and a passive witness to the murders of three individuals was a centerpiece of the government's case for death he was a source of the government's case for who did what inside the apartment the defense countered this narrative with statements from the frame johnson the only other eyewitness to the events inside the testimony that when he asked does he but what was going on after seeing as he will be tailed you know like it was a meat market he said come get you some now here's my question are you arguing that these statements deliberations no requests for a mistrial no request for further instructions right that's quite right i mean it seems to me that you have a heavy burden yourself help help us see how you  small instructions it was the instruction not to consider defense strategy we presume the jury followed that she's going to have to help us out more not in terms of just arguing the importance  these two people's relative credibility but how we would find that even with those instructions we've got the kind of error here that could not be cured neither heard of instruction went the jurors they will not be able to set aside no matter how baseless or matters would have been all right in your view than the prosecutor simply to point out because the defendant call johnson about as to some  gs didn't or excuse me called the f b i investigator with regard to johnson state and yes that's right and you solicited from him or your predecessor solicited from him a number of his statements and and  the concert in which occurred over a number of proper sessions in interviews correct but the initial questioning did not differentiate between whether they were a proper session or an initial interview overengineered did they at least as to the presentation direct  was it fair for the government to introduce the idea that there were differences with regard to types of interviews and light of the fact that you called the witness so i'm i'm not i don't i don't think that would have been johnson that if he were truthful in forth coming in his proffer that he would have the benefit of a plea of grangemouth which would avoid the death i think that the that's embarking on dangerous ground at that point that's the reason so what you call the witness you call the witness and you introduced evidence that he made a series of statements is it not fair to seek out what the surrounding circumstances of those statements were i think the it may well be but they didn't stop there they did it we immediately went to the reason why that the reverse outing is that because you believe he was lying now we're not the entire record shows the governor the jury in its nation to find that he was lying and it cited all these inconsistency that judge wesley just alluded to you're not objecting to any of that so the question becomes whether having asked a question that suggested not only did they they wanted the jury to believe that he was lying but that they believed he was lying was a problem even with a curative instruction i mean you know you you say it can't be cured him in the  can think of lots of things the judge might have said including it's solely for you to decide credibility ladies and gentlemen it doesn't matter a whit what any of the parties thing you didn't ask for that it wasn't given if you were up here saying experienced counsel and there was serious certainly experienced counsel in this case sometimes doesn't ask for more because they're the air and they watched it play out and they don't think it was a need from the only on appeal that were black and half jewish and we said you can't do that the tactics of the party may be different from what is needed by a court in a situation of this you're absolutely right this is a different kind of decision and in this case the jury was out for two days on sentencing and they split the verdict what happened inside the apartment matter to them they didn't were not able to reach were not as concerned i don't think we have whether this is harmless error not i know the government suggest it is harmless error but i think that really the question is what webre objections should have been made if they weren't made what the consequences very significantly unlike all of the other cooperators of this case and there were many taylor presented himself as having no motive to curry favor with the government by helping to secure a conviction or a death sentence that mo he said only that he was hoping for a lesser sentence in the fets all he had said i would not be making this or commit but the government went on and said do you expect to go home tomorrow you know when do you expect to go home and he said i don't expect to ever get out of prison so that that last question it was the last question was directing sam nation what happened on cross and on natty well there was no there was no cross on that issue and i don't believe your honor that there could have been tiller was the only witness to place who faced a mandatory minimum sentence of life without release everybody else had a much lesser minimum thought that that mandatory minimum could have been affected by  life sentences have gotten consideration from the court and i am just totally perplexed that you argument to us that it was prejudicial error to elicit  when no effort was made to cross examine on and help me out i don't believe that the defense attorney had any tools with which to challenge that statement i'm sorry i heard that kind of cross examination for fifteen years well this is  this is a statement by a thirty four four year old man who faces a mandatory life without release sentence who had just said he doesn't expect to get out of prison the defense attorney as far as we know there's certainly no reason to think that he knew about this wonderful deal that