you make me feel thank you on good morning my name is rest marsha and i am the counsel for appellant charles bell in this case i'd like to reserve two minutes for rebuttal there are two issues on this second if you are not going to remand for a new trial we ask that you vacate mr bell's sentence and remand for essent saying because nevada robbery is not a crime of violence under the new sense and guidelines they were amended in august of two thousand and sixteen which actually was just before the sense in this case and we ask that they be applied now i will note that on the second issue that issue has already been argued and submitted in another case called united states versus and submitted would would have precedence whatever that answer may be i certainly understand that and so i'm going to focus on the new trial issue and obviously you cannot man for a new trial without waiting for a decision in ed lane and obviously my my client would prefer that he get a new trial to be in recess so regarding the request for a new trial based on press from this misconduct there was a pattern prosecutorial misconduct during both the closing and rebuttal arguments in this case by the two usas who made those arguments this was a close case where the only witnesses at all were five police officers five detectives and the case was entirely dependent on their credibility because there was no confession there was no d n a or fingerprint evidence and and it was a completely circumstantial case in that way now i was the counsel at i had to admit that but i was i objected five times during the closing and during the rebuttal and the judge overruled every single objection and she didn't ask for a curative instructions i think three times judge dorsey did not give any curative instructions and so that's that's the context that we approach this i'd like to talk first about the three instances of vouching now just about at the beginning and they all took place during the rebuttal argument just about at the beginning of the rebuttal argument the a usa said just because they are cops does not mean that they would come in and commit perjury to convict this man and i objected and the judge overruled now thirteen years ago in the united states versus wetherspoon which is a case out of the same district that case was reversed because the prosecutor neck case said the police officer wouldn't why because once you get fired into he can get prosecuted for  thirteen years ago we we've reached the point where instead a defendant or a the government is arguing that the police wouldn't lie just because they're police or they're not lying just because they're police they are in effect saying the same thing they're saying these police officers aren't line and here's why and i'm the government and i have the force of government behind me the in private or of of the government has a say in the case law and believe me they're not line but it was in that the case that the government was responding to comments made by the defense in their case that's what they claimed during their brief certainly there was a very vigorous argument on both sides but i would say that my argument in closing focused on specific instances of problems with credibility particularly with detective souter he's the one who specific comments about the testimony of then sergeant now lieutenant grader who is the one who even though it's nowhere in the police report said that he saw the defendant put something near where the gun was f so i was talking specifically about that as opposed to this blanket statement that the prosecutor's making but more importantly you can't open the door to pro al misconduct the government isn't allowed to respond in kind when a defense attorney makes an aggressive argument and they came in here they crossed over the line several times i just want to be clear which statements and which standard every view and i appreciate you felt like you couldn't object to every everything that came up  now given the volume of things so i just want to know on the improper vouching which is you know just because you're cops doesn't mean a little lie with that was a statement to which you did not object is that right i objected to the first  t which is the one they're not lying just because they're police correct and right after that it's this is the series of rhetorical questions where he says you know the product of the defense lawyer says that there weren't any civilian witnesses what would have happened if we would have called the civilian witnesses would they have said you know he gives a series of things that the police right and then he said that would have added anything in the government admits that that's vouching under the promise of police down faerber kate evidence writers can't fabricate evidence which there's two issues with that one is it's not true you know the government fabricates evidence all the time and the prosecutor doesn't even know where they're doing or not right because he's not there he's not watching unlike despite what he said and it's argument about not being films like an er put yourself in the shoes of the police like it's an episode of cops there wasn't a film crew found around either so he doesn't know whether it happened or not and you know to respond again to judge functions his argument about wasn't invited that's that's another perfect example you look at the smith case where the defense attorney basically said the prosecutors would sit here and the and the cooperate witness could commit perjury and they wouldn't do anything about it and the government got up and said well it's our job to make sure that doesn't happen and that's basically what