[00:00:00] Speaker 02: States versus Smith 23-7087. [00:01:05] Speaker 04: afternoon and may it please the court my name is Rebecca Shepherd together with Wes Bryant we represent the defendant George Smith and I would know that it is my intention to reserve three minutes for rebuttal this court should reverse mr. Smith's convictions for three reasons [00:01:23] Speaker 04: First, despite the jury's verdict, the evidence was legally insufficient to support a conviction for first-degree murder. [00:01:31] Speaker 04: Specifically, the evidence was insufficient to establish that Mr. Smith was the shooter or that he acted with premeditation or malice of forethought. [00:01:39] Speaker 04: Second, the government knowingly presented perjured testimony to the jury on a critical fact. [00:01:47] Speaker 04: And third, the district court abused its discretion by mishandling the jury misconduct issue. [00:01:54] Speaker 04: Unless the court prefers otherwise, I will begin with the insufficient evidence. [00:02:00] Speaker 04: In this case, the government failed to present sufficient evidence at trial to establish beyond a reasonable doubt that Mr. Smith was the shooter. [00:02:08] Speaker 04: Even if this court were to find that there was substantial evidence that he was the shooter, there was not sufficient substantial evidence that he acted with premeditation or malice of forethought. [00:02:19] Speaker 00: What about the fact that he shot him twice in the back of the head while he was sitting? [00:02:25] Speaker 04: It was not established at trial that the victim was sitting. [00:02:28] Speaker 04: That was an argument that the government made during closing argument. [00:02:33] Speaker 00: He was shot in the back of the head. [00:02:35] Speaker 04: He was shot in the back of the head. [00:02:38] Speaker 04: But the government did not introduce any evidence to establish, I don't believe that that fact alone establishes [00:02:47] Speaker 04: premeditation or malice of forethought. [00:02:50] Speaker 04: That was the government's only evidence that went to those two essential elements and it is our position that in the absence of any other evidence that does not constitute that requisite substantial evidence and specifically the government relies on inference and supposition. [00:03:09] Speaker 04: It is their theory that shooting someone from behind is evidence of premeditation or malice of forethought [00:03:17] Speaker 04: But that relies on an inference. [00:03:19] Speaker 04: It relies on a supposition that Mr. Arthur was not shot from behind due to some other reasons, such as accident, or mistake, or confusion, or impulse. [00:03:30] Speaker 00: How could it be an accident when it's just a couple feet from the defendant and shoots him in the back of the head? [00:03:41] Speaker 04: Well, when we don't know, again, we don't know where the shooter was. [00:03:44] Speaker 04: We don't know exactly where Mr. Arthur was. [00:03:47] Speaker 04: And the evidence also supported that the different trajectory of the two shots indicated that either the shooter was in motion or the victim was in motion. [00:03:58] Speaker 04: And so it could have been the case that the shooter was recklessly discharging a gun and Mr. Arthur stood up in the path of the bullets. [00:04:06] Speaker 04: That is also something that could have happened. [00:04:08] Speaker 04: And so the government's case, again, relies upon the jury to speculate and relies upon conjecture as to what that... [00:04:18] Speaker 04: the fact of the location of the shooter being behind Mr. Arthur, what that means. [00:04:23] Speaker 02: Ms. [00:04:23] Speaker 02: Shepard, I want to ask you, in the briefing, both sides seemed to combine malice of forethought and premeditation, and rightly or wrongly I'm viewing those issues as entirely differently. [00:04:38] Speaker 02: So malice of forethought [00:04:41] Speaker 02: uh... you say well it could have been an accident well you know he had multiple theories you know uh... uh... one intruder two intruders he never says it's an accident and so uh... you know he says that it was an intruder uh... and so can't we reasonably infer viewing the evidence of the most favorable to the prosecution [00:05:10] Speaker 02: It wasn't that