mr taylor's attorney was aware of where him and forment in another capital case who was guilty of intentional murder isn't a term better not felony murder got a five year sentence it's clear that mr taylor's attorney knew that it's clear that the process trial prosecutors knew that because one of the trial prosecutors was actually involved in that case but you can question whether you're able to show her jury and as i understand it what you don't  is the link of any one telling mr taylor that you're you're asking for it you're going to see if his lawyer told him that is that right well we wouldn't i don't depending on the attorney from privilege i don't know how the question would be posed but but we factual premises of the government's knowledge i know i can't i don't argue that they knew that he knew about the you sense enough knew what he was going to say i think that there's every reason to think that they knew what his answer would be because why pose that ultimate question which they didn't post any other witness saying when do you think you're going to go home so i think they knew they were going to get a sense which indicated that he didn't think he was going home no he didn't know and  ok so he thought so whether or not he got a benefit from being a cooperator if you're thirty four years old and you're facing in that mandatory minimum of life without release you'd have to get a substantial benefit to get released  that when you come to know that nobody did also said it at sentencing for mr taylor that they had spent a very long time discussing the consequences of an open ended plea which mr taylor was not familiar with you saying that you didn't cross examine i don't mean you were the trial didn't cross examine because at that time they had no reason to believe that  mr taylor would say anything except what he said i don't know anything and so with cross examination possible of course would not have been helpful because you would have kept repeating the same thing and that you have and would have had to live now that people is notorious sammy gravano as you know any number of other mobsters personally killed individuals served lesser sentence frequently get consideration oh but i think there would be without any tools of knowing what taylor knew his state of mind when he just told the jury that he expected to die in prison and he hoped for a benefit but he never expected to get the benefits fish until release him that the that will the lawyer did not have the defense or not have the tools to impeach that statement he didn't know what what taylor knew but he did risk with cross examination having taylor reiterate that testimony and refused to backtrack from  you would face that risk your what if we ever heard about the other client and his lawyers representation of him he would have only reiterated that that's no different from asking him whether he knew what you know  reason we're here is because we have a link between a very generous single digits and sentence sentence in connecticut in another capital case for a prisoner who taylor's testimony was very familiar with and taylor i if if that's the impression i gave i apologize i'm not saying that we know the government knew we lived this is not a nap you claim i thought point two was the government suborned perjury you know that this is not enough to claim this is a claim that we have a good faith reason to believe that sean taylor lie that his son had that is the last question an answer on direct examination was designed to elicit that he never thought to get out of prison that the government we don't know what the government knew about what whether he knew about the lopez sentence or anything else that he knew we're arguing that because we can't show perjury at this stage we need to have a  taylor to be called as a witness he would have the profit of asserting his attorney time privilege but it's his to assert we don't know whether it will survive we could ask questions of him that wouldn't have to intrude on the internal client privilege though i think the case of this importance we would be able to certainly ask him questions about what he was told as opposed to what missions he himself made that's really the basis of the privileged we would also be able to ask questions in general apart from what his attorney specifically told him you know did you have any information about other cooperators in that in the the feel good so what it is is cooperation group specifically so that it's left up to the judge when when the fellow argued in front of  judge the other cooperated got five years that didn't mean that he was guaranteed five years there's no deal this is what he said wait a second let me just a second hundred five or ninety four what are you hoping happens to you answer a lesser sentence corsi hope for a lesser sentence so he understood that by his cooperation might get a lesser sentence next question do you think you're going to go home today no today no tomorrow you think you're going to ever go home i don't think i'm never gone so i don't understand how you parse that answer into some kind of law he doesn't know he doesn't know there's no promise what lying to that he hoped he shows up i hope i can go home someday but i don't i'm not certain i ever will which wesley if if if if the record established that john taylor somewhat on knowing about it he knows he that he defeated justifies truthfully he'll get a lesser sentence that was the answer but how is it that he's supposed to know that he's going to be going home i i'm not saying he knew what his sentence would be obviously he could not know in advance what sense but if he knew there was a possibility that other people got in the single digits inside problem with this this is what other he'd have to say something