[00:00:00] Speaker 02: We will now hear argument in the final argued case of the day, which is Larry Severson versus Ross and the United States as intervenor. [00:00:17] Speaker 00: Thank you, your honor. [00:00:18] Speaker 00: Good morning. [00:00:19] Speaker 00: May it please the court. [00:00:20] Speaker 00: Maya Waldron for petitioner, Larry Severson. [00:00:23] Speaker 00: I intend to reserve about 10 minutes. [00:00:27] Speaker ?: Okay. [00:00:28] Speaker 00: At Mr. Severson's trial for allegedly murdering his wife, Mary, none of the experts could conclusively determine how Mary died. [00:00:36] Speaker 00: They all agreed she could have died of an accidental overdose. [00:00:40] Speaker 00: The state presented only circumstantial evidence and the defense presented a compelling case for acquittal. [00:00:46] Speaker 00: The prosecutor knew that he did not have a conviction in the bag, so he resorted to relentless and blatant misconduct during rebuttal closing argument. [00:00:55] Speaker 00: He described Mr. Severson's prior affair as screwing some 21-year-old tramp. [00:01:01] Speaker 00: He vouched for the state's expert, saying he was a very credible individual with nothing to lose. [00:01:07] Speaker 00: He told the jury, innocent until proven guilty. [00:01:11] Speaker 00: Yes, today ends that preposition. [00:01:14] Speaker 00: There is no innocence in this courtroom except the innocence of Mary Severson. [00:01:18] Speaker 00: And the very last thing that the prosecutor told the jury, [00:01:22] Speaker 00: was that Mary was a mother, a daughter, a sister, and quote, Mary Severson's life had a purpose and it had meaning. [00:01:29] Speaker 00: Your duty today is to give her death justice. [00:01:32] Speaker 00: Now, defense counsel sat silently through all of that misconduct and under either Ed Pedeference or de novo review, that was ineffective. [00:01:41] Speaker 02: So today I want to focus on- Let me get, at least from my perspective, the concern before we get to prejudice. [00:01:49] Speaker 02: I'm sure you're very familiar with Strickland. [00:01:51] Speaker 02: And the district court concluded, the trial court concluded that there was, in quotes, overwhelming evidence and therefore the first prong of Strickland was not satisfied. [00:02:06] Speaker 02: You've accurately described what was said in connection with the final claims by the prosecution to the jury. [00:02:15] Speaker 02: Obviously, unless what was done [00:02:20] Speaker 02: fell below the standard for, in this case, capital defense lawyers. [00:02:26] Speaker 02: In this case, you lose on prong one. [00:02:29] Speaker 02: What is your best argument of the, you cited all these things that were said, what's your best argument that what was said was so violative of the first prong of Strickland that basically we have to reverse because [00:02:47] Speaker 02: The failure to raise this issue if we get past the prejudice issue is just enough. [00:02:53] Speaker 02: You gotta have a new trial. [00:02:55] Speaker 02: What's your best argument? [00:02:57] Speaker 00: To clarify, Your Honor, you're asking about deficient performance, specifically not prejudice, correct? [00:03:03] Speaker 02: Oh, I'm not getting to prejudice yet. [00:03:04] Speaker 02: I'm starting with the first prong, which is whether the, if you will, the conduct or lack of conduct by the council here fell below the standard [00:03:18] Speaker 02: of an appropriate capital defense lawyer so that the first problem of Strickland was not satisfied. [00:03:25] Speaker 02: The trial court said there was overwhelming evidence. [00:03:28] Speaker 02: There's no such problem. [00:03:29] Speaker 02: What's the argument that the district court got it wrong? [00:03:33] Speaker 00: Yeah. [00:03:33] Speaker 00: Well, the magistrate court referred to overwhelming evidence. [00:03:36] Speaker 00: I don't see that as going towards deficient performance only to prejudice. [00:03:41] Speaker 02: All right. [00:03:42] Speaker 02: Let's put that aside then. [00:03:43] Speaker 02: Let's go directly to the performance. [00:03:45] Speaker 00: Yeah, so my first point on deficient performance under 2254 D1 is that the Idaho Court of Appeals in Severson for its decision was contrary to [00:03:59] Speaker 00: both Strickland and Roe versus Flores Ortega 2000 US Supreme Court case. [00:04:04] Speaker 00: And that's because the Severson Four Court never conducted the requisite analysis. [00:04:08] Speaker 00: It never determined whether or not defense counsel acted reasonably by failing to object. [00:04:14] Speaker 00: It just said this was probably strategic and it moved on. [00:04:17] Speaker 00: Now we know from Roe versus Flores Ortega that [00:04:21] Speaker 00: explicitly that the question is not whether a decision was strategic, it was whether it was reasonable. [00:04:28] Speaker 00: So right off the bat, this court gets past 2254D1 and needs to review deficient performance de novo. [00:04:38] Speaker 00: On the merits, trial counsel simply could not have reasonably opted to sit silent through this barrage of misconduct. [00:04:46] Speaker 00: Again, we have vouching that was [00:04:48] Speaker 00: clear and unequivocal misconduct. [00:04:51] Speaker 00: We have the trampling of the presumption of innocence that goes to one of the most fundamental rights that Mr. Severson had at his trial. [00:04:58] Speaker 00: We have what by all accounts is incredibly offensive, egregious statements referring to Mr. Severson's affair as screwing some 21-year-old tramp. [00:05:11] Speaker 05: It would be helpful to me if we could maybe take these buckets of statements [00:05:18] Speaker 05: individually. [00:05:19] Speaker 05: So if we could just start with the comments about the affair partner, I guess I wonder why reasonable counsel couldn't have thought that, you know, these comments make the prosecution look terrible. [00:05:33] Speaker 05: So I'm going to sit back and let him make it. [00:05:37] Speaker 05: I'm going to let him sink himself by looking like a hothead using this kind of language before the jury. [00:05:45] Speaker 05: Why could that not have been a [00:05:47] Speaker 05: strategic or a reasonable choice, just focusing on those comments first. [00:05:52] Speaker 00: Yeah. [00:05:52] Speaker 00: Well, I think in this situation, I understand wanting to focus on the separate comments. [00:05:59] Speaker 00: But when you have a barrage of improper comments, I don't think it's fair to say, oh, they let one improper comment slide. [00:06:05] Speaker 00: Here we had comment after comment after comment. [00:06:08] Speaker 00: And each of those is misconductive. [00:06:10] Speaker 05: Some are improper than added up. [00:06:13] Speaker 05: There's still not. [00:06:15] Speaker 