[00:00:06] Speaker 04:
Good morning and may it please the court.

[00:00:08] Speaker 04:
My name is Jesse Richie and I'm appearing on behalf of Mr. Briggs.

[00:00:12] Speaker 00:
Good morning.

[00:00:13] Speaker 04:
I would like to preserve two minutes of time if possible.

[00:00:18] Speaker 04:
I would like to start today by addressing the jurisdictional question that the court posed in its order.

[00:00:26] Speaker 04:
I do believe that the court lacks jurisdiction to decide the attorney's fees issue, so as a result of that we will withdraw that argument.

[00:00:36] Speaker 04:
And then to address the other argument that the court presented at issue, the issue of whether or not the jury instruction was an error.

[00:00:45] Speaker 04:
We believe the jury instruction was an error here.

[00:00:48] Speaker 04:
The court's precedent in Cato v. Russian outlines the standard for determining whether or not a disciplinary decision violated the due process.

[00:01:02] Speaker 04:
And that is the disciplinary decision has to be

[00:01:06] Speaker 04:
supported by some evidence, but in that case the court makes sure to outline that that evidence must have here that says there must be some indicia of reliability of the information that forms the basis for the disciplinary action.

[00:01:24] Speaker 00:
Well I did a lot of jury work both as a lawyer when I did 70 jury trials as a lawyer and then I was the trial judge and I

[00:01:35] Speaker 00:
I have a question because isn't reliability of evidence always an issue at trial?

[00:01:41] Speaker 00:
That they're not going to convict someone.

[00:01:44] Speaker 00:
Some evidence to me is the standard of review.

[00:01:47] Speaker 00:
That's what you have to show in order to prevail.

[00:01:50] Speaker 00:
But a jury isn't going to, isn't it just encapsulated in it that it would have to be reliable?

[00:01:58] Speaker 00:
They're not going to find for anyone if the evidence isn't reliable.

[00:02:03] Speaker 04:
uh... your honor i think the issue here is that when the jury's instructed that you only need to have some evidence in the record what the jury will do is the jury will look at their they're going to do what they're instructed to do and they will look and see whether or not there is absolutely any evidence in the record and if there's any evidence in the record that

[00:02:22] Speaker 04:
That's the end of their analysis.

[00:02:23] Speaker 04:
They can be done, but when you instruct them that that evidence has to have some indicia of reliability, what they will then do is they will do that secondary analysis of saying, yes, there is some evidence in the record, but now we need to evaluate it and determine whether or not that evidence

[00:02:41] Speaker 04:
had any indicia of reliability.

[00:02:43] Speaker 00:
And I think, for example, the Cato case... Well, let me ask you this.

[00:02:48] Speaker 00:
The way they were instructed, you wanted it to have some reliable evidence as to some evidence.

[00:02:54] Speaker 00:
Under the instruction that the district court gave, were you able to... I'm not sure.

[00:02:59] Speaker 00:
Were you pro bono counsel at trial?

[00:03:01] Speaker 04:
No, Your Honor.

[00:03:02] Speaker 04:
I am only pro bono counsel for the appeal.

[00:03:03] Speaker 00:
There was a different lawyer at counsel.

[00:03:06] Speaker 00:
But wasn't counsel allowed to argue that the evidence was unreliable and thus inadequate to support a disciplinary action?

[00:03:14] Speaker 04:
I believe the counsel could have made that argument at trial.

[00:03:17] Speaker 04:
But the issue with that is then you're arguing against the judge's instructions, essentially.

[00:03:22] Speaker 04:
Then you're trying to infuse an additional standard, an additional element into what the judge has already instructed.

[00:03:29] Speaker 04:
Here the judge instructed and said,

[00:03:31] Speaker 04:
you are only to find, I don't have the exact jury instruction in front of me, but essentially, if you find that the disciplinary hearing, the disciplinary action was supported by some evidence, then you are to find for the county.

[00:03:49] Speaker 04:
So counsel would have then had to come up and say, well, yes, the judge instructed you that if you find some evidence in the record, but I'm going to tell you

[00:03:58] Speaker 04:
that on top of that you have to make you have to find that it is also has some indicia of reliability.

[00:04:04] Speaker 03:
But why wasn't any error here harmless?

[00:04:07] Speaker 03:
You have both Wallisler and Slingstad saying that they watched the video and from watching the video, why can't video evidence be some evidence with reliability?

[00:04:19] Speaker 04:
Well I think the issue here is that both

[00:04:22] Speaker 04:
Wallingsler and Slingstadt watched the video, but the video is absolutely, it doesn't have any sound whatsoever.

[00:04:30] Speaker 04:
So they're watching a video with no sound and then coming to the conclusion of, well, Mr. Briggs was provocative here and he was starting the fight.

[00:04:40] Speaker 00:
He saw the physical language or something.

[00:04:42] Speaker 00:
Did he throw some food or something like that?

[00:04:45] Speaker 04:
I believe that was in another issue and I'm not

[00:04:49] Speaker 04:
Completely sure whether or not the video showed him throwing the food, but really the one of the issues here is there were three incidents There were three fights that that were that occurred one of them was based off of a situation where mr. Briggs was the inmate in that situation Tommy Steele said mr. Briggs was being provocative and saying statements to him so he went over and punched him and

[00:05:13] Speaker 04:
Then there was a food fighting incident.

[00:05:15] Speaker 04:
Then there was a third incident with a Mr. Smith.

[00:05:21] Speaker 03:
But the video shows, at least according to Wallisler, that Mr. Steele is minding his own business.

[00:05:29] Speaker 03:
And it's Mr. Briggs, your client, that's coming to him and engaging.

[00:05:33] Speaker 03:
So that is something that you could actually visually see without sound, correct?

