good morning ladies and gentlemen welcome to the ninth circuit we're pleased to be with you this morning as assume many of you who are who are here assembled are aware we have one case on the oral argument calendar substantial case the united states versus  am i represent mr cattermole this is number two in our planning we'd like to i would go first i guess i'll just do a quick summary of how we plan to divide this we're going to obviously dress all seven issues in the court's order we would like to add one issue if we have time we'll do our best i'm going to do the recusal issue mr mcallister testimony mr mcallister note the future danger jury instruction and i'm going to try to fit in that extra issue which is our statutory construction of section twelve zero three mr conoco is going to argue that that's an issue mr mcc l o y competency and the and i'll start with the macuse only issue and i'd like to start as to that issue with advisory opinion number eighty four and i'm starting there because the government has ignored it completely and it's brief that opinion makes it clear that if a federal judge explores any relationship with a law firm no matter obviously an important issue but that's not a look at this the judge if i recall correctly indicated during a status conference toward the very end of the penalty phase i mean the guilt phase of the trial that because mitt has some public discussion that he wanted the parties to know that approximately two weeks before he had been contacted by a search committee and asked to submit his name because he had previously made it known that after this trial he was going to be retiring from the bench he was going to do a d r at that time nobody made any motions nobody said anything and it turns out when the motion was made on january twentieth the next year he mediately indicated he had withdrawn his name he had never spoken with anybody of the department of justice he had never spoken with anybody at the white house he just had this contact by the search committee so the advisory opinion is nice it talks about a law firm but in this case he wasn't talking about with any principles he was talking with a search committee isn't that different particularly in this case when he say we're going to work for free basically because he already had his federal pension he made address as many of those points as possible first with respect to the record at that initial it was december twenty eighth and it was in a holiday break during towards the end of the guilt phase and what he said is that a search committee had asked if he would let his name be considered he actually never even said that he said yes although the implication is that he did see this now after that date he then filed he submitted a formal application with the committee and i think is  no these are not applicants you've been through the process these are not applications where you sign one page and say yeah i'm interested in the job i mean these applications go on for pages and pages requiring an extensive amount of material about your background this is not a simple little task so that is taking not only does that show how much he wanted the job but it also takes it to another level of this isn't just someone considering loosely a name this is a formal application he's going after which he didn't disclose he interviewed with the it was the local script screening committee he later identifies a so do we know what the local screening committee was this is a committee that set up by at the time would've been senators feinstein and boxer that correct we don't but that's the tradition today i would be the tradition and we don't know from the  the local screening committee that's passing the names on he said to the department of justice and he then later said that his application usually i think the process is that the committee will pass the names on to the senators who have a shot at doing there's a there's a political element to all of to all of this and then i think the senators will forward names to the to the white house that may be but what that however the route it was he did said his application did get passed on to d c what what's the danger what is it that you're worried about but what what is it that you think what what incentives do you think judge to breezy and has that he that might prejudice your client well i mean first of all it's the appearance of bodies that's that's the standard but who's who is it that he would be appealing to who who seek who's going to shade and evidentiary ruling this is at the end of the trial this is you've already you had everything except for mackell three days of testimony and that's a critical part of the case but you've got you've got three you've got there if you've got an evidentiary ruling who is to reason appealing to if people who are making the decision are watching this huge case i mean that's the appearance that when it's we're talking about a reasonable observer what the supreme court said and will give berg is that it's a suspicious observer it's one who's going to take who's going to look at what a judge does suspiciously we're not going to give him all the benefits of the doubts and we'll have all these types of clear your principal concern is that if you got appointed that he would that he would shape these things in order to be able to better manage one or two of the whatever it is two hundred eight usas in the central district i don't know if i would say it's the principle but it's certainly one of the concerns the other concern is what he'd be making rulings that would favor his you know potential future get the job right now the u s attorney's office has nothing to do with that well you're going to you've got you've got the concern is going to be people in washington d c say that's correct if he's if he's worried about getting through the white house counsel's office or somebody in  the attorney general's office then wouldn't he have wouldn't a judge have an obligation to recuse himself from all cases involving the united states well and what about what about what about the cases in which somebody might say oh no the judge is granting wouldn't a judge have to recuse himself in anything that might be thought might be sensitive to somebody making the appointment well ed ed of maybe different state case but if you're going to be if they thought that you were soft on crime because you gravitate then you might not get the appointment wouldn't that be a danger i think the danger that the advisor opinion is talking about is the danger of the potential future employer i mean i don't know what counsel with respect i want to go back to what my colleague mentioned a minute ago and that's the practicality of this  committee at least during the time of the george w bush administration which this was the way it worked was that the committee would review a number of people and then ultimately make recommendations according to what the judge said in january after you made your motion was that no one in the d o j had talked to him nobody in the white house had talked to him in short this was with this local committee that was going to make a recommendation to a senator and that may or may not have even been considered by the white house so you get back to the situation that my colleagues pointed out who how could any judge sitting in a case where the united states was involved rule in any way for a defendant if that was the real test here the truth is this is at the end of this guilt phase i think of how many witnesses are at that point i know overall they're like a hundred witnesses in both aspects of the trial all kinds of testimony all kinds of burning going on and you're at the very end of it and here's something that at the very best is really specially so i know you feel that this is an appearance of  evil if you will what's your best case and don't give me the one from the d c circuit that's not a d c circuit it's a local it's like a state intermediary got it it's like the the appellate division of the sapir courts don't give me that one of and then just the one of the seventh circuit which is very different is there any case from our circuit that meat comes anywhere close to the facts of this particular matter no i mean there is no there is no ninth circuit i don't think there's any other circuit federal circuit precedent on this issue one way or the other i mean that with this particular scenario and this is an abuse of discretion standard is it not well we we dispute about that but even if the court says it's an abuse of discretion stand what this court has recently articulating and see in bank cases as to what that standard means is the very first step is the judge has to identify the the relevant legal standard in this case just to reason he never even identified the legal standard he never cited section four fifty five he never mentioned what the standard was he didn't mention advisory opinion number eighty four or any of the relevant cases he simply said you know i don't think i would have been biased and then are all these other judges who either before they were judges were prosecutors or afterwards work for the executive branch that's not the standard so i mean i don't think the but all of those cases go to go to the point that the judge smith and i were pressing you on that is that anybody who wanted to let's say promotion let's call it a promotion from the district court to the court of appeals is in effect auditioning as there as their district judge and you have to recuse himself not only from all cases involving united states but that any case that any political actor in washington d c might be concerned over which would include for example at the cases well if that's the case how does a judge possibly do that he's he's disclosed the fact if you own stock in a company that was affected by this under four fifty five b which is the mandatory recusal he can actually divest himself of a stock in order to do it but once he is challenged he immediately withdraws he's effectively divest himself of the stock once there's an objection but the objections not raise considered he doesn't tell them that he's submitted a formal application he doesn't tell him that they've been interviewed when they find out he's been the front runner you know the refusal motions or an extraordinarily sensitive area i never filed one of my entire career and i've been doing this for almost twenty that's a good thing and to encourage that the second he said anything before we did any factual investigation or legal research to determine the propriety of a recusal motion to encourage them at the first second some judge says anything you have to go ahead and follow recusal motion but it was quite a while right i mean it so it are you arguing that it's not untimely because it took that long to do the research so let me first say this now then i'll direct response to question the government concedes that we have a preserve w to the penalties so at the very least they've made that concession it may not thinking that it's i'm not sure they've preserved that and that's why they've agreed that it's timely they do you have a motion that's preserved but whether it's timely or not as to the penalty phase i'm not sure that you can see that well the district judge twice said your your arguments are preserved for appeal said it twice the government never objected to that good to get to your honor's question about the thirty days it takes thirty days to do the legal research it was approximately thirty days before the fall the motion i mean it would take take some time to do the legal research i think the court is indicating this is it's an interesting issue it's not something that maybe you know you can just whip off in one or two days  satisfy a plain error standard well we maintain the government is can see that a plane or a doesn't apply at least as to the penalty phase ok let's just say hypothetically that because it wasn't objected to at that particular point that four that's your best authority i think it is and it's it's that's the that's the committee on the code of conduct for the federal judiciary ok and in this case let me ask you counsel what rulings that the judge made after he was contacted by the committee do you believe were directly affected by his application testimony that was later struck because he refused to be cross examined occurred after he had disclosed this conflict in quotes right but it's our position he didn't give full disclosure it was a misleading limited disclosure he said the only thing he said he never mentioned that he applied he never mentioned that he had interviewed you know he just gave this little snippet that someone asked that my knee be considered he never even said and i said yes but he said who knows what will come of it that's not the way i read the record i wouldn't anything come of it with her i agree the implication is that he said yes but he never even says he said yes but that's the implication i'm not doing it for any financial gain but i took the position that i would do it for a dollar a year i have been contacted by the administration becan talked to by a body in washington as december twenty eighth grade they make recommendations and they asked me to submit my name whether anything i mean that's the implication is obviously he didn't tell them no i agree that's the did it would you have to give your copy of the application i mean what difference that made you you were unknown is that the judge in this trial had been contacted by the local committee