who was fatally shot by the police and here because of emotional women today we have a jury that was not given all of the facts and the full picture that it needed to consider the case before it it was not given the frame of reference that would have to actually lead to a different result they did not get to hear that it was possible that mr dozer was the deceased could have had a mental disorder instead what they got if you read the trial transcript it was implied but it was very effectively so a fairy false narrative that the fans ultimately painted a picture of a man who was on p c p rather than a man who needed help and that prejudice is apparent in defense counsel argument where in the closing he repeats over and over and over there was no evidence of mental illness or was no evidence of mental illness and there was evil evidence of mental illness and so the jury came away with a very slanted picture of what happened that day and if you are the jury after hearing all of that and having having the evidence of this conference testimony about her son's past being precluded you are going to believe that there was no possible way that the last factor in the jury instructions which is whether the officer should have whether it should have been apparent to officer stringer that mr towser was having an emotional disturbance the jury never would have considered that factor and therefore there this we asked the court to send this case back for a new trial so i'd like to address some of the questions that that that have come that have come up in the briefing and one of the key ones is well why isn't this expert testimony and that's the crux of the just for core court this should have been expert testimony where we would agree or honors that if the testimony was mr towser was suffering from schizophrenia and it was the precise diagnosis that was at issue we'd agree that that would be expert testimony of are there aspects of miss crawford's testimony miss crawford being the plaintiff and this mr towser his mother that were in fact relevant and that were her observations of her son and that's all demonstrated in the in the excerpts of her deposition proffer provides her the bare bones of what she would have been able to testify to and has she been on the stand on her the facts that have been flushed out a little bit more than the bare bones i was in the deposition testimony on her of course the deposition testimony was taken by opposing counsel for her part of the issue in the case is whether even accepting the evidence should have come in whether it was relevant to the officers perception how do you respond to that would not have had missed miss crawford's knowledge however the the standard is what should have been apparent to mr to officer stringer as well as what he perceived and the issue here is that the jury deserved to hear that mental illness was a card that was available and so without that anchoring testimony what you have is x for testimony going explaining what one officer does when faced with someone who could potentially be mentally ill but you have no fact on which to anchor that you have no ability for the jury to have considered oh this this is something that i should consider if you look at the video that was submitted to the court the actual interaction between officer stringer mr towser is off to the side you can't see exactly what happened and so all you have a jury is you're supposed to paint a picture based on your testimony that you hear the fact witnesses that appear to mr towser unfortunately was the see so he couldn't tell his side of the story he couldn't say you know and i hear voices in my head so it's important that the jury have that one fact that yes it was possible that this man had a mental illness and so when they went back to consider whether it should have been apparent to mr doe's office or springer they needed that fact and we could consider honors that you could not use that evidence to argue that he was acting in a certain way that day that's understood but without that anchoring mental illness if this were a case about mental illness you would have heard something they would have entirely discounted that and that was prejudicial your honor and so the purpose of this testimony would have been limited or not we're not arguing that it should have had an expansive expansive role in this case and if you look at all of the other cases that have been cited it is a factor that is considered in for example in the chef a case in the thick circuit it was in that in that case in the totality of the circumstances the court concluded that the mental all other factors outweighed any of any mental disturbance but it still was considered your honor and so to to exclude that entirely was to give was to preclude the jury from even considering that as a factor your honor and didn't the defense counsel exploit that lack create that that sort of exemplifies the prejudice that was created by the emotional women and because he not only exploited the lack of evidence of that but he also knew that the toxicology report came back clean and also understand that we have to look at what the officer perceived but the part that's missing here is what he should have perceived and you're exactly right your honor in that exploited that that hole in the in the evidence in a closing argument to direct the jury to consider oh the only thing that he should have perceived was a man who was on p c p rather than a man who really needed help and in terms of i'd like to also address one other point in the opposing counsel's proof which is that there was no prejudice you know even if this was there there's no prejudice because at the end of the day it was perfectly reasonable for officer stringer to react as he  did given the circumstances that were facing him well respectfully that that question is one for the jury and not for this court and that the in all of the cases cited the the as a practical matter was not allowed to consider that and as a practical matter was directed not to consider that and so we submit your honour's that this that whether or not a different outcome would have come out is for the jury for the next jury to decide and not for this court to decide and that this argument that there is no prejudice because of because of what and that there is no prejudice here that's not really well taken the law does require the police to consider what other tactics if any were available and that is something that the jury also should have been allowed to consider here and they were not allowed to consider that given the  yes please the court my name is more to rosie and i was the trial counsel in this case and i represent the appellate used in this matter your honor i strongly believe that the evidence and the jury according to law is directed to evaluate the evidence presented not with twenty twenty hindsight but in an objective manner as to what a reasonable officer would have done under the circumstances that were presented by the evidence in this case and this court the trial judge judge boone and the jury and the evidence that was allowed was focused on that issue the issue of mental illness was unknown to the officer there was no nine one art let me ask you this there aren't officers trained to be alert to a possible mental illness of course