[00:05:37] Speaker 04:
I think in one of the incidents that could have occurred,

[00:05:42] Speaker 04:
But then you still have to have the determination for all of the other incidents.

[00:05:45] Speaker 04:
Was the video evidence enough?

[00:05:48] Speaker 04:
And there are situations where they're making arguments that audio would have been essential.

[00:05:54] Speaker 04:
And I believe in the situation of Mr. Steele.

[00:05:56] Speaker 03:
But it seems like you're quibbling with the interpretation of the videos.

[00:06:00] Speaker 03:
But why can't the videos themselves be some reliable evidence?

[00:06:05] Speaker 04:
I believe it was because the stories underlying the videos would have needed additional cooperation, and that cooperation came in the form of Mr. Steele's self-serving testimony, when Mr. Steele said to the officers, this is what happened, and they based their interpretation of the video on

[00:06:29] Speaker 03:
But what authority do you cite that you not only need a video but you need corroborating testimony?

[00:06:35] Speaker 03:
What defines some reliable evidence in that way?

[00:06:39] Speaker 04:
I don't believe there's any case on point, but I think that goes back to why it's so important to instruct the jury that there needs to be some reliable evidence so that they can make that.

[00:06:47] Speaker 01:
So why isn't this just a weighing of the evidence?

[00:06:50] Speaker 01:
It sounds like you're arguing that the jurors should have weighed the evidence differently.

[00:06:55] Speaker 01:
They had a video.

[00:06:56] Speaker 01:
It didn't have sound.

[00:06:56] Speaker 01:
They had testimony from the officers or from Mr. Steele.

[00:07:00] Speaker 01:
They had Mr. Briggs denying or acknowledging he was shown in the video, but denying the events.

[00:07:06] Speaker 01:
It sounds like a pretty

[00:07:07] Speaker 01:
factual issue for the jurors to decide and decide if there's evidence and I agree with Judge Callahan it's Encapsulated in the in the weighing of the evidence whether you consider it reliable whether you reject it So I mean to me it just seems to me you're arguing the facts, and that's what the jury decided I agree I do believe the jury is they're the ultimate arbiter of the facts they get to decide the situation but what they need to do is they need to do that based off of the judges instructions here and because the judge is

[00:07:37] Speaker 04:
instructed them as to that they only needed to have some evidence in the record, and that there was no instruction that the evidence needed to be reliable.

[00:07:46] Speaker 04:
They could have based their decision on anything, and they never made that reliability determination in the first instance.

[00:07:53] Speaker 01:
So if somebody testified and the jurors concluded that the person wasn't credible, they just didn't believe them, that would be some evidence, but they'd reject it.

[00:08:01] Speaker 01:
So it seems that they would be doing what you're requesting through this instruction just in their role as jurors and weighing the evidence.

[00:08:07] Speaker 04:
I believe that the jury is instructed specifically that they're the ones who get to review the testimony and make the determination as to credibility of witnesses in this instance.

[00:08:22] Speaker 04:
But I think the ultimate issue here is that what we're asking the jury to do is to look at the record and decide whether or not there's some evidence to support the disciplinary decision and without

[00:08:33] Speaker 04:
doing that secondary analysis, then we can't be sure what they base that on.

[00:08:39] Speaker 04:
If they base that off of the fact that evidence was admitted in the first place, the very fact that there is any evidence in the record would mean that they would have to support that decision under this instruction.

[00:08:50] Speaker 00:
Well, let me give you the hypothetical.

[00:08:52] Speaker 00:
If the sergeant in this case testified that he was psychic and knew that Briggs had instigated the altercations because he had read Briggs's mind, would your position be that the testimony would meet the some evidence standard even though it's not reliable?

[00:09:10] Speaker 04:
Believe I would object to that question after the trial and I would hope it would be sustained But if it were not then I believe under this instruction the jury could say there's some evidence in the record that says That that's that supports the disciplinary decision and and we need to follow the judge's instruction here and Affirm that disciplinary decision, but they also get credibility They do a credible actions to yes, and so I

[00:09:39] Speaker 00:
Wouldn't that keep them from going with the, I imagine that, I know that Briggs instigated.

[00:09:48] Speaker 04:
Doing the old Johnny Carson.

[00:09:50] Speaker 00:
Yes, exactly, the great Carsoni.

[00:09:54] Speaker 04:
Ideally, they should do that, but I think that when you're looking, in most situations, I would agree with that, but I think the problem here is that we have conflicting instructions.

[00:10:03] Speaker 04:
We're both instructing them, you look at the evidence, look at the testimony,

[00:10:07] Speaker 04:
weigh the credibility of the person, but also if there's any evidence in the record, some evidence in the record, no matter how small, you need to affirm the disciplinary decision.

[00:10:18] Speaker 04:
And I believe if that testimony got in, the jury could say, well, I don't think it's credible, but it's evidence.

[00:10:25] Speaker 04:
It's some evidence, because we're also instructed that testimony is evidence.

[00:10:30] Speaker 01:
But they're also instructed to weigh the evidence.

[00:10:33] Speaker 01:
They can accept it.

[00:10:34] Speaker 01:
They can reject it.

[00:10:34] Speaker 01:
They can accept it in part.

[00:10:35] Speaker 01:
They're told all of those things in the standard instructions.

[00:10:38] Speaker 04:
Yes, Your Honor.

[00:10:39] Speaker 04:
And I would say in most instances, a preponderance of the evidence standard would protect against that type of issue.

[00:10:46] Speaker 04:
But because this is not the preponderance of the evidence standard, which is something that the county

[00:10:51] Speaker 04:
emphasized during its closing argument that this is such a low standard that they don't even have to meet that.