asked to submit his  application he indicated by virtue of you know he was going to do it for a dollar a year etc that he was going to do that what more do you have to know while you again have to come from the point of a lawyer in the middle of a death penalty case i'm going to make a decision about whether i'm going to follow a motion to recuse the judge that's presiding over this case i'm not really sure what it is that he's telling me i feel you've got very little to lose here you're here there's no question as to the guilt of your clients but that's not that's not in dispute it's not in dispute here it really wasn't in dispute there especially at the end of the government's case the only thing you're going to do is you're going to is your client is in jeopardy because because mchale's going to take the stand that's not a that's not a good thing to think about other than that you're off to the penalty phase on december twenty eighth that all of a sudden while they're figuring out how they're going to deal with mchale's testimony figuring out you know all the penalty phase evidence because they're you know assuming they're going to get a guilty verdict all these things they've got if you jury instructions they're still cross examine witnesses closing arguments that and they're trying to get witnesses from europe over to the united states they're doing all these things the judge drops this bomb but it's not clear what the bomb is right but but again what have you got to lose i stand the sensitivity of making a recusal motion judge the judge and called in one of the defense attorneys and his doctor because the defense attorney had an accident over the weekend and he actually brought the doctor in to try to confirm whether or not he was drinking alcohol over the weekend which would seem like a legitimate concern for a district who's responsible for managing a trial where that where a defendant is entitled to to counsel and if one of them is not functioning as counsel in the district court knows of the maybe a plane error problem well there was it was purely speculation and there was no indication that had any alcohol problem or anything like that this was total speculation that he was drunk or doing something inappropriate and that's why he fell down the stairs and let me let me go this is something we talked about earlier years we were concerned about what the district judge didn't tell you  on december twenty eighth and yet the next thing that happened in this particular aspect of it was that you moved to wreak use him what new information did you receive from the judge between december twenty eighth and january twentieth that led you to file this motion on january twentieth it wasn't from the judges from newspapers that was in the in the motion says newspapers reported that he was the front runner for the uk and when did that occur  trial that i'm going to take some time to figure out whether the motion has legs before i even think about and finally and in this article i realise this is a little off the record but i'm trying to understand the flavor of this what what was going on here the what was it that the article said that january thirtieth is i have been contacted by the white house i haven't been contacted by the department of justice i have not reached out to the white house and told them that i'm withdrawing my application i've indicated that to the search committee so if somebody was trying to manipulate the white house for example by leaking by leaking a list that perhaps one of the senators favored it was it was a political move who are talking to each other through the newspapers which is frequently done to reason may not have had anything to do with that it may not have even been true but at that point you come in and say ok now we're concerned and whom he's out he was tossing mediately and what's wrong it's sort of like the stock situation the four failure by b i don't think it is i mean the withdrawal does not given us your very best argument for why the failure of the judge jury his himself immediately when he talked to you in a status going from sun december twenty eighth the whole guilt phase of the trial should have been at this point it's our position that yes the the error should not be deemed harmless i mean if the court just fine if it was not harmless then what's the result what filmy tell me what if you'd been the judge given you those no authority directly except for your divisoria opinion the whole thing just gets blown up notwithstanding all the witnesses and everything else no evidence you can give to me of what specifically was caused what rulings for example that were a court could reverse on the penalty and not on the convictions i don't know if that answers your honest question but there that is the alternative where a court can say the whole case isn't blown up to what is harmless error work here because in wolves or burnt i mean i would assume the air would come from the ballot that the public might have or the question of fairness and if that's a question and that's why there is an error then how is it ever harmless well all the criminal cases that have found similar refusal type violations have found that the other was not harmless and i and i agree that when we have a strong argument that there is not harm us but the court i guess could conceivably say given the length of the trial all the different burdens on both of the parties i think that's like the one of the first little  factors given that the public's confidence in the outcome of the guilt phase perhaps isn't so seriously undermined as it would be to the penalty phase that the court could say and i'm not saying that it should but it could say that the error is harmless as to the guilt based on a local search committee saying there's an opening in the court of appeals we think you'd be great we'd like you to apply he's ruling he knows that the executive branch is pretty conservative continuing on to be a judge i mean addition the that is that the key element from your perspective that he's going to retire and he's going to no longer be a judge yes why is that that's what the opinion says not understand why why should that make a difference in terms of the fairness of the trial and whether or not there should be a refusal let's assume you're going to continue to say this judge what are you going to retire and he simply had this opportunity what's the difference between that and his being asked by the local committee to put it is named for consideration as a court of appeals judge i think the difference here and i don't and i don't think this court has to determine every single federal executive branch position but the difference here is that the very office that's litigating the case in front of him that's the difference i mean when you're when you're part of become a judge you're not you're not making decisions on a case where the very office that you know that you're applying to but at the same people that vet u s attorneys also vet judges it's the office of legal policy and the white house counsel same people same interest and whether or not they like the rulings of the judge and whether he or particular approach so i don't see what the differences well i think we've said if there's more we think that sort of currying favor with those types of people is one factor i've said the another factor is that he's going to step in and lead this very office prosecuting the case in front of him he has a reputation in that particular office i mean the as our values you can seek counsel that as my colleague mentioned that the local office of the u s attorney doesn't make this decision it's going to be made in washington primarily based on political considerations do you agree with that ultimate decision yes but i'm sure that the people in the local office have a say i mean i'm sure that i do well i would think that they would we don't want that person that person would not leave this office well or we don't going to rag on the boss well i mean these things get very political i mean there's a lot of it is political that last point exactly is political and i'm trying to find out what's the difference between the postulate that i gave you the district judge that wants to be a court of appeals judge and the district judge that wants to be a u s attorney i've middle is the prosecution element but that's not what's really the question here it's a political decision based upon how the judge to be your the prosecutor to be as perceived as dealing with in this case defended us well it's also he i mean we said this and i think this comes out a little bit in the williams case the recent supreme court decision on recusal he would be interested in the reputation of that office i mean if that office is a stellar office it enhances his reputation any a coach would rather coach the new england patriots than the cleveland browns if this is you know a premier office in the country and he's going to lead it that's that's a feather in his cap it's something more that he's interested in i just think it's a different the pinion itself doesn't talk about judicial elevation it talks about post retirement plans with a different employer and that and i think the difference is and that's why the opinion is focused on this type of situation not the judicial elevation situation i'm over already i'd like you to go ahead ok that with respect to mr nichols testimony we've submitted a lengthy twenty a j and i apologize for these sophisticated criminal masterminds and that's really the government's theory of the case from the beginning that both of these two are criminal masterminds that masterminded this this entire scheme the defense for penalty was mr testimony that really hampers the kind of i mean being a money launderer that was probably not going to get you the death penalty right i mean it's not but was it really an issue in the guilt is or much in the penalty phase well i think it does in the sense that that he has no prior record hasn't committed other criminal conduct but it wasn't inconsistent with that anyway right isn't it that he was money laundering with mccallum so today sent the defense was i didn't do any criminal activity before didn't do it and look the way you know that's what you're that's what your evidence would have shown if we credited the the letter from yes but it also goes as far as what was really important the penalty phase is a main theme of the government's penalty is cunning criminal masterminds are a future danger there are not going to be how safe we won't be able to house them safely in the future there are danger to other people in the future the position that he's not a criminal mastermind he's not on this county level that maybe mr mitchell was that he can be safely manage and not constitute a future danger that's really where his testimony totally undercut the look of look at the cases and i think that the case may be distinguishable from bruton and richardson versus marsh to late seems to seems to help you a bit until you get to the harmlessness i read all three days of mchale's testimony it's a it's a weird circus very much there oh there's a couple of things that he that he might corroborate the government's testimony on the ties but none of that was really interested anyway so overwhelming evidence on that and we said in too late that harmlessness applies and it too late even though we found that there was a pru problem we said there was overwhelming evidence that it didn't do any damage what's the problem here you know i'm going to penalty but i'm going to focus on the penalty you know i think that mr khaddam is more this is name is mentioned a fair amount and we can weather they may or may not have done something to somebody in turkey or cyprus just seems small potatoes compared with the detail that the that the jury has been given from coconspirators that the solid evidence that the government have that corroborated everything they did you're saying that if they hadn't had the of if they hadn't had some stray statement that they were told to ignore about having hurt somebody in turkey or or cyprus that the jury would have come back without a death penalty in this as you said a circus with mr mattel getting up there and saying all these things that reflected a tremendous lack of remorse i mean he said you know awful things about the victims it was  the jury must have sat there and looked at this and just been disgusted and then he won't be cross examined and he walks off the bench won't be and he's gone for the rest of the trial i mean besides the actual things he says the tone and tenor of what he is it's virtually impossible to put on a mitigation at that point you are it from your client's perspective mr it's not we have a different problem here but from your client's perspective mchale creating a circus around himself may put some distance between between him and kadam of us this may have actually worked to your benefit and if there was any benefit to be had and the problem is it couldn't because because of the instruction not to consider the testimony the defense could not argue that we could defense could not even make that argument a pedal here but if you're concerned that the jury can't unsee what it what it saw then you don't be have to worry about that well except for the fact that the government link the two together the entire time i mean they were like you know they were the the court accomplice say that the error was not harmless beyond a reasonable one what specifically did you kill say about your client in that