case number zero nine five five one seven united states of america versus res on taylor oral argument not to exceed fifteen minutes per side or thirty minutes per side scuse me mr fischer for the app afternoon your honors i'd like to reserve seven minutes for rebuttal with the court's permission i'd like to focus my argument on the first two points in our brief but i'd like to flip the order so i'd like to begin with p the district court's preclusion of the defense expert testimony on future dangerousness and then move on to point one the district court's refusal to question the four person about the effects of her exposure to  potentially prejudicial outside influences on the eve of the sentencing hearing you almost have to take up two and seven at the same time i don't know if i do your honor i'm happy to answer questions about seven is just the legal insufficiency about the that's a mere greeting factor i can try to touch on that if your honor would like so to begin with that point to the future danger point and we have argued that the precluded evidence was  ible both as a rebuttal and as mitigation i'd like to focus my argument on the rebuttal part of it because i think that's a little bit simpler and easier although i think both there are substantial and i think the first thing before i get into the evidence is is to just briefly lay out sort of the legal context for this claim because i think it's pretty compellingly in our favor first of all there has never been a federal death penalty case in the modern era in which the government was relying on future dangerousness where this kind of evidence was excluded we've had the federal death penalty for twenty five years we've had over two hundred federal death only trials this kind of evidence is routinely admitted by both sides not just by the defendant by the government so that's the first part of the legal context a second part aggravating factor is we're going to let this go forward but it's really important that both sides the defense included gets to present their evidence they and the court emphasizes that in juric in seventy six and then in barefoot in eighty three and the court then follows through on that promise in a series of by my count five cases they grant relief because defendants were precluded in one way or the other from presenting rebuttal evidence on future dangerousness and we discuss those cases in our in our in our brief the last part of the legal context is that there are two other circuits the seventh in johnson and the eleventh intro it have said this very kind of evidence indeed from from one of these experts  it was evidence admitted on this that i there was evidence was some testimony by mr aiken that he was able to get in front of the jury but the court threw repeated comments to the jury and i think that's important to be happy to discuss that really just completely negated that testimony so what happened is the court hears proffer from a stricken makes a ruling the only thing the stray can can testify about is that the security where mr did were taylor would go would be different than the hamilton county jail that's it nothing else can come in so it can takes the stand and on direct the defense elicits testimony that goes beyond the judge's ruling about security conditions the judge s spot they cut them off says you've gone beyond the parameters of what i ruled already and there proceeds to be a sort of an extended colloquy where the judge over and over again says several things first really says and he addresses the jury ladies and gentlemen this isn't just between the judge and the lawyers he says i've heard listen to this witness and i made a ruling he says this witness can't know where mr taylor is going to go or what the security conditions can or going to be like the judge says the testimony you've heard from him that he gave is irrelevant joe says irrelevant he says the only thing this witness can know and the only thing this witness can testify to is that he will go to a facility that has better security in the hamilton county jail and any further questions beyond that are going to be sustain it was the error here in your estimation in upholding the objection or was it in the comments that he made in connection with that in the presence of the jury or was it but i think his comments to the jury were simply enforcing his original ruling that the only thing a can could testify to was that the security in the hamilton county in the in federal prison would be better i don't think the judge made any additional errors i think the judge was in forcing his ruling when the defense went beyond that unit usually don't speak to the jury in connection with making a ruling on admissibility of evidence of the lawyer makes an objection your rule well but here the lawyers tried to go beyond the judge's ruling they they tried to get in some evidence that went beyond the judge's ruling and the judge slapped them down and you're relying on the ruling and you're also saying and don't say it didn't matter because he happened to get a few things in because the judge made it very clear that the jury couldn't consider those things exactly your honor and i think what the other part of the piece picture here is after akin leaves the stand so he can gets in a little bit of his testimony that the defense wanted a small part of it on direct and redirect then cunningham takes the stand he's the next witness and the same thing starts when they qualify cunningham as an expert on future dangerous ss the government gets as judge when he gets into that area we're going to have a relevancy objection cutting him testifies about other matters not about dangerousness about childhood mitigation what the effects of mr taylor's childhood were on him then when cunningham when they they start asking questions about dangerousness objection sustained objections stand objection sustained and the defense says we want to make an offer proof the judge turns to the jury and says ladies and gentlemen i'm going to hear from mr cunningham and i'll decide whether he has anything relevant to say on the subject they have a proffer judges can testify at all about dangerousness next day they come into court in the morning and the judge has has only circulated an order or draft of an order that defense counsel hasn't fully had time to read but they want to talk about it and they say judge can be excused the jury the judge plows forward so what the jury hears at that point is the judge again saying i think five or six times this type of testimony is irrelevant the defense waited second judge we have these experts who can address future dangerousness the judge says it's irrelevant it's irrelevant it's irrelevant the last thing the judge says before coming him takes the stand for cross is to both sides don't get into the b o p i don't hear anything about the b e defense attorney says they'll be a gun between him and society and then the jury gets a verdict sheet with mitigating factors on it and there's a section that says adaption adaptation to to prison and it lists things that the judge admitted like that he had a ged and he took religious classes no mention of a can so when you look at the whole picture you have from the jury's perspective the judge telling them over and over