05: you know, it's still not a problem, right? [00:06:17] Speaker 05: If none of the failures to object are not improper individually, they wouldn't add up to. [00:06:24] Speaker 00: Right, but if we assume that it can sometimes be reasonable to let a single improper comment slide, I think that argument falls apart when you have a pattern of misconduct. [00:06:35] Speaker 02: So are you saying that the only way you win is if on a cumulative basis, taking all the points that you've made [00:06:45] Speaker 02: If cumulative that adds up, then you win. [00:06:47] Speaker 02: If not, you lose. [00:06:49] Speaker 00: No, your honor, because I don't think that that deficient performance rests on cumulative error. [00:06:54] Speaker 00: My point is simply that letting a single comment slide might be reasonable. [00:07:00] Speaker 00: But when you have a pattern of misconduct throughout a rather short rebuttal argument, that failing to object to those repeated instances of misconduct cannot be- Aren't we getting into a circular argument? [00:07:15] Speaker 02: Judge Thomas just pointed out, okay, you've got this individual comment about screwing some 19 year old tramp. [00:07:21] Speaker 02: She's saying, couldn't that have been a strategic decision? [00:07:25] Speaker 02: If I understand you, [00:07:26] Speaker 02: You're saying, well, if you go through the whole series of these together and you add them all together, that's the problem. [00:07:31] Speaker 02: That's why I said, do you depend on a cumulative number of these together or is there some individual comment by the prosecutor that sinks their case? [00:07:49] Speaker 00: There, your honor, they're each misconduct. [00:07:52] Speaker 00: It was unreasonable to object to each of them. [00:07:55] Speaker 00: It was particularly unreasonable to fail to object to the series of misconduct. [00:08:02] Speaker 04: I take it your argument is that if you take one comment in isolation out of a long argument, there may be arguably some strategic value there, but there's no strategic value. [00:08:16] Speaker 04: when the misconduct happens the second time and then the third time. [00:08:20] Speaker 04: So any strategic value essentially is gone once the prosecutor keeps repeating the misconduct. [00:08:30] Speaker 00: Yes, Your Honor. [00:08:30] Speaker 00: And look, I think we have here what the jury could see as acquiescence. [00:08:36] Speaker 00: The defense counsel didn't say, wait a second, you can't use that type of language in the court. [00:08:42] Speaker 00: And so beyond [00:08:45] Speaker 00: beyond it just being unreasonable not to intervene, really, it signals to the jury that defense counsel is somehow in agreement with or acquiescing in these statements. [00:09:00] Speaker 00: So each separate instance of misconduct was unreasonable. [00:09:06] Speaker 00: It was unreasonable for defense counsel not to object to them, but particularly, as Judge Wynn said, when you add them all together, [00:09:14] Speaker 00: It simply is unreasonable to fail to object to such an egregious series of misconduct. [00:09:22] Speaker 02: So that gets back then to what I raised in the first place, which is to be successful, you have to be successful on the cumulative impact of these individual [00:09:35] Speaker 02: objectionable comments by the prosecutor. [00:09:38] Speaker 00: Is that correct? [00:09:39] Speaker 02: Getting to prejudice, Your Honor, I would argue that under... Go back to the first part, because I think if I understood you correctly, you're saying that as to step one, the cumulative impact is what lets you win. [00:09:53] Speaker 02: Is that wrong? [00:09:54] Speaker 00: No, that is not what I'm saying. [00:09:55] Speaker 00: What I'm trying to say to be clear is that each statement was misconduct. [00:10:00] Speaker 00: it was deficient performance to fail to object to each statement individually. [00:10:05] Speaker 00: But particularly when you look at the big picture, no reasonable attorney could sit back and allow the prosecutor to engage in this repeated pattern of misconduct and rebuttal. [00:10:17] Speaker 05: I still don't think that you've answered my question, because I asked you a question about these two comments. [00:10:23] Speaker 05: You said it wasn't fair to just look at these two comments. [00:10:26] Speaker 05: But I think your answer to Judge Smith's question is that you're [00:10:30] Speaker 05: You're not arguing that we need all of them in a cumulative fashion that it was a failure to object to each of them individually. [00:10:38] Speaker 05: So it'd be helpful to me if you could tell me why the failure to object to those two comments. [00:10:45] Speaker 00: Yeah, because this was outrageous. [00:10:47] Speaker 00: It was absolutely outrageous for the prosecutor to refer to this affair as Mr. Severson screwing some 21-year-old tramp. [00:10:56] Speaker 00: that language was clearly calculated to inflame the passions and prejudices of the jury. [00:11:01] Speaker 00: And although the jury might've thought, oh, that's not proper language to use in a courtroom, you didn't have an objection. [00:11:06] Speaker 00: You didn't have an instruction saying to disregard it. [00:11:10] Speaker 00: So that is absolutely unreasonable. [00:11:11] Speaker 04: Well, counsel, you're gonna have to overcome prejudice as well. [00:11:18] Speaker 04: I mean, I tend to agree with you that these statements are beyond the pale as to [00:11:25] Speaker 04: know, state Supreme Court justices agreed with that. [00:11:28] Speaker 04: I think your problem on prong one is that now we have a layer of deference that we apply that the state justices don't have. [00:11:39] Speaker 04: But assuming that you get past that burden, the evidence seems pretty compelling. [00:11:43] Speaker 04: So can you address the question of prejudice that shows that that she was poisoned? [00:11:52] Speaker 04: Absolutely. [00:11:53] Speaker 00: Yes, Your Honor. [00:11:54] Speaker 00: Yeah. [00:11:55] Speaker 00: So just as an initial matter again on prejudice, the court's decision was also contrary to Strickland. [00:12:02] Speaker 00: So also on that prong, the court should review it de novo. [00:12:07] Speaker 00: And that's because it didn't think there was such a thing as cumulative prejudice on post-conviction. [00:12:11] Speaker 00: It declined to consider and accumulate the statements about the affair. [00:12:18] Speaker 00: because Severson I had found that they were individually not prejudicial, so it didn't ever conduct a cumulative error analysis. [00:12:25] Speaker 00: We know from Strickland itself that all errors must be considered together when deciding prejudice, and that includes errors that are individually not prejudicial, such as the