three day ramble that you believe is fatal to the government's p why why should you when on this issue i think the most important aspects are that he's in the impression of the testimony is that he's a criminal mastermind that engages in international my understanding of the bill of you're talking about i'm talking about sports specifically did mackell say that you feel was so awful about what he said about your client that you're entitled to this particular remedy that he had a one point two million emerald that they sold i believe that one was sold in london and then laundered the proceeds from that back to the united states but but again as my colleague mentioned i mean this is think these are things that happened outside the country had nothing to do with the murders and that's really the issue here that not that it's not so much the other things just the murders i disagree on the penalty phase the issues are often sure the other things and  that's the problem we have here is that his me but i'm john mcadams testimony was in the guilt phase was it not they got stricken and that's what you're talking about and then so what does this have to do with the penalty phase this is in the guilt the so so the fact that they had this diamond sale in turkey or wherever it was is enough to blow up the whole trial including the penalty phase even though this occurred in the guilt phase that's your best argument for the terrible thing that he said about your client well i'm not fond of going up the whole trial but i'm going up the penalty just the penalty phase ah ok ok that's all i'm trying to focus on even though it the actual statements that you take offense to occurred in the guilt phase yes that in other words it is so bad it's so unremovable that it just tainted the whole balance of the trial of the was not harmless as a conviction even if you don't have to get to the if you will test when you think that the letter in and of itself and why is that it seems like if you if we disagree with you on a deal it seems like it's hard to see how there wasn't plenty of evidence that they were both trying to escape i government they've waived any argument to the contrary didn't address that at all and how does that reconcile what with clemens versus mississippi that doesn't clemens say you can rebalance the factors even if you strike an aggravator well the the difference in this case is that aggravating factors but in johnson this is versus mississippi there were other aggravating factors as well the the beginning i think i thought in jonathan it was the only one you know there were i think there were three aggravating factors and that was only one of the three it was the same circumstance in johnson versus mississippi so would we ok i'll read johnson again but clemens talks about even when an aggravator is stricken to rebalance so would it be would we need to rebalance ourselves or you're saying we wouldn't be in a position to read out of well i i think that under johnson you can't but if you did i would guess i would term it more harmless beyond a reasonable doubt whether you think that the error was harmless beyond a reasonable doubt under jurors who find defendants future danger vote for death jurors who don't find future danger vote for life and this this little evidence is overwhelming and that's reflected in the case law as well so it's obvious that even if the court thinks you can do a harmless analysis than what we're contending were we're arguing the jury instructions and that's what we're really focusing on and that's adjourned structures marshaled the government's evidence in essentially allow the jury to infer that the underlying theories of future danger that the government was relying on do actually support future dangerousness and that really wasn't addressed in mana at all do you object to those particular jury instructions yes this issue and i know we've talked about preservation is more of this one and i just think the government is wrong there are we there were preserved rule twenty nine motions general rule twenty nine motions throughout the trial after the government's case after the defense case at the close of all the evidence that preserves the issue ok a non self executing treaty that the court has to look to the treaty to determine its meaning in context and that in doing so the court must look to the preamble to the treaty as with accord exactly did in bonn to the preamble to the treaty here to the treaty here says that it is meant to target hostage taking as a manifestation of international terrorism right as one as eight manifestation but if it's a lobster tip appears at the end of the preamble it's just one one consideration but devoted to it there's nothing in the treaty that suggests that that that is the sole purpose or that or that that that that is going to be an element of the crime that it expects from the signatories won't bond also sort of have to look at the general what is the purpose of this what is the history what gave rise to the treaty and what gave rise to the treaty was all these incidents of you know even if even if you do that this is not a this is not a self executing treaty so this is now been acted by congress  among the authorities which congress may claim would be would be a holland versus missouri that is it's it's a neck and pursuant to it's the executives authority to enter into treaties but there are there are other provisions of the  there's a whole host of things that congress might assert as authority here and that's what i'd like to focus that's why i'm going to statutory construction putting the constitutional questions aside what bond to says is that the presumption the presumption in interpret statute like this is that congress did not intend to intrude on the state's general police power that's the presumption the political presumption interpret in these types of statutes so the even if you somehow the treaty can be thirteen strikes to sway minority jurors defense counsel made of that's in motion and rather than dealing with that in a real way the court simply asked the prosecutor for have the situation here where they're talking about two eighty five who was an african american female but the defense actually struck more african americans than did the prosecution and you ended up with a jury  the type of analysis that the third prong usually contemplates what do we do here what's the standard of review is this structural error is this the noble review is it abuse of discretion  the the prosecution indicated there was a concern about whether this juror would be willing to impose the death penalty they also mentioned that this prospective juror had a i think her father was in jail for a dr offense but on balance that was the reason given so far as i know there was no determination made by the judge or even a dispute by the defense that those reasons were not bona fide he that that made no sense what do we do with that that's the very problem or if there was no determination made by the judge that those were the actual reasons for the strike and not protection now as we go back on de novo review and look in the tire record we can see that they were in fact protection because those recent supplied equally to a whole host of jurors who the government chose not to say let's just let's let's let's let's let's just focus for now on  the on the government's proffer that that juror twenty five was lukewarm on the death penalty so who else had been who else was was lukewarm on the death penalty that would have shown that this was pre exact which is showed more hesitation injure to a fuck your evaluation of it but i mean can you see where in the minds of the mind the prosecution at that point that that may have been may have been more reassured by eighty four than to eighty five certainly i mean you can go back to any particular juror and say well maybe but just consider the whole pattern and look at all the at it i'm not seeing i want you to help me if i'm missing i'm not seeing evidence of pretexts i see some close calls i see some jurors who remained on the jury were not stricken g african american who said things that were kind of questionable about the death family as far as the prosecution was concerned but as you well know far better than i do in these kinds of things it's facial expressions it's body language it's the whole kit and caboodle which is why this special hearing is what's normally required but ultimately the prosecutors are entitled to make a value judgment they have to case would you not agree that as you analyze these jurors there's not one that remained on the jury that was an absolutely you know so different from two eighty five that we shouldn't even be talking about his answers on the questionnaire are actually quite different from hers he says i don't like to see it done but i understand i understand that it's reserved for the worst crimes when he's asked about it orally he said i really hate to see anybody put to death but i can see the reason for it in today's society question or are you a person who would consider yourself to be basically neutral going to that process i think so it wasn't what what i was how is this evidence of pretext i think if the situation reversed and the prosecutor struck that juror and kept to eighty five you can make the exact same argument to a five no hesitation t could you could you consider the death penalty i couldn't consider now because i don't know what it is they would then put dr prophetical if we had the evidence would you consider well i'm not going to do that that's that's a very that's a very very different kind of colloquy than we had with your eighty no way of reading from the cold record but if this is the best compared to your god it's hard to look at this and to say well of course the district just court obviously should have questioned the motives of the prosecutor is there another juror you want me to look at gave an answer about the death penalty to eighty five did not she declined to do so we don't know about body language or anything else but that's that that was one of the things they were concerned about the obviously the prosecution of belmar that eighty at a rate far greater than their presence on the van or on your butt but that you know obviously that can that can be a factor but in  each case the you know the defense structure blacks too so the question is is there evidence of pretext the prosecutor was obviously very angry in the exchange the with the judge that even the very idea that someone was stricken based on the color of their skin and you look at the all the men jury selection i think the cock asians were hugely outnumbered by everybody else so what's your evidence of that was the prosecutor out of sorites or was the prosecution out of strength i thought they still had some of that and now they clearly didn't think clearly did they don't have to strike things that people are going to evaluate that we can't see on a cold record so we have to rely on what the record shows and in this particular case you've given for example juror eighty four we've already talked about this this is their best example in that case there are legitimate reasons why the prosecutor could have said you know i'm ok with this juror they're ok but the other one won't answer the questions i'm concerned plus you got the father in prison i'm a little concerned the remedy is to remain in for a potential hearing because the reason that we don't have this right here is what we're hearing prove at this point what what what would a hearing look like at this point yeah i think it might be very difficult but that's in any case we have at that point eleven minority jurors struck and the court didn't even bother to ask reasons on the other ten so we're missing that whole piece of the record because the judge didn't do hispanics african americans asians and multiracial jurors there were plenty of strikes over left for the prosecution if given your theory why did they describe all those people have all whites strike if in fact that's what was done you're absolutely right of course but you have to have some evidence that that's the reason why it was done and that's what i'm struggling with and i think my colleagues are struggling with is that if you're looking at eighty four i don't see it i really don't i mean there are there's a clear distinction in my mind between eighty four and two eighty five let me wrap up because i feel like consumers were going in circles but at this point the prosecutor struck them three we know that he gave two reasons for the single juror and if we look at the record well you might say yeah what else she seem had actually been convicted of crimes themselves and brushes with the law so let me let me get back to a point to my colleague raise that which at least i don't think you answered which is at this point if if you have given the evidence that you have cited as to where it where we're looking at a proof or a pretext admittedly we're trying to parse it through a cold record here you don't see the body language or anything else due process clause requires that any trial person any person charged with a crime become project here there was major mental oppressive disorder that treating psychiatrist at the district court issued an order in early september of two thousand and six i don't i didn't see that order in the in the record somebody which for which you get a very lengthy report from dr healy the any report is considered by the district court in an in ex parte proceeding with with you so the district