evidence instruction well it was read to the jury a presumption of innocence instruction that had been used throughout the land throughout the country for a number of years and in fact had been approved by a majority of jurisdictions twelve standing alone i as i said your honor at least in connecticut as late as nine hundred ninety nine it was determined there was nothing wrong with that instruction and we know that i believe which  finality rule that was originally discussed in team and in fact the court noted that the supreme court in great had explicitly rejected the isn't finality determined at the point when that process is finished forty focus because you're out of the idaho supreme court for example if they had been a e may shift the burden of the fan and we have we have argued your honor in our brief that instruction thirty nine did not shift the burden of proving essential elements rather  alibi defense and he didn't have to prove beyond a reasonable doubt and that alibi had to be considered as a whole with the rest of the evidence and determining whether there was a reasonable doubt as to whether he committed the murder or not considered and that's the phrase that i'm keen on is when you look at the whole evidence it's whether that alibi acts in tandem with other evidence whether the state has proven its case beyond a reasonable doubt fandoms to prove it well i don't think that doesn't put a burden on the front i think again you have to look at the instruction as a whole and i realize that you're parsing parts of it nine parts and taking parts of it but when you look at it as a whole i don't believe that it necessarily required the defendant present anything i don't believe that a jury would necessarily know what a quote affirmative offense even a defense even is but i as i said above and beyond that when you look at the rest of the instructions particularly regarding reasonable doubt and the state's burden the elements instructions the state's burden to prove all the elements i don't believe that that instruction result these protest nicol rule of search and seizure self incrimination and beyond a reasonable doubt just to protect a bunch of criminals why do you have that and over and over you hear the response well we don't do it to protect criminals we do to protect everybody in society we think if we protect the innocent and one innocent and ten criminals go free and and one is the man is saved it's protect the innocent you don't have to concern yourself with things like oh am i going to let a criminal and go free that's not the point the point of of our noble law is to protect the innocent and by protecting the guilty we protect the innocent also why and why is not all there telling the jury and why don't you suppose that's probably why courts all over the country of yemen and instructions they think they're protecting defend that are discussed in other cases and it might be important to look at this pacific language with which might be different but i believe this language doesn't say i mean it specifically sets up a separate category that is to say guilty in fact  was a valid structure i think course all over the country rule it was not about instruction as well and i believe counsel sums up the coded it up at one point and said that forty percent of the cases which addressed the question have decided that it was a valid structure so i think the weight it's clearly in favor of the idea that it's not a valid instruction but i understand that leads to the point that the court has raised and i also think that the cases that were that have been  instruction very possibly go farther than the instructions in other cases i don't want to be i think i have not analyzed every one of the cases and i am not in a position to tell you that that is absolutely so but i believe at least some of them are not dealing with an obstruction that's quite stark as this one is and these instructions all vary somewhat for example the second circuit cases that are referred to enjoy all have raising which is more friendly to the defendant than the one that's but is present in our case and i think it's different in some important ways but i guess finally the place i get to is that in this instruction where you where you say it's not purpose or something that i don't have exact word in my eye right now provision of law intended so far as human agencies can to guard against the danger of an innocent person being unjustly punished yes ok and i guess what i'm saying do you think it's telling the jury if the person innocent but you think he's guilty beyond a reasonable doubt you should find him not guilty is that right you know i think it's saying that this business a requirement for proof beyond a reasonable doubt that i've talked to you about in other places that doesn't apply if the person is actually guilty or in fact guilty and i agree it doesn't go on to say here's what i mean by in fact you don't you just leave that out there is tom and and i the problem that really the reason the only reason i'm it's telling a jury is going to think that if i think he's guilty i don't have to follow any of the other instructions but it's the end they give us is not telling the jury that necessarily you know can be construed but it can be construed otherwise also and i don't see i mean respectfully i don't see how it can be ok i understand and i and again if what you really don't have to go that responding to the court's question about about whether it's a new rule and whether and dealing with that part of the issue because i mean it i think my position that it that it is clear affects that part of it now if you would i agree with you on and the cases the other cases around the country that have dealt with the same general idea you