again i ruled this is irrelevant this witness can't know any of these things about security conditions and the only thing you can say is that the security will be better says that over and over they don't hear anything from those that are relevant in the judge's mind well i think it's because of two legal errors the judge makes and he and these are the first time you see these are in the order that's filed on october fifteenth which is actually the day after summations the judge says two things he says i'm not going to allow you to rebut personal dangerousness the idea that mr or mr taylor is going to hurt someone himself and i don't think your evidence qualifies to rebut i guess what i would call vicarious dangerousness that he's going to communicate with other people or recruit them and each of these rulings is based on a legal error let me take them one at a time the first one why why does the judge say you're not allowed to re personal dangerousness the judge says well you don't get to rebut allegations and i'm not personally convinced by the evidence i heard that that mr taylor would be a personal danger so you don't get to rebut that that's clearly legally erroneous it's erroneous under the supreme court's decision in count he said i'm not convinced i think if you look at that water he says i don't believe the evidence persuades me that he's a future danger in a personal  way he says specifically you don't get to rebut the government's allegations of the government's allegations aren't supported by sufficient evidence the jury will ignore them that's just not the law in rebuttal your honor it's not the law based on this court's well established rebuttal cases it's not it may not consider whether he will be personally dangerous in the future absolutely not your honor the court gave a completely open ended instruction on future dangerousness and this was discussed at the charge conference the government came into the charge conference and the judge's draft charge had some examples of evidence of future dangerousness and the government said several things it said judge we want you to add a kind of catchall category to that that mr taylor failed to obey social norms or fail to adapt to social norms the judge said ok over defense objection the government said judge we want you to be clear that the examples you're giving in the charge are only a lot of the judge said that will be clear to the jury and the third thing is the government said we want to be able to argue things that are not part of your examples judge and judge said go ahead and do that so what the jury is left with through the judges instruction imposes absolutely no limit on what they can consider as far as future dangerousness and the government argues personal dangerousness all the evidence of personal dangerousness the taylor shot when when the when people come i'm asking a question about the meaning of dangerous when a prisoner arrives at a prison he's here she's evaluated for dangerousness right yes or on how much how much where they're going to be put in to be housed how what kind of guard is going to be put on them what level of prison is geared on the basis of their dangerous to their if they put them in one prison versus another prison does that dangerousness change well in this case your honor the evidence it was precluded asking i'm asking about the meaning of the word not about what happened in this case well i think the dangerousness changes depending it's based in part on things about the defendant individually and it's based in part on the context where the defendant is going to be so  have a really dangerous person and then you just lock him up in chains then he's no longer dangerous because because he's thoroughly locked up and you put chains around his arms and legs and never let him go not that you would do that but if you did that doesn't that sort of fight against the meaning of the word dangerous to say he's not dangerous the whole reason he's locked up in this brutal way of my hypothetical is because he's extremely dangerous this kind of the meaning that you would normally give to the word i'm wondering if that's driving the judge's ruling that all of this about how secure the prisons are is not really wrong he says well you're asking i think that is part of what drove the judge on on the mitigation aspect of it but i think on on rebuttal the judge didn't rely on that i think for good reason because what's the difference there on the whole i think the difference there there are a couple things one is the supreme court's decision in simmons says that the kind you have to look not just at the defendant as an individual but the context so in simmons the evidence that was precluded was that he would be serving life without parole rather than life with parole but the other thing i think if court's missing is what was the government's case on dangerousness here the conference case wasn't just let's look at taylor let's look at his inner being it was let's look at all the dangerous violent things he was able to do in the jail but those are things that he did that's true your honor he would say well he's dangerous because he has a tendency to do this kind of thing that fits with the carrying out the danger but i think what this thing the danger what i think whether he'll actually be successful your honor is the issue everyone wants to know it's what a nonce capital sentencing court wants to know or wise well because i think the ultimate question the jury has isn't what a metaphysical to his his personality or inner being it's if we give him life are we going to have to pick up the paper and read that some other some prisoners some guard was killed and that's the way the government presented it your honor that's i think that's the critical piece the government i think on one line captures the theme of the government's argument they said prison walls cannot contain or deter him so the government was keyed into the very thing the jury was keyed into which any reasonable person or juror would be keyed into which is at the end of the day what's going to happen is he going to hurt people some reasonable jurors might be keyed into whether this is the type of person who's going to commit these crimes in the future if he gets a chance i think that's absolute that's a meaning of dangerous i think i  that's true and i think that i'd go to culpability and the value of the person and so forth i think and and and would go down to zero if you liked him up and and in prison or in the iron mask or something like that where he's totally incapacitated most people would not say oh that person is not dangerous that's the reason he's there is because he's dangerous and i think you know hypothetical situation where someone was locked in an arm asper dropped on a desert island it would all be about context not the individual but here it's a mix and that's why the government paid so much attention to this so you're saying which cases is there a case that is exactly on point where somebody wanted to introduce evidence about the type of security that they would have where the person was going to spend the sent would be serving the sentence the court said no you can't it's not relevant because we're looking at the person not the context and the supreme court said