[00:10:56] Speaker 00:
Well I'm sure though I'm probably gonna ask the other side and they're gonna get up and they're gonna say it wasn't only some evidence it was overwhelming evidence.

[00:11:07] Speaker 00:
So what's your response to that or do you want to hear what they say the overwhelming evidence was before you respond?

[00:11:13] Speaker 04:
What I would say is that at the this court presumes that

[00:11:20] Speaker 04:
if an instruction is erroneous, that there was prejudice.

[00:11:28] Speaker 04:
And here, because they emphasize the low, low standard that the some evidence standard is, that is prejudicial.

[00:11:37] Speaker 00:
And we can't be sure... Well, I don't think that's a correct statement of the law.

[00:11:42] Speaker 00:
If reliability is an element

[00:11:46] Speaker 00:
then you get closer to that, but reliability, but just because there's something wrong with an instruction, I'm not sure that it can't be overcome.

[00:12:00] Speaker 04:
I think in this, I base that statement on

[00:12:07] Speaker 04:
Clem V. Lomeli, and I think what the issue here is that if reliability is an element, if the jury needed to be instructed that the evidence had to have some indicia of reliability, then I do believe that would have been an erroneous instruction, and then the presumption would attach.

[00:12:23] Speaker 04:
But if the court finds that it's an element that doesn't need to be stated or is not necessary, then

[00:12:32] Speaker 04:
then it would not need to be.

[00:12:34] Speaker 00:
Do you want to save your time for rebuttal?

[00:12:36] Speaker 03:
Can I ask one question, please?

[00:12:39] Speaker 03:
I don't hear you today advocating the objective reasonableness test that's in your briefing.

[00:12:44] Speaker 03:
Are you withdrawing that as well, or?

[00:12:46] Speaker 04:
No, Your Honor.

[00:12:47] Speaker 04:
I just wanted to address the specific issues that the court pointed out in its order issue.

[00:12:52] Speaker 03:
And I think that under the... Was that an argument in the alternative, if you don't prevail on the Cato some reasonable evidence standard?

[00:13:01] Speaker 04:
Yes, your honor, I think that under the under the Supreme Court's precedent in Kingsley that they have created a distinction between pretrial detainees and prisoners and I think that that distinction goes all the way back to Superintendent V Hill.

[00:13:16] Speaker 03:
But Cato is a prisoner case and you are relying on that.

[00:13:20] Speaker 03:
Yes.

[00:13:20] Speaker 03:
So that seems to be in tension, correct?

[00:13:22] Speaker 04:
Yes, your honor.

[00:13:23] Speaker 04:
It's an alternative argument.

[00:13:25] Speaker 04:
If the court finds that the Cato standard doesn't apply, we would argue that.

[00:13:31] Speaker 04:
Under Kingsley, it's a different test for pretrial detainees.

[00:13:37] Speaker 00:
Would you like to save the rest of your time?

[00:13:39] Speaker 04:
Yes, your honor.

[00:13:39] Speaker 04:
Thank you.

[00:13:39] Speaker 00:
Thank you.

[00:13:55] Speaker 00:
Good morning.

[00:13:57] Speaker 00:
I'm assuming you're not splitting argument even though you have someone else at the table.

[00:14:01] Speaker 00:
We would never do that.

[00:14:03] Speaker 02:
It's all for me.

[00:14:04] Speaker 02:
OK.

[00:14:06] Speaker 02:
No, we will not.

[00:14:06] Speaker 02:
I will be arguing the whole thing to the court.

[00:14:08] Speaker 02:
All right, go ahead.

[00:14:10] Speaker 02:
May it please the court.

[00:14:11] Speaker 02:
My name is Morgan Serena.

[00:14:13] Speaker 02:
I'm an attorney representing the county in this appeal and also one of the trial attorneys who tried the case with Mr. Stacey, who's also present.

[00:14:22] Speaker 02:
I'd like to first, and I guess

[00:14:24] Speaker 02:
maybe primarily address the jury instruction issue that is before the court.

[00:14:30] Speaker 02:
As the court has correctly pointed out in many of its questions to Mr. Briggs's counsel, the jury was instructed in this case on many, many, many different things, including the weighing of evidence and the credibility of witnesses.

[00:14:47] Speaker 02:
It is the county's position that the some evidence standard was correctly given to the jury in this case.

[00:14:54] Speaker 02:
And even if it was not correctly given, and the word reliable should have been inserted in there, which I don't believe is the correct standard, there was no error because the jury was instructed on many, many, many different things about weighing of credibility of witnesses, weighing of evidence.

[00:15:12] Speaker 02:
And reliability is, of course, something that they would have considered.

[00:15:16] Speaker 02:
And if evidence had been unreliable, they would have rejected it.

[00:15:21] Speaker 00:
But if we get into, let's just hypothetically assume that we find error, why would this be harmless from your perspective?

[00:15:33] Speaker 02:
For a variety of reasons.

[00:15:36] Speaker 02:
First, the jury

[00:15:41] Speaker 02:
Well, I'll start with this.

[00:15:42] Speaker 02:
And the reason I'm struggling is because something kind of came to me yesterday in looking at the cases regarding the some evidence standard.

[00:15:52] Speaker 02:
And it dawned on me that I'm not entirely sure that the claim, the finding of guilt and challenging that finding of guilt and the some evidence standard is something that should have even gone to a jury trial.

[00:16:05] Speaker 02:
If you look at all of the cases involving this some evidence standard,

[00:16:08] Speaker 02:
They all go up for judicial review, the challenging of a guilty finding in a disciplinary context.

[00:16:16] Speaker 02:
They all go up by an inmate or a pre-trial detainee on a writ of habeas.

[00:16:21] Speaker 02:
They somehow make their way through the court system on an appeal.

[00:16:25] Speaker 02:
And the some evidence standard is strictly a standard for judicial review.

