this case set i'm sure the porters aware it has now gone through a third trial first trial we had a hung jury second trial went up and was reversed on two grounds it was reversed on the testimony of the forensic pathologist for the state who agreed that she held her opinion agreed with a question from the prosecutor that she helped her pick opinion beyond a reasonable doubt try to narrow in on what i think are the issues that would cause this pace to be reversed in the pivotal issue in the case is was this a murder or is this a suicide and in the opinion that this court after the second trial the court said we believe that the evidence from the second trial shows the case is closely balanced we had a hung jury the first time and we've got a series of facts we don't have and i balanced in the first trial doesn't necessarily measure how closely the evidence is balanced the suckage i totally agree with the court that that would not be that would not be definitive or  prove or tend to prove one way or another whether in fact the gun was first held by the defendant well i would just slightly here your best shot from the difference your honor in the third trial is that right the furred and i agree that rivera's testimony is probably pretty neutral and not much different from b statement by brother furred regarding the credibility of this in court testimony at least jurek right but the point i was trying to make is rather forget this trial i'm like the first trial and like the second trial offers an ledger you have the fact that the defendant himself although he didn't at mit to knowledge or jealousy regarding the adulterous spree relationship of his wife to be the friend to florists who was also living in the same household but he did admit some jealousy about her getting a job the entry of the bullet wound as testified to by dr jones was that it was on the underside of her chin indicating soft and act rather than heart contact which is more one particular case as not dispositive of the issue of guilt because it could also be indicative of panic that could accompany suicide but it's not a factor to be totally ignored and that he has three different versions of the incident which he gives to rather for earth without regard to what rather for it's com sorry to change your story three times and then revert to a fourth story while he was in court so you have all of these indications of guilt now if he still wants you still think seen a case that held that i'll take here you didn't show me a case that said that that would be certain categorically as opposed to be reasonably certain within the confines of the for here's the inherent unfairness of that all right here's the inherent unfairness factor tease who's testified many times as has dr townes both know that medical experts testified to a reason reasonable medical certainty a statement of wall rather than a statement of hope of lady statement it's within the secular not legal  though it's not the first point of it it does not in its first appear to have been plotted out that way but rather spontaneously related formulated in that manner by the witness on the third or fourth or fifth well actually what she does testify to specifically after counsel is asked for just like you did in the second trial is your testimony to a reasonably good medical certainty that she says yes twice then on her own volition she says in looking at all of the evidence police reports photograph out looking at the affidavits i am convinced  beyond a reasonable degree of medical certainty this is the homicide end of the case if you allow that type of testimony that's the end of the case there's no reasonable doubt there's the can possibly be any reasonable doubt here is dr t s testifying to a reasonable more clear and it is consistent with the suicide so i think the idea that this is anything other than a closely balance his theory is no new evidence here except these things are not proper that should really result in a reversal considered her mental state she didn't need to consider state because she knew beyond reasonable there's no doctor in the world that knows anything beyond a reasonable degree of not a full certain take so i just don't think that that is i m been that is a dangerous precedent to set to let the doctor circumvent the reasonable doubt you're reimbursed this case at run knows the fronts here from word already is and which is already reflected in the prosecutor and very specifically on the point of the prosecutor telling the jury that he believed that the defendant should have brought in the by either side and most importantly by the cross examine and he can she can attempt to impeach the imposed upon to play in any trial to see if evidence which is not admissible through the front door can be admissible through the bat to work with sitting up here to make sure that to the extent there can be some damage control that the damage be controlled the second thing we didn't get a chance to cross examine them they did not bring up and that's not the defendant's problem the state could have brought these people and they didn't that's a shift that's rather than first in context would be right and that was the law and that's fair game for the defendant to do it and the jury shouldn't be being told that that it wasn't proper that's my point thank you he'll be given enough eternity to respond after the testimony from the victim why did you put in evidence in this case though with respect to his jealousy and how did you put it in the first reference to be jealousy embraced by the friend it was the victim's t back the husband was even aware of the adulterous relationship this or that people have previously stated just minutes ago that this was referred to as detective the defendant being jealous of he had an opening argument by the prosecution as to we think the evidence will show itself or someone and then you have the defense coming in and saying we think the evidence will show that this was clearly a suicide and not a murder and then you tried out mr forrest and mr flores is directly to examined by the state's attorney and mr florus testifies to allegedly the state of mind of the victim whose debt if any two things he said that the state considered germane to their case presumably because they were intensive painting a suicide defense they were going to rebut this by pointing out that she told flores that her husband was jealous of her and  action the record of any passion to see about the affair but then he tried sat something else he says in addition to that she told me that she was afraid of guns and didn't want them in the house now presumably this could be tied in of say that there is total exception oh i know say no but we're not ever going to work fortunately for the defense my suggestion