which was a crime now how can you know that somebody in that situation will claim the fifth amendment so they just context as you pointed out that of john taylor got on the stand and was asked a request direct question let's say was appropriate to ask him if he had you ever heard of mr lopez did you ever know that another cooperate or in a murder case got a five year sentence did you ever realize that any cooperation who would face a murder conviction could get a single digit sentence or something you know under twenty years even asked any of those questions if you asserted the fifth amendment right i think that the anything about his testimony that there might be an issue but i'll take you back you said you want to question that what he knew about other cooperate years getting single digit or even a five year sentence right well that  cases in connecticut and i don't know from last year whether you need to know them only connecticut to ask the question if you think that the fellow is not is not telling the truth when he says he doesn't intend to go home i mean presumably you think he's not telling the truth because everybody who practices criminal law knows that defendants who have faced life sentences for murder have cooperated and received lesser sentences i think you're get released so that his testimony was a lie that we would we would be able to have an ineffective assistance of counsel claim on this deal nor do i think we could do that would have to be a collateral challenge but i i am all right so what you want to do it hearing is you want to ask him if he's heard of lopez heard of lopez's sentence and if he says yes then you would want to be able to pursue it further as to whether h statement that he expected never to get it to jail was a lot there are a range of questions along those lines so those are the only two questions because maybe he wouldn't remember who lopez was or maybe just the concept that he was aware that people convicted of intentional murder as cooperators could get a substantial reduction off a life sentence as a reduction significant enough where they might get released and if his answer in the end is yes i know that but i've been told over and over again there are no promises to me so as i sit here right now and i'm not expecting ever to go home i hope i'm going to get a lesser sentence but i'm not expecting ever to go home is that we could wind up with all this i i still think that the the question the answer that he gave was a substantive answer that he expected whether you got a benefit or not that it would not use these it's why you're allowed to cross exam test these kind of statements and you're here arguing in the this is in your brief that this was deliberately elicited misleading statements so i mean this is where i got the idea that your argument it's perjury and the government knew it because i'm not sure anything less gets gets you a gets you in your client anywhere now now you're saying well we have to do it in two steps first we have every hearing to demonstrate that and fact that's well because you don't if it's if chair of mr taylor admitted at the hearing that he knew there was that other people in that he would be even worse crimes because mr lopez was convicted of intentional murder not felony murder had gotten a single digit sentence then i think there would be ample reason to conclude that his statement that he never expected to die in prison was a lot i think i think that that would be  thank you very much you know you want to use their time and and judge want one more thing the what could happen here in the the the questions could also be asked about what mr taylor was told by the prosecutors yes and not be true statement that he did know what he was yes and but the the hoping for a lesser sentence in a with a with a mandatory life is a minimum doesn't mean he's going to get out he has an element of truth to it or an element of hope  expect to be home tomorrow morning but i can't guarantee that delta will fly they don't always fly really in the morning but i have an expectation blues or an element of truth to my expectation such that my expectation is either fal true i think if we if we establish the use aware of this other we already can buy this very answer before he exceed he was hoping for a lesser sentence he knew the connection the you've got they had already put the question is just the word expect does the word expect have an element of truth or falsity to i think you expect you expect something to happen with regard to results but you can't measure whether that's true or  so the plan we had was i was going to address the first four points in our brief which relate to issues that they raised with respect to the guilt phase and the supplemental issue and attorney jack that rodriguez costs was going to deal with issues five through ten it's very confusing because you never heard them differently but the point is the question about which strategies in the summation will be dealt with by your colleague yes your honor and we're prepared to answer questions on any issues but since they only argued to would just address these two at this time so they're claiming for the first time on appeal that taylor lied about his sentencing expectations based upon one statement to which they did not object as your honor noted john taylor specifically testified that he hoped to receive a lesser sentence he also reiterated that later saying that the reason he was testifying was because he was looking for help and he also testified that he pled guilty to a cooperation agreement that cooperation agreement was in fact in evidence the jury heard a lot about five k motions and the benefits those have for cooperating witnesses he also testified that he could have been facing the death penalty