[00:00:00] Speaker 05: I'll call case number 237080, United States versus Jackson. [00:00:15] Speaker 04: Good morning. [00:00:15] Speaker 04: May it please the court? [00:00:16] Speaker 04: My name is Gail Johnson, and I represent Kevin Jackson in this direct appeal from his criminal convictions. [00:00:23] Speaker 04: I'd like to begin by alerting the court that I did have a chance to confer informally with Ms. [00:00:28] Speaker 04: Epperly before argument today. [00:00:30] Speaker 04: And I anticipate that she will be conceding now the entirety of the second claim on appeal that we raised, the double jeopardy claim. [00:00:38] Speaker 04: They previously conceded in their brief as to count two. [00:00:41] Speaker 04: My understanding is she will today concede it as to count three as well. [00:00:44] Speaker 05: Thank you, counsel. [00:00:45] Speaker ?: Appreciate it. [00:00:46] Speaker 04: One other housekeeping matter I apologize, but apparently so so appellant is so the double jeopardy issue is off the table now Correct it will be fully conceded today by the government And I appreciate the concession [00:01:02] Speaker 04: The other matter we conferred about is I apologize to the court. [00:01:06] Speaker 04: There were some exhibits that had been originally designated but did not get in the record. [00:01:10] Speaker 04: I've conferred also about that with Ms. [00:01:11] Speaker 04: Epperly and she will assist. [00:01:13] Speaker 04: We will file a motion if necessary and she will assist in getting those exhibits to the court. [00:01:17] Speaker 05: I appreciate that also. [00:01:18] Speaker 05: Thank you. [00:01:19] Speaker 04: So with respect, I'm going to focus my remarks today on Mr. Jackson's first claim on appeal. [00:01:25] Speaker 04: the claim that his right to due process under the Fifth Amendment and his right to a fair jury trial under the Sixth Amendment was violated here and that reversal is appropriate on plain error review because of the combination of the district court's erroneous instructions having to do with jury unanimity as well as the district court's erroneous response to a note that was sent out by the deliberating jury. [00:01:52] Speaker 04: So the logical framework for this claim is that there are three possible outcomes from jury deliberations. [00:01:58] Speaker 04: A verdict of guilty that requires jury unanimity, a verdict of not guilty that also requires jury unanimity, and a third option which is of course no verdict, what we call a hung jury, where by definition the jury is unable to reach unanimity. [00:02:14] Speaker 04: Here, the district court departed from the pattern instruction and twice instructed the jury in a freestanding way, you must all agree. [00:02:24] Speaker 04: That is incorrect. [00:02:26] Speaker 04: It would have been correct, as the pattern says, to say, essentially, in order to reach a verdict, you must all agree. [00:02:32] Speaker 04: But that's not what the judge did here. [00:02:35] Speaker 04: And that error was then compounded by the problematic response. [00:02:39] Speaker 05: What else would the court have been referring to, or the instruction had been referring to, besides the verdict, your verdict? [00:02:49] Speaker 04: I'm not saying it was referring to something else. [00:02:51] Speaker 04: What I'm saying is, when there are two options, which are verdicts, and the third option is a non-verdict, by instructing the jury, you must all agree, if the court is saying, well, that is referring to a verdict, you are foreclosed that... Well, it could just mean you must all agree if you want to choose options one or two. [00:03:07] Speaker 02: I mean, I didn't think it... [00:03:11] Speaker 02: precluded a hung jury. [00:03:14] Speaker 02: I thought what he was saying is that if you're going to reach an agreement, it's got to be unanimous. [00:03:20] Speaker 02: He didn't say it that clearly, but I think that's not an impermissible reading of what he said. [00:03:25] Speaker 04: Well, Your Honor, I respectfully disagree. [00:03:27] Speaker 04: I think an instruction such as the court, as you've posited, would have been correct and non-erroneous. [00:03:33] Speaker 04: But the