no i think there's not a supreme court case directly on point but obviously we're not in a b s a interest in the royal circuit case it is i think as close as you get but again i think the important thing is it's not just here at the security conditions these are experts who looked at mr taylor's an individual mr aiken had his jail records toured the jail relied on his height his weight his build his facial features his education knew about the facts of the crime his lack of a gang affiliation so this isn't just hey here's what prison is like this was individualized to mr to mr taylor and the testimony was individualized to the very threats that the government was relying on so they were dressing is he an escape risk is he going to manipulate other inmates so this is really quite individualized to mr taylor if the court has no further questions on this point i'd like to move on to the foreperson issue this court's case law is quite well established the rule is very simple and it's an easy one for district judges to follow and the rule is this when a juror in the middle of a trial is exposed to a potentially prejudicial influence the defendant has to be given an opportunity to prove actual bias and therefore the court has to actually ask the juror about  effect if any the exposure had and this court has numerous cases on this issue and they line up into groups one is the court asked to ask that question and it was affirmed and there are a number of other cases where the court didn't ask that question and this court grants relief now the government talks a lot about discretion and we don't deny that a district judge has great discretion in the sciri that he or she has discretion over how to phrase the questions about juror answers those questions the district judge has a great deal of discretion to evaluate those answers to look at demeanor to weigh conflicting were unclear responses the problem with that is you never get to that in this case because the judge never asked any kind of question about the effect of the exposure here you've got a juror who tells the judge she's been exposed to first of all two other people who have told her that the defendant has  sed the jury of being rednecks and she assumes that the accusation came from the defendant or his friends not the there is a transcript of what she told the judge i guess you're right she says that she's i did someone says to her i didn't know you were a redneck or something yes and then the judge then the judge says did they tell you where the accusation came from and she said no but i soon became from the defendant or his friend use the word accusation the judge used the word accusation  judge says did did you this is on page eighty five two four seven she says the judge says you did not follow up on the conversations and when people said they did not know you were redneck and the jury says no i obviously have either the defendant or some of his friends so she assumes that it's the defendant or his friends who have called the jurors redneck's she also tells the judge that she's spoken to her husband about her fear of mr taylor and his friends and stammered i'm thinking about the accusation the the jury is and races store red neck this is no indication of the four person knew that at the time of the inquiry by the judge and knew that there was any mention of race racism is that right well the only thing is the judge later finds that the jurors all went back to the jury room and talked about it and that they all knew it was racist that's right well after he made the decision that's true i guess i would suggest that in this context with an interracial crime  and a black defendant in a white jury the accusation of being a redneck is is quite racially freighted and i don't know that the racist adds much do you think people in tennessee if you're called a redneck means you're called a racist i think it depends on the context you're in i think a black defendant who has been convicted by a almost all white jury and calls the jurors rednecks i think that's racially freighted yes i do in the cases that you alluded to were you indicated that the feel you were to ask a follow up question had resulted in the case being reversed in those instances was there some actual evidence that that juror to whom the question was not posed was in fact biased no your honor and that's what i think makes our case even stronger we have indications in the colloquy with the juror that that she has that these influences the people she spoke with and her husband have had an effect on her and that she's fear so fearful of the defendant  she's talking about buying a gun to protect her so that's a that's in connection with having sat on a case where somebody was accused and convicted of murder that there didn't seem to be any tie that i could see in the transcript relative to the question about somebody being a redneck that was implicit in the whole underlying case that this person is a dangerous person i don't think so you're i think the problem is the judge never asked any questions about this she says she's been she talks about the redneck accusation and she attributes it to the defendant and his friends that's her word but in your opinion you don't have to show that she was actually biased in any of that i don't think this court this is really in your opinion structurally or that i think it is i don't think this court needs to reach the issue of actual bias i think the most glaring errors the failure to question her about her but how can it really be structural error if reamers generally assessed based on abuse of discretion is it not well i think the case law is clear that when you have a juror who has been exposed to this kind of influence and you deprive the defendant of the opportunity to establish actual bias that's that's error that requires relief you can affirm in the face of that and in fact the prosecutor thought the judge really should question absolutely i think what's to me very interesting about this claim and also the other claim is this is a case where the district judge really gets out in front of the government to the government's credit they along with the defense immediately when they get the transcript of this they say wait a second judge you you for you know you didn't ask this juror about effects and they hone in on it they hone in on the conversation with the husband and the government says i think you should do this judge i think you should go question her individually and the other thing i think it's compelling what's your strongest case and i you say you have numerous of them that requires this question i think walker is the strongest case and that's a case in which the court actually asked the jurors what were you exposed  to and influence and a couple of the jurors said yes and the judge didn't follow up and ask about what were they exposed to in this case they were exposed to there was a i think it was some video testimony that came in and was the actual paper copies of the depositions weren't supposed to go to the jury and there was a concern about sort of a double counting of evidence it seemed to me much less prejudicial than what we have here as far as the combined influence is it is it is it a fair statement out that  argument here i think that would be