it's the united states now and i'm sorry it's alberto ruiz versus the officers and yesterday i had a little bit of trouble enforcing the and i have the privilege of continuing to represent mr albert overweighs in this deal before it began i would like to reserve three minutes for rebuttal please give it to you the purpose of this appeal today is to ask this court to reverse an adverse final judgment that followed the trial in the southern district of florida and remand for it with instructions to give mr always a new trial on appeal in the brief we raise what amounts to five issues i'd like to spend my time this morning on as the court has questions on other issues on the three primary arguments and that being st that the district court erred virtually erred in abuses discretion when it allowed the introduction admissibility of the video surveillance tape that memorialize my client committing pretty heinous criminal conduct that our position below and on appeal was simply not relevant to the extent that it was the prejudicial value substantially outweighed it the nd argument i'd like to discuss this morning is the district court's improper involvement in its examination or continued examination of mr always and also at times interrupting the direct examination mystery's by counsel and the rd issue that i'd like to address is the opening comments and opening and closing statements and arguments respectively by defense counsel which it middle east many of which were not objected to and this court is reviewing on a plane air standard but nevertheless i think in the totality of looking at them some of them are simply put egregious enough to warrant relief i'd like to begin with the video actually i date i know you want to cover the substantive issues but st i think that we need to determine whether the appeal was timely why shouldn't our ordinary rule that parties who are represented by coun make filings on there and apply here i think that rule applies universally we're not asking for any exception to that rule we're just simply asking for the facts that exist below to be applied to that rule and realize that it's not a prohibition jurisdiction ruiz it was part of the southern district of florida's volunteer attorney program with the express say promotion that it was an opportunity to represent someone a trial our position below and i maintain it on appeal is that at its core the scope of an attorney client relationship is dictated by the terms understood by the attorney and the client i will say more practically speaking that when a trial finalize is such that a final judgment is entered then you have the client file a pro s motion for a new trial that is record evidence that even he understood he being mr ruiz that the terminations rather the representation had concluded now there's also record evidence that when my firm reappeared they actually reappear this was not a random filing adopting it it was a formal filing saying the law firm fisher david is reappearing as counsel for purposes of post drop seedings and appeals and so our position is simply this when there is record evidence to make clear that our friends representation was initially limited just a trial and then separately we decided to take on continuing as pro bono counsel later in what amounts to a secondary representation so to answer your honor's question that's that's what that was our concern below or your express understanding with mystery's was that your representation in the at the end of the trial is that right yes your honor would this is a model for our lawsuits here that you were willing to represent mysteries pro bono without getting paid and we appreciate that i guess you're still not getting paid as you appear here i'm still not have no expectation to be but i will say out of this wasn't my st time taking a case pro bono in the southern district of arda through that same volunteer attorney program and i actually cited in the brief that we filed two other occasions before judge demitra latest where i at the time was a solo practitioner but i had taken cases excessive force cases believe that my understanding from my ethical obligations or that if turning the clock determine the scope of representation and that's simply my position and not asking others to look beyond the record i tell you if you would do something for me the next time you do this again god bless you for doing it will make your representation or in the representation public on the docket i think it's better for you it's better for your client without question and that would be done with the assumption that this court does have jurisdiction to entertain the merits on the appeal so before you continue everyone i think is it's conceded that the motion by your client was timely filed so that's clear correct yes ok thank you the video that was played to the jury showed in high definition full color my client carjacking someone in broad daylight at the marriott hotel not far from this courthouse under the influence of drugs and essentially as i described it pinball in off of both vehicles and human beings before trial we had moved in lemonade to keep it out the argument was rather simple this is an excessive force case the force was applied twelve hours later at a completely different i think that isn't the video isn't a program of two the fact that your client probably suffered injuries as a result of the carjacking answer the question is there were there was a potential for probative value however there was a complete absence of the record as we sit here today shows no evidence ever came in to even support the assertion which is what defense counsel said blow the transcript bears out more than the written pleadings we intend to elicit that a trial that there's evidence that he was injured on scene as it turned out at through his neck from the car when he carjacked the the vehicle and of the i don't remember what body part they grabbed i don't but even assuming that they did the next question for this court is let's assume marginal probably value at the end of the day that nobody the video also have probative value to show the what your client was willing to do in order to get away from the carjacking scene it is probative to that but that particular aspect of the case or to speak was completely irrelevant in the bigger picture of what his claims were remember he was standing in the shoes of the plaintiff right but wasn't he the officers testified that he tried to evade them and as a result of them they had to tackle him at the hotel yes or as that's correct that was their testimony they had a very very different version of how they st encountered mr wiese i will simply say this on the video point because i don't want to belabor it i do think it's actually rather straightforward and there's one side of the line or the other the volney question asked by the jury deliberations was to see the video again so we know with certainty that not only did they recognize it had some value to them but that ultimately short i mean they were deliberating for hours they saw it they send the question that come in they see the video but surely their efforts  the the question the way i'm asking this court to review this issue is to simply say this whatever marginal value the video had as a unquestionably does