comments about the affair. [00:12:38] Speaker 00: But- I'm not sure I'm with you there, but [00:12:42] Speaker 04: But let's tackle the evidence, because there were lies told, there was a pulling of the insurance policy. [00:12:50] Speaker 04: Immediately after her death, there was evidence that was found at the House. [00:12:54] Speaker 04: You're going to have to overcome that. [00:12:56] Speaker 00: Absolutely, Your Honor. [00:12:57] Speaker 00: So under prejudice, even under 2254D1 and having to show that it was an unreasonable application, every fair-minded jurist would conclude that there was a reasonable probability [00:13:10] Speaker 00: that had counsel objected, the jury would not have found guilt. [00:13:13] Speaker 02: So as I already discussed- And you base that on what? [00:13:19] Speaker 02: I'm sorry, what's that? [00:13:20] Speaker 02: You base your statement on what? [00:13:24] Speaker 02: That every fair-minded jurist would have not convicted. [00:13:27] Speaker 00: Yeah. [00:13:28] Speaker 02: What are you basing that on? [00:13:29] Speaker 00: Well, let me explain. [00:13:30] Speaker 00: So as I just discussed, the misconduct was repeated, egregious, and impactful. [00:13:35] Speaker 00: It was the very last thing that the jury heard from the attorneys. [00:13:39] Speaker 00: The standard instructions did not address the misconduct, couldn't have cured the violations. [00:13:45] Speaker 00: And getting to, I think, the heart of Judge Wynn's questions, the case was purely circumstantial. [00:13:53] Speaker 00: And I strongly disagree that there was overwhelming evidence. [00:13:57] Speaker 00: This was not a slam dunk. [00:13:59] Speaker 00: Again, none of the experts could conclusively say how she died, whether it was accidental or a homicide. [00:14:07] Speaker 00: but they all agreed that she could have accidentally overdosed. [00:14:12] Speaker 00: Um, so that circumstantial evidence was used to prove not just that Mr. Severson murdered Mary, but that this was a homicide at all as opposed to an accidental death. [00:14:23] Speaker 00: Uh, the smothering theory was speculative and it was refuted by the defense expert. [00:14:29] Speaker 00: And then there was a bunch of evidence to support acquittal. [00:14:31] Speaker 00: So Mr. Severson in the months leading up to Mary's death was trying to figure out what was going on with these hydroxy cut pills. [00:14:38] Speaker 00: And he essentially talked to anybody who would listen. [00:14:40] Speaker 00: to try to figure that out. [00:14:42] Speaker 00: He talked to his own pharmacist, the Idaho Board of Pharmacy, the USDA, the manufacturer. [00:14:47] Speaker 00: A friend of his testified that Mr. Severson... But the jury had all of that and they rejected it. [00:14:54] Speaker 00: They did your honor, but they rejected it after two days of deliberations. [00:14:59] Speaker 00: So when you have a two count charge and you know, it was a long trial, but it wasn't a complicated case, a super technical case or anything like that. [00:15:09] Speaker 00: When the jury deliberates for two days, that should signal to this court more than anything else that this was not a straightforward case that the jury. [00:15:17] Speaker 00: did not see it as clear cut. [00:15:19] Speaker 00: And then when you pair that with the egregiousness of the misconduct, the fact that it was one of the very last things that the jury heard, we absolutely show prejudice under either de novo review or ed pa deference. [00:15:37] Speaker 04: Well, even on de novo review, the prosecution now gets the benefit of all the inferences in their favor. [00:15:45] Speaker 04: It's really hard when you have to, you know, [00:15:48] Speaker 04: where you have a strong defense and the jury heard it and they rejected it. [00:15:54] Speaker 00: Well, but then I think, Your Honor, you would never overcome the burden because we're always here on a conviction, right? [00:16:00] Speaker 00: Again, I think the big picture, if you zoom out, is comparing the relative strength or weakness of the state's case to the egregious- Sure, but here, it's not like the government didn't have any evidence. [00:16:13] Speaker 04: You've got motive, you've got numerous unexplained [00:16:17] Speaker 04: in this particular lies told to multiple people, you've got physical evidence found in the house that corroborated the prosecution's case. [00:16:26] Speaker 04: That's a strong case. [00:16:28] Speaker 00: You know, some of that evidence did corroborate the state's case. [00:16:32] Speaker 00: A lot of it also could cut both ways. [00:16:34] Speaker 00: And so I think that's important to recognize that it wasn't totally [00:16:39] Speaker 00: indicative of guilt rather than innocence. [00:16:42] Speaker 00: But I would direct the court to this court's decision in Zapata, because it's a very similar scenario where you have misconduct in closing, in rebuttals specifically. [00:16:54] Speaker 00: And there, this court found that the prejudice determination was unreasonable under ed-pedeference. [00:17:03] Speaker 00: And there was plenty of evidence in that case that Zapata was guilty of this murder, including witness testimony that he had confessed to shoot, shooting somebody up outside of a 7-Eleven. [00:17:15] Speaker 00: So the strength of the case here, I don't think is any stronger than in Zapata. [00:17:22] Speaker 00: And there, this court found that the egregious misconduct, uh, overcome, overcame prejudice, even under ed-pedeference. [00:17:30] Speaker 05: Can you tell us of the, of the evidence that Judge Wynn just recited, what are the, what are the pieces that you think cut both ways? [00:17:39] Speaker 05: Like what are, if you could tell us what the strongest pieces are that cut both ways? [00:17:42] Speaker 00: Yeah. [00:17:42] Speaker 00: Well, for example, um, I believe that the state cited to the sleeping pills being found in all of these various locations. [00:17:49] Speaker 00: And one of them was tucked in the brim of a hat that said dad or world's best dad or something like that. [00:17:55] Speaker 00: And so they said, oh, look, Mr. Severson had these pills. [00:17:59] Speaker 00: But my point is if he's trying to murder his wife, he's not gonna leave evidence tied directly to him rather than to her laying around the house. [00:18:09] Speaker 00: So that's an example of a piece of evidence that could very easily cut both ways. [00:18:16] Speaker 02: How do you deal with the insurance policy issue? [00:18:20] Speaker 02: If I understand the record correctly, [00:18:24] Speaker 02: There was a, if you will, a claim that the mother or mother-in-law had an insurance policy by a desk or by a bed, asked someone to get it. [00:18:38] Speaker 02: The mother-in-law or whoever