instruction here was not that. [00:03:35] Speaker 04: Again, it was a freestanding, you must all agree. [00:03:39] Speaker 04: This jury was left with the wrong impression that the only way to get out of that jury deliberations room, the only way to end deliberations was to reach a unanimous verdict. [00:03:49] Speaker 04: That foreclosed the third option of a hung jury, which again, as the U.S. [00:03:54] Speaker 04: Supreme Court recently reminded us in the Ramos case, [00:03:56] Speaker 04: I know district court judges don't like hung-juries, but as the Supreme Court reminded us, sometimes this is an important safeguard against overzealous prosecutions. [00:04:05] Speaker 04: So a hung-jury is not a waste of time. [00:04:07] Speaker 03: Didn't the judge, while I'm looking at the instructions, it says you should try to reach an agreement if you can. [00:04:18] Speaker 03: Why don't the words, if you can, undercut your argument? [00:04:25] Speaker 04: Your Honor, I think if there are some instructions that are correct and some instructions that are incorrect, the error still exists. [00:04:32] Speaker 02: The instructions that I'm... But we're told, you read the instructions as a whole, total. [00:04:37] Speaker 02: I mean, that's a pretty clear requirement in interpreting them. [00:04:42] Speaker 04: Absolutely. [00:04:43] Speaker 04: And in the places on, you know, page 343 and 348, which are instructions, a jury's duty to liberate, and the final instruction, [00:04:55] Speaker 04: They don't reference the language, Judge Matheson, that you just did. [00:04:58] Speaker 04: They say, the decisions you reach in the jury room must be unanimous, period. [00:05:02] Speaker 04: You must all agree. [00:05:03] Speaker 04: And then that's repeated. [00:05:06] Speaker 03: That's the second paragraph in the jury's duty to deliberate. [00:05:12] Speaker 03: The if you can language is in the preceding paragraph. [00:05:20] Speaker 03: It's right there in the second sentence. [00:05:24] Speaker 03: Correct, but I don't think that that obviates the final instruction that says the decision... Why doesn't that convey that the jury does not necessarily have to reach an agreement? [00:05:41] Speaker 04: Because it's contradicted by the other language, and when we have erroneous language... What other language are you talking about? [00:05:50] Speaker 04: quote, the decisions you reach in the jury room must be unanimous, period. [00:05:54] Speaker 04: You must all agree, period, end quote. [00:05:56] Speaker 03: Decisions. [00:05:57] Speaker 03: Decisions. [00:05:59] Speaker 03: It says try to reach an agreement if you can. [00:06:03] Speaker 03: An agreement is a decision. [00:06:04] Speaker 03: The decision has to be unanimous. [00:06:06] Speaker 03: Where's the conflict? [00:06:09] Speaker 04: The conflict, Your Honor, is that [00:06:11] Speaker 04: It didn't say verdicts. [00:06:13] Speaker 04: It doesn't say the verdicts must be unanimous. [00:06:14] Speaker 04: It says the decisions must be unanimous. [00:06:16] Speaker 04: But they may have reached a decision, for example, that they are not going to be able to read. [00:06:22] Speaker 03: How would a hung jury be a unanimous decision? [00:06:28] Speaker 03: It wouldn't be unanimous if you're a hung jury. [00:06:30] Speaker 03: Exactly your honor and that's my point this instruction foreclosed that possibility which was a possibility that Mr.. Jackson was entitled to and by taking that off the table because the later language is a [00:06:56] Speaker 04: unambiguous and clear. [00:06:58] Speaker 04: It is two declarative sentences and is repeated. [00:07:01] Speaker 04: And I'm happy to turn to the second part of this claim, which is the district court's note in response to the deliberating jury. [00:07:13] Speaker 04: And I think here again, it's important to take account of the framework in which the criminal trial occurs. [00:07:20] Speaker 04: The district court said you have all the evidence necessary to reach a verdict. [00:07:24] Speaker 04: Well, of course, our criminal justice system is asymmetric. [00:07:28] Speaker 04: The government bears the burden of proof. [00:07:30] Speaker 04: The government