[00:16:29] Speaker 02:
And for whatever reason, we ended up trying this issue.

[00:16:34] Speaker 00:
But it's in 1983.

[00:16:36] Speaker 02:
It is in 1983.

[00:16:38] Speaker 02:
You are correct.

[00:16:39] Speaker 00:
That ship has sailed.

[00:16:40] Speaker 00:
It has.

[00:16:41] Speaker 00:
It has.

[00:16:42] Speaker 02:
And I'll bring it around for you.

[00:16:44] Speaker 02:
And why, I believe, one of the reasons it was harmless air is because of that.

[00:16:50] Speaker 02:
Because typically, if an inmate did challenge the sufficiency of a guilty finding and go up on judicial review, then the court, whichever court it was, and let's just say the district court in this case, the Montana district court, would have applied some evidence standard, which is highly, highly deferential.

[00:17:08] Speaker 02:
and would not have weighed any of the credibility of the witnesses, would not have looked at or weighed the evidence, would have just looked at what evidence was in the record, and would have applied the sum evidence deferential standard, giving all or a lot of deference to the prison officials.

[00:17:25] Speaker 02:
In our case, Mr. Briggs got a five-day jury trial in front of a jury.

[00:17:29] Speaker 02:
And the jury was allowed to listen to his testimony, the testimony of all witnesses that he called at trial,

[00:17:38] Speaker 03:
Let me ask you on the harmless error point.

[00:17:40] Speaker 03:
This was your closing argument or perhaps your co-counsel's.

[00:17:44] Speaker 03:
This is a quote.

[00:17:45] Speaker 03:
The instruction of the court has given you, it says, quote, some evidence, end quote, quote, some evidence, end quote.

[00:17:51] Speaker 03:
It doesn't.

[00:17:52] Speaker 03:
We don't have to conduct these hearings and prove guilt beyond a reasonable doubt in a disciplinary hearing.

[00:17:56] Speaker 03:
We don't need to even prove it by a preponderance of the evidence, which is the standard imposed on them in this case.

[00:18:02] Speaker 03:
It just has to be some evidence.

[00:18:04] Speaker 03:
I respectfully submit to you in February there was some evidence that he incited this and participated in it.

[00:18:09] Speaker 03:
Number five, did we violate his due process rights in April by finding him guilty of fighting?

[00:18:14] Speaker 03:
The jury instruction says all we have to do is have some evidence, just some evidence.

[00:18:18] Speaker 03:
You'll see it.

[00:18:19] Speaker 03:
It's one of the instructions.

[00:18:20] Speaker 03:
It's very clear, and don't lose track.

[00:18:22] Speaker 03:
Quote, some evidence, end quote.

[00:18:25] Speaker 03:
Not beyond a reasonable doubt or by a preponderance.

[00:18:27] Speaker 03:
So clearly,

[00:18:29] Speaker 03:
at trial, you felt it was very important, or I'm saying you, counsel, found that this standard was extremely important in whether you prevailed or not.

[00:18:43] Speaker 03:
So why shouldn't we find it?

[00:18:45] Speaker 03:
If we disagree with you that the standard should be some reliable evidence and not just some evidence, how can we find harmless error when it was so critical to your closing argument to the jury?

[00:18:56] Speaker 02:
Well, I will also point out to the court that that closing argument statement is absolutely correct.

[00:19:01] Speaker 02:
That was made at the time of trial, as was additional arguments, one of which is in volume five of the transcript, page 1234, where it was argued to the jury.

[00:19:15] Speaker 02:
You'll have a set of jury instructions or more with numbers on them.

[00:19:19] Speaker 02:
And then it goes on to say, you get to come here.

[00:19:23] Speaker 02:
And judge the credibility of witnesses.

[00:19:25] Speaker 02:
You get to decide whether a witness is truthful, lying, mistaken.

[00:19:29] Speaker 02:
You may recall an instruction the court gave you, which essentially says that you can believe a witness completely.

[00:19:35] Speaker 02:
You can disbelieve a witness.

[00:19:37] Speaker 02:
You can believe it in part.

[00:19:38] Speaker 02:
If somebody gets up and says the wrong date by mistake, that's just an innocent mistake.

[00:19:42] Speaker 03:
So you're saying the some reliable evidence standard, the reliable means nothing.

[00:19:49] Speaker 03:
because we can just rely on preliminary jury instructions and final jury instructions that are in the preliminary sections of the model jury instructions and that just satisfies it.

[00:20:00] Speaker 03:
It's a superfluous word, reliable, right?

[00:20:03] Speaker 03:
It sounds like that's your position.

[00:20:05] Speaker 02:
I wouldn't say that it was a superfluous word.

[00:20:08] Speaker 02:
I would say it's implicit in the rest of the jury instructions.

[00:20:11] Speaker 03:
So then it never needs to be stated, right?

[00:20:13] Speaker 03:
It never needs to be explicit if it's always implicit.

[00:20:17] Speaker 02:
It's not the standard that you would give to a jury.

[00:20:21] Speaker 02:
And it isn't the standard that was given to the jury in this case.

[00:20:24] Speaker 02:
And the sum evidence standard that was given to the jury in this case was correct and implicit in the jury's weighing of the evidence and weighing of the credibility of witnesses and coming to a decision, the jury

[00:20:37] Speaker 02:
looks for reliable versus un-reliable evidence.

[00:20:40] Speaker 03:
So what was Mr. Briggs supposed to do?

[00:20:43] Speaker 03:
Was he supposed to show there's zero evidence, or he's supposed to attack the reliability of Wallisler and Slingstad?

[00:20:51] Speaker 03:
Is he just supposed to attack what you said, the credibility of the government's witnesses?