and this officer had that trained yes he had that training and in this case even though there was no designated expert on the subject of mental illness we really don't know if that's true or not that there was a medical diagnosis of schizophrenia and whatever the manifestations are that it is we don't know that we have to go on what the officer knew in doing his job for the protection of the public at that we would not listen to the does your position extend suppose that they had designated a mental health expert who was going to testify that this gentleman suffered from schizophrenia we would your position is your position goes so far as to say that he couldn't testify that they couldn't call an expert witness to testify to that i think i think the first test would have been whether or not it was relevant or not in the eyes of the let me not only back and in your view is it not relevant it's not relevant it's not relevant to our case law seems to suggest that it is it's not relevant because this was not information available to the officer in other words there is a word somebody who seeks help calls nine one one has to in order for the officer to consider the possibility of mental health issues the caller has to say this defendant is exhibiting signs of mental disturbance what are signs were there were no threats but my question for you is yes if it's not relevant why did you argue in closing well because the court allowed the plaintiff's expert to talk about the standard of what an officer's training is in regard to mental illness meaning that that issue was present and there was i felt there was an implication of it right so you tried to keep mental illness out of the case you tried didn't you kept the toxicology report out of the case and then you argue there was no evidence of mental illness no your honor the court i did move to exclude evidence that wasn't known to the officer at the time of this incident and the court in somewhat of a compromise  allowed plaintiffs police procedures expert to talk about the subject of mental illness i didn't know if the jury was going to start to speculate if there was an implication of mental illness what we have to remember in this case your honor is the call the nine one one call was that a member of the public was being threatened you know that and so that when the officer arrived he didn't pull any weapon your honor he walked over to where mr dozier was just to officer even eye witnesses your honor and it would have been your argument i'd be sympathetic but your argument was there was no zero evidence from at all and that was misleading to the jury that's that's my concern how do i not just want but then why did the court d i i think that's a pretty good position but you but you knowing having this knowledge argued there was no evidence of no i didn't have any knowledge that that was specifically what the diagnosis was that he was suffering from a mental illness your honor your pain his medical records no there was no was no evidence that i had available to me that he was schizo phrenic i was a claim that he was so prior to trial you didn't you didn't discover you didn't obtain all his medical  no there were no records that i was that i can recall that i was aware of that confirmed that he was schizo phrenic it was not an issue in terms of what the perspective of the officer was at the time that he responded to the call the public was being threatened and then when the officer arrived he was being threatened with deadly force i when this is even testified the witness what happened there was nothing else that the officer could have done how would my uncle's illness have changed anything well i understand that argument but when you say that there was no evidence and you took the deposition did you just believe his mother when she said he was on medications he'd been turning point has been counseling and treatment then why didn't they designate  sorry did you just believe her when you took her i had no reason to believe her she was a plaintiff in a case seeking damages your honor and she says he had voices he was talked to himself was going through it cetera et cetera i mean to testify to what chief judge thomas just referenced your honor the mother isn't qualified to testify as to a medical diagnosis not my question you keep answering a question that hasn't been asked the question the mother is just describing a behavior she's not making a diagnosis she is saying that my son did x y and z and you moved in women and to exclude that right wrecked ok yes she was being presented on the issue to testify that he was phrenic and that was one of the reasons why she was excluded she wasn't designated and she wasn't qualified i don't know but but but she could've you could've i and i would understand a ruling she can't testify to a diagnosis because she's not an expert but she can testify to behavior she could testify i saw my son do x y and z that you don't need to be an expert to do that you just need to have eyes and the power of speech right i think that that is an unfair question when the plaintiffs had the opportunity they were represented by capable counsel to designate a medical expert or not answering my question you did you move to exclude the mother from saying i saw my son do x y and z how is it relevant when there isn't a medical diagnosis to attach to that how is it relevant as to prior conduct that we don't even know is consistent with any conduct that was demonstrated at the time of the incident the officer was there to protect members of the public who were being threatened by this man and then the officers were being threatened and there was no way out for him there was no way and that's a great jury argument but we're talking about evidence rules for a one in four o two and i think what your colleagues are arguing is that evidence that the son was acting in a certain manner at a time one makes it more likely doesn't isn't the spotted of but that's not right rule for a one for a tour about it makes it more likely that he was acting in that manner at time too there was no evidence that he was acting consistent with the conduct on previous occasions that the mother was going to testify or was in the sense that he was talking to himself at the scene that's what she said that's what she testified to position they would talk to him self out himself and that's what he did at the same when the officers arrived at the scene he could hear mr dozier say words to the effect of we're going to do this let's do this that's the words that the officer heard him say challenging directly to the officer if we're going to do this and let's do this and the officer had no gun drawn he was just going to investigate that to talk to mr dozier and all of a sudden this man is in his face threatening his life there are witnesses that witnessed what happened and said there was nothing else that could have been done that's not true there was it wasn't there a witness who said some of the witnesses said that but then another witness say that the decedent was not approaching the officer and did not raise the bicycle lock above his head no there was an issue as to how high the bicycle lock was being held but i don't remember i don't remember a witness coming out and saying that the officer wasn't justified in what he did if that's