has to introduce evidence. [00:07:32] Speaker 04: The defendant has no burden of proof and does not have to produce any evidence. [00:07:36] Speaker 04: So to instruct the jury, you have all the evidence you need to reach a verdict is problematic in two ways. [00:07:43] Speaker 04: It leans towards the side of the government because if the verdict is supported by evidence, that's solely and uniquely a verdict in favor of the government for guilt. [00:07:53] Speaker 04: And second, again, it undermines the possibility that it kind of expresses the judge's view that there's evidence here and they should reach a verdict as opposed to you might not be able to agree. [00:08:08] Speaker 05: I note in the record that the district court told the jury [00:08:13] Speaker 05: in the instruction that if they sent him a written message, 90% of the time after I have consulted with counsel, the response I would give to your question is, you have all of the evidence necessary for you to reach your verdicts. [00:08:28] Speaker 05: They were even told that ahead of time. [00:08:31] Speaker 05: I don't understand what's confusing about that. [00:08:37] Speaker 05: Um, your honor, it's not have all the evidence you need to render a verdict, whether the verdict is guilty, not guilty, but whatever the verdict is, whatever the decision is. [00:08:47] Speaker 04: So, your honor, I have a couple of points. [00:08:51] Speaker 04: The fact that the judge repeated the erroneous instruction earlier, I don't think makes it any less erroneous. [00:08:56] Speaker 04: The judge didn't say whatever the verdict is, your verdict might be this, your verdict might be that. [00:09:00] Speaker 04: The judge didn't say that. [00:09:01] Speaker 04: He said, you have the evidence you need to reach a verdict. [00:09:04] Speaker 04: The only time a jury needs evidence to reach a verdict is when that verdict is in favor of the government and is a verdict of guilt. [00:09:11] Speaker 04: You do not need any evidence as a jury to find the defendant not guilty. [00:09:15] Speaker 04: You simply need to find that the government, of course, has failed to prove its case beyond a reasonable doubt. [00:09:19] Speaker 04: So that's the asymmetric distinction that I was [00:09:21] Speaker 02: Leading off with that's why it's important to look at this in the context of what is a very confused because usually when the jury comes back and Foreman stands up the court says do you have a verdict and the jury says yes, and the judges what is your verdict and You're expecting an answer our verdict is guilty or not guilty so not guilty is a verdict as well as guilty and [00:09:51] Speaker 04: Non-guilty is a verdict, but it's not a verdict that requires any evidence. [00:09:55] Speaker 04: And the judge's response to the note here expressly referred to them having the evidence necessary to reach a verdict. [00:10:02] Speaker 04: That can only apply to the verdict that is in favor of the government. [00:10:06] Speaker 04: It does not apply to the verdict that is in favor of the defendant. [00:10:09] Speaker 04: And Your Honor, I do think in my experience with trials, [00:10:13] Speaker 04: If they're non-unanimous, that comes out. [00:10:15] Speaker 04: And then if there's a verdict, they send out the written verdict form. [00:10:18] Speaker 04: There's a little bit of process in between there. [00:10:21] Speaker 04: But I think the larger point, again, here is it would have been perfectly proper for the judge to say, you've received all the evidence you're going to receive. [00:10:29] Speaker 04: You're not going to receive anymore. [00:10:31] Speaker 04: He didn't do that. [00:10:32] Speaker 04: It would have been perfectly proper to say, please look back at that exhibit. [00:10:36] Speaker 04: Nothing else. [00:10:37] Speaker 04: But what he did here is that you've received all the evidence you need to reach a verdict. [00:10:42] Speaker 04: That gets us into the unconstitutional territory where we all know the judge should not be commenting on the evidence. [00:10:49] Speaker 04: And that that is, again, I think, a real problem here under the Fifth and Sixth Amendment. [00:10:55] Speaker 04: If I may