granted apparently the reasoning is because mr dresser received a letter from this court that i'll assume he received although i do not know that my personal knowledge telling him that his papers were being returned and he could pursue his appeal elsewhere currently in the district court i don't know even if we assume that that's true that would warrant not reaching the merits of his argument  just didn't know how much time i should spend on them if you were only insofar as the merits are concerned the case presents the issue of whether the jury was properly instructed his to the burden of proof i think we're on the same page standards that would be sufficient to warrant a new trial for this and that and we say clearly that it is easy to start with a couple of just to give me clear on montana state law at the time the element it would have been resolved i don't think we'd be here today but that wasn't the case the court decided that it was in this conundrum and it was going to take this middle of the road position and that it is the error for which we are  here today let's look i'm having trouble with the air and instinctively it seems like it should be wrong to have a situation where you have then finding the jury has to make but you don't process rights here i have a right stance of lawyers say they have to prove this if that's the case if they're the instructions if they're not the instructions i have a different jury could have concluded when they need to liberate them that this was the burden of the defense to establish you know there would be no constitutional error they had been told right correct or they could have concluded that it was the prosecution's burden the state's burden to prove and if they had been instructed that there would be no constitutional right and i suppose the same thing c during would be a problem because no one has the burden then assigning it to someone problem and then i don't understand ok well then maybe you don't understand the nuances of you know what we have to deal with here with i don't know but others are saying you know we don't think it was and in point of fact they want to go back to the instructions and maybe determine who was responsible for it for this particular issue in terms of exclusively with the assigning of the group or take you out of time will allow you a minute or so for republic thank you for your argument counsel here from the state of montana at this time and i cannot really say whether it be any reason but i suppose that they could have however i think then this court needs to look at the fast of this case and maintain that one should look at the fact there is no way that a reasonable juror would even conclude that there was enough mitigating evidence to show a grave hundred seven added a few hundreds of evidence that he had met that burden because basically the mitigating circumstances excuse to murder somebody so based upon the earth and their common sense and trust in the jury system i would say that a reasonable juror could look at that and say well i would say those are very interesting legal questions that i would say that in this case you know at no time did the jury come back and seemed confused or question again about what do you mean by th all there was no