but that he was that government was not seeking it and then he made the statement that he didn't think he was ever going home and in the context it was made it was a very sincere statement he had just testified for hours about triple homicide that was incredibly brutal the he admitted that he didn't do anything to help the victims because he didn't want to end up locked up his words and you know he's sitting there facing three life sentences as a matter of fact but the statement is not material to the verdict it's it goes to his credibility it doesn't go to what a car did or what john taylor did on the day of the actual murder and the jury had plenty with which to test his credibility and his motive to testify john taylor admitted that he had five prior convictions for for drug trafficking and one for robbery he admitted that he had lied to protect himself he lied to the police he lied after he entered a proffer agreement and he admitted lying even after he entered the cooperation agreement additionally the government acknowledged on some ation that we would be filing five k letters for the cooperating witnesses and that those allowed the judge to give leniency and the judge specifically instructed that the jury should scrutinize all the cooperating witnesses testimony because they quote had a motive to lie and to testify falsely and give favorable testimony to the prosecution because they were hoping to receive a lighter answered and he said i don't expect you know this was you know your lead cooperate or i wonder whether the government thought that he really expected never to go home as opposed to that he no and whether there was whether the real argument here is the failure to clarify that for the jury what's what's your response to duty to clarify that at that point as has been pointed out a car a believe question was what but now i think he told us that she expected him to say i don't know it'll be up to the judge which is equally the question an answer to ask right he then started to cry and judge arterton pointed out that there was tissues on the stand and i stopped asking him questions is really what happened and i sat down that's after he says i don't expect get what he said was i don't think i'm never going home and he started to cry and again it was a very sincere statement in the context that it was made and again this there's nothing inconsistent whatsoever but assuming for the sake of argument he knew about this five year sentence that a defendant in an unrelated case which was a drive by shooting your sincerity is really very interesting because you need you to do what you did but my question is whether we have that sincerity and without meaning to do anything wrong you went beyond and took over what the jury's role was still left him being maybe more open than the he should be but that's what's bothering you about this case because the whole he years maybe three people it's not a common thing till something was moving you and i can understand it but my question is  may respond your honor so with all due respect it's not about what i thought what i think is irrelevant and that's protected our case that's the point but we also the decision that the attorney general made to seek the death penalty in this case was made in january of two thousand and nine john taylor was not arrested until december of two thousand and nine so it wasn't like a decision was made made based solely on his testimony or what anyone thought about his testimony the attorney general made the decision after this went through the entire death penalty protocol that this was an appropriate case and there are many cases which we seek i'm not disagreeing with the number of people who have been executed i'm disagreeing with the number of situations where the death penalty is sought in cases like this and i do not believe it all that unusual around the country just to speak to the issue about a hearing they're requesting a hearing and what they're required to show for a hearing are specific facts supported by competent evidence if proven true would entitle them to relief and this is what they've put forth is all speculation based upon what they believe taylor's attorney must have told him about a defendant in another  case as you've pointed out cannot establish that taylor would testify or that any questions that ask him would be proper wouldn't violate the attorney client privilege or that he wouldn't invoke the fifth amendment but even if he did testify and he said yeah my attorney told me that someone in a drive by shooting case who happened to be the driver not the shooter i'm receive five years there's nothing inconsistent about him knowing that was a possibility but not believing it was a realistic possibility for him based upon the fact that he was involved in this horrible crime it was a horrible crime you'll they all are you're right you're absolutely right  but even assuming that somehow you can see from his testimony that he's not a very sophisticated individual so but yes he has i don't think it was understood until his sentencing that he had some sort of deal with the specific facts here which as you said all turn on the lopez yes and i suggested to counsel that this was really not that significant because the cross examination could have taken place in any event and the response was that the record is devoid of any evidence that there was any other basis for doing that  great leniency in return for considerable cooperation connecticut fall outside the norm this regard no it doesn't and in fact if you look on page a three eight five they have a car's attorney did in fact use the cross examination technique that your honor is talking about here when rodney womble was on the stand he was talking about the fact that he was facing twenty to