trial issues first of significance to me is the fact that we have what i perceive to be a very significant great violation this was a case where are really only two witnesses who matter one was the eleven year old girl thirteen at the time of trial testify that my client touched her and the other was my client testify that that was so  the day or so before trial i received an e mail from the u s they handling the case indicating that this child a week or so earlier in a conversation with the u s attorney's office had indicated that she had made up a story about a man approaching her and trying to kidnap her or some such thing as school but that almost immediately the child had recanted to her mother that there was no further involvement now or you were that's true and not true if you read the transcript you'll see that i was pretty much caught flat footed when she indicated that this a bit more than me lying that i had actually spoken to the police i mean my my response was hot the police because i had no idea that there had been any formal involvement with any law enforcement or school agency did you make a motion to didn't have well what i learned was that there was really nothing to investigate that she talked to her mom and then told her mom that it was a failure and i had tried to interview mom and daughter before but had been known that there had been police involvement school involvement school counselor involvement we would have made every effort to interview those people and i've never seen a police officer receive a report of an attempted abduction who didn't make it report i would expect that there would have been materials that would have led to more effective cross examination now the second issue of concern in the trial  deals with the use of my client's pre arrest post miranda stiles glen yes he was requested to come to the police station he did he was was the subject of an investigation concerning a sexual assault he at that time advised the officer that he had retained counsel and that he was not going to answer any question the officer mirand client's invocation of his constitutional rights against him is apparently prejudicial i don't know how it could not be i don't know how anyone could look at this and say that it didn't impact the jury's view of the redirect to this matter so i it was before the jury and i think he made affective use of it and i think the jury had some trouble resolving the case and i think this contributor to the jury's you know at least basically it says when you take the stand you know and you basically waive your fifth amendment privilege not to testify then you are it's fair game to cross examine you about your prior silence that's our position i can't recall off the examination was fundamentally unfair and therefore a violation of the due process clause of the fourteenth amendment applies until you show me why it doesn't and at this stage you was that prejudicial in in the context of this trial did that affect the outcome of a case well it's i don't think it did i think what you had you the the the the testimony of the victim the with the cement samantha williams and you had mr hill's testimony and this was his the story was that the stories were so different i don't think the placement of the computer or the distance of the computer made much difference because he said he was not aware of her and when he and but this is his ultimate story this is this is the critical part of it is he  moved her on the couch because it looked like she was lying uncomfortably and of course she had because he did notice or eventually and he saw or sleeping on the couch and he said it looked like she was not comfortable and therefore he admits putting his hands on her to move her around now of course her story is is quite different that when he touched her he touched her sexually both above and below the waist and that's the critical that's that's the critical telling the truth about the touching the touching was admitted the question was was it harmless a just an attempt to make her more comfortable while she's sleeping on the couch or was a sexual abuse and that's and that's what the jury the jury  violated precisely because it was peripheral peripheral to the basic conflict in the evidence what kind of touching took place and also you know in the fourth prong of the plain error test is does this lead to a miscarriage of justice and it certainly does not because the jury's the jury's verdict turned on these on these questions of what kind of touching took place was sexual abuse or was it attempts to make the girl comfortable in that connection i have one more question about the closing argument that kind of stuff a little excerpt the record one ninety eight is where i am one of the statements made in the closing argument was if there was no proof beyond a reasonable doubt ladies and gentlemen we wouldn't   you know about this or was it was it a representation of of information not before the jury supported the verdict i think what you if you look at the at the at the transcript what you see is this first of all it's not a stick it's the reference instruct her testimony and actually what that does is picks up on judge people's ruling want to rule twenty nine motion at the close of the government's case where he said you know the testimony of the victim standing alone is enough to allow a reasonable jury  and all that the prosecutor didn't have in closing argument is come back to that to the district judge formulation that the testimony of the witness standing alone is the is sufficient to convict actually that was not the only i mean it's important to realize that her testimony was corroborated you know by the effect of what happened the mother testified to that effect the police officer testified to that effect what do you mean by the fact he state after she left the hill residence you know in the car her mother saw that the police officer who stopped by and asked if anything was wrong so it's something obviously what's wrong and then the examining physician at the emergency room and of the emergency room nurse all of these people offered corroboration as to her emotional state and i think you can imagine where the jury would say a political thing happened why was she so upset and i think so it doesn't it's not just her testimony standing alone it's corroboration you know by these other four witnesses and so i think again and that goes back to your honor to the plane her question on the on the miranda situation you know here is this evidence this corroborating evidence you don't have a miscarriage of justice here you have the witness testimony and then you have it corroborated at least to her emotional state by four other independent witnesses and one of them obviously is her mother but then there's a police officer and two medical personnel who testified to her emotional state which suggests that what happened was not a rearrangement you know so that she might sleep more comfortably but rather was the abuse charged in the indictment having related is sexual encounter that's right what consistent with the results of a you know saw someone being upset after having a sexual encounter with an eleven year old girl or having related  mean this is a sad case you've got a sixty year old retired police officer with health problems but on the other hand you have an abused and traumatized eleven year old girl and i think this sentence five fifty three i factors he did it when you look through the transcript and you see that obviously the big thing here is the nature of the offense the seriousness of the offense and judge people made a judgment that you know you you have most you know that the defense argument was that this was just this was this was touching this was not rape but judge people's perception was that it had the same effect on the victim as though she were forcibly raped so that's that's a significant about it but recognized that the court is that that the ninth circuit you know had not yet ruled authoritatively on the matter and then clearly went through not just why is it that let's just have a guideline sentence he went through why is it why he had this sentence why it was here in the guidelines it was all very fact specific this defendant you know this victim these injuries psychological injuries these circumstances  kind of a tertiary issue it just wasn't that important in comparison to all the other issues in the case well i understand what saying but i just agree i mean obviously what the jury was tasked with deciding was whether or not there had better deal legal touching but how do they do that when you have someone saying black another saying quiet i really determine well i mean the court instructs every jury on how to determine credibility and one of the things they would have considered was this very testimony that journal white is now joe not only with testimony with argument i mean the clear inference is that he is not to be believed and therefore when he says quite you can't believe that it's really black like this child saves and you know this was not a case of the jury what out had a cup of coffee and came right back they sent a note to the court saying they were deadlocked what do we do now it was obvious that there was some difficulty reaching a decision can i tell you for decision is out and probably not to the supreme court but i don't think you need to deal soley with judge people having indicated that his opinion or was it was optional reasonable i think that you are task with looking at the record of the citing whether or not the sentence itself is reasonable and i like judge judy he is a very bright decent judge but it's pretty obvious if you read the record that he did just wink at thirty five fifty three factors other than the guideline he started the sentencing hearing by  factors warrant this much of a sentence or a laster sense seems to me the judge has to engage in a fact finding process and certainly i appreciate that he read my brief and that he took what i said into account but you know what i say is not evidence and you can't make a factual finding upon that we shouldn't make a factual finding apply the arguments of counsel you have to listen to the witnesses you have to look at the evidence and make those decisions  and it's pretty clear that he didn't do any of that that he had determined what the sentence was going to be well advance of any evidence being presented and given gerald hill in terms of his background his career and maybe more significantly his health imposing a sentence that is roughly three times his life expectancy yesterday his early sixty's and you know he has a variety of other health issues as well but the congestive heart failure is the most significant and you know i mean the odds are if you postpone if you're going to turn in this case on a sentencing issue if you postpone considering this until the supreme court has ruled i mean it may be moved mr bell may be dead he's been