true judge if that was all it was if it was an oversight but the problem is both sides highlighted for the judge he keyed in on it and then then refused to follow up and understand so that leads me to my next question i suspect the fact that this in camera procedure without lawyers was agreed to by the parties in your estimation doesn't make any difference ultimately because once it was called to the judge's attention at that point he had to go back and remedy the situation that's right if i may answer question i see my time is up but that's absolutely right it was clearly understood among the judge and the parties that the judge was going to report back it was also clearly understood that anybody was exposed there were going to have to be the effects questions the government themselves said that before and afterwards the government said it the defense said it and the judge didn't say oh wait it's too late you should come to the you know you you should've come to the party you decided not to come this this was known between the time that the individual questioning occurred and let's assume that there was an omission and the group questioning when they reconvene a couple weeks later yes ron in the meantime this transcripts are available this issue comes up yes when the government says gee i think you should do that would that have then occurred at the time they read that they all reconvene just prior to the commencement of the proceedings or some other time well the questioning of the juror occurs on september twenty third the their filings made in the next few days they reconvene in court for the next time october second and that's when the government twice as i think you should do this judge the judge issues an order on october third saying i'm not going to do it and then there's some more discussion on october sixth which is when the sentencing hearing commences the your position is there was more than enough time an opportunity to do it when the jury reconvenes oh absolutely this would have taken five minutes and worst case scenario if this juror was biased there were six alternates who they could have subbed in without missing a beat thank your honor walker there was a request to require and to the jurors states of minds i'm sorry your honor walker there was a request to inquire into the juror states of mind well true that was what the majority found judge batchelder dissented on that issue here there's no question we go by the majority though in terms of the yes there they said there was a request and it was preserved that the judge didn't inquire into her required request in this case before he did the before he interviewed you're aware as i was trying to s mckeague and that was i was looking at that that's ok it's an it's an important issue right before that the questioning everybody agreed the judge was going to question the juror without any counsel without the defendant because it is an issue of fear of the defendant and it was understood everybody said the judge is going to report back the government said before the questioning if anybody is exposed there's going to have to be question about effects so the judge goes and does this question the judge understands or has to be question about effects because he does it with everyone else they come back everybody reads the transcript and the defense in the prosecution immediately both say judge you didn't question the fourth person about effects that you know is the foreperson that point this adjourn number one and the government agrees with the defense you should do it and the judge at that point doesn't say too late you should ask me then you guys didn't come he says this isn't necessary but that have been because he didn't think it was sufficiently but george ivar sufficiently likely to affect the jurors decision based on his evaluation of the juror and the tenor of the response well given that it's it's not it's not like you heard someone say this i saw this person do it or something i mean it's it's it's that some friends may have referred to the jury is rednecks is the most you can really get out of that colloquy well in addition to that the conversation with her husband but i guess i would  disappear in about the insult i'm not talking about her fear whatever well that i mean as far as what i mean we're supposed to defer generally to the to judge judge very respected judge is awful is trying to do a good job from all appearances and the judge asked these questions that the judge could have i'm just speculating now the judge could have wanted to do it and just inadvertently didn't do it or the judge could've reasoned  this doesn't look like it's bad enough for me to even have to ask that question well i think it was and i'm not sure if you can tell from the transcript what it is but it's not like they were called a racist and it's not like it's even clear that the like me to try to answer them now or i'll try to be brief i think first of all there's no the the outside influences here are not just the two people who told her about the red neck comment by her husband number one so i think that's important to  note there are multiple outside in for most been told about the redneck her husband she said i talked to my husband about her fear of mr taylor and his friends and she and her husband are thinking about my a gun so there's there's that influence that the judge that again both sides hone in on and the judge never ask her any questions about so i think that's important but let me even just take the redneck part of this by itself i think that what it communicated to the juror is that mr taylor or his friends are  somehow angry at the jury for their verdict and i think in a case where future dangerousness is a is at issue it's easy to see how that could make a juror fearful now the juror mentions the exposure to the redneck comment and then she segues on her own into opening the way i want to ask you judges fear is that what's the is that the nature of the pres i think it was in seoul my anger that i could be called somebody who's not fair i think it's both your honor and the judge said well this isn't really a major seems to me different people react to language in different ways just seems remarkable at this was biased not fear well i think the bias comes from from multiple sources one is fear if you have a defendant who's first of all mad at being convicted and mad at the jury would you assume most defendants are like i think we could speculate your honor that they might be expect to be convicted this is a case where where there was pretty strong evidence on the kidnapping or we could expect they'd be mad at their lawyers or the judge but here's the juror here's the defense what man troubles me about this is not so much that the juror might might have been feared and might have feared and needed to assure the judge that she wasn't in fear you would want to keep from a juror make sure that the jury when you're focusing on the one that seems less intuitively like well i think the problem is we can speculate about what she might have felt we were all we know is trying to figure out what the court's going with you know how  in making this determination i think what was unreasonable was the judge never asked her how she felt or how this affected her and