it was denied that. [00:18:41] Speaker 02: He had previously also said that he didn't want a divorce because she had everything in her name. [00:18:48] Speaker 02: How do you distinguish that? [00:18:49] Speaker 02: I mean, is there any way to explain that in a [00:18:54] Speaker 02: way that benefits your client? [00:18:58] Speaker 00: I don't know that the insurance policy is here or there. [00:19:01] Speaker 00: The testimony I believe was that Mr. Severson thought the policy would give the money to him, but really it went to the mother-in-law, Mary's mother. [00:19:12] Speaker 02: But he asked to get the policy because he understood it differently, right? [00:19:17] Speaker 00: I believe there was testimony to that effect. [00:19:20] Speaker 04: It's motive evidence, which is pretty powerful when you have a circumstantial case. [00:19:27] Speaker 00: Correct. [00:19:27] Speaker 00: The state had circumstantial evidence. [00:19:29] Speaker 00: That's not disputed. [00:19:32] Speaker 00: What I think this court needs to look at for prejudice is the relative strength of the state's case compared to the egregiousness [00:19:41] Speaker 00: And again, that none of the experts knew how Mary died. [00:19:44] Speaker 00: They all said this could have been an accidental overdose. [00:19:47] Speaker 00: And it was just this circumstantial evidence that was used to not just convict Mr. Severson of murder, but to try to prove that this was a homicide in the first place, rather than an accidental death. [00:19:58] Speaker 02: But circumstantial evidence plays into a lot of murder convictions, does it not? [00:20:04] Speaker 00: I think it does, but while the court has more experience with this than I do, but I have not personally had a case where circumstantial evidence was used to prove that it was a homicide in the first place, where everybody agreed this could have been an accidental overdose. [00:20:23] Speaker 00: So I see that as quite different than your average murder case. [00:20:27] Speaker 00: that uses, for example, circumstantial evidence to prove who shot the person or something along those lines. [00:20:35] Speaker 02: What about the evidence, if I understand correctly, that there was tape put on Mary's mouth that showed, if you will, a suffocation rather than just an accident? [00:20:48] Speaker 00: I don't remember testimony about tape, Your Honor. [00:20:51] Speaker 02: Or if you were pressing down in a way that suggested suffocation. [00:20:57] Speaker 00: Yeah, there was some bruising and abrasion around her mouth. [00:21:01] Speaker 00: One of the state's experts thought that could be consistent with suffocation or smothering. [00:21:07] Speaker 00: The defense expert said, no, that was due to resuscitation. [00:21:11] Speaker 00: So we had a lay person trying to do CPR followed by the EMTs trying to intubate and do CPR. [00:21:19] Speaker 00: And then finally at the ER as well, I believe the doctor attempted to resuscitate Mary. [00:21:24] Speaker 00: So again, nobody said 100% this was a smothering or this was a suffocation. [00:21:30] Speaker 00: It was. [00:21:31] Speaker 00: she has some marks and some bruising, and it could have been that, and the defense refuted that, the defense expert. [00:21:37] Speaker 05: One of my colleagues already mentioned the insurance, but one of the other pieces of evidence that I thought was troubling here for your client was this, that he falsely told a friend that Mary was dying of stomach cancer, but that her doctor didn't want her to know. [00:21:55] Speaker 05: I mean, I assume that does that one cut [00:21:59] Speaker 05: both ways, in your view, or is, what are we doing? [00:22:02] Speaker 00: Yeah, well, I think that's tough because we do know that Mary had an ulcer. [00:22:06] Speaker 00: She had been diagnosed with an ulcer and was having some pretty serious stomach issues or intestinal issues. [00:22:15] Speaker 00: You know, exactly why he thought that was cancer, I don't know. [00:22:19] Speaker 00: The record doesn't show that, but you're right, Judge Thomas, that there was testimony that he had told, told acquaintances that he thought Mary was dying of cancer. [00:22:30] Speaker 05: And then her doctor didn't want her to know that, right? [00:22:34] Speaker 00: I believe that's right. [00:22:35] Speaker 00: Yes, I believe that's right. [00:22:38] Speaker 00: Yeah. [00:22:38] Speaker 00: I see I'm well into my rebuttals. [00:22:40] Speaker 02: You can certainly save the balance of your time if you'd like. [00:22:43] Speaker 00: I will. [00:22:43] Speaker 00: Thank you, Your Honor. [00:22:44] Speaker 02: Very well. [00:22:45] Speaker 02: Okay. [00:22:46] Speaker 02: Mr. Lieberman, please. [00:22:48] Speaker 02: I'm sorry. [00:22:49] Speaker 02: It's Mr. Gans. [00:22:50] Speaker 02: I apologize. [00:22:52] Speaker 01: Thank you, Your Honor. [00:22:53] Speaker 01: It may have pleased the court. [00:22:54] Speaker 01: Cale Gans on behalf of the Idaho Attorney General representing the warden in this matter. [00:22:58] Speaker 01: This case presents claims of ineffective assistance of counsel that come before this court on a doubly deferential standard of review. [00:23:05] Speaker 01: That first layer is through Strickland, and the second layer is through the AEDPA. [00:23:10] Speaker 01: And to prevail, Mr. Severson needs to show that every fair-minded jurist would agree that every reasonable lawyer in defense counsel's shoes should have objected to the challenge statements in closing argument, and that those failures were prejudicial in light of the overwhelming evidence of his guilt. [00:23:24] Speaker 01: And he has failed to show that. [00:23:26] Speaker 01: I do want to address the statements one by one, and I'm happy to take deficient performance and prejudice. [00:23:33] Speaker 04: Obviously... I think of all the statements. [00:23:36] Speaker 04: I mean, screwing a 21-year-old tram, I'm not sure why a prosecutor would ever use that sort of inflammatory language. [00:23:46] Speaker 04: But, you know, as Judge Thomas points out, we tackle each individually, particularly with deference. [00:23:53] Speaker 04: And I think there's an argument that is [00:23:56] Speaker 04: that there may be some strategic reason to let the prosecutor go on and make themselves look bad. [00:24:03] Speaker 04: But I don't think that argument really applies to the presumption of innocence argument to say essentially [00:24:11] Speaker 04: that today ends the presumption of innocence and there's no innocence in the courtroom except the innocence of Mary Sevenson or statement along those lines. [00:24:20] Speaker 04: We've said in the case just a few years ago, Ford v. Peary, that in stating the presumption of innocence was over, the prosecutor