life and one of the trial counsel one of mr karr struck counsel started pushing him you want to go home you want time served and he brought up counsel a defendant in another case his name is booby rogers whose real name is hasan rogers who had cooperated occur in a case in connecticut who had received a greatly reduced sentence and counsel used this way you know that booby rogers you know is out walking around right now even though he was facing ten years so you know that could happen to you isn't that true mr law and you know you could get time served so with all due respect to counsel it doesn't make any sense that they didn't have any tools with which to cross examine mr taylor along the same lines they could have used the exact same defendants o examination of mr mom all that you're just talking about occurred in this case yes your honor yes i just want to be sure i understood yes it's all that you have both in the very same case a cross examination and no you're leaving me  like decile as to why it wasn't done here i mean can you explain to me what possible strategy would justify one no you know i mean i know we don't have it there no but that's going to come like i think this goes back to the sincerity of the comment your honor i think that it came across as if that's what john taylor subjectively believed at that moment he had just looked at a lot of pictures of these victims bludgeoned to death and when asked why didn't you do something to help these people if you didn't want them to die one inch call nine one one one one and why didn't you help them and he said because i didn't want to get locked up like i am now which would be the least of motives and he said that to the jury and so that right there you know the fact that he just was answering these questions that the defendant was in wasn't there either so it's a tough thing to to tear into taylor i mean if you want to say that taylor's a liar but you've already i mean i can understand why hearing will find out there was or was not a strategic decision but i'm sure i'm not termly interested in that right know but so can you address the remaining aspects that you will address the only thing i was going to mention is just on john taylor's credibility and this may go a little bit to the issue here is judge our ten also commented on the sentencing about how credible he was in fact i'm she watched him testify twice in this trial and that any friend johnson's trial and no dead that the jury and a friend johnson's trial had rejected johnson's testimony and credited taylor's and she specifically said because that's juries are very good at telling his being truthful and while it doesn't go directly to the statement it does go to the atmosphere in the court room at the time that he was testifying you would agree with me that he was i mean  says stern she was one of a court so bright so between her testimony and the forensic evidence phone records and there was a lot of testimony made reference to a friend johnson statement so the government did not just ask a question of age among the government went on for about thirteen pages of transcripts to demonstrate to the jury the inconsistency  of those statements within themselves and the inconsistency of those names with the forensic evidence in the case and so in so mation when we are discussing what relevance these statements could possibly have in the case the only real relevan credibility we argue that the statements were inconsistent within themselves inconsistent with the frantic evidence presented at trial and inconsistent with the theory of defense yours en ability to say that or the ability to argue that the consistency or inconsistency of a defense position is something the jury can draw an inference from your honor we're defending our ability to comment on defen argument i understand and i know that in the summation this was a litany you argued the inconsistency is you argued facts and judge calibration is indicated that you're ok up until the point where you say and it's inconsistent with the position they took on taylor's testimony at trial and i'm asking you if you're telling us that you think the government can urge and any friends from defense strategy amine it through an objection and then the court sustained it and grant and told the jury to disregard the the state are you now telling us that what you did is perfectly acceptable your honor the what the government intended to do through its argument and so mission was to demonstrate that efren johnson statements lack credibility it was not the intent of the governor and that do you think you can do that by pointing to the difference in the defense position on taylor at the culpability phase and at the penalty phase we would in guilt we are in penalty so the defense counsel already spent over an hour in summation in guilt arguing a position a theory of your evidence if you will to the june so we're  strategy should canter into the jury's deliberations well and we would agree with your honor we would submit that if if the court determines that it was fair or for the prosecutor to go as far as commenting on the strategy of the defense which was not our intent by any means shape or form we build their summation was thirty five pages long and these comments were about half a peach worth of our summation so in that context your honor if he was  the instruction provided immediately because the court did not wait until the end of summation the court immediately sustain the objection and provided a cue to the curative instruction all right well as i understand the concern we're being asked to think about is that you ask some things like he didn't get the agreement because he lied statement that suggested you didn't believe you yourselves the prosecution did not believe efren