what she said in the colloquy is i am afraid of this defendant and his friend so afraid that i'm talking to my husband about buying a gun that's that's all we know we can speculate about how these these kinds of influences would have affected a juror should have affected number one we don't know because the judge never asked her and i think the law is clear the judge has to ask her that ok thank you  fair trial i mean that's the underlying important thing to note here that if it got a chair fair trial from an impartial jury a competent jury reached a verdict that was supported by the evidence with regard to the issues that were discussed just call your did ask juror number one in all the other jurors if they were affected by this if they could put aside anything that they may have heard from media coworkers neighbors or any source outside the trial  making decision in this case he did ask that question what stage that was in the group when they came we came back on october sixth in the group when the jury was there as a group he did ask that question to them as a group after after the individual abuse yes or yes are there individual interviews and then or you're saying if that's where he complied with walker i'm saying yes i am saying there is no case the defense sites case is saying you you have to individually talk  jurors corrado i think it is and go into other cases where the judge is walker's the main one because walker's they want he says walker is the strongest diff to judge in this case did obviously individually ask the jurors questions there's no question that the judge individually talked to them that case involved in admitting miscible evidence obviously they got back to the coach to the jury and they saw and the judge and ask him about it in this case the judge did individually or dire the main distinction you have with walker is that he did ask albeit in a group or do something in walker say it has to be individual question go and and corrado say that on mos mushing alone is not a good to the group questioning is not enough but in this case we have individuals question none of these cases were they saw i was there individualized questioning and were the proper question to ask we had them both in this case what we don't have yes the blanket question after about a one or two week period two weeks after the individual questioning so there was individual questioning after the whole racist redneck thing was in the media but now in so many want to time all point of individual questioning is th jurors may be more inclined to say things that they wouldn't say in open court in the presence of everybody else and you don't want to pollute the rest of the jury yes so i don't really understand how the group questioning can cure the earlier individual questioning mistake if it was a mistake so if there is authority that says or asked to be individual questioning which there is and if that authority can be extended to say you got to ask if they say something you have to ask if it's going to affect you that just seems to make logical sense how does that then get cured by a group question i think obviously there was individual question judge collier who was the only one there with the juror was in the best position to assess whether or not she was affected she so well why would he ask it in all cases except this one i don't know but i'm obviously obviously we at we wish you would have asked that specific question we asked him to ask it i mean and our problem one when he denied the additional requests he doesn't say why it was unnecessary with respect to this particular juror right what do you he also says that from the tenor of the conversation it was quite clear that it didn't bother her clear from talking to her that that was about the nature of the case had nothing to do with how somebody said i heard you might be a redneck so and judge call your did point out when when the jury came back that he did not want to bring it back up individually i believe he said to emphasize it he thought he could tell from talking to this juror that it did not affect this juror he thought he could only harm the defendant by emphasizing this information again which is why he chose to bring them in as a group and do what i would call sort of the standard standard questions and warnings when you come back from a break which is you've got only listen to the law on the evidence and don't let anything else that you may have heard or someone else may have told you affect you but he did say i think that would only highlight something that's not a problem he said right now it's not a problem and we highlighting it can't you know there's not a problem i can only make it appear you would have us rely upon his characterization of the tenor of the conversation and to justify not asking the question i would that's what it comes down to yes i would and you know but i do think that is the distinction in the case of other offenses this is there's not a case like this where there was individuals questioning and then there was again the proper questioning as a group there's not one where both of those things occurred that i'm aware of and they're certainly not one sided in any of the briefs i don't want to foreclose anybody from asking more questions about the four person but but i am concerned about this issue number two because it just seems at least arguably fundamentally unfair that you can add that the government can advance the theory of future dangerousness and then there can be these restrictions on rebutting that particular aggravating or in this in this case i would think was a non statutory factor just doesn't seem doesn't work right first of all like to point out that i disagree with the fact that they didn't get a lot of this evidence in front of the jury and going back to the transcripts a matter of fact today in looking at mr a consistent if you go to they page id number seven four three two three seven four three eight six pages of transcript this is the redirect of mr aiken in front of the jury and he does talk about he he doesn't name the facilities they say without saying add math in colorado tell us what the conditions are like in the most serious or the best most secure prison and he talks about how it's the most secure place  earth in his opinion they say well the type of places that mr taylor would go to a u s p tell us about security there and he goes on for six pages and he does do that he talks about how they monitor phone calls how they check mail how there is always guns up  between the defendant or the inmates and outside he talks about the special housing unit if you're going to trouble you get sent to s h u n it's a special housing unit he talks about what he called main barrier wire which he which he differentiated from cortina wire and said this stuff explodes around you if you try and get out as the the judge told the jury that this was not relevant so right on direct there were an objection the judge at that point said you know he can only testify to the differences between him to county and the in the b o b on redirect there with which is when he got into vegas at six pages where the transcript of thing what all these security measures were there was no objection judge call your did not upon not say anything to