cut as what has come down from the third circuit so they did not have that benefit at the time  and in your argument in the trial it appeared that you were in fact as mr k said we've pursued a specific line of argument which was francis was an accessory after the fact floyd was acting on his own at the time the crime was committed and yet you did in fact go back and amend the information following the defense case right what was the purpose of amending the information to include an aiding and abetting theory if in fact that wasn't something that the government was prepared to say was an appropriate foundation for a jury decision or maybe it was your intent to say that was the appropriate foundation for a jury decision the defense is a large part of it he says that it wasn't him he did not do the shooting there was someone else there so that aiding and abetting instruction was fair and it covered the fact that the defense  not me there was someone else there which leaves open the option for the jury to believe that it was aiding and abetting as opposed to being a principal  watched the the interview in that nine one one call by my hearing on at least cations she says they stood over him they shot him right that's correct ok they ran down the stairs right when we came to trial and we had carol kelly on the stand and we answered very specifically well the person you look at is there more than one gun think calculus is on point i thought there were two gun shooting you know for a fact that's not the case because n l cooper the government's expert witness confirm that all the shell casings came from the same farms another one specifically asked how kelly did you ever see anybody shoot simultaneously say well you can think that he worked with him or francis who were telling you was not involved in the shooting and was only involved afterwards i think that presents an issue the government is presenting two diametrically opposed theories of the case i think it's unless and until you raise the issue that yeah my guy was there but he was in the shoe well that implicates directly the aiding and abetting line of prosecution doesn't that if i deny being the shooter  abetting theory no i think in a normal case where you are you can have him determined to be an accessory after the fact and where the government was telling this court their part they presented if eery of aiding and abetting we're back to judicial stoppel and i believe in this seem to be taking the position that they're not allowed to say in effect to the court look this is our theory of the case but the defense is put on evidence too and based on what the defense is said the jury could do something different we want an instruction that takes into account not just our theory but the what the defense is saying too because the jury can decide that they don't think we are one hundred percent right and they don't think the defense is one hundred percent right they think something kind of you know one from column a two from column b and they're allowed to do that and if they do do that there's still a basis for liability we want them to know that that's that is the pitch that i hear from them and use and you saying this is not allowed and that's point to make and i'll think it's a lot i think if i can draw a parallel to cases where let's say that the two people being tried separately instead of being tried at the same time would this court permit the government to proceed under one theory and defend an ace case and then a week later in a different trial have a diametrically opposed theory in that case does not happen with some regularity particularly of the result in case one isn't the way the government was hoping it would go i  government can't convict somebody of first degree murder and then on and and then convict another person of the same murder on the theory that will that is the single actor you can't do that because that would be a violation of due process but point hypo two guys both accused of conspiracy to commit murder trial number one guy gets acquitted government prosecution team camps on and says geez i think you know we were not going to get a conspiracy you know that guy's been acquitted and now he's going to walk into court and provide testimony that's really going to sink us in case number two so let's just pursue that he presented to your even if the reason the first guy got acquitted was he got on the witness stand and said i'm an innocent man i didn't do it my best friend did it his name is john smith and here's how he did it and then he proceeds to provide all kinds of testimony the government never heard before laying out how john smith did it it's your position that in case number two the government can't prosecute john smith for murder i think that it would be presenting i think it would be a violation to process that have to die even when the first guys acquitted i don't think that matters like if the government's theory it can't say this so you're saying the government says the government has a theory and it's set in stone and when when when people give new testimony and new evidence is discovered  as happens every day of the week the government can't then pivot to i mean isn't isn't that the prosecutor's duty when the prosecutor is made aware of new information too to act on the the information in good faith they believe to be the correct information and that applies not only when it helps them get convictions but that applies when it exonerates people that they've been working against for for years so in a scenario i have to concede that point is a scenario where they pay new information could they then alter the theory to a case i think the course probably right but that's not the facts of this case it's one case where they have one theory but as