reserve my remaining few minutes for rebuttal. [00:10:57] Speaker 04: Thank you. [00:11:05] Speaker 00: Your Honors, may it please the Court, my name is Linda Epperly. [00:11:08] Speaker 00: I am an Assistant United States Attorney from Muskogee and I represent the government in this case. [00:11:13] Speaker 00: There are a few preliminary housekeeping matters that I need to draw to the Court's attention and ask the Court's forgiveness for committing these errors. [00:11:24] Speaker 00: The first, while not necessarily an error, was mentioned a moment ago by my colleague. [00:11:31] Speaker 00: After [00:11:32] Speaker 00: Reading the briefs again, looking at the instructions again, and preparing for oral argument, the government had initially conceded the double jeopardy argument as to the victim. [00:11:44] Speaker 00: After reading the briefs more carefully and noting that the jury was instructed that either robbery of the victim and or Mr. Berryhill would suffice, [00:11:54] Speaker 00: We would agree that that should also be dismissed as to count three because it's impossible to tell which of those two people the jury relied upon. [00:12:04] Speaker 00: Now, under the category of mistakes that I made in drafting this brief, I'd like to call to your attention. [00:12:12] Speaker 00: First, the heading for proposition three indicates that we are looking at attempted robbery as what underlies the 924C. [00:12:23] Speaker 00: The argument in our brief [00:12:24] Speaker 00: The cases we cite, what was used in the instructions, all has nothing about the word of attempted. [00:12:32] Speaker 00: And I would ask the court to notice that. [00:12:34] Speaker 05: Are you conceding the issue then? [00:12:37] Speaker 00: No, Your Honor. [00:12:38] Speaker 00: We would like to fully continue to argue on the 924C that the robbery in Indian country was a sufficient threat. [00:12:48] Speaker 02: You just want to amend the heading. [00:12:49] Speaker 00: I just want to get rid of the word attempted. [00:12:52] Speaker 00: In heading. [00:12:52] Speaker 00: In my heading. [00:12:53] Speaker 00: I think that the body of the brief all reads correctly as to robbery overall. [00:13:00] Speaker 00: A lot of times it might not make a difference, but with Taylor, we know that the Supreme Court has held that attempted Hobbs Act robbery cannot be a crime of violence. [00:13:11] Speaker 00: This Court has previously held before Taylor that robbery can. [00:13:15] Speaker 00: When our heading says attempted, we don't want to fall under Taylor when that's really not what happened here. [00:13:22] Speaker 00: And finally, [00:13:24] Speaker 00: We cited at the very end of our brief on page 25 a case called Gruber that is actually an Eastern District of Oklahoma case that we noted in the citation was a Tenth Circuit. [00:13:36] Speaker 00: That was incorrect. [00:13:38] Speaker 00: And we certainly didn't mean to mislead the court, and we apologize. [00:13:47] Speaker 00: This case in general, on jury and amenity, I believe that the court has made already most of the points that I would have focused on. [00:13:55] Speaker 03: Council, before you jump into that issue, I don't want you to spend a lot of time on this, but I'm interested in this concession on the double jeopardy issue. [00:14:12] Speaker 03: Are you saying that the... [00:14:18] Speaker 03: that there was double jeopardy based, that the count two, or I guess it was count three robbery involving Mr. Berryhill, are you saying that that could be a predicate for felony murder? [00:14:41] Speaker 03: In other words, I thought the concession in your brief [00:14:47] Speaker 03: about counts one and two on double jeopardy. [00:14:52] Speaker 03: I understood that part. [00:14:55] Speaker 03: But I'm not really understanding this concession this morning about count three. [00:15:03] Speaker 03: Are you saying that there is a double jeopardy problem between count one and count three? [00:15:11] Speaker 03: And since we're on plain error, that it's plainly a violation of [00:15:17] Speaker 03: Double jeopardy or are you saying something else? [00:15:21] Speaker 03: I'm just interested in the nature of this