have some probative value it was substantially outweighed by the risk of prejudice to my client which ended up being realized that said even if this court would not want to consider giving we like it why can we assume that the jury looked at the video in order to determine that this was a bad guy rather than in order to determine that yes maybe some of his injuries were caused during the original carjacking rather th later through the use of force by the police the answer to your question is in the transcript i think it's pretty telling how the defense counsel below ended their case in closing argument i believe the record is devoid of any reference of the city council arguing to the jury that the video ended up showing what they proffered to the court it would in fact the only argument that they presented to the jury that being defense counsel was that the video showed the heinous nature of the crime and that the two defendant police officers were heroes in the context of the argument presented to the jury then the jury coming out viewing in the coming back defense verdict that is a reasonable inference to take but again this court is really actually on just simply an abuse of discretion standard to say was it's admissibility of improper or an abuse of discretion our position is because the court below misapply granted graham verse o'connor in this context that that in and of itself was the abuse of discretion now the district court also took at least in my experience a far more active role than is contemplated by federal rule of evidence six  during my direct examination of mr ruiz below the district court interjected numerous times the things that were most concerning were those that were asking this court to view as a departure from the appearance of neutrality from the bench meaning from the perspective of jurors and these were things like mysteries and made it that when he stole the vehicle there was personal property in it and that he sold it took the money and kept it the dish record then interjected and demanded from him to know where did you sell it at a pawn shop or a fence how to explain to the jury what offense was asked in the name of the fence asked him where the fence was located in terms of street corners and intersections this this became this transition rather from excessive force case into the re criminal prosecution of mr always in terms of what did you do with the stolen property nobody disputed he was convicted he did he never disputed he he committed the crime but the question is why would the district court have intervened so exhaustive way to cross examine my client the nd most concerning prejudice and i think  you were the one that initially opened the door to that you asked that question and there was a misunderstanding as to whether it was a pawnshop or a fence and wasn't the court clarifying that a fence is an individual who sells stolen goods as opposed to a pawn shop which is a legitimate business intercourse yes and in an isolated example with one follow question to clarify the court's understanding there is no real issue but the district court went further three hundred and forty five while you're the one that asked the question correct i did ask the question about the property but the district would also intervene as to my client stuart or smoke o'kane earlier that day the mechanism for how he delivered drugs to his body was entirely irrelevant no be disputed he took drugs after the court ruled eliminate that evidence came in and at the district court took it upon itself to basically explain to the jury that not only was he on drugs it was cocaine not only wasn't there an issue though at trial as to crack pipe that was found at the hotel room and weren't you disputing or didn't you move to exclude that from evidence we did and my time is short but that is a good transition to the final point which is related to this crack pipe that simply does not exist in the record pretrial defense was adamant they were going to prove my client a crack pipe in the hotel room turns out on the record evidence a trial there's not a single police officer who testified to that in fact when defense counsel really just tried to throw his own witness a softball at one of the i was like no i didn't see it i don't know that then you have a closing argument where defense counsel says i don't care what anybody says basically saying i don't even care what the evidence shows i'm telling you as a lawyer my personal commentary that's a crack pipe period and that really compound of the error that earlier the district court has to question i see my time as a lapse unless the court has any further questions i'll reserve the rest of time for a bottle the motion was timely but i think and i don't think i know that my our position is that the motion although timely was not proper i understand that but let's assume that the motion was timely it's timely correct you agree that he filed a timely yes your honor once the trial court entered the order saying that the motion was not proper because it was filed by a defendant who was being represented by coun and he filed the notice of appeal from that order was the order the notice of appeal timely for purposes of our jurisdiction no because the question is whether or not the motion is a no no answer the question  question is when the trial court entered its order was a notice of appeal timely from the date of that order yes technically yes ok so now the question i have for you is under rule for a a motion that is timely tolls the time for filing a notice of appeal correct until the trial court disposes of said motion correct facially that is the only requirement when you look at a just plain ordinary meaning of the word dispose dispose means to settle the matter finally to get rid of to deal with conclusively so in this case when the trial court entered the order saying this motion is not proper did that not dispose of the motion no because there are other factors that overlay the rule for example like what for him the most the rule itself just says the party filed in the district court and does so within the time allowed by those rules the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion all it says is it has to be timely and we all agree here that the motion itself was timely so when the trial court enters an order disposing of the motion how is that not i understand but your honor there's like there's an overlay to that for example a party cannot just file any motion titled motion for a new trial for example that doesn't have for example substance it where it is that in the rule i know it doesn't say it in the rule your honor but under the case law if the if the rule if the motion does not have any substance under rule seven is it your position that this motion did not have any substance no it is art and that's not a good argument miss macnulty try another one well it is our position that the rule that the motion because it was filed by a pro case where in the rule does it say that because the rule only says that it is it the time is told until the trial court disposes of the motion i understand was that not a disposition of the motion saying the trial court could have stricken the motion is that not a disposition of the motion yes technically but the the trial court can