johnson and now with this statement summation you're suggesting the defense doesn't believe what they've put before you because they didn't take that position at trial that's as i understand the the strongest way to characterize the defense argument they'll tell me if if it can be put stronger still tell me why that doesn't persuade in the first instance here on the government was not in argument vouching for the credibility of a witness the government posed a question to specifically as who was you didn't get an agreement he didn't get an agreement because he was alone the question you were doing a variety of a but that question i'm sorry  this person is a lawyer and we know we're not from some evidence that we know it from some evidence we have and other people are there bits of a point of it that's why you did it the perp one answer the court's question the intent was to establish why the why there are a cooperation agreement was not reached and it was important at that juncture for the government to establish the cooperation in doing was not reached because here we are cross examining the case agent not just any f b i agent the case agent of the case who's been sitting in government table throughout the entire trial chris monger elicited that he didn't have a cooperation agreement that could be for lots of reasons by the way he may have wanted you know the moon and you weren't able to give him that but but instead you asked him if the reason he didn't get it was because the government thought he was lying and we are not advocating that that was a proper question and we agree that the objection know again and that's one of my problems with saying book or there should have been an objection when vet original thing was done that might have been enough but then you come back to something no and which speaks to the same feeling and it's a fair point that i should book or to have done something to pull it all together i think the core issues are curative instruction i was proper doing so mation the defendant did not ask for any additional instruction and i think it's also important to take into consideration why that those excerpts of ephron johnson statements were submitted into evidence they were submitted in support of the first mitigating factor that the a course admitted to the consideration of the jury that neither he efren johnson nor john taylor would confront the death penalty for their roles in this offense the government conceded that that countability for multiple murders so there are no with all due and all due respect the forensic evidence alone accounted for the multiple murders there were three bodies at this lane is apartment but we don't need john taylor to tell us that there are three aggravating factors who are enough to sentence somebody for him think it is barry and that means that you know you have to look at all of the aggravation factors to i'm inclined to agree with you as to the multiple murder i mean you know it was plenty of evidence of that but there was much more of it there was much more in honor there was significant evidence of planning and premeditation these three murders when the jury took when when the corps takes into account the overwhelming evidence in favor of substantial planning permission and i like to take just a minute to address that issue although the consulate did not and i have a question yes ma'am all right core advances for the first time on appeal that it's theory not exposed to the trial court that his motivation when he kicked in the door of the johnson's apartment was to commit a robbery who brings a drill  he bought and he brought a gun to subdue the victims and he didn't use a gun to kill them he brought bats to kill the victims with and he brought into will to seal the door so the evidence of planning and premeditation of this crime was overwhelming the injuries inflicted by these victims that were testified to by the medical examiner were substantial the victims were methodically tied with duct tape with their hands tied behind their backs door he sees a poor standing with three other people all dressed in black not the jury we're not making that is trying to understand how johnson casts doubt on taylor we understand you don't believe johnson and urged the jury what we where's the discrepancy is you see what johnson statements stated was that he saw john taylor pull out a ten inch height right out of his pocket and strike tina johnson with it and that's how she died not the bats in the the whole version the tale what the government presented a forensic expert in penalty on martin i understand that you think your evidence is stronger but that's the discrepancy right it's not about recruiting but he only says that he saw to that a yes or no yes ma'am ok now counsel your adversary said this was offered to show that taylor and johnson who were also culpable participants were not getting the death penalty you say you conceded that and the jury unanimously still found right then the other factor is the question of the he crime and the multiple murders you said something a while back i want to be sure i understand your view on what you stand you that you don't think role matters says to those t have been charged that they should consider a court's personal caught out did i misunderstand how this case went to the jury no that is correct that is exactly how the case right souter in that extent did make a difference whether the jury believed that taylor killed someone with a an inch high or a cart or a cart missed brother kill them with baseball bats doesn't it know and i will explain why you honor the evidence show the tailored sees a core beating tina johnson sees his brother a sequel beating james reid and he's horrified so he turns to leave the apartment that's your that's taylor's