he was just pointing a weapon, you know, aimlessly, that we can infer that it was a deliberate act in intent, may not have been premeditated, may have been, but a deliberate, wherever it was to the head, it was a shot to the head, can't we reasonably infer that it was a deliberate act? [00:05:31] Speaker 02: For balance of forethought. [00:05:33] Speaker 04: I think that, again, Your Honor, the government conflated those issues at trial and it pointed to the same evidence as to both. [00:05:40] Speaker 02: But I want to, for me, I want to just unpack those. [00:05:43] Speaker 04: I appreciate that, Your Honor. [00:05:44] Speaker 04: I think that, again, it is our position that that is still an inference. [00:05:49] Speaker 04: And while this Court has said that it is [00:05:53] Speaker 04: Okay for juries to make reasonable inferences. [00:05:55] Speaker 04: They do have to be reasonable and so that is a question for the court whether that inference on its own with nothing more no motive no reason for Mr. Smith to have any bear any ill will towards mr. Arthur or to have any interest in his [00:06:10] Speaker 04: injury or death to make that inference. [00:06:16] Speaker 04: And Mr. Smith's position that he's maintained throughout trial is that he was not the shooter. [00:06:21] Speaker 04: And again, that's also an issue here, that there was the physical evidence in this case supports a not guilty verdict. [00:06:29] Speaker 04: It, in fact, does not support the sufficiency of the guilty verdict, including that there was no gunshot residue evidence, not only on Mr. Smith's body, but also on the clothing that he was wearing [00:06:40] Speaker 04: and the clothing that law enforcement obtained from his house when there were both government expert witnesses and fact witnesses who testified that gunshot residue would be expected [00:06:52] Speaker 04: to be found on the person and clothing of the person who was the shooter. [00:06:56] Speaker 04: There was no blood spatter or DNA evidence on Mr. Smith's body or on any of those clothing when there was expert testimony that the entry wound would have produced back splatter blood that would have been expected to land on the shooter's body or clothing. [00:07:15] Speaker 04: There were no fingerprints. [00:07:16] Speaker 04: There was a shell casing retrieved that was believed to be from one of the bullets. [00:07:21] Speaker 04: There was no fingerprints of Mr. Smith on that shell casing. [00:07:25] Speaker 04: And there was no murder weapon recovered. [00:07:27] Speaker 04: And the timeline established he did not have an opportunity to dispose of that. [00:07:32] Speaker 02: So this goes to the first issue, whether he was the shooter. [00:07:36] Speaker 02: Yes, John. [00:07:37] Speaker 02: Well, how can a jury reasonably, even generously, infer that his explanation was accurate? [00:07:47] Speaker 02: There's two doorways to this little house. [00:07:50] Speaker 02: The back door, which opens inside, there's a dresser preventing ingress from the back door. [00:07:57] Speaker 02: So that one or two masked intruders have to enter from the front door. [00:08:02] Speaker 02: It doesn't go to the kitchen where he and Mr. Arthur are allegedly playing cards. [00:08:06] Speaker 02: It goes into the living room. [00:08:09] Speaker 02: And so these masked intruders have to be very, very fast. [00:08:17] Speaker 02: They have to run in, go past the living room, go into the kitchen, make two shots, pick up one of the casings, and vanish [00:08:31] Speaker 02: before Mr. Smith can identify them, before he sees anything. [00:08:42] Speaker 02: In itself, sufficient to reasonably infer that one of two things happened, at least in the trial evidence and the arguments. [00:08:55] Speaker 02: Either there was these one or two, you know, Superman speed, [00:09:00] Speaker 02: people that just go in lightning quick, or he shot them. [00:09:06] Speaker 04: Understandably, Your Honor, and I would also, I would just note as a logistical matter, it's presented in the briefing, the government's brief, as though these were separate rooms. [00:09:14] Speaker 04: This was in fact an open space, and the distance, and the jury saw... I don't see that. [00:09:18] Speaker 02: I mean, they're separate