court actually had quite a bit of evidence  corporate doctor even developing just because he does he disagrees reference them right but he did and he just he disagreed with their with their ultimate diagnosis explained but explain why but that was the bottom line is there was quite a bit of evidence before we have a professional disagreement as to whether it was depressive or whether it was whether was bipolar but those are you know those are those are two choices that are that are you know fairly common very common diagnoses for people so what's the he the result is he supposed to resolve that difference and he doesn't have a diagnosis from either from any doctor concluding that he's in that he's not competent to stand trial they doesn't understand the charges against him or he's not able to to assist in his in his defense there isn't anybody who said that yeah it not only doesn't a not to not having further proceedings but says i think i think the medication is going to help things let's see fit i'll things go and we don't hear another word talk everybody who's observing mr mc committed i want to get to november to the district court commit error in september our position and it's in the brief is that he did but ok and the error was the discourse should have done acknowledged their records this is a business a professional disagreement we went for a second opinion we got a second opinion was different from the first opinion both of them agreed that he had a depressive compliment to his diagnosis they disagreed as to whether he was manic november ok what what what what additional information do we have and what whatever did the district court commit and it's got to be clear at this point because he's already got stuff on the record that says mcallister competent he's been watching the cal now for the last three months yes and he's got no request from counsel for it for a competency hearing counsel doesn't like is the way his clients behaving but these are pretty common complaints another evaluations necessary personality no question is a difficult person to deal with he thinks he's smarter than everybody else let's that it's no one nobody nobody was around to see one nobody around him has asked is is questioning his confidence and no i mean nobody in any serious way no one no lay person questions and then there is the whole following proceedings where that else is going to testify and is not going to testify and then he changed his mind sides testify mind you at this time everyone is telling him that is a horrific decision the court go so far as to have the prosecutor preview all the evidence of excruciating testimony about about a five horrific murders in a great deal of detail about kidnapping about demands for ransom brutal murders of very very deliberate dumping of these bodies in yosemite and all of this is now before the jury mackell has been there he has seen an overwhelming case most defense counsel suggest that they're in my experience suggests that there are that their client not testify their unless the unless there's some question of their guilt there's no question about macneill's guilt here what does it from a kells perspective what does he have to lose by testify from his perspective what does he have to lose i understand mr rubin mr callahan don't think this is going to be a good idea of i think we're going to get this out of hand think he's going to make a bad case worse but it's already a worst case it's discernible two weeks later when did testify as he testifies and i mean i've read i've read that testimony is a very very bright guy he's in he's got he's got a just from what i can tell from the cold record because i'm not listening to accents or anything the guy got quite a vocabulary for somebody who's not a native speaker he's he is well aware of what his appeal rights maybe because his lawyer complains that he's trying to build and in ineffective assistance of counsel case against him and mackell at admits as much that's exactly what he's doing because he doesn't like the strategy his lawyers have employed here but that's that's that's that's evidence of a disagreement over strategy not evidence of incompetence he you you and mr coleman may have discussed this case in may and may have discussed you know what you might do here today and at some point you might have said well i intend to do x or mr coleman might have said that's crazy well i hope that doesn't require that we disagreement with his lawyers he thought that the lawyers he would maybe the lawyer side are going to set him up for and i claim that in this case it's entirely possible mackell knew perfectly well he was not going to submit to cross examination  may not have known his testimony would be stricken but he perhaps thought somewhere he would strike something in the minds of the juror to say well he had to give this guy the break he's got a little trouble or something like that maybe you dumb as a fox i had a case not too long ago w something very similar to that and it's the reality is nobody said you can't have a competency hearing nobody moved for it it was just retrospectively after the fact we're looking at this and you're saying oh did just obviously crazy that's not clear he didn't testify very well and he is yes certainly surely had some definite undersea he certainly had some issues but none of the council move including is my colleague mentioned the prosecutor to preserve the case could very well of say you know we need a competency hearing here but nobody thought it was necessary right the prosecutor had no interest and if you absolutely have an interest here because if he thinks that the district court has is committing was we have to figure out whether he understood the proceedings about what's going on and what was at stake and why don't the motions to get rid of his counsel show that he understood what was going on it is there's both a factional rational  trial and not in any way shape or form a defense on top of that is supposing an intelligent person they would certainly understand that if i were his counsel and i thought i had a client who  the doctor's evaluations after his suicide attempts suggested the suicidal it ation because he was just a he was despondent over what hand to support it would be the end of the trial and that actually turns out to be pretty all sorts of psychotic symptoms pollutions brander electricity in his head talking to imaginary friends staying a lot a lot of that was several years before and we don't have any evidence after about two thousand and four i think all that the opinion or whether it was displayed polar disorder that was was it was me do all the drugs this testimony now is down after the guilt phase is that right correct so now the question is whether he understood the proceedings in the pet in the points data points showing the district court that this man is there's a question first question as to his competence that he's he's facing capital charges then is behavior with his psychiatric history coupled with the psychiatric diagnosis now since then added on to that testimony of the doctors at the penalty phase screams out something is amiss here have indicated that he seems to understand the nature of the proceedings they lose just as counsel as counsel says all from time to time you're talking about a cumulative effect but the reality is he's that he's a judge he's not a doctor he's heard this other testimony you if he's medicated it helps as well the reality is we have lots of criminal cases where these kinds of concerns are there and and the question is is he able to understand the nature of the proceedings and assist his counsel and through virtually all  until he had a disagreement with his counsel which is not at all uncommon counsel seem to say it was ok if that's what we had your honor i i agree with you but i respectfully disagree that there are lots of cases like this  to retry the case if he was incompetent yes if he was only and if his incompetent the onset of his incompetence was only during the penalty phase whole thing must go back ye for the united states your honors i'm not sure you'd like me to start it if you don't have a preference on this start where i think i can supplement the facts from the government's brief on a couple of the particular and one of the things that i think could have received more emphasis in your government briefing that i'd like to point out now is that the district court was basing its decision not only on the fact of mchale's letter which had  when we did this that's croaker our initial ten moves his claim that it was error to admit that the letter against him for purposes of the conspiracy and there were actually two letters that were found what happened was mr mackell called one of the guards from the jail over at the time mr mackell was in the shoe this was after the escape conspiracy had been found mr khaddam oh this was also in the shoe and what happened was mr mackell tried to pass a magazine to him through one of the guards and the letter also says after i have established communication with my friends who are all here we have a big conference and had a lot of decisions and i think when you think that show was evidence of an escape conspiracy khaddam others yes i think it shows that there was a continuing conspiracy for the escape because remember that at this point i believe that at this point mr tynan had not been discovered as a coconspirator in the case but he had been identified twenty sixth so you might be evidence of a second conspiracy but the rule is that you've got to have some other evidence of the of the second conspiracy what's worse and worse the evidence well what the court actually found was that the conspiracy had started up again and that i'm based on what based on the fact that the letter was being passed the kind of movements you know if you have to have other evidence that's that's the whole problem you have to have other evidence besides besides the letter what other evidence do you have a cat participating in that's what i was trying to say is there was a second letter and the letter to another coconspirator who was also involved in that a ski plan one of the main people in the escape plan tom tynan pointed out that mikhail had said i have established communication with my friends who are all here and we have a big conference and had a lot of decisions i don't understand how that shows that this conspiracy to escape as opposed to some other thing they might have been talking about or anything else was being reignited nor all the other evidence that the people who the person that he was addressing the letter to and the person that he tried to address the letter to kind of move into the second letter were already involved in a conspiracy to scape but that had been discovered and that that's the question i mean how can you admit this letter as a coconspirator letter when the conspiracy was over well that's what i'm trying to say is that i don't think the conspiracy was over that's not what the judge found i want to just bring that to the court's attention  any event even if it was error to admit the latter i think the error obviously was harmless and that shouldn't affect the verdict on the conspiracy charge i mean there was an overwhelming amount of evidence that showed that mr khaddam of us was involved in the them and she testified that each of them had received money from account and each had a role in the escape plan but we also know that tedham of us received money on his books at the same time that each of those people did on march sixth now in the brief i think i mistakenly suggested that that was on the eve of the escape but it was on the eve of the discovery of the escape i think that is further evidence that kind of moses was involved in this case no look clearly can you get this money that's in your prison account outside of prison i don't know the answer because it seems odd to transfer money to a prison account if the po the whole point is to get out of prison doesn't it yeah well that's what i'm trying to say you know remember you're saying that they transferred money to his prison icon and that shows they must've been trying to escape but it sounds counterintuitive just so i'm not sure how it works because the escape plan was not i mean i don't think they were ready to escape on march sixth i didn't want to leave the misleading impression from the brief that they were ready to bust out on march seventh they weren't remember kind of most didn't have a hole in the wall of his cell at that point and  hell did so i think it was going to take a little bit more time for them to do it what i think it shows is that michael cook who was the person who sell through through which they brought in all of the materials david ovalle another person who was involved in the conspiracy krylon who was involved in the conspiracy and could m of us who was involved in the conspiracy they all were getting paid by macau and i think it shows that these people had a special relationship and that's evidence of the conspiracy as well and then there's testimony and he obviously went into kind of the cell and heard him talking to mikhail through the ego through the air vents i don't need i don't think i need to go any further into that unless you have other questions  i did want to say just in terms of the harmlessness on that particular issue to the extent that it has any effect on the death penalty phase of the trial i agree with you judge friedland that the harmlessness at the death penalty state would require rebalancing