concession. [00:15:27] Speaker 00: The concession is based on the fact that the jury was instructed that either the attempted robbery of the victim in this case and or the attempted robbery of Mr. Berryhill would suffice. [00:15:43] Speaker 00: Our original concession was that under double jeopardy, [00:15:46] Speaker 00: The attempted robbery of the victim is covered by the felony murder conviction. [00:15:53] Speaker 00: We then argued that a separate felony murder conviction that for Mr. Berryhill. [00:15:59] Speaker 05: You mean robbery. [00:16:00] Speaker 00: I'm sorry. [00:16:01] Speaker 00: A separate robbery conviction for Mr. Berryhill perhaps could have supported felony murder based upon the things that we argued. [00:16:10] Speaker 00: However, the instruction on count one told the jury [00:16:16] Speaker 00: that either the robbery of the victim and or the robbery of Mr. Berryhill would suffice. [00:16:23] Speaker 00: Given the fact that it was termed in that way, it is impossible for us to say whether the jury relied upon what would have been an appropriate predicate, Mr. Berryhill, or the predicate that now would be barred by double jeopardy of the victim. [00:16:42] Speaker 03: OK. [00:16:42] Speaker 03: Thank you. [00:16:44] Speaker 03: I appreciate that explanation. [00:16:45] Speaker 00: Yes, it is very confusing, particularly when we then flip to talking about these things as crimes of violence for the 924-C count. [00:16:54] Speaker 01: And to be clear, it's count two that you want to be dropped. [00:17:02] Speaker 01: Count two, we had previously conceded in our brief that it could not stand. [00:17:09] Speaker 01: So count two solves the double jeopardy problem. [00:17:13] Speaker 05: I think you're now saying both counts two and three should be dropped. [00:17:19] Speaker 00: What I'm now saying is I agree with the merger. [00:17:25] Speaker 05: Both counts merge? [00:17:28] Speaker 00: I agree that had we charged and had the jury been instructed that felony murder [00:17:42] Speaker 00: was supported only by the murder of the victim, then we're clearly count two and that one of those would have to be dismissed. [00:17:53] Speaker 00: We believe that the argument has to count three if it had been separate. [00:17:58] Speaker 00: And we could say that the jury relied only on Mr. Barry Hills. [00:18:02] Speaker 00: Perhaps it would not. [00:18:04] Speaker 02: So I'm just confused. [00:18:08] Speaker 02: Do you think that would you be satisfied if count two was determined to be double jeopardy? [00:18:17] Speaker 02: The conviction on count two, therefore, is remanded for the district court to consider dismissing that. [00:18:24] Speaker 02: Or in light of all the confusion, maybe it's better just to tell the court that there is double jeopardy and let the district court figure it out. [00:18:31] Speaker 00: That would be fine with us. [00:18:33] Speaker 00: I think that though the way that the instruction on count one [00:18:38] Speaker 00: was worded. [00:18:39] Speaker 00: It's impossible for us to tell whether the jury relied upon the robbery of the victim, the robbery of Dakota Berryhill, or both. [00:18:48] Speaker 05: Why can't you just pick one? [00:18:50] Speaker 05: They found robbery on both, both supports. [00:18:53] Speaker 05: And one is all you need, because you said and or. [00:18:57] Speaker 05: So that's all you need. [00:18:59] Speaker 05: So I guess I am a little confused. [00:19:01] Speaker 05: I understand that you're conceding the count two, at least one of them. [00:19:06] Speaker 05: Yeah. [00:19:07] Speaker 05: Which is what I think you conceded in your brief, but I guess I'm not really understanding why you're conceding count three. [00:19:15] Speaker 05: I think there's some authority out there for the Andorra language being sufficient, and pick one. [00:19:22] Speaker 05: But if you're conceding. [00:19:25] Speaker 02: But you're conceding. [00:19:29] Speaker 02: I'm still confused. [00:19:31] Speaker 02: You're conceding that Count 2, if Count 2 is determined to be double jeopardy problem and is therefore dismissed as a double jeopardy, you think that solves the double jeopardy problems? [00:19:44] Speaker 