misstated clear and longstanding federal law as articulated in the number of Supreme Court decisions. [00:24:35] Speaker 04: So when I look at this statement, [00:24:38] Speaker 04: In the commentary on the presumption of innocence, it's very similar to the one that we found unacceptable in Fort V. Perry, which is a Ninth Circuit case from 2021. [00:24:50] Speaker 04: So how do you respond to that? [00:24:53] Speaker 01: Your honor, I think that question is resolved by this court's decision in Molina, which didn't just look at whether or not the statement itself was improper or was misconduct, but whether or not defense counsel could have reasonably declined to object. [00:25:08] Speaker 01: And I think the answer is that defense counsel has very wide latitude [00:25:12] Speaker 01: in making that decision in closing argument. [00:25:15] Speaker 01: Really, this is one of the quintessential tactical decisions that defense counsel can make. [00:25:20] Speaker 01: And this court said in Molina that it doesn't follow from the failure to object to the objectionable statement that that automatically or necessarily means that counsel was deficient. [00:25:31] Speaker 05: How could that statement possibly be strategic, saying that there was no one innocent except for the victim in the courtroom? [00:25:41] Speaker 05: I just don't see what reason defense counsel could have to not object to them. [00:25:47] Speaker 01: Well, so it's not the state's burden at this point to produce a reason and basically prove that defense counsel's move was not unreasonable. [00:25:58] Speaker 01: So under Strickland, we presume that the choice not to object to an objectionable statement in closing argument, especially, we presume it falls within the wide boundary of reasonable professional assistance. [00:26:12] Speaker 01: You know, and Molina this court gave a long list of reasons why defense counsel might say you know I could object to that and maybe that objection would even be sustained. [00:26:22] Speaker 01: But I maybe I don't want to be seen as hyper technical maybe I don't want to be seen as desperate. [00:26:28] Speaker 01: Maybe defense counsel agreed with my friend on appeal. [00:26:31] Speaker 01: Maybe they thought that they had presented such a strong case based on their evidence, which of course the state disagrees with. [00:26:38] Speaker 01: But maybe taking all of that in defense counsel could have concluded to himself that this is not the time that I'm going to leap out of my chair and make an objection. [00:26:45] Speaker 01: And I think it bears noting too that [00:26:47] Speaker 01: the one objection that defense counsel did make was immediately overruled by the court and it essentially opened up a line of attack for the prosecutor to focus on and highlight the life insurance issue. [00:27:00] Speaker 01: So all of those reasons would factor into why defense counsel might decline to object, even if we can all agree that this statement was objectionable in and of itself. [00:27:14] Speaker 02: Given what [00:27:16] Speaker 02: Judge Wynn pointed out that if we can say that at least according to our circuits law, the concept of the presumption of innocence being flipped was beyond the pale, that leaves the government with a prejudice response. [00:27:32] Speaker 02: Is that correct? [00:27:34] Speaker 02: In other words, they may have succeeded in part one of Strickland, but they can't overcome prejudice. [00:27:42] Speaker 02: Is that the government's position? [00:27:44] Speaker 01: We're not conceding that they have succeeded on prong one, but you're right. [00:27:49] Speaker 01: You're right. [00:27:50] Speaker 01: If you take Judge Winn's point. [00:27:51] Speaker 01: Correct. [00:27:52] Speaker 04: It was also an case. [00:27:55] Speaker 04: It was also a habeas matter. [00:27:57] Speaker 04: Although I, if I recall correctly, that wasn't an ineffective system of counsel, but it also was a, it came to us on a habeas posture. [00:28:08] Speaker 01: Sure, and that point is well taken, but Judge Smith, I think you're right that that determination of deficient performance, that doesn't carry the day for Mr. Severson. [00:28:18] Speaker 01: We still need to go to prejudice, and I'm happy to go there now if this court wants to discuss the evidence in this case, or I'm happy to talk about deficient performance with the rest of the statements. [00:28:31] Speaker 01: Judge Thomas. [00:28:31] Speaker 02: Let me ask my colleagues. [00:28:32] Speaker 02: I know Judge Thomas was concerned about those individual points. [00:28:36] Speaker 02: Judge Thomas, you want to have him go through the individual points or do you want to go to prejudice? [00:28:41] Speaker 05: I'd be fine to move to prejudice. [00:28:43] Speaker 01: Okay. [00:28:43] Speaker 01: Sure. [00:28:44] Speaker 01: I'm happy to go there. [00:28:45] Speaker 01: I guess I might just make, you know, just append one slight rider to Judge Thomas. [00:28:50] Speaker 01: You said that, well, counsel might decline to object because the comments make the prosecution look terrible. [00:28:56] Speaker 01: And that's true. [00:28:57] Speaker 01: That is a very good reason for defense counsel to just, you know, sit there and let the prosecution make himself look bad. [00:29:03] Speaker 01: But the other reason not to object is because the prosecutor's comments made the prosecutor's own witness look bad, right? [00:29:10] Speaker 01: If he's talking about Severson screwing a 21-year-old tramp, well, the 21-year-old tramp in question is the state's own witness. [00:29:18] Speaker 01: So if defense counsel is hearing the prosecutor really rudely and just crassly and obnoxiously attacking his own witnesses at that point, that is another reason strategically to not object. [00:29:32] Speaker 01: So turning to prejudice, this was a case of overwhelming evidence and I could go through the evidence point by point. [00:29:39] Speaker 01: We could talk about the life insurance. [00:29:41] Speaker 01: We could talk about the evidence that Seberson had a clear motive to carry this out. [00:29:47] Speaker 01: We could talk about really everything this court has already highlighted. [00:29:50] Speaker 01: I do want to respond to a couple of points my friend has made though. [00:29:54] Speaker 01: There is the one point on Mr. Severson putting the pills under his hat that said dad on it. [00:30:03] Speaker 01: And this sort of is of a piece with the argument that, well, why would Mr. Severson sort of join this armchair investigation into the hydroxycut adulteration? [00:30:14] Speaker 01: And I think my friend said it would be incredibly stupid for him to do such a thing and call attention to the hydroxycut. [00:30:21] Speaker 01: So I have two responses to