[00:20:56] Speaker 03:
Or is he supposed to show there's not some evidence, there's zero evidence?

[00:21:00] Speaker 03:
Because those are different questions, right?

[00:21:04] Speaker 02:
Right.

[00:21:04] Speaker 02:
In the cases, so in Hill and Cato and Meeks, what the inmate has to do is show that the sum evidence, any evidence, which is the standard, was actually unreliable evidence.

[00:21:22] Speaker 02:
And they do so by challenging that evidence.

[00:21:25] Speaker 02:
So for example, in the Cato case, the only evidence that met the sum evidence standard in that case for supporting a finding of guilt.

[00:21:34] Speaker 02:
was information from a confidential informant hearsay test or hearsay statements and information gathered from confidential informants that those informants had no actual personal knowledge of.

[00:21:47] Speaker 02:
And the inmate challenged that evidence and said because it is so unreliable, it is not so.

[00:21:52] Speaker 03:
Okay, but what jury instruction did the court in this case give to the jury that says this is how you understand some evidence?

[00:22:01] Speaker 03:
It's not zero evidence versus something.

[00:22:04] Speaker 03:
It's reliable versus not.

[00:22:06] Speaker 03:
Because it sounds like you're saying, oh, the jury would have understood.

[00:22:09] Speaker 03:
They're supposed to inherently make a reliability determination based on this instruction.

[00:22:14] Speaker 03:
And how were they to know that?

[00:22:17] Speaker 03:
If someone just told me it depends on whether there's something or nothing, then I don't think I would inherently understand that that something means, oh, I have to make a reliability determination.

[00:22:28] Speaker 02:
And you are right.

[00:22:29] Speaker 02:
There is no instruction that was given to the jury to advise them or instruct them on how you weigh or decide reliability and how reliability relates to some evidence versus some reliable evidence.

[00:22:45] Speaker 02:
I mean, those instructions weren't given.

[00:22:46] Speaker 02:
It was a some evidence standard given to the jury.

[00:22:49] Speaker 02:
It was the instruction that said this is a minimally stringent standard.

[00:22:54] Speaker 02:
You are not to reweigh the evidence and the credibility, which then again,

[00:22:58] Speaker 02:
I mean, then we have kind of a problem because we're telling them to weigh the credibility of witnesses as well.

[00:23:03] Speaker 03:
But there is no error in the case because I'm sorry, you're saying they were instructed not to weigh credibility that they were told just to determine if there's some evidence versus zero evidence.

[00:23:14] Speaker 02:
They were instructed that there had to be some evidence to support the finding of guilt that the disciplinary board had to rely on some evidence.

[00:23:23] Speaker 02:
And that evidence.

[00:23:23] Speaker 03:
But they were told not to weigh credibility of witnesses?

[00:23:26] Speaker 03:
That would actually be a different problem, correct?

[00:23:29] Speaker 02:
Well, the instruction, and I'll find it for you, is F20.

[00:23:34] Speaker 02:
It says, the due process requires a disciplinary hearing decision must be supported by some evidence in the record.

[00:23:41] Speaker 02:
Whether this standard is satisfied does not require examination of the entire record or independent assessment of the credibility of the witnesses or weighing of the evidence.

[00:23:51] Speaker 02:
this standard is minimally stringent and is satisfied if there is some evidence in the record that supports the conclusion reached.

[00:23:57] Speaker 03:
But don't that just contradict everything you kept saying that implicit the jury was instructed that they had to determine the reliability and credibility of witnesses and they're specifically being told don't make a credibility assessment?

[00:24:09] Speaker 02:
Well and that is why I sort of started the argument with I'm not entirely sure that the jury was I think that the claim of

[00:24:18] Speaker 02:
challenging the sufficiency of guilt was meant to go up on appeal for judicial review rather than to a jury of fact-finders.

[00:24:26] Speaker 02:
However, Mr. Briggs did have a jury trial.

[00:24:29] Speaker 02:
He did have a full five days of jury trial, and Mr. Briggs is the one who put forth this evidence in his case in chief.

[00:24:38] Speaker 02:
Mr. Briggs is the one who presented the video surveillance footage to the jury, and he argued to the jury, look at this footage.

[00:24:48] Speaker 02:
that it supports my argument, it supports my claim in this case, fine for me.

[00:24:54] Speaker 02:
He was able to call witnesses.

[00:24:56] Speaker 03:
So what should we do with the fact that it sounds like the judge gave conflicting jury instructions to the jury?

[00:25:02] Speaker 03:
On the one hand, they gave, I assume, the Ninth Circuit model jury instruction on credibility of witnesses.

[00:25:07] Speaker 03:
On the other hand, they gave a substantive jury instruction that said, don't weigh the credibility of the witnesses.

[00:25:12] Speaker 02:
Well, the credibility of witnesses or the some evidence standard was limited solely to the challenge to the April, 2015 finding of guilt at the disciplinary level.

[00:25:24] Speaker 02:
It didn't apply to any of the other claims that Mr. Briggs brought and in the special verdict form.

[00:25:30] Speaker 03:
The jury was asked so we're required by law to presume the jury followed the jury instructions Which jury instruction should we assume they follow the one that says make a credibility?

[00:25:41] Speaker 02:
Assessment or the one that says do not make a credibility assessment well So again, they would have followed all of we have to assume they followed all of them, but this is how do you follow one?

[00:25:49] Speaker 03:
That says make a credibility assessment the other one that says do not make how do you follow that well?

[00:25:54] Speaker 02:
And again so instruction f20 which we're discussing here today that goes over the the some evidence standard

[00:26:00] Speaker 02:
would have only been applicable to the one claim brought by Mr. Briggs challenging the sufficiency of his guilty finding in an April of 2015 hearing.