the factor so to the extent that this effected the future dangerousness finding what the court would have to do at that point would do a rebalancing i think i don't think you argued harmlessness though for the is federal rule of criminal procedure fifty two a says that if there's an harmless error than the court has the hold over or it cannot disregard any harmless error second both the federal death penalty act and standard i don't think so because there's a statute on point here thirty five ninety five says that the court has to review for harmlessness and mitchell also says applying that stay in the government has no there's no difference  government makes the argument or not i would say under the circumstances if the government just you know if it government clearly conceded an argument then maybe that wouldn't apply i doubt that given what the statute says but under the circumstances where we clearly argued harmlessness with respect to the future dangerous factor in other contexts and where it would be really easy to apply it here i think the court should apply it and should not hold that it was waived by the government and there's  factors the government actually closing argument really essentially told the jury that they could disregard in future dangerousness if they wanted to the government argued to the jury that future dangerousness was both a non statutory factor and also not even that important of a factor to consider and fact i think if i can quote it correctly what the government prosecutor said was we're not asking you to sentence these defendants to get to death because of what they might do in the by the prosecutor to those particular factors is one of the aspects the court should take into consideration and i'm pointing out that the government deemphasize that pretty specifically in a way that i just quoted and so i think that w progeny requires that the trial judge make specific findings beyond ruling on the objection the judge ruled on the objection here i think that's pretty clear the judge reached step three there is no indication whatsoever that the judge applied the wrong standard between the counsel but there was no searching review here we really do have to view this do we not based on the actual fact was no such hearing occurred no such analysis occurred and under those circumstances is clear air the standard or are we looking at an overall was your opposition suggests i think it's still clear and let me explain why ok in murray v sure i wrote this court said that there are no formal steps that the trial court must take to evaluate  suggest is that once the government offered the two reasons for why it's structure a number two eighty five the defense came up with a response that was just factually wrong it was it was complete error they s only minority jurors and in fact the government had struck two white years under those circumstances i don't think that the judge has there's much analysis to do the for the whole basis for the bats and challenge was demonstra wrong and under those circumstances i think that the degree of the analysis is minimal so in your position then that that colloquy is all that was necessary the fact that there was a an incorrect assertion by defense counsel regarding how many black jurors had been struck the response the heated response by the prosecution the admission by the defense that in fact there were all blacks have been struck there are white juror that had been struck as well and the judge is basically let's go you're say that's it that's that's enough i think so and i don't and he never made any statistical claim he never made any kind of pattern claim he never made any kind of comparison clutz very hard to do on the spot right i mean so it pointed out what he thought was a pattern he overstated it slightly but it seems like there was enough of the pattern to have a private fishcakes was in there i don't even know maybe i'm remembering wrong but i didn't think you even really contested that because once the judge asks the government to give its reasons and then the government gives its reasons for the strike that really the step one is moot  and so at this point we're only talking about step three but by but doing that doesn't mean that the first two steps are irrelevant you still have the issue do you not well no they're not irrelevant then the relevancy in this case was that i think as judge freedom pointed out they raise a question about whether the defense even had a prima fashioned case now i'm not arguing that they didn't have a step one case what i'm saying is that i think at that point defense counsel was mistaken and realized he was mistaken he did not renew the objection by saying well you know eleven out of thirteen is still pretty bad on earth so is it the government's position that in analyzing this instead of our looking at what we do with respect to step three vents and is not the question but rather a not by virtue of the colloquy that in effect the batson challenge had been withdrawn because the defense counsel admitted he was mistaken about who had been struck and he never renewed the motion is that your position i'm not saying that he withdrew it what i'm saying is he never renewed it now let's keep in mind it's not just there is for our purposes of our analysis but much except for i not claiming that he withdrew the claim let's assume argue when know that he didn't withdraw the claim and we have a claim babson error the judge from cut it short maybe they didn't want to move on with the trial it wasn't brought up again but it's just sitting there what how do we review this it is this clear error that is didn't know well and if so why any and each instance i'm saying that it should be clear error because the judge reach step three did not clearly apply the wrong law in this case based upon the judge didn't conduct the kind of analysis that the supreme court talked about and that's problem three bat how can you say that he ruled on that issue i don't think there's any requirement that the judge put all of that analysis on the record and what i'm saying is in light of the mistaken claim by the defense that all of the jurors that had been struck by the government were minorities the court didn't have much analysis to do and also in light of the i think the judge didn't have an obligation to decide at that point whether the government's reasons for juror two eighty five were a pretext i think the judge did  all that has nothing to do with whether the defense thought it was eleven or thirteen then i don't really understand the connection between why you're saying that this the fact that the defense overstated efexor the analysis of what was taking place at step three year old so what it offers its reasons the argument that the defendant responded with was factually incorrect and so what the what's the result of that result is well first of all it's the defendant's burden to show that there's a pattern here the defendant has to come forward with reasons for why there's a batson years sure there's an independent obligation for the judge one step one step one claim has been made to do some sort of analysis but the defendant always has the burden on the backs and claims and the defendant came forward with a factually incorrect argument about what had happened it was in a rony this claim about the number of people that have been stricken that were minorities and i think that's if that's right are you claiming then that that what the judge did here was in quotes a sensitive inquiry into evidence of intent well which is the third prong of batson that what i'm saying is what counts is a sensitive inquiry can change depending upon the quality and the nature of the arguments that defend it brings forward step three so if the claim this case judge turned to the prosecution prosecution offered reasons and then the defense said actually that's not true everybody you struck was black and in fact everybody the prosecution it struck was white what analysis is necessary under those circumstances  an problem and i think that probably means that is if this thing had been a game show this was the lightning round i mean this was this was done so quickly that nobody discussed the sort of steps whether they'd nobody uses the word pretext nobody uses the word  fascia the district court just basically i don't know whether he just was you know resolving the squabble between counsel to say let's let's rock you know i'm we're just we're done with this but you know it's i have to say it's not a very colloquy for those of us who are obligated to do this on a on appeal and that's you know that's probably a good lesson for for district judges no matter how we decide this thing but it does put it does strain us to try to figure out what precisely was going on here but i've made my arguments for what the standard view is before i leave that and you know you know as it entered an overview anyway but before leaving that issue i do want to point out that the people who are representing defendants in this case were very experienced attorneys mr ruben was the one who made the objection and you can tell from reading the record that mr ruben who i think at one point said he had twenty definitely cases under his belt that he was not wilting violet he was somebody who you know if he really thought that there was a claim would have urged it and would have urged it with a lot of ferocity as he did with many of the other clay let's let's assume for a minute that the claim doesn't go away let's assume for there that the judge did not conduct the type of sensitive inquiry that was required here what happens do we you heard the analysis that we collectively went through with opposing counsel about juror eighty five eighty four to eighty five is that what we're supposed to do is to look through all of these potential jurors find out why they were struck like like you would in like the the supreme court has done in some cases what is that what we're supposed to do yes ok both parties agree that the record is sufficient for to nova review and you should conduct an over review the same way the judge ok and so doing that what is the government's best argument that the requirements of bad some are satisfied here and that the government was not shown to have struck two eighty five as a pretext ok again you let me remind the court this is the defendant's burden you know i just don't think that i'm just saying so what's your response the best response is the jury that we ended up with in this case statistically was identical to the veneer in the case there was really no difference at all now it's true but if you strike one juror because of race you lose anyway right at the near isn't i mean that you don't get out of it just by saying there were still african americans on the jury no that's true but that's the ultimate determination you're talking about i'm talking about  remember the question here is did that prosecutor have race in the back of his mind when he was striking the juror all the things i'm going to talk about now that's evidence of what was in his mind at the time ok so yeah obviously if you strike one juror because of race that's a batson violation but the fact that the veneer and the jury that was ultimately selected were pretty much identical statistically that's a very compelling fact that the prosecution was not trying to strike blacks at a rate and higher than they were you're in fact there were four african americans on the jury two on the on the on the actual panel and two alternates with as judge friedman you pointed out earlier strikes that were still left to be made that is another compelling fact that this is a prosecutor who wasn't out to strike african american jurors now i mention all that in part because snyder one hundred percent of the african americans were struck in miller l ninety one percent of the african americans on the jury bats and again all of the african americans on the jury struck in a long essay which was a case about sexual abuse all of the men were screaming we have nothing like that here there is i agree somewhat disproportionate number of strikes against african americans but that doesn't bring us anywhere near the realm of the cases that i just mentioned and then you know most of the argument in defendant's brief is devoted to the comparative journalists and i think that has very little comparative journals this usually happens on appeal i'm not really in the trial court unless there's a hearing which the judge here didn't have it's hard to say that someone can line up all the exact forms and say wait a second wait a second she said it's not a given enough it's too seldom and these other ones say these are things that you do it on the spot i mean i can point to cases where the defense if that's what's required for the defense to maintain their bats and actually it's not required it's certainly not apart from the district court to go through that what i want to point out though is the degree of monday morning quarterbacking that's going on in the brief from the defendants and there are two issues in particular that i want to point out before going on to the comparative journalists this one is there's a quote in our brief from davis versus a young and this goes to the the kind of decisions in the kind of sensitivity the court should have to decisions about whether a juror is what about whether a strike based on the jurors attitude towards the death penalty is legitimate or not and apparently do this but i want to read that they said were a you concerned