that. [00:30:22] Speaker 01: I think the first is just to just level set, you know, the state's theory of the case. [00:30:27] Speaker 01: The state's theory of the case is not that Mr. Severson was a criminal mastermind and that every single move he made was entirely rational or highly intelligent. [00:30:37] Speaker 01: The state's theory of the case is that he had a plan. [00:30:40] Speaker 01: He wanted to get out of the marriage. [00:30:42] Speaker 01: He wanted to get rid of Mary and he was making moves on the game board to try to make that happen. [00:30:47] Speaker 01: Some of those moves were blunders, right? [00:30:50] Speaker 01: But that's totally compatible with the state's theory of the case because we're not asserting that he was a grandmaster playing 40 chess as he did these things. [00:31:00] Speaker 01: But specifically, I want to respond to the point that it would have been incredibly stupid for Mr. Severson to call attention to the hydroxy cut. [00:31:08] Speaker 01: It actually was not incredibly stupid and Mr. Severson actually had a very good reason for calling attention to the hydroxy cut. [00:31:17] Speaker 01: And this was all part of Severson's attempt to demonstrate to the world that he was not responsible for the poisoning. [00:31:25] Speaker 01: And why did he do that? [00:31:26] Speaker 01: Well, because he had to at that point. [00:31:29] Speaker 01: Because at the time Severson started to participate in this investigation, Mary had already told multiple third parties that something was wrong with the pills. [00:31:38] Speaker 01: And so if you go back to the timeline here, on January 2nd, that's when Mary bought hydroxycut, and within a week she was worn out, she was vomiting. [00:31:47] Speaker 01: Ultimately she had stomach pain and was vomiting blood, and she told that to her doctor, and she told that to her mother. [00:31:54] Speaker 01: And specifically she told her mother that the pills were causing her stomach problems, and that the pills were discolored and warm to the touch. [00:32:02] Speaker 01: So the reason why Severson is participating in the quote investigation at that point is not because he's incredibly stupid, but because by that point the cat is already out of the bag. [00:32:12] Speaker 01: Multiple third parties already know the pills are tainted and making Mary sick. [00:32:16] Speaker 01: So despite the fact that the initial attempt to poison her didn't work, Severson still needed to be reacting to this news in a concerned way in order to avoid being a prime suspect in her ultimate death. [00:32:29] Speaker 01: Now, another point I need to mention here is my friend is saying that, well, it was Severson who called the FDA. [00:32:36] Speaker 01: But no, the trial transcript reflects that it was Mike, Severson's son, who contacted the FDA. [00:32:42] Speaker 01: This is on 7ER1713 of the record. [00:32:46] Speaker 01: The person who took the complaint said it was Mike who called. [00:32:49] Speaker 01: And the clearest statement on record that you will find is on page 8ER1926. [00:32:55] Speaker 01: And that's Mike's testimony. [00:32:57] Speaker 01: And the discussion is about the decision to contact the FDA. [00:33:01] Speaker 01: And I'm just going to read from the transcript here. [00:33:03] Speaker 01: Question, was that your idea or somebody else's? [00:33:06] Speaker 01: Answer, well, yeah, it was my idea to call them to figure out what the problem was with them. [00:33:11] Speaker 01: Okay, so your father didn't say we need to investigate this or anything? [00:33:15] Speaker 01: Right, at that point, he didn't. [00:33:17] Speaker 01: After I called them and couldn't get anywhere, he was like, well, what do you think I ought to do? [00:33:22] Speaker 01: Who should we call, you know, so we can find out what the deal is with these? [00:33:25] Speaker 01: And that's when I started calling the FDA. [00:33:27] Speaker 01: Question, so you made the initial call to the FDA? [00:33:30] Speaker 01: Answer, yes. [00:33:32] Speaker 01: So we can't credit Mr. Severson with calling the FDA and setting this part of the investigation in motion. [00:33:38] Speaker 01: That was Mike that did that. [00:33:40] Speaker 01: And that's one correction to just take on board as we're looking at the evidence here. [00:33:46] Speaker 01: One last point on prejudice. [00:33:47] Speaker 01: I think it's important to note. [00:33:49] Speaker 01: My friend is saying that Mr. Severson act in the way that a grieving and a shocked husband would have in the aftermath of Mary's death. [00:33:57] Speaker 01: Well, we don't think the evidence supports the notion that he was grieving. [00:34:01] Speaker 01: But as to whether or not he was shocked, you know, I went back and I thought, let's look at the transcript. [00:34:07] Speaker 01: And is there anyone who describes Mr. Severson as shocked? [00:34:11] Speaker 01: And you can do this yourself. [00:34:13] Speaker 01: You know, you can control off the trial transcripts and you can read through them. [00:34:16] Speaker 01: And there is only one person in the entire 17-day trial who refers to Mr. Severson as being, quote, shocked. [00:34:23] Speaker 01: And the only person who says he looked shocked was Mary's mother, Carol Diaz. [00:34:28] Speaker 01: But she wasn't describing how Severson appeared in the aftermath of Mary's death. [00:34:33] Speaker 01: She was describing how Severson reacted to finding out that he was not the beneficiary under the life insurance policy. [00:34:39] Speaker 01: And this is from 7 ER 1591. [00:34:43] Speaker 01: Ms. [00:34:44] Speaker 01: Diaz says, and I asked him then if there was any life insurance, what did he say? [00:34:48] Speaker 01: And he kind of stammered around and said, no. [00:34:51] Speaker 01: And the question is, did you respond to that? [00:34:53] Speaker 01: What did you say? [00:34:54] Speaker 01: Answer, yes, I did. [00:34:56] Speaker 01: I said, well, there is a life insurance policy and I'm the beneficiary. [00:35:00] Speaker 01: Question, okay, how did he take this news? [00:35:03] Speaker 01: Answer, shocked. [00:35:05] Speaker 01: And then the further question is, how did you know he was shocked? [00:35:08] Speaker 01: Answer, he just looked like he lost his best friend. [00:35:11] Speaker 01: I don't know how else to describe it. [00:35:13] Speaker 01: And then on cross, defense counsel attempted to clean the sequence up. [00:35:17] Speaker 01: And I think he asked a fair question. [00:35:18] Speaker 01: And the question was, well, did he appear to be upset that you were discussing life insurance so soon after your daughter's death? [00:35:25] Speaker 01: Answer, he just seemed to be upset when I told him I was the beneficiary. [00:35:30] Speaker 01: So that is the