what i would say they would say i was doing here which is to say the police can't fabricate evidence it's a blanket statement i'm good morning ma'am please the court good morning house of elizabeth white for the united states i apologize i have a terrible cold i hope that i'm not coughing and sneezing through all of this before you get started could you please tell me whether you agree or disagree with you loon friend as to whether he reviewed between clearer and plainer yes so why don't you tell me what you concede was objected to and what you claim was not objected to the statement just because they were cops doesn't necessarily mean they would come in here and commit perjury that there was an objection to that there was an objection to the putting their putting look see this through the eyes of the police look at it the way they did like it's an i think it's important to go back and i did include the defense's closing argument in a supplemental excerpt of record and look and see what it was that the rebuttal was rebutting and what defense counsel said in closing argument among other things was ask yourself whether a bunch of police officers have an interest or bias in the outcome of a criminal case i would suggest that they do he then talked about a particular one officer office detective souter and said he's not in the innocen business he's in the business of trying to prove people guilty and then later they later defense counsel said i would suggest again that what souter did and what metro did is they found a gun and they worked backwards to pin the gun on mr bell by creating the testimony that you heard today so so clear argument from defense counsel is these cops are lying because they're cops and their job is find somebody and pin the crime on them what was the jury instruction on witness credibility the the stand it was the same year he was arrested under instruction of witness credibility and and in fact what the what the government said in rebuttal was not no you should believe them because their copy as part of is part of these transactions just to before told the jury that these are arguments of counsel and you are not consumed this is evidence now absolutely weighing the issue of the in reaching its verdict the jury should consider only the testimony and exhibits and what the lawyers say in their closing arguments is not evidence so i mean it your argument that simply because he attacked the credibility of the officers that that would somehow justify the battle so i don't think that i think that that was proper response i think that what if the prosecutor had said you know the defense is saying that police officers the that these police officers lied and i'm up here telling you that i know that these police officers were not lying these police officers police officers don't lie anything like that what he said is just because they're police officers doesn't necessarily mean they're going to come in here and commit perjury which is a direct response to the defendant's suggestion that because they are cops they are inclined to come in here and say whatever needs to be said to pin this crime on this defend it so so that when i  honestly believe was was just pure response and and quite restrained response because that because the prosecutor did not say they're not lying and didn't say cops don't lie what he said is just because they're cops doesn't necessarily mean that they're going to come in here and commit perjury which is what the defense had suggested and it's close so i think that was an absolute fair response i don't i don't think that that cross any line of whatsoever it is you know what what what the supreme court said in the young you know and young the prosecutor's response was in my opinion the guy did it and even there the supreme court said that although that's not something that should be said it wasn't reversible because what he was responding to was the defense counsel saying there is nobody here in this courtroom who thinks this you know my client is guilty and so you have to look at the comment that is made in the context in which it was made and whether in the context in which it was in which it is made it is likely to undermine the confidence in the verdict and here what you've got is a is a very fair response  and with respect to this comment about fabricating evidence in their brief and also here again that argument he defense counsel suggests that what the what the prosecutor was saying is that the police don't fabricate evidence and that's actually not what he said he said that the government can't the government doesn't fabricate the government can't fabricate evidence we can't pull a rabbit out of out of a hat and i understand that just in that statement alone in context  without context is problematic but but again in the defense counsel was making two almost contradictory arguments in his closing argument he was he was attacking the earth challenging the police for  days lackadaisical investigation they didn't get any names they didn't get any contact numbers they didn't they didn't take any witness statements you know there was they did this lackluster investigation because they had decided to pin it on bell and they they didn't want to get anything else so they didn't even get names or contact information from the other people in the park and then at the same time criticize the government for not bringing those for not having those witnesses whose names and contact numbers we didn't have testify of trial and that what that would be the evidence i mean yes they did but then and so yes the assoc you just said well if we had had those people in the park what would they have said