[00:26:12] Speaker 02:
There were a variety of other claims brought by Mr. Briggs, the special verdict form.

[00:26:16] Speaker 03:
Right, but that is the claim that we're looking at right now, right?

[00:26:18] Speaker 03:
That is the subject of this appeal.

[00:26:20] Speaker 03:
Right.

[00:26:21] Speaker 03:
So I don't even think we need to talk about other claims.

[00:26:23] Speaker 03:
Let's just talk about the one claim that's the subject of this appeal.

[00:26:27] Speaker 03:
the jury was given conflicting instructions about whether they should assess the credibility of witnesses, correct?

[00:26:33] Speaker 02:
In that one claim, they were told that the evidence or the standard that they had to review for that particular claim was some evidence and that it is minimally stringent and it is satisfied if there is some evidence in the record that supports the conclusion.

[00:26:49] Speaker 02:
They were advised it does not require examination of the entire record or independent assessment, but they were also advised

[00:26:57] Speaker 02:
that they should assess witness credibility and weigh evidence.

[00:27:01] Speaker 03:
So they weren't- Not for that claim, for the other claims that are not the subject of this appeal, correct?

[00:27:06] Speaker 02:
All of the other instructions also applied to all of the claims.

[00:27:10] Speaker 02:
So when you read instruction F20, and I completely understand the court's question because I too, that's sort of how I came to this realization yesterday that this claim maybe wasn't supposed to be in front of a jury.

[00:27:25] Speaker 02:
But we gave Mr. Briggs a five-day jury trial on it in any event.

[00:27:29] Speaker 02:
But the jury instruction F20 says that this standard, the some evidence standard, does not require examination of the entire record or independent assessment of the credibility.

[00:27:41] Speaker 02:
But then they were advised that they should.

[00:27:43] Speaker 02:
And we argued.

[00:27:45] Speaker 03:
So I guess, anyway, I won't waste any more time on this.

[00:27:48] Speaker 02:
No, and I completely understand.

[00:27:49] Speaker 02:
I guess my position would be that we did, in fact, urge

[00:27:53] Speaker 02:
the jury in closing and throughout the trial to rely upon their own weighing of the evidence to weigh the credibility of the... No, you didn't.

[00:28:02] Speaker 03:
I just read you the jury, your closing argument.

[00:28:05] Speaker 03:
If that jury instruction said, some evidence means do not assess the credibility of witnesses, and counsel for the government kept saying, some evidence, some evidence.

[00:28:16] Speaker 03:
I mean, I'm quoting some evidence three times in quotes.

[00:28:20] Speaker 03:
Look at that jury instruction.

[00:28:21] Speaker 03:
It's just some evidence.

[00:28:23] Speaker 03:
You are not telling them in closing to weigh the reliability of evidence.

[00:28:29] Speaker 03:
If you did, you would be telling them contrary to the jury instructions.

[00:28:32] Speaker 02:
Well, again, and I will just point out that the remaining portion of the closing argument that I did.

[00:28:38] Speaker 00:
I'm going to give you a little extra time because I would like you to assume error and tell me why there was some evidence, why it would be harmless.

[00:28:49] Speaker 00:
I would like you to tell me why it would be harmless.

[00:28:53] Speaker 02:
In this case, Mr. Briggs was afforded a five-day long jury trial with dozens of witnesses and the video surveillance footage showing sort of the incident.

[00:29:06] Speaker 02:
I'll call it the incident with inmate Smith in April of 2015, which admittedly neither Mr. Briggs nor the county actually briefed the factual background of that incident for the court.

[00:29:18] Speaker 02:
So the court may be at a disadvantage in knowing those facts.

[00:29:22] Speaker 02:
That video surveillance footage was played by Mr. Briggs to the jury.

[00:29:26] Speaker 02:
They watched it.

[00:29:28] Speaker 02:
Mr. Briggs called witnesses to talk about that footage.

[00:29:32] Speaker 03:
The incident where Mr. Smith was involved is not the subject of this appeal, correct?

[00:29:37] Speaker 03:
This appeal just concerns Steele, correct?

[00:29:42] Speaker 03:
And again, we don't need to look at the evidence of other claims involving incidents with other inmates that they're not the subject of this appeal, correct?

[00:29:50] Speaker 03:
I don't know how that shows harmless error with regard to the incidents involving steel.

[00:29:56] Speaker 02:
And so to answer that question, and I am not trying to say that the court is wrong.

[00:30:02] Speaker 02:
What I will say is that we as the parties were wrong in our briefing.

[00:30:06] Speaker 02:
We as the parties, we briefed the factual background related to a February 2015 incident.

[00:30:12] Speaker 02:
involving Mr. Smith or Mr. Steele, I apologize, involving some food throwing and things like that.

[00:30:20] Speaker 02:
At the time of trial, Mr. Briggs did not challenge the sufficiency of a guilty finding at the disciplinary level for the February 2015 incident with Mr. Steele.

[00:30:33] Speaker 02:
He only challenged a separate incident in April of 2015 involving an inmate named Mr. Smith.

[00:30:41] Speaker 02:
We as the parties made an error in our briefing.

[00:30:45] Speaker 02:
We briefed the factual background related to the February 2015 incident with Mr. Steele and omitted the factual background of the April 2015 incident with Mr. Smith.

[00:30:58] Speaker 02:
But the special verdict form, which is

[00:31:01] Speaker 02:
I have the citation to it in the record.

[00:31:03] Speaker 00:
So what was the jury evaluating for some evidence?

[00:31:07] Speaker 02:
The same things as what they evaluated in February of 2015.

[00:31:12] Speaker 00:
So was it the Steele or the Smith incident?

[00:31:15] Speaker 02:
The Smith incident which had the same evidentiary support that the disciplinary board relied upon as February with Mr. Steele.