only time you will hear someone that happened with a life insurance policy is back in October of 2001. [00:35:38] Speaker 01: Mary changed her life insurance policy and designated her mother as the sole beneficiary. [00:35:43] Speaker 01: Severson was unaware of that. [00:35:45] Speaker 01: And so he was hearing it for the first time that he was not the beneficiary under the life insurance policy. [00:35:52] Speaker 01: And a further point to make on the life insurance discussion is just that Mr. Severson lied about that too, because one of the immediate things he asked for was a copy of the policy and he lied to his son and said, well, Carol Diaz asked me to find it, but Carol Diaz testified quite plainly that she did not ask him to find it. [00:36:13] Speaker 01: So that was just another lie to add to the state's pile of evidence. [00:36:20] Speaker 01: I see I'm somewhat running low on time here, and I do want to address statute of limitations as it is the state's cross appeal, but I'm also, I welcome this court's questions on either deficient performance or prejudice. [00:36:35] Speaker 02: From my perspective, you don't need to address the statute of limitations, but I don't know about my colleagues. [00:36:39] Speaker 02: Any thoughts on that one? [00:36:43] Speaker 04: I don't have a question on statute of limitations. [00:36:44] Speaker 04: As I recall, counsel, he wasn't the one that called 911 to respond to the scene. [00:36:49] Speaker 04: Is that right? [00:36:49] Speaker 01: You're correct. [00:36:51] Speaker 01: You're correct. [00:36:51] Speaker 01: And in fact, he never called 911. [00:36:53] Speaker 01: The person who called 911 was Nora, his daughter-in-law. [00:36:57] Speaker 01: He called Nora to let them know that Mary was non-responsive. [00:37:04] Speaker 01: And at one point, Nora [00:37:06] Speaker 01: attempts to call him as they're driving to the residence and they can't get a hold of him. [00:37:12] Speaker 01: They get a busy signal and Nora testified that she thought that Mr. Severson was calling 911. [00:37:18] Speaker 01: She expected that that's who he was on the phone with but the trial testimony and evidence showed that in fact he never called 911. [00:37:26] Speaker 04: Thank you, Councilman. [00:37:27] Speaker 01: Very well. [00:37:28] Speaker 01: So you want to wind up in any way or what's your pleasure? [00:37:33] Speaker 01: Sure, I'm happy to wind up. [00:37:35] Speaker 01: I would just ask this court to affirm the magistrate's denial of habeas relief. [00:37:43] Speaker 01: I would ask this court, if you don't affirm on those grounds, you would affirm the state's cross-appeal on statute of limitations. [00:37:50] Speaker 01: Thank you. [00:37:51] Speaker 01: Very well. [00:37:53] Speaker 02: Just a quick question. [00:37:57] Speaker 02: basically our advanced day sheet, we show a Mr. Lieberman from the government. [00:38:03] Speaker 02: Is there a Mr. Lieberman involved or is he not involved today? [00:38:08] Speaker 02: Yes, I am here, Your Honor. [00:38:10] Speaker 03: Can you see me? [00:38:12] Speaker 03: All right. [00:38:13] Speaker 03: And how much time do you think you have? [00:38:16] Speaker 03: So I believe I was allotted 10 minutes. [00:38:19] Speaker 02: Very well. [00:38:19] Speaker 02: All right. [00:38:19] Speaker 02: Why don't you go ahead then, please? [00:38:21] Speaker 03: Yes, Your Honor, good morning. [00:38:23] Speaker 03: May it please the court, Dave Lieberman, the Court of the United States, as intervener. [00:38:27] Speaker 03: I would like to thank the court for allowing us to intervene to defend the constitutionality of the EDPA, which petitioner has attacked. [00:38:35] Speaker 03: Before I launch into my affirmative presentation, I just want to spend a minute to flag the status of this Loper-Bright claim in the circuit, because it's before multiple panels. [00:38:47] Speaker 03: I was in Phoenix two weeks ago before the panel in McLean. [00:38:51] Speaker 03: That panel heard argument on this question, same claim. [00:38:55] Speaker 03: That panel has now deferred submission of that case to await a decision for another panel, Brad versus Broomfield, Ninth Circuit case number 23-99005. [00:39:08] Speaker 03: That case was submitted back in June of this year. [00:39:11] Speaker 03: It appears that the Loper-Bright claim was also raised in that case. [00:39:17] Speaker 03: It has been submitted. [00:39:18] Speaker 03: The United States did not receive any notice from the petitioner of the constitutional question in that case. [00:39:24] Speaker 03: So we did not have an opportunity to intervene. [00:39:26] Speaker 03: But my only point is this is percolating before two other panels have heard oral argument on this question. [00:39:34] Speaker 03: We defer to the court as to which panel has priority. [00:39:38] Speaker 03: But at least the United States would welcome some published circuit guidance on this question, given how many habeas cases are pending before district courts and panels of this court at any one time. [00:39:52] Speaker 03: We are continuing to receive notices of these constitutional claims and trying to respond both in district court and before panels of this court as best we can. [00:40:03] Speaker 02: if I may provide the government with some background. [00:40:06] Speaker 02: I'm on the first panel that has priority, and we should have a decision coming out fairly soon. [00:40:13] Speaker 02: But our panel understands that we're down the road in terms of that decision. [00:40:22] Speaker 02: I, at least as one judge, would appreciate the government's perspective. [00:40:26] Speaker 02: Can this case be decided without our being involved with the Loper-Brite issue? [00:40:33] Speaker 02: It was not raised on a timely basis in this case. [00:40:37] Speaker 02: So what's the government's position? [00:40:38] Speaker 02: Can we just do a gentle pas de deux and step to the side, not have to decide that and still decide this case? [00:40:47] Speaker 02: Or do we have to wait for an outcome on the Loper-Bride question? [00:40:51] Speaker 03: Yes, Your Honor. [00:40:52] Speaker 03: I just want to say at the outset that the United States is not taking a position on the merits of petitioner's claim or the state's cross-appeal. [00:41:01] Speaker 03: I think if this panel does not want to engage the Loper-Brite question, it could just assume that a deference does not apply and then reject petitioner's claim. [00:41:15] Speaker 03: But if this... But you're not tackling the forfeiture issue? [00:41:21] Speaker 03: I'm sorry, Your Honor. [00:41:22] Speaker 04: They're not tackling or weighing in on the potential forfeiture analysis in this case? [00:41:27] Speaker 03: Correct. [00:41:28] Speaker 03: We are only