testimony is still laying on the floor of his bedroom when he leaves the apartment now johnson tells his sister well she could johnson in the privacy of her own home and prior to any charges being filed he confesses to her that he participated in the murders or the question here is whether the government's action it's at the penalty phase with respect to undercutting johnson's credibility somehow require us to vacate the penalty verdict and that the two questions we've had particularly have been with respect to the claim that johnson didn't get a plea agreement because he was lying and that even the even the defense didn't seem to believe him because they didn't take that position at penalty phase i know the defense argues there's other misconduct too but but our nevertheless the judge judge allowed them in the jury considerable evidence of inconsistency ease within the statements across state lines at ceterus so you know i'm not sure we we just store with the assumption that but for the government's error everything that he said johnson would have been believed and you know the jury knew that they've heard from taylor and heard all his inconsistency stew but they had you know eyeball to him and they it never eyeballed johnson so it's in that context i think that we have to fairly consider these errors that you attribute to the government and i remain concerned as to how we how we say that the judge's instructions not to consider certain things or column she didn't instruct them not to consider the government's opinion th you know he changed his statement at b and b later on at the plea and all it in ways that were favorable to the government so knowing when he was when he had a cooperation agreement he didn't it cetera would be relevant to the jury sunder standing of each statement but in any event the judge did strike the reference to cooperation agreement but told him that you should understand that that's teams were given in the context of attempting to plead versus somebody means that it's plainly established in our precedent that you have to give the instruction united states versus when is a with this court reversed on planar including for boucher you know that's a different kind of it's certainly not reversed out and i'm not sure that there there was an objection sustained me you're now not i mean i would agree that the governor would have a really hard time having asked that question if it hadn't had an much lower here just because of the particular context of the jury the player was playing there or would be lower because it sentencing but it is because it's a very peculiar company that this context is so different from all the other contexts but there is a duty on the part of the board since it cannot do anything else about assent to make sure that the jury is fully and completely instructed and feelings are being to make sure it needs to destructions that the jury is fully aware of their rule that's what you have to convince as in the application of plain error in the context of a capital sentencing which is different than the fact finding the government's argument in summation a back shifting defense radke's if the government had never said that but the jury which after all was there for both the penalty and the cases and saw the shifting strategy had sent out and no during deliberations and said what are we to make of the fact that at the guilt phase the defense was that taylor wasn't fair and that at the penalty phase the defense seem to take the position that taylor was an active participant what would a judge properly charge the jury i think the starting point of you can take to consider this g considerations into account would be the beginning but the the problem is know no more right so that you can't take the future consideration into account is i think almost endorsing the fact that the determined counsel believed johnson wasn't telling the truth so they need to be told as in the griffen right to the context and reversed california where the jurors case the way they try to it doesn't necessarily require that they didn't believe j well the government never argued that you didn't believe johnson i suggested the fact would be the best argument you would make that that would be an inference but they never are you know if you had a concern that they would assume that government does in their brief that this one answer that he gave which whereby he indicated the juror that he expected to die in prison was not important in the context because mr taylor been extensively cross examined about the when he was arrested and so forth we have argued in our brief and i just want to underscore that this was a completely different kind of impeachment he was saying that he did not have a motive to lie that he had no self interested reason to not to to do anything except tell the truth that's completely different kind than he was given by the defense another thing is that the jury was given a series of cautionary instructions of the government has set forth in their brief  on how and you're all familiar with them and how cooperate or testimony should be treated with great caution and care and if the jury relied on taylor's testimony that he expected and present those caution during struction is to examine his testimony very carefully who have not applied to him applied only through the other cooperate years who acknowledge that they hope to get a real benefit the other thing i wanted to mention about prejudice is the concept of course anality which is that taylor had that that he was convicted of three counts of felony murder and he didn't exist and he didn't expect to get out of prison even though he cooperated so faced with that testimony i think it would be reasonable for jurors to say well in that case mr core she got a