the jury about a disregard that he just got a no he's talking about that came in and then he was excuse and then the next witness stepped up so first of all i do think that that testimony about testimony was present to the jury they did have the information about this security at the b o p with regard to the idea that this was rebutting our the united states organ about future dangerousness or just call you said and i think the record certainly backs this up is that all along the government's theory was not that mr taylor was some intimidating physically imposing human being who was going to hurt somebody with his bare hands i mean clearly the jury sat there for two months or however long we were there looking mr taylor who was five eight one hundred forty pounds had little glasses on he was not physically imposing what judge toler picked up on and the record supports is that all along our theory was that the jet that mr taylor was a very smart guy very charismatic guy who could idea that's not going to make mr taylor not have influence over any other person and that was what we argued throughout the trial that it was it was dangerous and i mean maybe it goes to the weight i mean you've got the fact that he will be sequestered and all alone because of his stature but why isn't that relevant i don't know that there was ever any testimony that he would be sequestered and course it is how do you manipulate people when you're being watched twenty four seven there was no no no proof he was going to be able to talk to you and i have contact with anyone which is what as judge caller pointed out would rebut that that he would not have contact with any other human being was not any of the prof proof i think i think it's telling when you look at what the jury returned as far as the aggravating factors the first non statutory aggravating factor that we allege was other on george crimes of violence the escape attempt from hamilton county jail w that as a non state struggling factor the jury did not find that that affected their decision they did not find that the escape and enduring is from were arguing with judge collier mr billow or on one of one of the two ones who represented the defendant said we need to get this stuff in because they're talking about this escape the jury didn't find that was a factor in in setting the punishment they did not find that factor i think that's telling i think what's telling we we rarely if ever know what is your is thinking we don't know what happened in that jury room what we do know in this case and it came about as with the alternate juror who was interviewed afterwards and in another juror who's interview in the paper and it was put into the record it to six seven one the other juror who was a ctually juror an alternate said we all thought the defendant had no remorse we tried to have sympathy for him but we just couldn't find and the no remorse was i think the key issue in the sentence in this case we introduced to the proof the defend it was making phone calls laughing about the victim and his fiance who testified we introduced a you know a letter where he's saying it's not it's not like i kill the president the exact words but that was the implication they're acting like i killed the president and in the in the charge to the jury one of the things listed as as this future dangers with regard to the fit was that he failed to adapt to societal norms and i think that's that's what our agreement was he has shown no remorse you know  there's a lot of talk at the trial there's a lot of talk in the briefs and understandably so that the defendant was eighteen or nineteen and there's actually confusion of the time of trials to hold how old he was this was five years later he's twenty four twenty three twenty four years old and during the trial during the sentencing while the victim's fiance is testifying he's on the phone laughing about i think the telling comment from the juror and you know we never know exactly what they're talking about in there but that was the best proof that you're not going to be able even after you've been convicted of killing this person you're laughing about you're not if you can't adapt to sidle norms at this point you're always going to be a danger if you can be a danger because you don't care you don't get to kill somebody just because they have no remorse so you still have to find these aggravating factors and they have to weigh the mitigating factor yes or and so we're still back on did the defendant get a fear shake with respect to attempting to rebut your aggravating factor and it seems to me you've either sa that it wasn't proper rebuttal or you've said well maybe it was but he got enough of it in through what wasn't precluded so which is well i'm sorry as confusing about that i think what got in could be used as proper bottle i think what they are saying should not should have come in the didn't was not proper but what i want to point out first was that all of the lot of a lot of profit information actually did come in wasn't proper rebuttal because he didn't go to his individual said if you were to pope he said at one point if you were to put forth some proof that he would have no contact with anyone he would have no contact with anyone inside the jail or outside the jail that's the type of rebuttal proof that would be appropriate in this case but that's not the bill it had to be a e it wasn't enough that he would be constantly supervised that they'd be watching him but had to be absolutely no contact in order to contain what we argued was but that's absurd that's absurd to say that if you're saying he's going to be manipulating people he's going to have a chance to be manipulating people and the to say that well you're not going to rebut that with evidence that shows that he's going to be watched he's going to be monitored everything he says will be heard in monitored that's not enough you have to show that he's going to have absolutely no contact with anyone else i do i disagree you know respectfully that anyone ever there was a proffer testimony that everything that he said was going to be monitored they were going to know everything that he said they said he would be watched in the end i said that a lot of that proof came in about how you get special housing if you mess up and how we pay attention these people but i don't think there was ever any proper testimony and i'm sure defense counsel will correct me if i'm wrong that we're going to watch everything he says we're going to watch everyone he talks to all phone calls are going to be monitored and that testimony came in for the year the phone calls could be monitored that mail could be pulled that testimony was presented to the jury they had that information and what about the testimony from cunningham about how murder behave in jail and it  it's not individualized to the venue i think the judge caller pointed out that is the type of testimony that could be presented in every single death on the case regardless of who the defended it i just point out that's more of an argument to congress about well do you have a case that says that that's  inadmissible absolutely must will not but i don't have any i mean there's an implication that you know look this guy is a dangerous guy he's a murderer he doesn't