[00:31:24] Speaker 02:
So video surveillance footage which Mr. Briggs presented to the jury and testified about

[00:31:31] Speaker 02:
reports related to the incident that was involved in the video surveillance footage, interviews that were conducted by the disciplinary board or the officers who interviewed Mr. Smith and Mr. Briggs about what the video surveillance footage showed, as well as the officer's experience and their own background in having run a jail, which contributed to how they interpreted that video surveillance.

[00:32:01] Speaker 02:
All of that is evidence that the board, the disciplinary board relied upon when they found Mr. Briggs guilty in April of 2015 of fighting and then was re-presented at trial to the jury for them to consider whether or not there was some evidence to support the finding of guilt for fighting.

[00:32:20] Speaker 03:
You know, I have just looked through your entire answering brief.

[00:32:24] Speaker 03:
I don't see Smith mentioned

[00:32:26] Speaker 03:
And that is absolutely correct.

[00:32:29] Speaker 03:
I only see Steele.

[00:32:31] Speaker 03:
I'm hearing this for the first time.

[00:32:32] Speaker 03:
Anything about Smith?

[00:32:36] Speaker 03:
So you're saying your entire answering brief is wrong.

[00:32:39] Speaker 03:
It's briefing the wrong incidents involving the wrong alleged victim.

[00:32:43] Speaker 02:
Only the factual background.

[00:32:45] Speaker 02:
So the factual background in both the opening brief and the opposition brief, our answer brief,

[00:32:53] Speaker 02:
only discusses a February 2015 incident with Mr. Steele.

[00:32:58] Speaker 02:
That was an error.

[00:32:59] Speaker 02:
I fully take responsibility for that.

[00:33:01] Speaker 02:
I looked at the opening brief, saw it, discussed February of 2015, and responded accordingly.

[00:33:07] Speaker 02:
It was an error.

[00:33:09] Speaker 02:
The only thing at trial that the jury had to decide upon, that the sum evidence standard would have applied to, was an April of 2015 incident.

[00:33:19] Speaker 03:
So I'm also looking at your answering brief.

[00:33:20] Speaker 03:
I don't see any harmless error analysis in here.

[00:33:23] Speaker 02:
There is definitely a harmless error analysis.

[00:33:27] Speaker 02:
I believe it's towards the end of our argument.

[00:33:30] Speaker 02:
I'll find the page number for you.

[00:33:33] Speaker 03:
And if it's in here, it's involving the wrong victim and the wrong incidents.

[00:33:38] Speaker 03:
That's your position today, correct?

[00:33:40] Speaker 03:
It's involving Steele, but you should be arguing Smith.

[00:33:42] Speaker 02:
Well, the same would be true of the opening brief by the appellant that his argument regarding the wrong jury instruction

[00:33:48] Speaker 02:
the wrong evidence, the unreliability of the evidence.

[00:33:51] Speaker 03:
Actually, why don't you go ahead and point me to the pages where you think it addresses harmless error, because I didn't see it, but perhaps I missed it.

[00:33:59] Speaker 02:
I apologize.

[00:34:00] Speaker 02:
I believe it's on page 22, beginning on page 22.

[00:34:03] Speaker 02:
The last paragraph.

[00:34:08] Speaker 02:
There is no evidence presented or argument made by Briggs that the jury instruction regarding some evidence.

[00:34:15] Speaker 03:
Further, there's no evidence presented or argument made by Briggs that the jury instruction regarding some evidence presented him or harmed him in any way or that the jury would not have found exactly as it did irrespective of the jury instruction.

[00:34:27] Speaker 03:
And then I believe it goes where does it give your affirmative harmless error case.

[00:34:32] Speaker 03:
Okay.

[00:34:32] Speaker 03:
I mean I can read this whole paragraph if you want Briggs argues that because counsel for Gallatin County discussed the standard during closing argument he was harmed of course closing argument is not evidence for the jury to consider and there was a jury instruction detailing.

[00:34:44] Speaker 03:
that given to the jury in this case, instruction number F4, which we've just gone over.

[00:34:49] Speaker 03:
Briggs cannot genuinely argue the jury was persuaded solely by the very brief discussion of the some evidence standard made by counsel during closing argument when they were also instructed that closing argument is not evidence they can rely upon when deciding facts in the case.

[00:35:00] Speaker 03:
Are there other parts of your brief that you can point me to that are your harmless error argument, or is this it?

[00:35:07] Speaker 02:
Well, it proceeds through the rest of page 23, page 24,

[00:35:12] Speaker 03:
Okay, but I see nothing that says, I mean, I could read this all, but I'm not going to waste time here, but it just goes on about the jury would have performed the same analysis of the same evidence, weighed the credibility of the same witnesses, and returned with the same verdict.

[00:35:27] Speaker 03:
As we know, the credibility is kind of in question.

[00:35:29] Speaker 03:
Injecting the word reliable into the instruction would have made no difference, especially when the jurors were provided with a number of other instructions.

[00:35:37] Speaker 03:
You know, it just keeps going.

[00:35:39] Speaker 03:
So I just don't see an affirm, it seems more like this is argument and I don't see, I mean you agree with me though, that under Clemby Lommelie the burden shifts.

[00:35:52] Speaker 03:
to the defendant to demonstrate harmless error, right?

[00:35:55] Speaker 03:
If we find there's an error in the jury instructions.

[00:35:57] Speaker 03:
I just don't see your affirmative case of here's the evidence that we had.

[00:36:02] Speaker 03:
Everything is like Briggs had every opportunity to challenge the reliability.

[00:36:06] Speaker 03:
Briggs had the opportunity to challenge each witness's credibility.

[00:36:08] Speaker 03:
Briggs had the opportunity to present his own testimony.