prosecutors may be required to make fine judgment calls about which jurors are more or less willing to vote for the ultimate punishment and these judgments me involve a comparison of responses that differ in only nuanced respects that's really what's going on here the prosecutor says eighty five was lukewarm on the death penalty now ten years later mr mccullough and the defendants are going wow she really wasn't lukewarm i'm not sure that i believe that that's the correct way to respond if any of th defendants are trying to draw between attitudes towards the death penalty counsel i want to ask you about the burden you say it's the burden of the defendant to prove up a batson challenge since we purposes of our discussion of assume that steps are probably one and two have been satisfied all we're talking about is a pretext is it and at that stage is it the obligation of the defense to prove that the prosecution was motivated by a pretext or reason that it was really race based or is it the obligation of the government to show that it strike was not motivated by pretext i definitively the defendant's obligation to show that discrimination against a person because of race was a substantial motivating factor in the prosecution's decision ok and that tended to that's just a hole that's in or that just step three that's step one the you have to make a prima faster case that's also the defense of burnet step two what the prosecution has to do is come forward with race neutral reasons for the strike and then it step three it remains the defendant's burden to prove that discrimination was a substantial motivating factor the second thing that i want to point out about the comparative analysis is i think it's especially suspect here for a major reason  one is that the entire comparative analysis that he's placed with respect to the prosecution second reason if you're to eighty five had a father in jail which is connections with the law or connections with people in the family who have been prosecuted that entire analysis is based on jurors that were not considered until after the batson challenge and what i'm saying is there's a lot of second guessing going on in this comparative journalist has had the prophet had the defense renewed  challenge after these three jurors jurors number eight thirty nine and sixty seven the prosecution clearly could have offered more reasons for how to distinguish them and so i think that given the two things given to us versus a y three of these jurors that were considered in the comparative your analysis on that one issue weren't even considered by anybody by the court by the prosecution by anybody until after the batson challenge means that the compared journalists here is not worth very juror eighty five i know there were other jurors i think six fifty seven was one hundred sixty seven was one that that they used in their brief that was after twenty five i thought they said that eighty four was prior that's correct but this is on the death penalty attitude towards the death penalty you should first you know i agree with the court's characterization of juror number two eighty four to eighty five i'm sorry i think from the record it's clear that she was very hesitant to give an opinion about whether she could follow through with  know a lot of people say that they were neutral on the death penalty but when she was asked specifically in this case if the evidence if there was substantial evidence of the aggravating factors in the outweighed the mitigating factors could you vote for the death penalty she refused to answer and she said twice i can't tell you i don't know what the evidence is and i think under the devious jala standard for looking at prosecutors reasons for whether or not they think that there are nuanced aspects of the jurors response i think that is enough to show that that was a legitimate and illegitimate research role but also like a legitimate difference between her response and all of the other responses that's why i wanted why why weren't those responses there just either confusion about the question like how would i know what whether i should get the death penalty but i haven't seen the evidence yet or or reluctance to say it seems like the kind of reasonable answer i don't know what i would think until i see the evidence isn't that what she was saying well i think i might agree with you if she didn't interrupt the prosecutor and say i can't tell you now read again this is a cold record it's difficult to tell from the cold record but what's not difficult to tell is that she interrupted the prosecutor and stopped a prosecutor from even asking the question said i'm not going to answer and i think that would put any prosecutor who's about to go through six months of a death penalty trial i think that would give any prosecutor in that situation since deep concern how do you explain the two seldom know it on the question there i'm not sure how to explain that i think that in general her responses were a little bit all over the map remember she said i think that the death penalty i i think life is i think she said life is a gift and you know i would have to take some serious whimsy for i can remember exactly what she said she said she was neither for nor against the death penalty but she also said the death penalty to me is no joke life to me is a gift so when it comes to taking someone's life a lot of things need to be taken into consideration who knows what i think that's what the prosecutor is bearing down on what needs to be taken into consideration if the evidence in this case on the aggravating factor substantially at least mitigating factors can you do it and she balked i think judge bobbie i want to go back to journey for because when you were reading juror number eighty four the response there i think you left out actually the section of the response that i think is the most important the juror said depending on the crime the death penalty should be a possible penalty penalty that's at the the under seal excerpts  but then during the war dear the jurors said look i've seen cases on t v before you know where you think you know when you've seen things that are terrible and you think well then they deserve you know i think if i were a prosecutor and i heard that i would say well here's a person who you know given the nature of the evidence in my case i can count on to vote for the death penalty and i think that's a there's a big difference between that response and the response of journal to eighty five i don't know i don't know if you want me to continue on the bats if you have any other questions about the bats and claim where would you like me to go for i'm like so i think i'm the recusal issue we had some outside the record speculation about how this process works but since we went down that road and you're in the u s attorney's office i'd be curious whether you think the u s attorney's office is ever asked about canada i would expect that they probably are asked i don't know the answer to that i don't know the answer i don't know what to tell you if the court wants me to find out i can try to find out but i really don't know the answer i mean what i think the court got right about the analysis at least is i'm discerning from the court's questions is this was a screening committee with no connection to the white house and no connection to the department of justice probably it was under prepared to does it matter though i mean if the if the judge has applied and wants this job and is willing to be considered why doesn't that raise a concern about whether he wants to get along with the office that he's trying to work far that is prosecuting this case in front of him well if you're going to when you know it's not clear where the concern would go remember the stream committee is a bunch of local lawyers and it's also a screening committee that is ultimately going to pass names on to a couple democratic senators who think it's that and i think whoever is making a decision whether it's the senators or the white house or both or a combination or whatever my guess is they probably want to ask the office what do you think about the candidate so i think it's both that whoever is making this is you might ask the office and that you're going to have to supervise the office of both things lead a judge who wants that job to want to get along with this office somebody somebody in washington calls the the acting head of the office and says you know we've got a couple of names we're considering except the phone calls you and says you know this to reason given you any any any trouble my experience has been pretty good with him over the years what do you what do you think you've got a case going on right now i mean that's really pure speculation as i said i don't really know whether anyone contacts the u s attorney's office to find out i can tell you from my recent experience we just had an interim u s attorney appointed no one asked me and so i don't know and i'm not sure that i go through mean i got to tell you i'm not i'm not big potatoes over the nominee how many usas in the office about two hundred about two hundred yeah so you know given that i mean there was a lot of there are a lot of steps in there in that in that hypothetical but it that the question is you know is does this putting pressure on it on a judge even if the judge hasn't worked through all those steps you know is the judge thinking gee these could be these could be my folks here in three months when this when all this is over you know that's one of the reasons why i made the argument about what's difference between a law firm and working for the government when you're working for the government and this is true you're trying to care if the judge it starts ruling against all the time or there are roles for it all the time i mean that matters to this office doesn't it and i think you know look the best response to this is to go back to holland case because that's the case where this court has most comprehensively spelled out what the standard is that should apply here i mean loosely talking today and in the briefs the court the parties have talked about the appearance of bias or about the appearance of partiality skinner has more  that and in holland there were a couple things that the court said that are really important the first thing is that the standard is an appearance of partiality the standard is whether a reasonable person would perceive a significant risk that the judge will resolve the case on a basis other than the and that reasonable person should not be a hypersensitive or unduly suspicious person but someone who's well informed and a thoughtful observer and understands all the relevant facts and that's an important standard to apply here and in that circumstance here then don't wouldn't someone evaluating then have to look at the reality of what was involved here you have two democratic senators one of whom had a committee you have local attorneys appointed by the senator to evaluate a candidate usually what happens i assume is still the is that they refer to or three names to the senator and say these would pass muster the senator then makes a recommendation to the white house the white house may have an entirely different perspective man look at entirely different people as it indeed is going on right now with respect to our own court and it may be a different party as it was in this case so to some degree the role of the committee could be great it could be small it could be nothing we don't we just don't know but for purposes of a reasonable evaluator a reasonable person should that person take into account the reality of the way the committee's work absolutely that's what the holland standard requires requires somebody who's not hypersensitive but also someone who understands all the relevant facts and is well informed and has examined the record and the law what is what should we make of the issue that if there's a financial requirement to recuse oneself which is an absolute standard the judge can sell the stock for example and cleanse him or herself of the of the taint is this the same kind of thing where that when the judge said you know you got this motion here i'm i'm done i'm not going any farther is that the same kind of thing i think it is the argument that we made in the brief is that there is no statutory provision that actually says you could if you have the stock you have to sell it at the beginning of the case you can't sell it at the end of the case and get rid of the taint from the whole case while you had the stock  one of the standards is whether or not there's been a significant amount of time devoted to the case to that but if you have the stock and you've been making discretionary rulings all on well you have the stock and then at the end of the case you get rid of the stock after you've made all these rulings how do you think solve the problem of whether you trying to help the company with the stock in the course of the case well that's not the facts of this case the facts of the case are that there was no contact at all and i don't think anybody disputes this until sometime in the middle of december and so anything that happened up until that point would not be tainted at all right but when he first started applying and when he withdrew his application there were rulings and there are a couple ways to address that first to get back to the four fifty five the argument for fifty five b does didn't realize that i b m had an interest in the outcome of of this oh there were there were not a party