for the record tony gallagher federal defender for the district of montana representing shane birdsville this case was tried below by melissa harris and then an assistant federal defender in my office she is now an assistant federal public defender in kansas city kansas and i've been instructed that i better do well s what we're talking about here is cumulative error we have raised in our blue brief seven issues five which i will discuss at length today because the court has any questions about the brady violation and the sanctions that should have been impose or about the sufficiency of the evidence i'll be glad to answer them my focus however will be on the aggregate in the states made during the course of the trial by the trial judge which rendered chain births bills trial unfair  we part forever with the brady issue to make sure there's not something there on this but i thought that is you didn't go anywhere because the evidence was  were in violation of brady and certainly that was seventy five days before trial we had plenty of time to investigate that matter and we also utilized that particular report and the information they're in during the course of cross examination the point here that was in just an example of some of the things that occurred during the course of the trial there were also in addition to the brady violations a number of great discovery issues things that were brought to our attention literally at the last moment  to thank you very much your honor this case was tried to times and i think that the reason that that is important is because when we look at the two trials there are some significant differences and i'm going to make reference to those errors and how they applied in the second trial where i discussed that second trial we kept our blinders on in this this whole case in context shows the magnitude of the proc court's erroneous rulin its failure to limit harmful and prejudicial evidence in violation of four hundred four and four zero three the unconscionable failure to allow psychological testimony or even hold a daubert hearing to determine whether or not teacher testified and even after both parties asked the trial judge to hold at our hearing you're ours how reluctance to sanction the use of evidence of other crimes stems from the underlying premises of our criminal justice system that the defendant must be tried for what he did not who he is that concept for united from the united states versus herrera cited in our blue brief at page thirty five is at the heart of chambers bill's appeal that same concept runs to the sca lottie testimony that i referred to just a moment ago as well because the defendant should have been able to offer a defense to the government's proffered evidence of a propensity to commit pedophile attacks the district judge allowed other acts evidence pursuant to rules for thirteen or for fourteen at least in one respect to counter the idea that shane was a normal sexually active at a real sexual but the trial court would not allow the defense to present evidence that he was a normal both requested the delbert hearing the defense so did zoe are seven ninety six eight hundred and eight zero four and the government did so a needle three gospel below had made a strategic decision between the first and second trial and that strategic decision was based on what the government had presented this evidence that our client was a pedophile that now i've got to find evidence to show that our client is not a pedophile or doesn't have pedophile like tendencies dr salafi performs the test he forms an examination and as quickly as we possibly could under the circumstances we offer to the co this case was tried once in december and there was a hung jury then we're talking about the christmas vacation trying to arrange for dr scully to see our client in the jail the court demanding that we have an  to the jail we got that order and then finally getting the government its report in getting the government the notice the doctors for lottie would be an expert for the government or for the defense you're ours that this strategic requests that he be allowed to testify at this one and if he doesn't know what the magic formula is that i don't think we've met the test earlier in that same page she indicates if you cannot explain how the test works and the science behind the test then it shouldn't be admitted we're offering us concession to the court there we're saying it's the law you can't go to the judge you don't have to learn justify the judge's response is well i may just let the government bring in some more for thirteen or for fourteen if you bring in s testify whether he would be called to testify and when the daubert hearing would be scheduled and mr harrison throughout the these changers proceedings and urged the judge to allow  the other bases were that he didn't feel the test was reliable based on cases that had been cited to him and he also made a enormous point out of the failure of the proper notice and that mr harrison had changed her mind which probably are so often do when strategies become available or strategies become better set for the defense of our clients that she wanted to have this expert available she wanted to try to see if there was some way to tell her the evidence that the government was obviously bringing in that we felt was highly prejudicial and not very probative of anything judge level was very upset the death notice was late that the i just break your question down a little bit if certainly the judge is aware of the test if there had been prior hearings in his court or he was aware of such hearings within the district or with with other judges in that district then i think that he can rely on