to you is that it seems to me that you've got to come up with something better  the argument of state of mind that argued that this was an exception you might be better off saying that it's harmless beyond your reasonable doubt but that's that's going to be the big question once we establish that gave rise to any jealousy by bub of the key findings unless you want to tell us back since we know that they were living in the same household since jealousy was not introduced into evidence except through the so called state of mind dork and the state of mind dork with all due deference is really trumped up because it does not hol and there are a number of points i'd like to address initially i hope you were dressed one eyed that one of them is the point that i'm trying to make yes initially there is independent references to the effect not just from john forrest we also have the admission during her bible evidence but there's no evidence of jealousy in my questioning you first with do you think it's enough if there is a fair that they're not need not be any evidence of jealousy that we can simply give her that almost as a matter of national notice in order for this court's reached determination that the homicide took place not matter it would have to assume that the victim was soley killed based upon the fact that she was having an affair we don't know that that was the case rob this case be established that all think question the victim left she went for a job interview with somebody she was romantically involved with we cannot establish and we're not required  the inconclusive state of any gunshot residue on the defendant's up and whatever other factors there are to to try to determine what this appealing a was the suicide and now you're saying we suicide was the evidence that nobody disputed is that the gun wasn't in the room after he allegedly killed himself it was found in the trash can and under a bag  up in her mind at a time she very clearly can but it doesn't seek to validate that point the people have if you mean that it's relevant enough to overcome the degree of prejudice  that testimony will engender in the status sheen jealousy as being in fact a motive where in fact the fact statement does nothing to establish or should do nothing to establish the percent as opposed to the prejudicial and it comes down to a relative measure of the pleasure of probative effect of the evidence and we look at the discrimination of the circuit court and stream whether or not the circuit people deftly attempted to really persuade the jury of the young in his look to medical and scientific certainty and what do you have any idea what that means other than it may be a state's attorney being too clever by half by suggesting that he had no but it certainly in the eyes of the jury may very well ah be considered to be a preflight sheet of the beyond reasonable doubt standard that the judge instruc it the language that was utilized here which would not be in the air which was utilized on four other occasions was to a reasonable degree so were reasonable degree will always be the standard that is it was at best the foolish rest for the state to take in light of the fact that the earlier case was reversed because of the use of the term reasonable doubt now the state reasonable medical certainty is certainly walking up to the case yes but in this case we have the prosecutor reading the jury reasonable degree of scientific certainty four times the only time did this help you in the earlier case where that was once t by attorneys every day it's something that even closing argument and opening argument and everything else but you don't let witnesses say then that's not what occurred here and because jurors looks to the expert witness and they heard the term reasonable doubt and they heard that in the it brings back reverberations and mimics and has struction on the law it would otherwise strike me as being very amateurish and for for an expert to use the time of the gun reasonable medical certainty did not indicate to the jury defendant has to bring somebody in here to tell him about this instead the prosecutor and even the record it bears out the fact the prosecutor explained it i was holding those documents and when i held those documents i was jen strange to the jury that then that raises that least ghosts of shifting the burden of proof the prosecutor didn't make that argument and the fact that it's nine forty two of the record the prosecutor specifically reminded the jury that the defendant did not have the obligation to bring forth that ends and in fact  jurors that they could reliably i think you can't you can't necessarily play that game successfully by first filing the rule and then saying i don't want to finally the role are you know you're taking your isp when you're doing and investigative report alternatively diagnosing and the backing off of three different psychiatric conditions where she indicated she wasn't aware of even health diagnosis conditions so we do have as a position where somebody is operating outside of the realm of their expertise outside of the realm of how they should have been testifying and so tell the prosecutor that they cannot stress the impropriety of somebody who's testifying outside of the range of their medical and scientific basis with really let us the people of the ability to challenge any sort to the people did specifically object when she attempted to attempted to diagnose the victim with post partum depression and believe we actually have that was not even in the issue of postpartum depression that was simply another witness specifically referenced a attorney referring to i have an expert witness getting money for their testimony and their testimony being dishonest and there's actually a statement exactly like them exposing there's nothing wrong with what she said percent a bit if you're going to do it people talk about her getting money she saw an opportunity she jumped on it she's been jumping on it for sixteen years there's nothing wrong with this per se but if you're going to do it do it honestly heard those and people versus shepherd which was within the cases the court used in the second opinion it's called the dr sheppard case dr shepherd poisoning the rice told her nurse that a few minutes before she died dr sheppard contended the wife a killed herself just described as a commented on that and said that it is acceptable in a suicide case to put in evidence of a persistence of a will to live and the defendant would have no better than the testimony but the government put in evidence here however was something very different it did not use effect liberations by mrs shepard to prove her present thoughts or feelings or thoughts and feelings in the past used the declarations as proof of an