of proving it the civil rights trial that there was probable cause for his arrest therefore under the th amendment the jury should have been required to agree unanimously on which specific crime provided probable cause instead the jury instructions stated and i quote from eight dollars to fifty six dollars you do not need to be unanimous on which crime provided probable cause to arrest this is a fundamental error that goes to the integrity of the trial so even though it was not objected to below you may consider it today and you may consider the prejudice that that error caused in combination with the disagree your honor as far as preserving the unanimity issue as i said it's a fundamental error and therefore it can be considered even without an objection below and as to the special interests tori's this is a unique case where the jury was not asked to make a determination as to each of the three crimes they were charged with for probable cause there you could have said to the judge judge we want to one question because we don't believe these other two crimes are sufficient no evidence of them you shouldn't be instructing them on this lack of unanimity think we just want yes the jury did you can animists we agree that there was probable cause for obstruction governmental image gratian if the injured noted that then we would know that at least some of them came to the conclusion that other two were sufficient but there's no reason you couldn't have asked the judge to ask that question i actually think there is a reason i couldn't have asked that that's because the special interest of the tories speak to a jury making a decision a jury answering the reached a conclusion on the other ones that your issue with not one case that either side has found has ever said that you can ask a special interest to tory that says even though you weren't required to decide this unanimously we'd still like to inquire as to this that is a unique phrasing it's never been issued by any court as far as i can tell and therefore i think that there's some fundamental unfairness to ask counsel at trial to come up with a new procedure that no one else has ever employed in order to preserve an objection that was the discussed for frankly many pages on the record so and what is the here i think it does apply in the criminal context in the way it applies in a criminal context and the way it should apply here is dictated by shoddy arizona where the supreme court said that the the dividing line between preliminary facts and individual charged does that have to be given is the specific charge itself and i'll give an example let's say there are multiple different ways that somebody is alleged to have committed yet the jury i argue would have to decide unanimously o j was committed they would not have to decide unanimously as to which let's say hypothetical three different actions actually committed the if there are three different ways in which there the officers might had probable cause to arrest why did the jurors have to be unanimous about which way they each think that there is one that and several officers are involved i don't understand why a general finding of probable cause even if they have different factual predicates is akin to a preliminary factual question well i think that the th that i think that the th amendment demands more i think that i know a th amendment context an officer can't make an arrest based on a general idea that a crime is committed and when you are allowed three different officers have three different senses of what constitutes probable cause and the jury agrees that each of them might have been sufficient why did why do they all have to agree that one is you know that it's all interference with government it's administration as opposed to resisting arrest or what have you but i still think that they need to have one set of objective facts that outlines a crime and then they need the jurors all need to decide which crime that is and so the question alternately is are each is each crime a preliminary factual issue that goes into the overall determine  determination of probable cause or is each crime probable cause and that's in fact three freestanding defenses under the th amendment and i believe that in order to avoid really fuzzy thinking to in order to avoid a jury saying well look something must have happened here even if we don't all agree what that is is not strict enough to satisfy that burden under the th amendment because my client was arrested without a warrant he proved his case and so when it comes time to draw the line i think that overall th amendment consideration needs to be taken into account and that the better decision is to say that these crime other than the voided report and if the judge correctly instructed them as the elements of all three crimes which i think you can see there's nothing wrong with the instruction itself right into the elements he got the elements correct or all three that's correct ok so why should we assume that the defense counsel even mention those crimes method one of them other two crimes in passing and then mention of the crime at all in the summation why should we assume the jury incorrectly applied the law to those other two crimes rather than found sufficient evidence for the one that there was sufficient evidence for clearly on the record why should we assume that they had a proper instruction and no evidence and yet they found he had a problem they have probable cause on those two the are two answers to that question one the defense counsel in fact emphasized in some nation the disorderly conduct was committed because my client filter move along that points to only half that afternoon your honour's i'm ellen ravitz and i'm here on behalf of the defendants there are two different charges here that the plaintiff is complaining about and the court has touched on both of them already the st one is about charging disorder excuse me very well could have asked for the judge to create questions so that he could have seen if the jury had been unanimous on each of the different charges and then he would have known if he had an issue he didn't do that he should have taken advantage of what the what the rules allow for and he should not be able to now raise that issue here in any case this was on his theory clearly harmless error because if in fact as he believes there was no evidence supporting either of the disorderly conduct charges then this court can be sufficiently confident that the that the unanimity this court can have you for playing or even though there was no objection and it is our contention that the instruction was properly given based on the law of devon and many cases from this court that have that have upheld the supreme court's ruling that probable cause to arrest can be for any crime not any specific crime so if dif ferent jurors can come to the conclusion of probable cause based on different facts just as a finding in a criminal trial can be based on different facts as long as the elements are met then they can find probable cause they're not required to get there in the same factual way as each other just all to get there and the judge was very clear in his charge on that in addition on probable cause it was also the same charges and this court dismissed on harmless error but did say that it was doubtful that he could pursue the claim because was no evidence supporting the other the other claims it's it's it's really quite clear that the jury made its decision because they believed the defendant's story that mr l go who admitted that he crossed over the street several times three of the officers said that he was in their works face they didn't all remember it this same way him put a foot up on the none nobody contradicted him on that they just said they didn't see it they were busy processing and arrest so plaintive keep saying that that the other officers contradicted sergeant back all but nobody contradicted him they just said they didn't see that but in any case they were all kinds they were consistent in that they saw him get in their work space where they were processing another arrest and clearly the jury believed their version of the story and not his that he was not in their way not interfering and just was arrested for doing nothing so i think there are several different ways that this court could affirm here and we would ask that you do tha thank you and i'd like to continue to address the issue of harmless error where essentially i think the argument is that the jury should have figured out that there wasn't enough in the record to support two out of the three charges and i think that that in some way alters the traditional role of the judge and jury because the judge decides essentially what goes on the menu what are the permissible options for the jury and then the jury i believe implicitly understands that if the judge charges that then that is one of the permissible options that that could be supported by the record and because of that i don't believe you can consider the air you're here to be harmless the judge never said well jerry it is possible that the facts don't fit any of these and that there's no possible reading of the facts that would submit that any of these crimes in the case are rule twenty nine dollars a judge in a criminal case could reserve the issue twenty nine dollars when all the counts go to the jury right so let's say there were three counts that went to a jury in a criminal case there was no evidence to that in have a lot of evidence is what i'm pointing out but in that instance each count would have been charged separately and the jury would have made a unanimous decision as to each count so that analogy doesn't apply here it's on the issue of harmlessness though that you're saying this wasn't harmless because the jury might have done this with the issue of whether the not is a different issue the argument is it's harmless because there was no evidence really offer of the other two that's really the argument but that's because the jury was charged separately with each crime and therefore you can look at the record and say they found on the crime that was supported by the record so therefore the other two are harmless and converse lee if they had found on one of the charges that was not supported by the record potentially there would be a directed verdict or a successful appeal by the criminal defendant