02: Or is there still a potential double jeopardy problem with 3? [00:19:51] Speaker 00: I believe that you're correct on Count 2. [00:19:55] Speaker 00: agree to concede that it should go away. [00:19:57] Speaker 02: There's still a residual double jeopardy on count three, that's my question. [00:20:01] Speaker 00: Yes, and the problem is we agree with the cases cited in our brief that different victims could support that finding. [00:20:14] Speaker 00: However, when we previously know that one of them could not, I believe it could be argued that [00:20:22] Speaker 00: It's impossible to know which one the jury was basing its verdict on. [00:20:27] Speaker 02: So are you claiming that double jeopardy can only be solved by dismissing counts two and three? [00:20:35] Speaker 00: I believe that the cleaner way to handle this would be to go ahead and allow the district court to dismiss counts two and three. [00:20:44] Speaker 00: The felony murder would still stand, would not be subject to attack on any double jeopardy ground in the future, [00:20:51] Speaker 00: And since he's serving a life sentence, it's perhaps cleaner to just take care of it that way, knowing that also the 924C, if count four is upheld, will add an additional 120 months to that life sentence. [00:21:06] Speaker 00: This defendant was a defendant who had a criminal history score of 21 and committed his first violent crime at the age of eight. [00:21:17] Speaker 00: to try to make sure that there's not anything in the future that could allow him to attack this sentence. [00:21:23] Speaker 00: And that's part of the reason for the concession. [00:21:26] Speaker 00: As to the jury verdict, if there are not further questions, we agree with all of the comments that the court made as far as respecting the discretion of the court, what the jury was told as far as the ability to reach a verdict, which could be [00:21:44] Speaker 00: guilty verdict, a not guilty verdict, or a split. [00:21:48] Speaker 00: The jury was told in their duty to deliberate that you should try to reach an agreement if you can, that they can decide the case for themselves. [00:21:57] Speaker 00: They were informed they should not give up their honest beliefs even to try to get the case finished. [00:22:04] Speaker 00: They were also told that the decisions must be unanimous and you should all agree. [00:22:09] Speaker 00: That language we submit is substantially similar to what is included in pattern number 1.23 and that the differences were minor. [00:22:20] Speaker 00: These are the standard instructions that this district judge uses every time. [00:22:26] Speaker 00: We also agree as to the jury note, we also argue that telling the jury you have all of the evidence necessary for you to reach a verdict is not error. [00:22:39] Speaker 00: told them, broadcast to them before they went back to deliberate 90% of the time when you're going to ask me to give you more evidence or more law, this is what I'm going to tell you and that is what he told them after consulting with counsel. [00:22:54] Speaker 00: There also is language in the jury instruction as Judge Matheson noted indicating how they were to communicate with the court. [00:23:06] Speaker 00: This is a couple of paragraphs above the [00:23:09] Speaker 00: information about 90% of the time. [00:23:13] Speaker 00: The court told the jury, if you are split, say if you're 6'6 or 8'4, don't tell me the split. [00:23:20] Speaker 00: So the jury has been reminded that a split is possible, that they will not all automatically reach a decision of guilty or not guilty. [00:23:31] Speaker 00: This court has held that the court is granted discretion. [00:23:37] Speaker 00: and instructing and dealing with the jury. [00:23:39] Speaker 00: And that also applies to notes to the jury, according to Elanio Moraz. [00:23:49] Speaker 00: Bottom line on all of this, Your Honor, as to count four, the court did not commit error. [00:23:58] Speaker 00: But even if this court were somehow to find error, it cannot be plain error, because the defendant cannot show that this affected substantial rights. [00:24:07] Speaker 00: As this court held in flesh, the defendant must show