rooms, yeah. [00:09:22] Speaker 02: You're saying that kitchen is the same as the living room? [00:09:32] Speaker 04: It is an open doorway and the distance, the physical distance from the door to the kitchen table is approximately the same distance as from me to you in terms of actually, that is the distance. [00:09:45] Speaker 04: So it is not, you know, multiple doors. [00:09:48] Speaker 04: It was unimpeded in terms of furniture. [00:09:50] Speaker 04: There's two rooms. [00:09:51] Speaker 04: Yes, but with an open passageway between. [00:09:54] Speaker 04: Again, Your Honor, I think it's also, [00:10:00] Speaker 04: I take your point on that, but I think that there are these three necessary elements, and it is our position that the evidence was not sufficient in terms of it being that substantial, reliable evidence that does not depend upon conjecture and supposition piling on top of conjecture and supposition. [00:10:18] Speaker 01: Stop there, because I'm always interested when I hear the piling, because I'm not sure I really understand what it means. [00:10:23] Speaker 01: What inference piled on another inference piled on another inference here? [00:10:29] Speaker 04: Speaking to the issue of the malice of forethought and premeditation being based entirely on the location of the shooter to the victim, we have no information other than that, that the victim was shot from a shooter who stood behind him. [00:10:46] Speaker 04: That's the only information we need. [00:10:48] Speaker 04: From there, the government takes the position that Mr. Arthur was seated, that he did not know that Mr. Smith was behind him, that Mr. Smith stood there and thought about it and pulled the trigger, that it was done intentionally. [00:11:01] Speaker 04: All of these things for which there is absolutely the only piece of actual evidence is that the shooter was behind Mr. Smith. [00:11:10] Speaker 04: And again, we do not know, I mean, it could be accident. [00:11:14] Speaker 04: It could be a belief that someone was entering the home that caused the shooter to shoot. [00:11:21] Speaker 04: It could be all sorts of things, but it is inference upon inference upon inference to create this argument of an execution-style intentional shooting for which there is no evidence other than this one fact shot from behind. [00:11:38] Speaker 01: Well, there are a lot of inference drawn, but they all go back to the same question, which is who done it? [00:11:44] Speaker 01: I don't see how they build an inference from an inference from an inference. [00:11:51] Speaker 04: Again, Your Honor, and it's our position that the evidence is insufficient as to who done it. [00:11:56] Speaker 04: But even if this court disagrees with that and believes that Mr. Smith was the person who was the shooter, [00:12:03] Speaker 04: we maintain that there is insufficient evidence as to premeditation and malice of forethought based only on the simple fact of the shooting occurring from behind. [00:12:12] Speaker 01: Is there ever a case then without an eyewitness that doesn't suffer the same defect you're alleging here? [00:12:20] Speaker 04: Well, I think looking at the cases that were cited in the briefs, the example of the [00:12:30] Speaker 04: Trace Wilson case was a case where there was no eyewitness and no forensic evidence, but the difference in that case was there had been prior admissions by the defendant who then recanted at trial, and his admissions lined up with [00:12:45] Speaker 04: the physical evidence and the forensic evidence, including that he described where the murder took place, where he disposed of the body, and the means of death, and it all lined up. [00:12:54] Speaker 04: So yes, there can be, if there is other evidence that the jury can point to or can rely on. [00:13:02] Speaker 04: I do want to, because I only have three minutes left, I did want to at least briefly discuss these other issues, including the jury misconduct issue and the courts. [00:13:13] Speaker 04: Essentially, and I'm going to try to be very quick here because of the time, but there were two improper topics of investigation that this juror PB engaged in. [00:13:24] Speaker 04: He spoke with a third party attorney and apparently had conversations with that attorney