well the same thing you heard from us and now you're telling me well how could we have known that we didn't have their night in a number but i think that's a cute yes i reacted to each of these things kind of in a very odd way in terms of glossing over the line i think that  that these three things there's a guy thing i do think the first one is just a fair response to the accusation that the defense counsel was making the second one this idea that was was responding to the first one being the jury just because they're cops doesn't necessarily mean they would commit perjury the second one about the fabricating evidence you know i think that what what the prosecutor said is you know the defense counsel wants spend defense wants you to speculate that somebody else did it the people sitting in the car put the gun there that this that the other and there's no evidence that would sustain those inferences being reasonable when you look at the entire picture when you look at all of the evidence that the government has presented you the government can only present the evidence that it has it can't fabricate evidence he's not that right there is talking about the prosecution that right there is not saying the police can't fabricate evidence i mean that's that's not the statement that the prosecutor and you can argue about whether it was right or wrong to say it but i think it's important to be clear what he was saying he wasn't saying the police can't make things up he was saying the government can only present the evidence that it has now and then the next statement and it is the one that that we do concede was just really poorly worded and shouldn't have you know i think this idea of what would these other civilian witnesses had have said this one is  wouldn't want to the scope of review is plainer and and i think that it is it is telling their stupid things i think are telling one is after the rebuttal closing argument the defense counsel after the rebuttals said you know your honor i'd like to make two objections and he made objections about the thing about looking at this through the eyes of the cops like you're watching an episode of cops and he complained about this you know the a b c s reading right there the three c's of coming to this together but the defense counsel didn't object to this one and i think that i think that because the transcript you know and the cold transcript hypothetical question how there are different ways it could have come across to the to the to the jury the defense didn't object to it and i think that also in mitigation i see my time is up if i could just finish this one point also in mitigation the whole the throughout the entire trial the defense had been cross examining all of these officers about well did you get their name did you get their contact did you take any witness statements from these people no no no we didn't we didn't we didn't so there was so so the government and the officers had been very forthright throughout the entire trial and we never contested that we did not have any other information so i think again putting that in context you know the prosecutor is inviting the jury to consider a hypothetical scenario and said so badly you know the supreme court has said that rebuttal arguments you know they're there you don't have time to prepare your thinking on your feet sometimes you say things that that are ambiguous and that doesn't excuse misconduct or vouching but it does suggest that that that the court should not lightly infer that the prosecutor meant to do the wrong thing or that the jury took it in the wrong way when something and i assume this prosecutors now read these briefs oh yeah understands the frailties of  thank you very much i'll try to fit within the two minutes obviously regarding the objections it's always a tough decision how much object are in closing argument i did it five times i stopped after the last time which was the first vouch and you know at some point one it becomes few tile and two you can actually be underlining what the prosecutor saying like the defense attorney is trying to keep us from hearing it must be really important you know let's listen to second on the standard of review i don't obviously i've checked into some things not others this court's held that when you do that if you're looking at the whole thing it's plain air the two a lot of the cases  go clear air a lot of the cases including wetherspoon more recently i'll counter because theo had similar situations it was a standard they use i was looking for sort of a real short way to look at it and it's from all contact his studio where they frame the issue is whether a jury untainted by prosecutorial misconduct could have acquitted the defendant i think that's a good way to look at it and they way you look at the entire context of closing argument with start with the prosecutor misstating the evidence three maybe four times including very importantly talking about whether sergeant rader saw the defendant pulling something from his waistband then three times she says that the lack of d n a evidence can't be a basis for reasonable doubt that was overruled by the judge also and then we have the three instances of vouch rebuttal and we end with put yourself in the shoes of the police like this is an episode of cops and i when you look at the variety of prosecutorial misconduct here it does indicate that try to step back and ask whether without that the defense the jury would have done the same thing and i would suggest they could have reached a different verdict if it hadn't been for that and this was a close case it was submitted our next argument will be in united states versus ward