here to defend the constitutionality of EDPA, the United States. [00:41:32] Speaker 03: As it has done in every multiple other cases, we are not addressing the merits of either party's arguments on the merits or any procedural issues in the case. [00:41:43] Speaker 03: And so I'm willing to pause here and take a cue from the panel. [00:41:47] Speaker 03: If the panel does not want to entertain [00:41:51] Speaker 03: my arguments on the merits of Edpa's constitutionality, given that the panel appears to be farther down in line, I'm happy to just pause and rest on our briefs if the panel believes that another panel is likely to rule on this. [00:42:07] Speaker 02: So the government's position is strictly the Loper-Bride question. [00:42:11] Speaker 02: If we're not going to get to that, you really don't have anything to tell us, right? [00:42:15] Speaker 02: That is correct, Your Honor. [00:42:19] Speaker 03: I'll pause and say, I'm happy to again launch into the merits or just rest on my briefs. [00:42:26] Speaker 03: And if the panel does not wish to entertain this, I'm happy to take that cue and just return my time. [00:42:31] Speaker 02: I leave it to my colleagues. [00:42:33] Speaker 02: But as I say, I'm on that first panel. [00:42:35] Speaker 02: We know we have a decision coming out fairly soon that will decide, at least for our circuit, unless there's an en banc, the answer to that question. [00:42:45] Speaker 02: But I guess my question is, [00:42:48] Speaker 02: Does the government believe that we can sidestep this issue and go on to the merits, assuming that EDPA doesn't apply here or does apply? [00:42:58] Speaker 02: What's your belief? [00:42:59] Speaker 03: Your honor, the panel is free to sidestep the question by just assuming that EDPA deference does not apply. [00:43:06] Speaker 03: If it then holds that petitioner is not entitled to relief under whether that's the Strickland framework, whether there's the other due process claims, [00:43:15] Speaker 03: I don't think it can grant relief without addressing the question. [00:43:23] Speaker 03: I'll pause and ask if, at least if the two other members of the panel. [00:43:27] Speaker 05: I don't have any other, I don't have any questions for the government. [00:43:33] Speaker 05: Yes, me neither. [00:43:35] Speaker 03: I don't have any questions either. [00:43:37] Speaker 03: Thank you. [00:43:39] Speaker 03: We turn the time and I thank the panel for allowing us to interview. [00:43:42] Speaker 02: Very well, thank you very much. [00:43:45] Speaker 02: I don't know what we do here. [00:43:46] Speaker 02: Ms. [00:43:47] Speaker 02: Waldron, you had some time left over. [00:43:49] Speaker 02: Mr. Gantz had a little time left over. [00:43:51] Speaker 02: Do you have anything more that you would like to tell the court or have you done a thorough job and we don't need to talk anymore? [00:43:59] Speaker 00: I have a couple of points I would make. [00:44:02] Speaker 00: Please do that. [00:44:03] Speaker 00: Just in response to the state's argument. [00:44:07] Speaker 00: So the state took issue with [00:44:10] Speaker 00: I think my take on the hydroxy cut pills and Mr. Severson's demeanor. [00:44:17] Speaker 00: So first, in terms of his demeanor, my word was shocked. [00:44:22] Speaker 00: I wasn't purporting to quote the testimony, nor did I use quotation marks. [00:44:29] Speaker 00: But just looking at the testimony, Nora, the daughter-in-law, described him as hysterical and barely functioning. [00:44:35] Speaker 00: An officer, Officer Sterling said Mr. Severson was very upset. [00:44:40] Speaker 00: And then there was also testimony that he was distraught at the hospital and cried and tried to hug Mary's body. [00:44:47] Speaker 00: So just to clarify, when I use the word shocked, that's my word. [00:44:50] Speaker 00: I'm not referring to, I'm not quoting any particular testimony. [00:44:56] Speaker 00: In terms of the hydroxy cut investigation, [00:45:00] Speaker 00: Let's see. [00:45:01] Speaker 00: On February 7th, Mr. Severson asked Mary's doctor to look at the pills. [00:45:06] Speaker 00: Then he tried contacting the manufacturer. [00:45:08] Speaker 00: Then he submitted a complaint to the Idaho Board of Pharmacy. [00:45:13] Speaker 00: They referred Mr. Severson to the FDA. [00:45:16] Speaker 00: And Mr. Ganz is right. [00:45:18] Speaker 00: It was originally Mike that called. [00:45:20] Speaker 00: But Mr. Severson met with the USDA investigator. [00:45:24] Speaker 00: appeared very concerned, according to that investigator. [00:45:27] Speaker 00: He cooperated fully, answered all questions, and had a free-flowing conversation. [00:45:31] Speaker 00: So I don't want to quibble too much with those facts. [00:45:35] Speaker 00: But for what it's worth, I wanted to clarify some of those things. [00:45:40] Speaker 02: Very well. [00:45:43] Speaker 02: I'm sorry. [00:45:43] Speaker 02: Go ahead. [00:45:44] Speaker 02: Do you have more? [00:45:45] Speaker 00: Just one more quick point going to the prejudice. [00:45:49] Speaker 00: I would suggest to the court that given that this prosecutor in his initial closing argument kept it clean, didn't commit any misconduct, and then brought out this slew of misconduct on rebuttal, I would suggest to the court [00:46:07] Speaker 00: that the prosecutor did not see this case as clear cut. [00:46:11] Speaker 00: He did not think he had a win in the bag. [00:46:14] Speaker 00: This was really an act of desperation because the prosecutor [00:46:19] Speaker 00: thought that this conviction after 17 days of trial was slipping through his fingers. [00:46:25] Speaker 00: And again, I would point the court to the two days of deliberations. [00:46:28] Speaker 00: The jury did not see this as a straightforward win for the government. [00:46:33] Speaker 00: The jury struggled to reach a verdict. [00:46:36] Speaker 00: So when you compare the outrageous, egregious misconduct that was the very last thing that the jury heard, [00:46:45] Speaker 00: Mr. Severson has absolutely proven prejudice in this case and is entitled to a writ. [00:46:51] Speaker 02: That's all I have. [00:46:52] Speaker 00: Thank you. [00:46:53] Speaker 02: Thank you. [00:46:53] Speaker 02: Mr. Gans, do you have anything else you'd like to say? [00:46:56] Speaker 02: Nothing else, Your Honor. [00:46:57] Speaker 02: Just ask this court to affirm. [00:46:59] Speaker 02: Very well. [00:47:00] Speaker 02: Thanks to all counsel in this interesting case. [00:47:03] Speaker 02: The case of Severson versus Ross and the United States' intravenor is submitted and the court stands adjourned for the day. [00:47:13] Speaker 02: Thank you. [00:47:16] Speaker 04: The court stands adjourned. [00:47:18] Speaker 04: Thank you very much.