but first i would like to start off on the issue of the jury poll or the assets of the jury pool in this case we think again my argument with the question in our system of justice if the government is the jury was discharged the defense counsel requested that they be polled on the issue of insanity because there was a question very shortly before the murders that there was a note from the jury before the verdict came and harassing about that instruction back there was a question in this case and again the district court has a has a duty to make sure that the jury is unanimous in its verdict and then if there is a question that it's not unanimous then the district court has a duty to or that further and in this case the question was can we convict and if we believe the government's met its burden of proof on the elements making up a forty four hour i but we are not  things are moving that fast lawyers can jump up and talk without the judge asking the question did the defense lawyer say before the jury was discharged your honor i want you to service it's an important responsibility of being a citizen there to be no jury trials without jurors without people who come forward to fill that was sponsibility is appreciated very much i'm going to ask you cleese to step to the jury room and remain there briefly i would like if there was anything else that needed to be addressed at which time defense counsel said yes in light of the question given by the jury we would ask that the jury be called on the issue of insanity which again goes back and it was a few in the instructions and the judge said follow the instructions but it was it wasn't clearly it went outside it went beyond the questions and it seems that there is no he needs to go to the bathroom and they went with him to the bathroom i think you have to obviously you have to look at all the circumstances and one of the things of the judge noted in his opinion which was a fifteen page opinion on this issue that was filed in december well after the notice of people that may feel guilty about something that may feel that they need to incriminate it may have reason to feel they could be suspected would have a red flag raised to them when they get a phone call from the police saying hey i want to come on down and normally they understand there's no reasonable connection between that individual and say the air conditioning system at the police station mr southwell there was a reasonable connection in that he had worked on the spires incident commander for some time so they didn't bring him down make the call them up he said ok i'll come down of they made it three times if they can if the police ever called me up and said would you come down and it's a no i don't care to take the time i don't want to have to drive and park you come to my office and chat with me  there they sat in a conference room he knew they were a t f agents they flights in and out of sight and a conference table they began asking him questions about cab reports emplacements fire engines and then they started going into something the police don't do anything wrong i don't see why it's even relevant that it's of low intelligence and suggestible or let alone that the police would know that i mean how would you know that a guy who's actually going on right think and i remember reading miranda and law school and it was very clear at the time and the circumstances at the time it was a response to wrongful conduct by police not idea was the police are using the third degree as they used to call them and that's one of the police behave themselves and do everything they're supposed to know custodial interrogation without a miranda warning i don't see why the even matters that a man has psychological person in his shoes including his level of intelligence would think he was in custody this is just now i understand they didn't understand before yes i'm on the set of time as i have a question and you believe the guy's insane which one of these future you're on of the verdict form would be checked guilty in the first and then it would be checked not guilty by reason of insanity so you what the fence has not proven an affirmative defense beyond a reasonable doubt on the other hand the government has not just give me an answer i do not concede i think i can i can see that that is a very i don't i don't see that i would because the burden of proof is on the defense under the federal statute but there are lots of affirmative defenses that come up i guess most common it's that crap and i'm thinking why isn't that a hung jury if the jury is divided rather than unanimous on the affirmative defense and is there some authority you know of that helps us answer this question your honor i don't know the authority on that and i'm sorry i cannot address at that point it just seems it's well twelve zero on whether the defendant committed the crime but six six or so on and crap with that i don't know the answer to that your honor again i  one unanimous verdict may be returned if that if i'm looking at the right thing then it means he didn't just three read the instructions he actually told them only one unanimous verdict if you return yes but th at the paragraph before that was directed back to the instructions so i know that but he didn't limit himself to the paragraph before that no ok does it matter why he wrote these particular words sometimes the when a jury sends out a note the lawyers are assembled and there's a colloquy between the judge and the lawyers about what he should say in the know and that throws a lot of weight on