their judgment their assessment of the evidence here we don't have that we don't have that at all and as a matter of fact we didn't have able but we did have scarlatti and dr scott he was prepared to testify and although it may have delayed the trial by an afternoon it may have even delayed the trial by a day when we're talking about a client's constitutional right to a fair trial that seems to be little price to pay him to take into account if there are and i am not trying to mislead the court at all but what i'm saying is that the court doesn't have to have the hearing but in this circumstance in light of the factors here and in light of the fact that the government's evidence w feeling in some way yes your honor we did we presented the evidence of change wife shasta as well as two other young ladies that had dated shane and his group is two other girlfriends and of course we also got some of that evidence out of mclean who testified that she actually had had a sexual relationship with chain sister time sixteen in her home  it wasn't harmless because of the four thirteen for fourteen i mean we're talking about a balancing here of the equities and the government is permitted to bring in for thirteen for fourteen evidence to show certain propensity  this case that particular issue has been beaten to death by montana defenders and grands are and will make a stand against us but the fact of the matter is no matter what those cases  us a break here allow us to bring in as much evidence with we process possibly can to try to counter this drug or not that the government wants to bring against this saying our client has had sexual relations with all these other  perhaps not standing alone would cause reports but once again when put in this part they aggregate to deny a fair trial and that was dr sours bolstering of  and that that happened and it was objected to and the district court did nothing then later in the trial we have officer boyd a criminal investigator boyd testifying about are was i like to say the room remainder of my time but in my conclusion of this portion of my argument i was just like borrow a phrase from the government's brief and that is that the numerous errors in this case me and certainly in advance of the second trial which was held on january thirteenth the item that counsel was referring to which was disclosed on the last day of trial was it was a document that was offered as as rebuttal evidence in pedophiles and that's exactly what the defendant would have been asking the jury to believe in offering the results of this test and asking the judge to believe i would have to refer to the order your honor but i believe it was in the letter to the editor of it was a sexual abuse journalism page seven of the order of the judge's order where you'll find that reference victims are native americans because the slides that are shown on the visual recognition part of the test don't include native american children they include only caucasian children and african american children the eighth circuit which is the only circuit that is actually taking a look at the abell assessment test has ruled that it wasn't relevant for that particular reason alone in cases involving native american children and rejected it on that basis  n just let me give you a little bit of background here the united states have a number of other acts which we have proposed to introduce that's correct your honor i'll though i will say that that twice the judges intimated and i don't have the references record to try to judge intimated that had he known that the defendant was going to testify and take the and whether or not it is unfairly prejudicial certainly the evidence was prejudicial the question here is whether it was unfairly prejudicial and the evidence with respect to erica runs about was offered to corroborate waste testimony that he was afraid of  lay in his reporting of the abuse and we had no physical evidence and he testified that he was afraid to disclose because shane had threatened to kill his mother corroborates other aspects of the case discussions during that first trial with the judge and with counsel in chambers and the jury foreman the comments were that almost from the beginning of deliberations there was one juror who was refusing to deliberate and you very much so and i will i will tell you that that jury hung on for a long time a long time and when the judge declared a mis recollection and it's an attack on his ability if you will to even remember what happened i mean there are literally heaters of cross examination in the second trial where mr harrison trusted list of the most simple of information and way to answer is i don't remember i don't know those i don't remember as and i don't know those i think go a lot to the jury's difficulty with deciding this case and that goes to our four thirteen fourteen for fourteen analysis as well and that it least in my reading of the main one of the reasons the court allowed for thirteen for fourteen evidence in that case was because the credibility of the victim there was under attack we carefully the cross examination of weight fast wars in the second trial in the first trial if you want to because it was this thing there was not attack on his credibility they weren't trying we weren't trying to impeach him and what's interesting is that the government's only if you will flag with regards to this terror since the attack on credibility is in her closing argument and if the government's going to cite to the defense's closing argument in support of the admission of four thirteen four fourteen evidence i mean that kind of puts the cart before the horse but be that as it may look at her whole posing argument then because what