related to the process of the jury's deliberations, but also the legal definitions of matters that were pertinent to the jury's deliberations and about which they had sent out a jury question the night before. [00:13:43] Speaker 04: It's our position that the district court abused its discretion in severely limiting [00:13:49] Speaker 04: defense counsel's ability to investigate these issues. [00:13:52] Speaker 04: And now, on appeal, the government argues that there's not evidence of an improper effect of this misconduct. [00:14:00] Speaker 04: But the reason why there is not that evidence is because we were prohibited from investigating, including we were not given the opportunity to have a hearing where we could speak to that third-party attorney. [00:14:11] Speaker 04: and learn more about what the conversation was. [00:14:14] Speaker 04: There were discrepancies between what she told the judge and what the judge told counsel, and then what the juror told the judge. [00:14:22] Speaker 04: So we had the two people who were involved in this conversation who gave different accounts of the conversation, and counsel did not have the opportunity to test that in a hearing. [00:14:32] Speaker 00: What were the different accounts? [00:14:36] Speaker 04: The third party attorney described a five-minute conversation. [00:14:41] Speaker 04: She referenced questions going to both the process and the legal issues. [00:14:49] Speaker 04: When PB was questioned by the judge, he minimized the conversation, said it was no more than a minute and a half, and denied asking about the legal definitions, at least initially. [00:15:00] Speaker 04: He said he was only, or no, excuse me, I think he denied talking about the Allen charge or the potential jury process. [00:15:08] Speaker 04: And the questioning of the other jurors was limited to only asking if they knew that PB had brought in information from these other [00:15:18] Speaker 04: this outside party, which they would only have had that information if PB had confessed to it when all the evidence showed that PB was attempting to hide his misconduct. [00:15:28] Speaker 04: And I'm out of time. [00:15:31] Speaker 02: We'll stop your clock. [00:15:32] Speaker 02: Robert, stop your clock. [00:15:33] Speaker 02: Do you have any other questions? [00:15:35] Speaker 02: Okay, thank you. [00:15:50] Speaker 03: Good morning, Your Honors. [00:15:51] Speaker 03: May it please the Court, Lisa Williams, representing the United States of America. [00:15:56] Speaker 03: I'd like to talk about the sufficiency of the evidence first and correct some of the record. [00:16:03] Speaker 03: Starting with that there was no evidence that [00:16:05] Speaker 03: Mr. Arthur was sitting when he was shot. [00:16:09] Speaker 03: That's directly belied by the evidence in this case. [00:16:12] Speaker 03: If you take a look at government 42 and government 44, these are pictures of one of the dining room chairs. [00:16:19] Speaker 03: And you clearly see blood poured down through the front of the chair and the back of the chair. [00:16:24] Speaker 03: And there is no reasonable way that blood could get on that chair in that pattern if Mr. Arthur was somehow standing away from the chair when he was shot. [00:16:33] Speaker 03: He has to be sitting in the chair. [00:16:35] Speaker 03: excuse me, in the chair because of how the blood then ends up on the chair. [00:16:39] Speaker 02: I don't know that anybody's ever questioned that, Ms. [00:16:41] Speaker 02: Williams. [00:16:42] Speaker 02: I think the question is whether or not Mr. Smith was standing or seated. [00:16:47] Speaker 02: Obviously, Mr. Arthur, I don't think there's ever been any dispute that he's in that chair that has a bunch of blood on it. [00:16:54] Speaker 03: I'm sorry, Your Honor, I think defense counsel specifically questioned that when she was answering Judge Phillips' question about inferences on inferences. [00:17:01] Speaker 03: She said the only evidence was that he was shot from behind. [00:17:04] Speaker 03: We don't know if he was standing or sitting or where he was when he was shot. [00:17:08] Speaker 03: She said the only thing that we know for sure is that he was shot from behind. [00:17:12] Speaker 03: And that's simply not