murder verdict without finding that harm participated in the robbery with receipt underlying fance this violated fourteenth amendment right to due process to have the government prove every element of the crime beyond a reasonable doubt it is that the verdict form itself has all the elements of the defense there is the capital case of males versus maryland where this not in the other one is france's first is frankly in those cases the court says that you need to look to the entire charge not just to the jury instructions but to the entire charge and i don't think that you can barely categorized this amended verdict form just as a verdict form because it contains elements of the fans as to at least the trial in the murder charge so it's more of the tasks now i think you have to look at the background or what was happening in this trial to understand how the jury would reasonably see this verdict form now you have to remember that the jury had already stand in two inquiries about the felony murder rule the first one was if convicted of a robbery where a murder took place is it automatically considered first degree murder now the answer in idaho to that question is ye however the judge doesn't answer that question directly instead he refers to the jury back to instructions eighteen to take you to agree in the record what's important about that is he does not refer them back to instructions sixteen in seventeen which are the accomplice liability instructions in particular instruction number sixteen is the near presence in struction and that was tom's defense in this case that he knew that m mr shanahan's testimony now mr shanahan of course was severely impeach the trial and we of course now we have the trial counsel of course denied the truth to mr channing and testimony where they avoid the death penalty so there was a substantial motivation for them to testify in such a way as to curry favor with the state because the state has filed an while they didn't have to judge instructed them to stop we can't know what the jury intended somebody is in fall in a robbery where the murder takes place we must find the defendant guilty of first degree murder now that's the first phrase makes it sound like they went in read the instructions but now you can find time guilty if you find these elements one of which is not robbery so in that sense it's just because of the two prior verdict this particular issue the second of which indicates that they're confused about whether or not they need to find time guilty of the robbery in order to find him guilty of felony murder the court by giving this new jury instruction or what i call a supplemental jury instruction it's like saying is saying to the jury i know that you've already looked at this in and here's here i'm player a fine it's for you with this instructions that were given as a whole i i take exception to counsel arguing with the second verdict form is an additional instruction it wasn't an instruction at all it's a verdict form and in fact when the when the trial court of the case but certainly discussed in some respect the interaction between the juror that between the verdict form and the instructions that was also a capital case and the court in that particular case specifically referenced the fact that it was a capital case and that was one of the reasons that came to the conclusion that it did was because of course capital cases in certain situations there are greater protections afforded to the sentence in those particular cases but but if we look at the accomplice liability instruction and there were two of them in this case sixteen and seventeen there expressively state you cannot convict this defendant unless you find he participated in some fashion and their instruction at this point the fashion  the robbery the jury recognized that in fact when i when i went back to my early to my law school years and i first heard of this concept of felony murder and that if i'm a lookout and the p is that we're going to rob this store and my accomplice this going and unknown to me they've got a gun and they're going to shoot and all of a sudden i'm liable for murder i don't have a lot of background at the time i went to law school i'm not from a la it during the commission of a robbery or burglary and then of course they make the finding on can too so i don't know that the first verdict form itself when you look at it in total with all of the other instruction individuals shot somebody killed somebody and this guy over here i