want to touch on tyler now you cited the dissent in tired but let's pretend that we really should be looking at majority  i understand what tyler did not do right action but when one looks at child does that give you any concern or value whether this would comply the most there was there might be such a thing as supreme court dictum but they'll tell us when it's addictive and a spokesman better consider it pretty special stuff and yes i understand and i i guess i can i watershed it wouldn't be possible that might be what might be where they're going we don't know that but they do they do say quite directly never mind never mind the dictum part of that they do say quite correctly that the fact we say something a was right but i think this court does i mean i think until the supreme court overtly rules makes a ruling of that story that this court has to view that decked him and to continue to deal with the idea of watershed exceptions  structural error you know in a way that that seems to flow out of the earlier decisions and i think it would be i'm not sure what it does if you say there is no such thing as a watershed exception and there is that that would satisf that also our understanding of the bedrock principle from beyond a reasonable doubt it's just saying this instruction can be understood as doing  i'm in i'm in kind of the place of justice pryor was referring to when he said when he spoke about the idea that you might have a rule that that's too new for t v but not new enough for a watershed exception and  i think the second part i mean they haven't said so but i mean one would assume that it's quite watershed to say in this country state and federal courts why i proof in a criminal is on the proper law the jury even if you don't and in many cases in state court litigants in criminal cases at least litigants don't submit request an injury request a jury instructions and it may be the same everywhere but the judge has an independent obligations to think struck correctly on the law and and as a result the oddest thing the court has ruled that there is no invited error with respect to jury instructions  it is invited in error we're not going to i'm not going to grant relief on and so the question then is is invited error is there some concept of invited error that is other than state procedural d so the question then or exhaustion and then the only question is whether there is an independent rule of federal habeas that says we're not going to look at invited error even if the state court looked at it so it's an unusual situation not had to face this directly in the studio when hofmann it it was able to to assume an error and in this case it is the only aggravator the role of of the aggravators in idaho is an eligibility determination and got three welton creature in jeopardy the standard is to look at clear and objective standards that provide specific details guidance to make rationally to make  second prong the second part of the element of heinous atrocious and cruel is concededly unconstitutional what the argument is is that just because it's part of this eligibility element that that's enough is just that justice o'connor increase that describe the crime as a whole and around constitutionally they think the court reaches this issue it has to say that those standards are so things that there are no standards of all at all its as to a friend all standards of morality and intelligence is that now that any now or are then manifesting exceptional depravity it doesn't set up specific guidelines it does not it does not unnecessary torches forces but that is only one part of the definition and that is not the only part that is that is looked at by the idaho court  fact is you've got a clear day and once you clear day you're into constitutional land where you know there would be no there would be if that's the approach to be no distinction between all the cases that look at the destructive walton is  know which one i use and b and c are no good well sure but but there is a difference even in modern grammar between and in war and sometimes courts don't recognize it but eligible for the death penalty and that was the standard that was used and the courts said this is the standard where applying and that's it and and the court said no no you can't use the second one then it is the default junction the default one enough because  and we just think from your background you're a mean person and we think you're a mean person or a mean person i think what happens on claim eleven specifically on appeal on the on the issue of the instruction on the alibi part of it which we have not been successful on and that's a kitten with hillbilly in the last page that i'm granting a certificate of position though that the district court did not grant one because there was no discussion in yes fernandez i think your example is it is exactly right i do not understand how when the function of all of the limiting instruction or a limiting discussion by the odd supreme court that in part is so quickly approved by the united states supreme court and scream how because there's another part of that that may or may not be vague eliminates and makes the entirety of that particular aggravator unconstitutional it simply does not make sense to me that we have that part of it that is good and because the purpose of those  individuals that are eligible for the death penalty we have done that with the first part of that particular aggravator and we've done it constitutionally pursuant to not a state supreme court and did they imply that they state that it was wrongly decided and that they probably should have given more credence to just gives this dissent in more one and we would submit you know honors that there is absolutely nothing wrong