[00:36:10] Speaker 03:
I'm just going through all of 24.

[00:36:12] Speaker 03:
25 is the same.

[00:36:14] Speaker 00:
Well, I guess I do see that as a harmless error.

[00:36:19] Speaker 00:
Argument it may not be the best one you could have made but it does appear when you say that there would not have been a different result That is a harmless error Argument, I think so maybe we disagree on that point and our argument just to reiterate for the court So that there's clarity on that issue our argument is that there would be if you assume error Which our position is there's no error the standard in every case I understand that so if you assume error

[00:36:49] Speaker 02:
It was harmless because the jury instructions are read as a whole.

[00:36:55] Speaker 02:
There is a site in our brief on page 24 as well as the Dang case that this court provided in its order prior to oral argument that says you take the jury instructions as a whole to determine whether or not there was error.

[00:37:10] Speaker 02:
So as a whole, the jury instructions read together would have created no error in this case even if reliable needed to be inserted.

[00:37:19] Speaker 02:
because the jury was advised throughout the jury instructions that they needed to weigh credibility, they needed to look at the evidence, and it would be implicit that they would reject unreliable evidence.

[00:37:31] Speaker 02:
As well as Mr. Briggs was the one who presented this evidence in his case in chief and argued to the jury that they should rely on it.

[00:37:41] Speaker 02:
It wasn't the county in its defense that presented video surveillance footage.

[00:37:46] Speaker 02:
It was Mr. Briggs.

[00:37:48] Speaker 02:
He presented it.

[00:37:49] Speaker 02:
He made and offered testimony on his own behalf about what that video surveillance showed.

[00:37:54] Speaker 02:
And he argued to the jury that the video, in essence, was so reliable, it supported his claim.

[00:38:00] Speaker 02:
And then if there were arguments... All right.

[00:38:02] Speaker 00:
I think we're kind of treading over the same material.

[00:38:04] Speaker 00:
So unless any of my colleagues, and we've taken you way over time, have additional questions.

[00:38:12] Speaker 03:
No, thank you.

[00:38:12] Speaker 00:
All right.

[00:38:13] Speaker 02:
Thank you.

[00:38:13] Speaker 02:
Thank you so much.

[00:38:14] Speaker 02:
It was lovely to argue in front of you.

[00:38:17] Speaker 02:
So thank you.

[00:38:22] Speaker 00:
All right.

[00:38:23] Speaker 00:
I'm going to put three minutes on your clock for rebuttal.

[00:38:26] Speaker 00:
And since we went significantly over, we'll see what other questions we have.

[00:38:33] Speaker 04:
Thank you, Your Honor.

[00:38:34] Speaker 04:
I just would like to point out one thing.

[00:38:36] Speaker 04:
Under the jury instruction is given, your hypothetical situation about a disciplinary board officer going to a disciplinary board and saying, my ESP tells me that this person did it.

[00:38:50] Speaker 04:
If the disciplinary board accepts that,

[00:38:52] Speaker 04:
under this jury instruction, the jury has to find that there was some evidence to support that decision.

[00:38:58] Speaker 04:
And that's erroneous.

[00:39:00] Speaker 04:
Based off that instruction alone, there's no way that a prisoner could ever win, because as long as there is any evidence, as long as the disciplinary board

[00:39:11] Speaker 04:
decided anything.

[00:39:13] Speaker 00:
Your client did actually win.

[00:39:15] Speaker 00:
He got two cents.

[00:39:17] Speaker 00:
That's what they awarded him.

[00:39:19] Speaker 00:
I'm not sure what the two cents was for, but that was his damages.

[00:39:24] Speaker 04:
Yes, Your Honor.

[00:39:25] Speaker 04:
He won under a

[00:39:27] Speaker 04:
under the claim that the board erred in not giving him factual findings in their written decision.

[00:39:34] Speaker 04:
So he won under a procedural ground, which I'm glad he won that one.

[00:39:41] Speaker 04:
But as far as the jury instruction went, if there was some evidence in the record, he loses everything, no matter how flimsy the evidence is.

[00:39:51] Speaker 04:
And I did want to point out, in the Cato case, the court actually looks at two things.

[00:39:56] Speaker 04:
So they look at the evidence related to a confidential informant, but they also look at polygraph evidence.

[00:40:01] Speaker 04:
And they say, that's not reliable either.

[00:40:04] Speaker 04:
So again, under this instruction, under the Cato case, the jury would have been forced to look at it and say, well, there was a polygraph test.

[00:40:12] Speaker 04:
And they based it off of the polygraph test.

[00:40:14] Speaker 04:
And that's some evidence.

[00:40:16] Speaker 04:
So we have to affirm this decision from them.

[00:40:19] Speaker 04:
So just under this test,

[00:40:23] Speaker 04:
This court's precedent under Cato, under Powell, under everything, it somewhat makes some indicia of reliability standard moot because as long as the disciplinary board at the lower level accepted that there was some evidence, no matter how, if they found it was reliable, no matter what they accepted,

[00:40:47] Speaker 04:
then the jury's decision is set.

[00:40:50] Speaker 04:
The jury does not get to make a different decision under this jury instruction that they faced.

[00:40:59] Speaker 04:
And if there are no questions, I will see you to remainder of my time.

[00:41:03] Speaker 00:
Thank you both for your argument.

[00:41:06] Speaker 00:
And we obviously appreciate everyone that appears before the court.

[00:41:11] Speaker 00:
But in situations where people take pro bono assignments, I always like

[00:41:16] Speaker 00:
to indicate that that is helpful to the court, and we do appreciate attorneys giving their pro bono time so that issues can be best briefed before the court.

[00:41:26] Speaker 00:
Thank you both for your arguments.

[00:41:27] Speaker 00:
This matter will stand submitted.