give a hoot what we do have case from supreme court in your own right there in our brief that say that has to be individualized to the defendant i mean that is certainly the law so if you if you individual is that regarding age does that help ross still random statistics  in limiting this testimony or are you you are also arguing are you not that it was harmless or would you speak to that for a minute and the reason that i'm asking this question is frankly the vast majority of the death cases we see the actions of the defendant seem to be relatively speaking more heinous than this one is they're all bad it's just a matter of degree so if a credible argument can be made that this is not too far down the scale of the worst of the worst that it seems to me the relevance of relevance of this testimony in terms of persuading one juror becomes more significant than if this was one of our other death cases where the facts are really really bad instead of just bad i mean i have to understand the question just so how could we given if you agree with any part of the promise that i've just vance how could how do you suggest we are able to say that it was harmless beyond a reasonable doubt well i think one thing  not in response to that direct question i think one thing that's telling is that we say look he tried to get these guys to escape and you should consider that as an aggravating factor the jury didn't find that i think that's one thing that's telling and i don't know how they already didn't find it so i don't know that more information on that than they already received would have changed the opinion of the jury in this case but i think there's clearly sufficient evidence obviously to support th important than bureau of prisons statistics about what some random person might be likely to encounter well that may be but the defendant makes a pretty compelling argument that of all the death cases future dangerous to be more weighty motivating factor on the part of the jury than the other than some of the other statutory non statutory factors so first up do you agree with that promise or i'm sure future dangerousness is is a factor that i mean that if i was a juror that would be a factor that would be concerned with comparing it to other cases i don't know that we get to do that i know they've asked in their brief for proportionality review and and they've said you're not only  supposed to proportionality are not talking about proportionality review i'm just simply saying if that is a non statutory factor that seems that may have a heightened importance to jurors then it seems to me more problematic if you are limiting the ability of the defendant to rebut the government's argument if the government chooses to make the future dangerousness argument i've seen it because your call if you didn't make it then ok precluding this stuff is probably fine but once having made it should they be able to completely respond to it and i guess or admit is that they did completely respond to it with the relevant evidence that they offer i still think the trial judge gets to determine whether or not it's relevant to what they say it is relevant to and and i think judge toler did this case and said the evidence that you were offering that you've proffered it's not relevant to the argument you're making about rebutting that future dangerousness in this context you know it's certainly a unique i think context of how very narrow we are we argue that his dangerousness knows what his danger was is is different than if you're comparing it to all these other dozen cases you know it's not it's not that they physically he can do this it's that he has this power to control people and to manipulate people and that was a very specific argument and like said i do think as you pointed out earlier judge you know lack remorse is not a reason and nuff for the death penalty but you can skin siddur lack of remorse when you're talking about somebody future dangerous because you can consider do they adapt a societal norms do they do normal things normal rules normal laws affect them the same way or are they always going to be a danger because they don't care and are not affected by societal norms or mores or anything of that nature and i think as a said the comment we got from a juror about  because five years later he should have been remorseful not laughing at the victim and the victim's family that was left behind and i think that's a consideration in considering future dangerousness i think they were able to offer the proof that could rebut our argument regarding future dangerousness so i think the jury had before the information it needed to reach a proper ruling and i think the jury did to answer any other questions that you said of curiosity were we to send this back on any of these claims for that matter what do you do you reconvene a new jury for the penalty phase and you somehow bring them up to speed on what the evidence was in the guilt phase i suspect you would basically have to say you were i think that's right i think you basically have to try all the proof again to get that in front of them although i guess you would you would have the same question i there really any examples of any do overs on the penalty phase or at that point is the practice to simply go back to life without parole which parent thetic lee here is what you offered this guy and he turned out the simple answer is i don't know i don't know if it would come back and he would have to go through hope process of going through d c again with each side of him they would ultimately make the decision and certainly if it were tried again just on the citizen issue i think you would have to put in all the proof of the guilt we could get just because the jury would have to know what happened i don't think as a practical matter you could you could have a transcript of two weeks and say read it i think you'd have to put all the proof back on but it would only be on the sentencing issue but i don't know think an honor so i'm going to try to run through a bunch of different points because you know the answer to that last question i do your honor there have been quite a number of sentencing reversals and they go back and in some cases there is a new sentencing hearing several now guess you're in some cases that the government has the option of either having a new sentencing hearing or the case can can settle at that point those are sort of on a dime but if it doesn't settle then they have they had those notes and yes your honor and do they essentially retry what happened although i'm not asking the jury to determine guilt i think the government has the option of presenting the evidence that they think is necessary for the jury to to appreciate the weight of the aggravating factor so as a practical matter if they want to present all their evidence again they're able to  don't want to jump to a harmless error and i want to hold the government didn't argue that in their brief and on which is surely talking on the cunningham issue ok or the other issue for that matter and i think that's important and i would cite to this court cases from this circuit that hold that that issue is therefore waived versus parker seven twelve f thirty two eighty three it could be it could be waived but don't we always