strike a motion that has no substance and it's still under the case law  does the rule well i think there can be an overlay of the rule with the case law let me ask you is your position that the condition precedent which is a party filing didn't happen here because a pro se a press a person who is actually represented by counsel doesn't qualify as a party under the rules no it's our position that the motion must be timely improper and i know that the rule doesn't expressly say that but or  valid i don't i don't it's that if it's that if something's a nalini it's like it doesn't happen and there is case law that says that a pro se motion if filed by someone who is represent knowledge you're not arguing that the party didn't really file the motion because the party didn't exist in some sense because he's represented usa and said yes he did this person as a party filed the motion but it's just that it was and because he wasn't represented do you see the difference that i'm suggesting between those two things yes no i the pros say the person is a party he the the party was mr we he's just it's a difference between whether you are electing to be represented or pro se and the case law says you can't be both at the same time and if he's if he's represented then he can be pro se and that's what the that's what the local rule says that's what the case law says and if the and you can't respectfully to opposing counsel you can't you can't assert that you are not representing someone you know just because you're agreeing between yourselves that you're not representing them and not file a notice of withdraw all and then sort of get around that case is our position you speak as though you know mysteries planned it this way i mean he did everything he could did he not to affect his appeal yes agree and it and i mean he can't fall something on behalf of us attorneys and they told me they withdrew canny i mean yes i mean it would seem unfair it would it would be unfair to someone you know when you're asking me to you know look at this record and say this thing that happened didn't really happen you know that's that's a difficult one for me i think we have to acknowledge that  did everything within his power to affect his appeal and you don't disagree with that you know i don't disagree and i i i don't blame mr ruiz at all i think the actions that should have happened were of his counsel not of do everything he could have done here but moving on to the to the merits most anyone has any more questions on the jurisdictional issue the issue here is that almost everything that they're raising on appeal is on preserved  so i just wanted to highlight that with respect to the video evidence in particular before i get to the merits of the video evidence and the merits of what they're arguing they they brought a motion in limine a to exclude it and it was denied but then after that they elected put bring it in themselves they put on the video in their opening in their opening right before their opening and under the case law you waive an objection to evidence by introducing it preemptively under older which is the united states  court case so even if so even if the argument were preserved for appeal the evidence was properly admitted under graham one of the one of the factors under graham which is and assessment of whether the officers properly used excessive whether it was excessive force or whether the force the use is reasonable is the verity of the underlying crime in here the evident the video is evidence of the severity of the underlying crime the appellant's argue that the officers w of the crime and therefore the video was not probative of their knowledge of the severity of the crime but the officers affidavits and their testimony show that they were aware of what the crime was and so the video documentary evidence just reflected that  the crime and as your honour's have pointed out it also spoke to whether or not the crime could have been the cause of mr ruiz's injuries in terms of the intervention of the district court and the questions the that this is also an preserve error and nothing was objected to by counsel you know it makes me think about a long time ago when i used to track cases there was a saying there were you know when the that they the judge undertook went to the ultimate issue in the case of the case about a cattle somebody a company that make cattle see that they were alleging had poisoned or injured the cows and killed them and the judge asked a question where to like assume that the cows had been poisoned and so it really did taint the trial and here the questions that were being asked in issues that that work that kind of went into in addition to being sort of the opening the door were were not the ultimate issue they weren't the judge wasn't asking questions on the excessive force issue or sort of like the takedown by the officers or anything like that so i think on a and a plain error analysis it's not you don't really get there as to the the statements made by the defense counsel i think you know when you look at it again most of them were not objected to and i think when you look at it in the totality of the two day trial i know that they list the lot of statements but  they were sort of sporadic through trial and again they were mostly commenting on things that the there were already an evidence that the jury already knew about the jury had already seen the video a lot of it was about things that the jury was aware of and i don't i would like to spend the balance of my time on rebuttal address in the final or point that appellate just reference which deals with the defense counsel's commentary below yes this is a two day trial but the record is replete with instances that and i'm still candidly not where whether  the positions at all of the comments are proper and on preserved or their improper but on preserve but i think that this court can make that determination on its own we can see that most of them were on preserved for appellate review but here's the thing give an opening statement where defense counsel tells a jury guess what we tell you but all these discovery violate all this evidence we didn't we hid from this man but he's a pro se litigant he doesn't know this he's learning right now so are his lawyers he was getting his cell phone tracked this story was running hot on international news none of that stuff came into evidence nobody came in to talk about the media that had no relevance whatsoever except to begin the trial by inflaming passions that same lawyer then closed the case by inflaming passions as well by saying his clients were gallant heroes and by the way most of the commentary was not about things that did come into evidence versus didn't it was simply a lawyer giving improper personal opinions on his view of the evidence or lack thereof and that's the problem when you look at that in the totality of it of the case you have a defense lawyer who's basically telling the jury disregard the evidence let me tell you what it really is and let me tell you why you should really vote here and that's our that's our concern for mr always that being said unless the court has any other questions on any of the issues we'd ask that you reverse and remand with instructions for a new trial thank you for your much