but he owned i b m stock and at that at that point once he realizes that then he's got an obligation to do so but he need not recuse himself from the entire case if he has devoted sufficient time to it but it's not like he gets to say well i own i b m stock nobody says anything and a couple weeks later somebody objects and he says well now i'm going to divest myself of a stock right but the difference between four fifty five b in for a is for fifty five f which specifically allows a judge to disclose on the record the basis for a potential disqualification and gives the parties the opportunity to waive that we've argue that there was both an implied waiver by continuing on with the case but also there was an express waiver of that because when the defendants finally filed their motion to january twenty ninth they only asked for perspective relief at that point in fact even  exactly yes i think the waiver would so how does this tie in though with the question that judge by the asked earlier about if we had to vacate the penalty phase do we have to do the whole trial again or can we have a new penalty phase no i don't think so you know if the court wants further briefing on i'll do it on the fly when i recall from thirty five ninety five is that for maybe thirty five ninety three under normal circumstances the same jury that hears the guilt phase has to hear the penalty phase but for good cause you can bring in another jury for the penalty phase only i mean i don't i don't even think we get there on the recusal issue at all but it's a question if there is any problem with the penalty phase here it would be helpful i think to know whether they can redo the penalty phase or not i think so  and i think that there's nothing in the federal death penalty act that prevents that because of because of that specific provision i'm not certain that's exactly what it says but i think for good cause in new jersey can be used to try to get under four fifty five he so this this is the provision that says i'm looking at the second sentence where the ground for disqualification arises only under a which is the discretionary recusal provision waiver may be accepted provided is preceded by a full disclosure on the record of the basis for disqualification i was wrong i said for fifty five that that's the provision i was talking about yet so that's not that's that's isso if you if you're just qualified under b it's mandatory it doesn't matter whether you get white right if it's under a which is that which is the the prudential r you can get waiver it's now did they just did was there a waiver here i thinks as opposed to forfeiture you know i think the rogers case says is that you you actually waive the claim and it's not in those cases it's not clearly spelled out why none of them discusses rogerson and actually that's what makes that waiver here what makes it waiver is a conscious decision to go forward with the trial proceedings knowing that what the basis for the motion and it's i think it's an analysis that's closely tied with the timeliness of the motion and some of the same concerns underlie both of them but the idea is at least as the rogers case explains if you go forward knowing what the basis is you can't cry didn't know the full extent the judges involvement there they didn't know whether it just meant an application they didn't know any of the things that they learned later on does that make a difference in our analysis no there was a full disclosure the disclosure was the only material thing the defense needed to know to file a motion which was the that the judge even approached by a certain lady and he had said i'm going to throw my hat in the ring it was clearly implied that he was going to send his application into the screening committee they filed their motion before they learned anything else about what the judge had done whether you've been interviewed whether you've been contacted by d o j the only the only fact that they learned between december twenty eighth and january twenty ninth is that a newspaper had reported some gossip about the fact that he might be a front runner that's not that doesn't make any material difference about whether there was a basis for the does it make any difference that he was going to retire from the bench after this trial well it does in a couple senses if i just may insert one argument before i get to that you know i was thinking about this while the argument was going on if the if the argument is that there was that the defense didn't really have a recusal motion until they learned that the judge was a front runner then anything that happened during the guilt phase is off the table because they didn't find that out until after they complete its verdict and i just occurred to me that if that's really what the argument is that they're making then that takes the entire guilt phase off the table but the judge was retiring there are three facts for facts here i think that are really really important that's one of them the judge was going to retire anyway he was a spy going to go to a d r and this opportunity came along he was retiring after you know thirty years on the bench he was going to get paid at all he unlike any of the other cases that the defense has cited this judge disclose on the record exactly what the basis for the recusal was and then give me the timing of his withdrawal of his application is incredible the motions filed on january twenty nin in the evening the next morning the judge comes in because look i made the call i withdrew my application those facts combined i think couldn't lead a reasonably objective observer to believe that that you know that this judge there was a substantial risk that this j was going to decide issues on other than the merits and in and evaluating this issue do we need to consider the rulings of the judge from the time that he  applied till the time he cited he wasn't going to move forward in order to determine whether there was in quotes damage done or harm done i don't think so because as we argued in the brief we think that the defendants have both waived that argument and filed an untime many of those rulings shouldn't be considered but even if the court does consider them the rulings as we've argued throughout the brief are you know fairly even i mean one that i had just sort of scribbled down on my notes  was you know in leading up to the penalty phase trial the judge made some rulings about both mitigating evidence and the government's victim impact evidence and also other evidence having to do with uncharged crimes just by the by the way i just to correct one thing i don't think any evidence about the turkey in cyprus in order to actually got into the death penalty it was only assault of arm and if you're curious why when no reasonable observer think that this judge who wanted this job and the prosecutor's office would be mad at the defense for making the motion that made him actually withdraw well i think the biggest piece of evidence that he wasn't mad is that he withdrew the application right away and also i think that there was no look he wasn't very far along in the process he had already had other plans about what he was going to do he was in his now it to him and i mean he could have just said no in the first place he wanted this job very what is the no in the first place so at least at some level of desire he wanted this job and then he basically figures that he's got to withdraw from this application because of the defense motion but why doesn't that look like a problem caught between a rock and a hard place on that one if you if you think that that shows evidence that he wanted the job really badly his withdraw all of it i think shows that he was willing to give it up and do justice and he knew what the case demanded he let the parties make a decision and probably the best piece of evidence that a re objective observer would not think that the judge was going to make decisions that were on other than the merits is the fact that the defendants waited so long to file their motion they waited through the jury instructions they waited through the jury verdict they waited through in chief that the government presented at the penalty phase before they made the entire case in chief they got a hope preview of the case and then they filed a motion why should we use the defendant's own counsel as a reasonably objective observer in this case couple things that i want to note is you do the way we argue too late in the brief is to say that there has to be a concession and also some very very seriously directly implicating statements that are made and i believe footnote three of tulli requires there to be a confession that's where to lay looks back at bruton and it says look the mere fact that it's hard for a juror to apply evidence against one party not against another party cannot be the basis for it has to be that there's something that makes it so difficult for the juror to ignore the evidence and that's the confession and so that's why i think too late really does require a confession but even if we look at too late as a case that just says there have to be some really egregious circumstances where we say we're not going to honor our normal rule which is that jury instructions normally are going to be followed by the jury there's a presumption that juries are going to follow the instructions and there's a presumption that they will ignore the evidence if we tell them and unless there's something really egregious and we believe the jury can't unring the bell then we're going to do that and so i think too late needs something really really really bad and the what the government argued in its brief is that mcneil never confessed so that entire aspect of the sort of rationale for too late isn't even there there's no there's nothing that the jury would necessarily there's no reason why they would necessarily believe mco and then the other prong of that is that he didn't really say anything that implicated could am of us now the defense has claimed well you know he sort of cast he sort of suggested that could have a can of move this was involved in some ways in other kinds of crimes and other sort of international money laundering crimes but he didn't implicate kadam of this in this crime he did the opposite he repeatedly provided alibis for catarrh most zip ties did those come from well we had the aquarium business and also sometimes we would wrap our money in that ok trip to jamaica well kadam of us was there but he was working on the aquarium at the hotel that i bought kadam of us wasn't even there for for the humanity abduction those those were the  anglin is claiming to rest because he and they're driving a motor home up to the border and he stops to walk his dog and he claims that a man came up at knifepoint for staley's to get into the into the truck his  testimony that she saw him during the stop off to one side of the motorhome speaking with an unidentified man which point he had angwin the defendant asked her to get back into the motorhome to sit into the passenger seat and not to see anything in this court held that those statements were not expressly clearly or powerfully incriminating of angwin as required by bruton and it said a statement is not facially incriminating merely because it identifies a defendant it has to be sufficiently devastating  powerfully incriminating or i'm sorry powerful inculpatory impact to incriminate on its face and that's what britain requires incrimination on its face mcallister testimony did not incriminate can't get him of this on its face and i take it from your twenty eight jail letter that you would have us decided on the circuits who have looked at the issue have all agreed that the confrontation clause doesn't apply at the penalty phase there seems to be an open question about whether it applies to the statutory aggravating factors of all the argument in the  twenty is that even if we kill this testimony came in and was considered all erroneous leave by the jury of the penalty phase it was not with respect to the aggravated statutory aggravating factors it could only have been to the non statutory aggravating factors and therefore there would be no confrontation violation at the penalty phase but again i think that it's spelled out a little bit more than twenty j letter it's a somewhat complicated issue if the court wants further briefing on that i'm more than happy to do supplemental briefing in fact i suggested in the letter that if the court isn't satisfied with the arguments today that we do that are you talking about the verdict form yes i also submitted twenty to a letter on the verdict form i'm sorry about the flurry of letters at the end as you bear down on on these issues you know things come up that maybe you hadn't considered before exactly the same i mean here i take it that they are arguing that what the judge instead is centrally instructed the jury and then also had in the verdict form was basically telling them to infer that if you met any of these criteria you were dangerous and i and there they are saying we had evidence that wasn't true and we don't think the judge should have been giving that instruction to infer that i don't really read i'm not as exactly arguing that it's more like who had to decide what under which prom and how did it but whether had to be unanimous no what the judge w evidence only and it wasn't a permissive instruction and it didn't allow that or marshal the evidence in that direction and it said this was especially so because the seam as evidenced by language