the drugs mr prodi provided must be the but for mr stuff so let me ask you what you think that means and i'll give you two different things it and taking your eyes she was you know she had actually ingested other drugs with a b she had a weak heart or maybe she had some other physical vulnerability but just as it is these drugs are enough to kill her it seems to me if that's the test then it's met because he gives her these three injections she convulses she dies that's that i mean we sort of have direct evidence the other thing it might mean is in the abstract would a dose of seven point five milligrams of cocaine or some purity i don't know what the purity was be enough to kill the average person you know whatever they've done before and maybe in that case maybe he didn't give her enough to kill her and the only reason she dies is because she has all these other substances this toxic mixture that's referred to in the autopsy what do you think burrage asks us to look at i think birgitte ass whether it earlier in the previous day or so i think we do but i i do disagree as we mentioned the briefs that he that he and injected her three times the district court in fact found that he only but it depends on what the i didn't you supply all of that you know we have a little bit of apples and oranges here because we've got this statement from her friend that she uses twenty c correct and the evidence here shows that she was taking cocaine throughout the days and hours leading to her eventual overdose now and that cocaine came from multiple sources she bought it from a drug dealer day before additional cocaine at the end of her shift right before she went over to mr price house so there are multiple sources if this is killed or yes you know she dies when he injects are correct but but she is taking cocaine progressively over the we have the records show us anything about either in terms of dollars or amounts for those earlier doses it does reflect that when she does not reflect all of them but it reflects that she purchased  fifty dollars worth of cocaine i believe from the drug dealer in the morning i think she took all and fifty dollars worth of cocaine is not going to kill anybody right and speak to that night but i will say  a lethal dose is ten units if i understand your position correctly if one person delivers a little dose of six units and another delivers a dose of six units both have provided drugs resulting in death of the right that would be correct ok now suppose each one delivers a dose of twelve units evidence in the record as to whether the seven point five grams what killed her but there is also i thought there was some testimony though that people who were addicted have different here to write you know there's the evidence that she'd die you know in close proximity to having been given the shot ronnie there's you know the evidence of that his testimony about this suicide pact which indicates he was trying to kill her and if elaine five may i just go right to dr drew's jury testimony that was before the grand jury and what she was asked was whether the heroin alone could have killed her and what doctrine and jury said it she didn't she want jin want to go that far she want to say one way or the other she said because even though it's in a small now it couldn't metabolized by the body over time especially if she was in a comatose state and she hadn't fully digested the body still metabolizing it so basically she acknowledged that it's a low level but she didn't want to go so far as to rule it out conclusively she said we'd have to know more information and have to know more about the circumstances under which she died how long after she took it did she die that sort of thing and i think that's where this case so we don't really know the course when she died because they just find her body yeah we don't know if it can lead later we don't have an exact time of death but we know the circumstances under which she died a lot better than we do in any supplied her i want to because that's what i am trying to get at you know if she was already on the brink or maybe if he hadn't even given her anything she would have died anyway i'm sure the cocaine he gave her didn't help you know but was it a but for cause of her death is the burrage question burrage says preet commis and i think that if you do take your victim as you find so if this was the thing that the straw that broke the camel's back then that's enough for the death results in house until i want to make sure the right reason if it's taking you know one hundred milligrams of cocaine wouldn't kill anybody if you gave one hundred milligrams of cocaine to somebody w is so it doesn't matter what else was in the system whether perfectly healthy person or calm compromise for some other reason they're going to die or is this a case where this is just the last little bit the puts more of the edge but for this they wouldn't have died but you gave them this illicit substance and now they're dead either way i think the law says your lungs are two different standards and given her state of you know compromise at the time he gives her these doses it could make a difference here heroin that they did together in the morning early morning hours after their shift ended at the michael and that's where this test right off fifty dollars worth of cocaine was politically say early morning hours is that april seventeenth or is that actually april eighteenth by now so that's that's the key that's a parole seventeen so it's like one am april seventeenth you have her exact over you know whatever it's not but that the night started out being april sixteenth and then it rolls over to april seventeen seventeenth right and and so she doesn't die until the evening of april eighteenth so that's i just to say she goes all the way through the day the seventeenth and then the eighteenth and then into the evening so you see this is almost two days later right she's worked a full eight hour shift and it's another whole day later so we don't know we know that there was a whole lot of cocaine in her system but but it's a little disingenuous to say well we know that some of that came from other sufficient to of cause her death well i didn't think it was quite that clear they said the cocaine in her system was enough to kill or but the question is about the other sources does does the government have balance lee to tell us that under these circumstances it probably winds up being the defendant's burden to show either actual innocence or or for example prejudice resulting from ineffective assistance yes right that's our standing as well and i'll hope mr reedy can address that point as well republican because i mean the circumstances pretty clearly point towards mr perot knees dosages being fatal ones but let me let me just make sure something is cleared up it doesn't necessarily matter for these purposes who delivered the injection it was a no it does is it agreed that it was peroni who provided all seven and a half grams regardless of who injected them mr peroni admitted both as part of his appellant the second interview december sixth accountability injected learn the two point five grams of cocaine three separate times for a total seven point five but that's not necessary saying i brought it with me and then i injected it that's right right that's i guess that's an interesting question is if it's not his if you didn't purchase the cocaine and he didn't procure it but he's a wanted injects it i think i would still so would you characterize it as a shift i mean as i kind of understand the lay of the lands you know hatfield had been was on appeal but there wasn't a seventh circuit case before that saying that you didn't have to show but for i it's my understanding that other circuits the supreme court had said that it wasn't out there in other circuits so we did have this district court decision that was being appealed but would you characterize it and does it matter to be the case that everybody at the time of co hearing was operating under this regime of law where they form wasn't required yeah it's a great question i don't think it was a dramatic shift in the law i think if you read hatfield basically and it has failed the government's specifically admitted that but for causation was the appropriate test so it was not a situation like in burrage where the government is trying to argue it should be something less than both for causation and really what has failed said was really just to acknowledge what results from mean results from as a pair or minimum has to be fought for causation i can't be something less than that and so we're hatfield comes into play is this a jury instruction issue where the jury was instructed in half feel that they could be something less than but for went to trial and was a jury instruction and i q do you think he has to have that kind of find green appreciation for it to be valid or would you say that the fact that he pled to that element forecloses it now that's a great question to i think if the standard was somewhat ambiguous then and it matters somewhat in the facts situation if this was one of those situations where we just have a dead body and we don't know like other gaylord case where we didn't know what happened then i think it might it might actually matter his understanding of whether this was but for causation or something less than that but because we got this case because he confessed to killing terry learned checking her with a lethal dose of cocaine that has sealed case really doesn't even come into that it would not have necessarily been a lethal dose that was by itself she says i'm not saying that over it you're saying she's rejecting the contention that the heroin could not have been a little yes i'd also like to address quickly that the timing aspect of this i don't think there's anything in the record indicating that she died in this learned died the night of the eighteenth all the evidence in the record sort of indicates that she was on this consistent drug binge starting from about two to four am the morning of the seventeenth all the way leading up to her death on day team and i think it got a lot of things one thing i would like