a reasonable probability that but for the error, the results of the proceeding would have been different. [00:24:17] Speaker 00: And that's not possible under these facts as set forth in our brief. [00:24:23] Speaker 00: Unless there's anything further, we'd ask the court to affirm. [00:24:28] Speaker 05: Thank you, counsel. [00:24:30] Speaker 05: Rebuttal? [00:24:41] Speaker 04: Thank you. [00:24:42] Speaker 04: Very briefly on the double jeopardy issue, I think the way to think about it is that count one has two victims, both Mr. Berryhill and Mr. Dillon. [00:24:50] Speaker 04: And so when you're thinking about picking two counts, you have to pick between the felony murder count and count three as well. [00:24:56] Speaker 04: And we, again, we appreciate the government's concession today. [00:25:00] Speaker 04: In terms of the first claim on appeal, [00:25:06] Speaker 04: You know, I direct this court's attention to the De Hernandez case from the circuit in 1984 and really the question there about whether that response to the question is confusing or creates a definite possibility of prejudice. [00:25:18] Speaker 04: That is the standard here. [00:25:19] Speaker 04: And of course we are here on plain error review. [00:25:22] Speaker 04: I would be remiss if I didn't emphasize at our argument today the weakness of the government's case here. [00:25:28] Speaker 04: We have no objective physical reliable forensic evidence that ties my client to the crime scene or to this robbery. [00:25:35] Speaker 04: There's no DNA, there's no hair, nothing like that. [00:25:38] Speaker 04: Of course, the one thing that could have definitively identified the perpetrator, the mask that was worn by the robber and discarded at the scene, was never collected and therefore never tested. [00:25:48] Speaker 04: And so the government is left to rely on a series of witnesses [00:25:53] Speaker 04: who all, as we've laid out in our opening brief, have serious credibility problems. [00:25:58] Speaker 04: And I'd emphasize with Ms. [00:25:59] Speaker 04: Garza, for example, this wasn't a one-off. [00:26:01] Speaker 04: She lied to 911. [00:26:03] Speaker 04: She lied to the responding officer. [00:26:05] Speaker 04: She lied to the FBI agent, and she lied at the police station. [00:26:08] Speaker 04: Likewise, with respect to the victim of the robbery who survived, [00:26:17] Speaker 04: Not only was the identification procedure problematic, which you will see when you have a chance to review Exhibit 17, the video of the photo show up, but also he had originally told his friend that he was robbed by two black men. [00:26:37] Speaker 04: That's never been the government's theory in this case. [00:26:39] Speaker 04: He then changed his story and said it was one black man, and at that point was identifying Mr. Jackson, again, in our view, at the behest of an unduly suggestive identification process with a six pack of photos. [00:26:50] Speaker 04: And then, of course, we have this jailhouse informant. [00:26:54] Speaker 04: We've emphasized in our brief the fact that he claims to have been celled with my client for three months. [00:26:58] Speaker 04: The records don't show that. [00:26:59] Speaker 04: He claims that inmates at the jail could willy-nilly [00:27:03] Speaker 04: reassigned themselves cells. [00:27:04] Speaker 04: The evidence from the jail officials does not support that. [00:27:07] Speaker 04: It contradicts it. [00:27:08] Speaker 04: And moreover, he claims that the confession that my client made to him was that my client had supposedly shot the victim three times. [00:27:15] Speaker 04: And that is inconsistent with the medical examiner's evidence testimony of this case. [00:27:21] Speaker 04: And that can be found at volume three, page 290. [00:27:24] Speaker 04: The medical examiner explains that the victim, the decedent, was shot six times, not three times. [00:27:30] Speaker 04: So for all those reasons, [00:27:31] Speaker 04: We ask the court to reverse. [00:27:35] Speaker 05: Thank you, counsel. [00:27:36] Speaker 05: Thank you. [00:27:36] Speaker 05: Appreciate your arguments. [00:27:37] Speaker 05: The case will be submitted and counsel are excused.