please the court opposing counsel my name is gerald needham i'm the attorney for the public richard allen smith mr smith was tried for some extremely violent crimes in this case items mr smith robbed what mr smith did the only issue for the jury's consideration was mr smith's state of mind at the time of the offenses were committed and mr smith presented the firm a defense of insanity skeptical about the defense during the trial testimony and evidence was elicited from a government expert that he conducted forensic evaluations that the federal medical facility where he worked after individuals were found not guilty by reason of insanity like i said this was an extremely violent crimes that mr smith was accused of committing during closing arguments the government repeatedly referred to him as a danger five separate times the government brought out information about his danger one day repeated what m separate apart from that of three separate occasions without any basis to prove any facts they the government called mr smith a danger they coupled it with the words he was not insane at the time there only be released on if the court found by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another person or any substantial risk of the instruction you propose the correct statement of the law it is your honor i took the the language from the statute when individuals found not guilty by reason of insanity what standard of the court would have to find to release that person in the community it was a lie but i believe mark requested instruction thirteen right before that was requested instruction twelve which was the insanity defense which the court gave the court a limited language that there would be further proceedings but that was less then it was an even more problematic for the defense because the jury had heard that an individuals could be released from the juror they had known from the testimony of the government expert that there be some type of further review by an expert they knew that mr smith at the time  that the court supervision because he was on supervised release in sharon in the supreme court took the obvious example and said that if someone argues to the jury that if you just found not guilty by reason  they didn't say it was a dangerous crime they said he was dangerous and then said he wasn't insane insane people can be our danger we know that but there was no justification it was not linked to any piece of evidence that they had t keep this person in jail by convicting him the court should really i mean the court should instruct the jury that that's not true here i was asking the court to make sure the jury knew that they would be for the proceedings but those proceedings w given there was there was no evidence at the trial that mr smith had any it was no longer a danger in fact he had been in custody the entire time i there was no evidence that he had been rehabilitated was not a danger at that time in fact as the probation officer testified about all the problems he had heard he he had had from his mouth and also there was numerous evidence overwhelming evidence that he was a danger to crime self there was a shoot out by the oregon state police trying to arrest him his car was rammed repeatedly to stop him are three different firearms are you sure it was his mental state of the time of the crime correct not his mental state of the time of the crime correct the clear reference from the government's arguments were that if this individual is released in the community he's going to be a danger that's precisely what the court in shannon was concerned about that the that argument didn't fit any of the elements it didn't go in any way to rebut the defense of insanity if there was no reason to make that argument except to arouse the jurors passions and have them concerned about the consequences released into the community when the when the court said that in view of the prosecutor's comments i was going to give the instruction did you specifically object to the formulation of the instruction that the court ga was not required under the insanity defense reform act and should not be given as a matter of general practice after all the jury's job is to find the facts and then to decide based on those facts whether the senate is guilty of the crimes these crimes because while the experts differ somewhat in their diagnoses not one of them called by either party testified i'm stand that the defendant was suffering from a severe mental disease or defect not one of them and in fact two of statements before during and after the crimes charged in the indictment then arguing that those were not the actions and statements of someone who was so severely mentally ill that he couldn't understand the nature and quality or the wrongfulness of this conduct to liberate a dangerous the very next thing out of my mouth was but he was not legally insane that was the context in which those comments were made that was the recurring theme of the government's closing argument defendant was not legally insane this was not a case where the prosecutor where i stood up to the jury instead this man is dangerous and used to be confined and if you don't convict him he's going to walk out the courtroom of preening and as was the case an evolved case i didn't say to the jury of the rest of the night all i supposed if i was being very clever and very subtle and the jury was picking up on all of those little subtleties and all of those facts came together then perhaps yes but i'm not that much of i'm not that subtle and i don't think the point i was making was that's all and that wasn't the point that i was asking the jury to draw the point i was asking the jury to draw was to look at his conduct look at his statements look at how he did the crimes how we cleaned them how we executed and what he's got about him immediately after when he was arrested and then ask yourself members of the jury what the problems are this conduct those are the acts of those of the statements of someone who was so severely mentally ill they couldn't understand the nature and quality of the wrongfulness of this conduct say you are entitled to a jury instruction on the consequences of a not guilty by reason of insanity verdict now of course the court reversed because of the prejudicial comments made by the prosecutor but it did so because neither of the parties should have been talking about consequences to the jury because the consequences of an injury i verdict were not for the jury's consideration period that was the holding in the vault that was the holding also in united states versus frank a case which defendant did not even mention in his opening possibility of parole but here in contrast our jury played no role in sentencing it was not their job and so consequently an instruction on the consequences of their verdict was not required  supreme court and shannon it would have focused their attention on the very thing that they were not supposed to be worrying about the consequences of their verdict so instead the district court told the jury correctly that if they returned and then the law provided for further proceedings which were for the court to decide and that they must not consider such matters in any way during their deliberations and then the district court allowed mr needham to argue that point to the jury which he did the district court's instruction was fair and accurate neutral and balanced offender he was yet the argument was made and that he was a danger that if he was released that was weighing on their mind it was a contravention of what the court would instruct them not to be concerned about the determine the proper disposition of the supervised release violation the court has a great deal of options if the jury was to find mr smith not guilty by reason of insanity they could formulate some type of new conditions under supervised release so that ever released from custody when he is found not to be a danger the court would also have him on supervision supervised release at the same time so no i'm not conceding that that's b if this court remains for a new trial and there's a different