death penalty so i think that's another prejudice of taylor's testim testified to that at the guilt phase though i know he's testimony was alluded to penalty phase two was that a it made from that part of testimony at any point i didn't see that in the government's nation which i'm sorry i'm suggesting that the jury would have thought well if someone who cooperated thinks he's getting life in jail he the defendant who didn't cooperate should get something worse the government never advance that argue no your honor i'm not saying that they did but i knew you'd never advance this argument as a grounds for that unlike mr taylor faced a twenty year sentence not a life sentence and he also very said he was praying for a lesser term so he so the fact that another cooperate or was it had gotten simply was facing a similar drug conviction was it was offered a ten year sends the defense attorney apparently have that information the cross from one of the i think the difference between cross and womble on that and and in crossing taylor when there's no in the team and so forth and so on i just want to underscore that mr taylor knew all of that himself and yet he thought they were going to commit a robbery and or two to evict the people to tear the place up and move them out so it's not obvious i don't think that that that that evidence leads to the idea that the murders themselves for substantial planting premeditated the drill know well they did break the door down so in order to keep people from coming in and out of the fall the drill was there to to drill the door shut it gave the defense the defendants an opportunity to flee  and i also think it's consistent with the eviction idea which is that if they went in without planning murders but only to rough people up and send a message that that her and her minister will drug dealing would not be tolerated that there would be a good way to do it to make them crawl out the window as he did and prevent them from getting back in the part without a lot of trouble a feisty person who could very well have turned him in go on to the police if she felt like it even though she would have to implicate herself in drug dealing if she had known for sure that this was who was responsible for the for the break and ok  and then finally just very very briefly the government has made a an argument that the statements are trained that johnson and taylor made about who was left alive in the apartment was the reason why it was clear heard so at a minimum if you can cite us to any precedent whether from federal courts or even from state courts that are considered capital cases as to the propriety of applying plain error to the penalty phase and if the defense is indeed urging that position that penalty phase analysis should not be limited to plane air review get considerable my that got me thinking and let me just try to explain this because it may help you in briefs if you look at how the supreme court has dealt with capital punishment and cruel in don't you what they have done is to ask whether punishment applied a particular crime by particular people crimes like rape or people like minors and is sufficiently uncommon among the various states and if it is sufficiently uncommon but it is done only in five or six states that is cruel and done neutral but if it is done in quite a few states then  what came to mind is that vet position but we're bound by it and i'm not an originalist and so the fact that it isn't an originalist position may be ok cannot be right from a no regional list point of view and it cannot be right at least it seems to me that an argument can be made that it cannot be right from an originalist point of view because the phrase cruel and unitary state so it couldn't count what was done in one part of england or another couldn't do it there was one law so either very were counting what happened in cognate nations which was supreme court has rejected if you counted what happened in other countries the death penalty would clearly be unconstitutional because very few countries have it but the supreme court said no that's not what we're doing or what they must have done was to ask whether capital punishment for that particular crime was a new fool in england that is imposed sufficiently likely to have been or at least i'd like to hear argument what it meant in england at that time if that is so all that is very strange consequences of you know you'd states it would suggest the capital punishment might not be cruel or unusual in both states that apply it with sufficient frequency to a particular crime that it is not arbitrary but might be cruel and unusual involves particular states where it's done once in a blue moon for some reasons which may be because a jury got this or because a particular prosecutor did that or something but that attainder which were very much the same way that might seem odd from a federalist point of view but it isn't because federalism is that some states can do something which other states can't stand th either in federal territory or linked to something like banking drugs prohibition and so on almost never in polls and envelops fifty years the death penalty federally has only been imposed three we don't mean that it's wrong in this case but that the danger of arbitrariness is sufficient that it was for to be prohibited i might a don't know this one i'll make sequential filing since the government should be entitled to respond to the defense position itself if we could ask for the defense mission here october twenty eighth that's two guest as we've indicated and i suspect i don't really have to say this to such experienced counsel but judge calibration and i have been thinking about federalism and the death penalty for a while in the case of united talk about whether the