have the ability to affirm on other grounds if it's supported by the record not according to this court case like your honor and there are other cases i'd be happy to provide the court with but i guess the other important  this error certainly wasn't harmless you had a jury that was out for two days that sent back to note saying they were divided you had some very substantial mitigation that was found including that the defendant was eighteen at the time of the crime and had no prior convictions and as judge mckeague as you pointed out future dangerousness is really the most important aggravating factor in federal death penalty cases we talk at him point that out i said you claim that well if you're on to the statistics show that so when you look at the cases where people get death eighty plus percent had future dangerousness found and of the cases where dangerousness is found as an aggravator eighty plus percent of those get death so it really is quite quite important and i'd like to make a few other comments on the dangerous ss point about the evidence to defend it was able to get in i think it's really just not realistic to put yourself in a jersey place and say you hear the judge say over and over and over again the things i talked about then a few pages of debris direct testimony comes out without objection and then and here's something this is what mr paul ignored the judge goes back to this during cunningham and says the same things and then nobody argues a can and there's nothing about him on the mitigating factors for him for a juror at that point to say well i guess we're supposed consider that six pages of redirect i just think is really unrealistic he ask you about that because i was going to win your first up and i frankly forgot you say you said it earlier and just repeated that in the mitigate list there was no what you called achan this information it isn't i thought that the so called list of your mitigating facts was generated by the defendant and the judge basically gave what the defendant wanted l bet attatched did to the jury form as opposed to including it in the just instructions delivered in open court do i have that right yes run out if that's the case then unless you tried to put in so called factors and the government objected and the district court refused to allow them the fact that they weren't there was the choice of the defendant was in that  think the only reasonable way to read this record is the defendant understood that the judge was very intent on making clear this is not to be considered the idea that all this testimony you know there's this testimony here and it's fair game given its importan idea that the defense counsel would have ignored it i think it's pretty farfetched the other thing i wanted to talk about was mr paul says well we didn't raise personal danger and i dress that they did they implied it they alleged it he said our argument was vicarious danger that he says appropriate rebuttal to the government's evidence in this case would be information that it would be impossible for defendant to ever communicate with anyone outside of prison for the rest of his life or that he would not be able to influence other inmates while in prison i think judge white really hit the nail on the head here which is this this in possibility test the judge applied was a glaring legal error that's clearly not what the law holds in and try to rebut future dangerousness skipper makes that clear and it's really obvious this is a probabilistic issue nobody can prove one hundred percent risk and nobody can prove a zero percent risk but when you have the government saying here is there's a pretty darn high risk they portrayed him as a wolf or mr hyde knocking at the door they said this is like self defense you've got to protect the wolves you've got to protect the sheep they portrayed the risk is quite high and so if the defense witnesses have been able to admit present their evidence and again the government is not questioning didn't question their qualifications in their brief question that the they were reliable if the jurors had accepted that testimony and said well we don't think there's zero risk maybe it's one percent or five percent because these experts would have addressed that they specific mr ray considered look given this guy's lack of gain connections and his facial features and his build he's going to be victimized he's going to be manipulating anyone he's going to have to go into protective custody they talked about the communications restrictions they said there's a a continuous on follow but twenty four seven around visitation around telephone contacts around mail which again is quite at odds with what was going on in the jail and all the jurors had to to base their decision on about is this guy going to be violent in prison is what we know what was he able to do in the jail so you have a situation where it's not that the jury just didn't get to hear the other side of the story they were really misled when the government said prison walls can't contain him that's something that the defense witnesses would have specifically been able to address  just on the group questioning very briefly this court has been clear in goings and corrado the group questioning is is not sufficient they've never seen the scores never affirmed a case where you had group questioning and the good question here was part problematic the judge puts the jurors on the boxes we're starting the sentencing hearing and then starts asking group questions if this juror or person is afraid of the defendant that's going to deter her number one this is two weeks later the questions are vague they're not specific most of them are phrased in terms of did you understand and the jurors are asked to not just a reason we don't poll a jury with not a i don't know how you can tell that eighteen people are not in so i don't think the group question here does it and the individual questioning the judge just never asks or anything about the effect would you address the the argument that coming here and testimony was not sufficiently particularize i will and i think what cunningham said was a couple of things he said look at the rates of violence by capital offenders and it shows you how effective b o p security is so in addition to laying out the security measures he's saying it's effective now the point of this for a juror isn't i'm going to get raised on taylor a life sentence because other inmates are going to be violent and that's what district courts in cases like wilson in amman have specifically said they said even though cunningham's testimony about the effectiveness of the opi security and violence rates is general it's it's applicable to the defendant because cunningham was saying here all the security measures you heard about here's how effective they are and the other part of this testimony that was critical is he said the factors the government's relying on to say he's going to be dangerous his prior murder his record of identity theft the fact he's doing life in those don't predict dangerousness as a matter of science so that testimony really was it had individual applicability as all the other courts that have admitted him in cases over government objection including in this circuit and gabriel have said