what the question is your honor just just so i understand your position i want to make sure i have it you know i'm a little bit concerned if they have it eunice you assume that they had designated an expert mental health witness i want to know what your position is and how far that witness could testify i think if the expert witness who is qualified to render a medical diagnosis took the facts of what existed at the time of the incident and in regard to interviews or what the mother said in terms of prior conduct and rendered a medical diagnosis as to what that was then i think that that's how expert testimony on the issue should have been presented so well i'm not a morning you know the expert could get up on the stand and testify that victim the scene suffered from schizophrenia in schizophrenia is manifested in the following way all right and if that is fine you would agree that an expert could testify to that yes i an expert can testify to that but the officer had no knowledge of that at his arrival that's an argument the it's not an argument your honor it's a fact that exists you're it's a i really don't understand it one hand you say none of this is what the officer didn't know is not relevant and then you just acknowledge that a expert could testify i want to be clear what the officer knew at the time of the incident at the scene is very relevant and he did not know or have any knowledge that there was any issue of mental illness on the part they were using or no zenit even a psychiatric expert could not theory was officers are trained to observe mental illness or to die and to to respond to mental illness in a different way and to recognize the symptoms and the officer didn't recognize the symptoms at the and that was their theory right yes that oh yes on the facts that presented themselves gave no indication to officer stringer that this suspect that i want to talk to that's been causing these write threatening the public is suffering from some type of mental illness and therefore i must get out of the way go sit in my car call for backup and during that period of time who knows what could have happened during that period of time no i understand that but i mean their theory was officers are supposed to respond differently to in cases of suspected mental illness than say suspected p c p he was right yes ok generally speaking yes or not not presented with the evidence that he  this was a possibility or consistent with his past behavior and they will let the jury was left with the impression that it was a p c p and shouldn't want to wasn't right well no i don't think so because of the time element involved i think that's what the court is for failing to acknowledge this happened so quickly that even if the training regarding mental illness would have applied and officer stringer considered that this man is suffering from some type of mental illness how does it change anything when the suspect starts coming at him with a deadly weapon after he had threatened other members of the public that are still right in that same proximity no i understand your jury are going i'm just trying to i'm just trying to parse that out in terms of how the trial came down but i've taken you close to the end of your time so i'm sorry your honor and i know you keep mentioning the jury argument but i i keep bringing it back to the law that the evidence must be focused on what a reasonable officer knew at the scene at the time of the incident as opposed to evaluating it in a twenty twenty hindsight perspective and the evidence in this case focused on that your honor thank you thank you point to our two nineteen experts record page two nineteen which is the deposition testimony where he asked miss crawford ok now we know that michael had some issues with schizophrenia answer yes question and other issues so  for the jury to consider and that is again something for the jury to consider in context if that witness also testified that those are was just standing there yes yes your honor so there definitely was a conflict in  the factual record as to what the eyewitnesses saw and how mr towser was acting at the time in terms of the what officer stringer knew at the time the law is clear that he also considers the jury gets to consider what he should have known what he knew what he should have been aware of and here the jury needed to know that mental illness was an option that was on the table and i believe the court understands that argument so i won't belabor that point as to the final issue as to the expert testimony again it didn't we didn't need an expert here expert testimony may have been appropriate but it wasn't necessary because it didn't matter whether mr doze had schizophrenia bipolar or some other disease what we needed to know that it was was something to anchor the experts testimony that would expert testimony being the police x procedures x for that would allow the jury to have the full story the full story of what happened that day instead of a very slanted narrative about mr towser who was by the end of the trial is implied to be a drug user and rightly or wrongly people understand those facts to be different whether you are faced with somebody a man on p c p versus a man with a mental illness the jury is going to think about that differently and they were not able to see the confrontation on video and that impacted their deliberations and there was prejudice there how would your expert to follow have connected the dots between what the mother described of mr dozers behavior and how mr dozer might have presented himself  on the day in question i think the police expert would not have been allowed to come upon on that ultimate ultimate tying together of the facts but the jury was entitle to know that was suffering from some kind of a mental illness so that when they consider the expert testimony they would have that in mind and that would have been formed their analysis of whether officer stringer acted reasonably when he arrived on the scene and within seconds was confronting mr doe's or and that ended up in the fatal shooting of mr towser and so the testimony would have would have been and more of an anchor to the experts to the testimony because without that the experts testimony is just floating out in space and it's irrelevant and if you're a jury imagine you might feel like the plaintiff counsel is totally led you down this path of mental illness going it's like well there's no evidence why did we waste all of our time listening to that that was weird i think that's the impression you come away with and not an impression of ok this is a factor i really need to consider this informs whether or not officer stringer acted reasonably whether he had a leas harmless given the fact that the jury was properly instructed on the use of force they heard the officers testimony testimony the witnesses and reached its conclusion i believe it was not harmless because the jury didn't have the full set of facts and the last factor in the analysis is a tally of the circumstances analysis but the last doctor is whether should testimony came out in or are in the closing arguments that the jury would not consider that and that is prejudicial and it should have been considered and it tainted the verdict your honor you know whether when you send it back you would get a