was used in other instructor i'm sorry this was especially because the court there said that the instruction was to identify the grounds that the government had put into the notice the death penalty notice real quickly on future dangerousness look the cases warrant houser rubio via ryall all these cases are explicit permissive instructions these are cases in via ryall you can infer from the fact that the defendant was driving a car and drugs were concealed in the car if he knew the drugs were in the car that was what the instructions said warning houser said you can infer you can infer malice aforethought from the fact you defend it used to get a weapon during a homicide in ramirez the court explicitly told the jury you cannot infer anything about the government's case from the fact that they didn't put the key witness on so we're talking about explicit instructions that come out and tell the jury directly how to infer or not to infer things we have nothing like that here it's you know at  why doesn't this verdict tell the jury that if he was not showing remorse but that means he's dangerous and you should and i as the judge i'm telling you that there's a logical connection well i think what the jury only the non statutory aggravating factors specifically claimed by the government and listed below you must not consider any other facts in aggravation now remember if the death penalty stage the government has to put in its notice all of the factors that it's going to use in aggravation and only can only put on evidence of those factors and if you try to put on any other evidence that's fair so in this case the judge having instructed jurors about exactly what the government was alleging and then clear to the jury that the judge wasn't telling them that they could infer that future dangerousness was proven if the government put on evidence of these facts so the special verdict form said is that the sub parts in that instruction and some parts on the form merely describe the government's allegation of how the existence of non statutory aggravating factors would be demonstrated ok and the judge also told them the government always has the burden beyond a reasonable doubt but we're only ones i guess i just don't understand how you read that if you're the jury and think ok they have to show these allegations but if i believe they showed the allegation of lack of remorse for it or either of the other two i'm supposed to find that that means they're dangerous as a matter of law because otherwise why is it in the instructions and why is it on the very finest way again unlike warren and hauser it's not an explicit instruction even if this court found it in big us the warning house will tell you have to consider the entire trial all the jury instructions all the evidence that's out there today to try and figure out what a reasonable juror would have inferred from the instruction and how they would have understood it i think the most important evidence that shows that the jury could not have understood the instruction to mean what the court just suggested is that substantial time of the trial was devoted to the testimony of people like dr cunningham who specifically said you cannot infer from reading that but that's exactly why i'm concerned about this so if there hadn't been such testimony then maybe it wouldn't be contested and maybe these things would automatically be inferrable but in fact these are contested and yet then they're listed as if they're as if it's not contested that whether these factors are met means you're dangerous but that's what warren hauser tell you to do is look at all the facts just because the instruction might be ambiguous no reasonable juror would think we just spent two days listening to dr cunningham in this was a farce and i'll give you a couple cases on this but before i do it i want to say you know one of the arguments that the defense counsel  contentions that the government made the government didn't call any witnesses there's not enough evidence that was the argument that he made and then the two cases that i want the court to look at our boy versus california where the supreme court said it was unlikely that reasonable jurors would believe that the court's instructions even if ambiguous transformed all of the defendant's favorable testimony into a virtual sharod which is essentially what would be required here and then simms versus brown which in a similar context said finally and most importantly for the jury to have believed it could not consider sins mitigating evidence it would have had to believe the dr vicary this is another case where he testified that he had conducted an extensive examination of simms and that since his mother his sister his step brother and his wife came out to california to testify for not that those cases are directly on point and what they tell the court is no reasonable juror could assume that they wasted two days of trial if the judge was just going to tell you in the jury instructions testified in this case you may not consider that testimony with respect to either mckellar to them of us and that instruction is opposed to this ambiguous instruction that you know even if the court thought it was in big us i think seems and void show that the new reasonable jury could have been misled by so if we disagree with you i don't think you are good harmlessness on this issue either is that right or did you i thank you not sure whether we did i thought that there was a harmless error oh no we did not on this one your honor so and then what i would say as far as the harmlessness goes is the standard is in and the standard there is you know is reversal reversal is required only if there is no reasonable possibility that the area so the jury instructions require reversal unless there is no reasonable possibility that the error materially affected the verdict in other words was there ominous here and in this case that's one of the reasons why i talked about the prosecutor's argument on future dangerousness first of all i think all the evidence clearly does support the inference it wasn't this wasn't a close call these these two defendants that tried to escape from prison and the prison escape plan involved potentially blowing up the visiting room and maybe killing somebody on the way out these were you know to defense who would brutally killed five people they didn't care about their families they didn't care about the trauma that they were going to put people through the victims themselves  remember she said that she was pregnant they didn't care about that and they killed her after luring her back to their house for the sole purpose of trying to get the south you know i mean these were bloodthirsty criminals and i don't think that any jury would not have council i'm going to give you each five minutes we have heard extensive arguments this morning where to start with five minutes to see what that see where that gets us but i will ask you to be to be considerate of the court's time on this one that we've been we've been quite generous up front  circumstantial argument they to make but it's not particularly weighty they've made mention of which we've discussed that we have a claim as two of us testimony and he's a cooperating witness and then the third thing was the money on the books which i think  which is what we pointed out in the in our papers it doesn't really show anything and in fact it probably shows the exact opposite so the evidence is extraordinarily weak as to mr cattermole this as to the state conviction and by the way he had mentioned the cell location but then he also conceded there was absolutely nothing in his cell there was no hole in his cell no tools and it's still nothing if these good condition goes then we get to a harmless error now we didn't hear anything about johnson versus mississippi today from the government so i don't know what their position is on that they haven't the forefront of your mind is lack of remorse and they showed lack of remorse because they escaped and tried to escape from custody it's all real in of course the state is related to future danger all of these themes are related but he says was far broader than just that they tried to escape well that the way they're just to find it now so that it didn't violate the fifth amendment is that we were just basing it on their post offense conduct that they tried to escape not th or do these other things that's their position and they did specifically referenced the escape as showing lack of remorse so if that's tied to future danger and future danger is a critical factor in speculative inquiry injuries often get it wrong so it's an important factor in the keys oh i'm as far as refusal and this gets back to waiver i mean whatever goes both ways so the government i think they're saying that they shouldn't be held this is not we now there may and they have conceded also that it wasn't forfeited now there may be an issue as to whether it was timely when you look at the merits of the issue that's their position but it's not forfeited and it's not waived again today we have not heard anything about advisory opinion number eighty four it exists it's there there is no response to it from that side that is the governing advisory opinion that governs the federal judiciary and what it says is in this context just a reason was required to re not limited to a private law firm it specifically says it doesn't say anything about government employment it doesn't exist as any employer it doesn't say government or anything but i mean how many you know you can have a general counsel as that means them but if you're looking at  going from the did this to courts of the court of appeals you would have to recuse yourself from all cases involving united states well no because if you for applies to post retirement when you're leaving the bench that's what the opinion is designed to eighty four does not apply why wouldn't it because it's an entirely different clients why why is retirement from the bench different as opposed to get just getting another job let's suppose the judge the reason was not planning on retiring at the end of this case do you think of you making any different argument here but i think we have to go there we're talking about the very litigation prosecutorial agency that's litigating the case in front of me and i don't think we have to go to every single imaginary you know federal you have the position the problem where your analogy breaks down is the u s attorney's office is not hiring him he's not apply he's not audit he's not addition for a position as the criminal section chief will be hired by the u s attorney is it is additionally if he's auditioning at all for an appointment by the president senate confirmation that's a that's a very that's a it's a very different thing and if you're going to go that far then i think the only conclusion you can say is that he was obligated to recuse himself from all cases involving united states including this case well i mean i  an immigration case or something else but when you're talking about the very agency the very office this for seeking the head and that office has a case in front of him i mean i don't think the court has to go down all the hypotheticals are different situations i mean he's trying to head this very office he's going to pull the plug on a death penalty case and then walk into that office in two months and say here i am everybody remember me how is he going to do that and he would never want to do that let me think i know i'm out of time i think so  finally on the on the future danger instruction your honor we agree with your analysis or at least what you've said about him on a it's a different it's a different situation these cases that they're citing that you have to look at the whole all the journey structures all those permissive inference cases say that the curative a fact of the other instructions has to be included right within the instruction itself you can't just look at all the instructions as a whole so and again the future danger issue is incredibly important ski's this court can reverse the penalty made that determination and all the cases we cited an arborist specifically in the reply brief it page fifty seven show that where the judge just denies it without comment that  discrimination so that doesn't go to just stick jerk to eighty five it goes to all of levon jurors had the district judge completed his duty we would have a record as to the prosecution reasons and all loving those jurors so it's a dr vicary family faced testify that mchale had paranoid delusions a conspiracy that prevented him from cooperation with counsel that explained is actions in killer as a matter of fact then and the last piece of this which is the bow and icing on the cake which had to trigger a duty on the district court to order a competency evaluat have a competency hearing is at that point defense counsel says yes and i have a question as to its competency putting it right out there that this record ignored all that but that's not a motion is that it's not a motion it's a question but the question  fifteen years on the court i have never seen a longer set of race i realize the court was very indulgent in allowing you to brief this in talk with the clerk's office no one in living memory has ever seen of the briefing that we have seen i n this case and i would like to compliment all counsel i think the case was extraordinarily well briefed on all sides i think was very well argued today your clients are well represented and we want to thank you