true. [00:17:13] Speaker 03: Based on this evidence, we know he's also seated. [00:17:16] Speaker 02: But we don't know, I guess the question I have is, [00:17:20] Speaker 02: Well, what evidence is there one way or another about whether Mr. Smith was seated? [00:17:26] Speaker 02: or standing and where he was standing in that kitchen when he decided to shoot Mr. Arthur? [00:17:33] Speaker 03: So that's a great question too, Your Honor, and I think there's evidence of that in the record. [00:17:38] Speaker 03: You can look at government exhibit nine, which I believe you also have on hand. [00:17:41] Speaker 03: That's the layout of the front living room to the kitchen. [00:17:46] Speaker 03: And if you peer through that arch, you can kind of see how the chairs are positioned around the table, right? [00:17:50] Speaker 03: So this is a oval-shaped dining room table. [00:17:52] Speaker 03: There's six total chairs in the room. [00:17:54] Speaker 03: You have two on each side and one on the ends. [00:17:57] Speaker 03: Three of the chairs are untouched. [00:17:59] Speaker 03: The two chairs with their backs facing the door haven't moved, and the chair far away on the window hasn't moved. [00:18:05] Speaker 03: The other three chairs are moved, and they have blood on them. [00:18:07] Speaker 03: So those are the three chairs involved in the shooting, where everyone was sitting. [00:18:14] Speaker 03: And we don't know which chair Mr. Arthur [00:18:17] Speaker 03: was sitting there. [00:18:18] Speaker 03: That's because the defendant says he doesn't remember. [00:18:20] Speaker 03: But it's one of those three. [00:18:23] Speaker 03: And if you look at where those three chairs are positioned, there's no way that the defendant could have been sitting in a chair to shoot Mr. Arthur from behind based on the three chairs that are in play. [00:18:37] Speaker 03: He has to be standing behind Mr. Arthur when he shoots him. [00:18:40] Speaker 02: When he shoots him? [00:18:41] Speaker 03: Yes. [00:18:42] Speaker 02: Right. [00:18:42] Speaker 02: No question. [00:18:45] Speaker 02: So when he's standing or sitting, how do you know what was going in Mr. Smith's brain when he decided to shoot him? [00:18:53] Speaker 02: Was he over near the stove? [00:18:55] Speaker 02: Did he say, you know, I'm going to go boil some spaghetti. [00:18:59] Speaker 02: I'm going to go get a bottle of water out of the refrigerator. [00:19:02] Speaker 02: And Mr. Arthur made some smart aleck remark and he pulled out his .25 and shot him. [00:19:09] Speaker 02: How do we know where Mr. Smith was when he decided to shoot him? [00:19:14] Speaker 03: Well, how do we know where he was in his head? [00:19:16] Speaker 03: We don't know. [00:19:17] Speaker 03: But that's evidence of motive, which the government obviously doesn't have to prove. [00:19:21] Speaker 02: You do have to show premeditation, however. [00:19:24] Speaker 03: We do. [00:19:24] Speaker 03: That's absolutely true. [00:19:25] Speaker 03: And malice of forethought. [00:19:27] Speaker 03: So that's what we have to prove. [00:19:29] Speaker 03: And malice of forethought, of course, is killing a person deliberately and intentionally. [00:19:35] Speaker 03: And what we do know is that Mr. Smith is standing behind Mr. Arthur when the shooting takes place, again, based on the bullet trajectory. [00:19:43] Speaker 02: I agree on the mental support thought. [00:19:45] Speaker 03: Okay, then I'll skip that. [00:19:46] Speaker 03: So then premeditation of course is the result of planning or deliberation. [00:19:52] Speaker 03: That's what the government has to prove in order to get that element established. [00:19:56] Speaker 03: And again, the argument here is the standing behind him [00:20:01] Speaker 03: the drawing of the weapon, the aiming, the firing, the aiming, the firing. [00:20:07] Speaker 03: That's enough. [00:20:07] Speaker 03: That's that twinkling of an eye. [00:20:09] Speaker 03: But that is sufficient evidence. [00:20:12] Speaker 02: So based on that, so let's say I'm, hypothetically, I'm armed. [00:20:19] Speaker 02: And let's say Judge Phillips, as he frequently does, says something to make me really, really mad. [00:20:25] Speaker 02: And I pull out my gun and shoot him. [00:20:29] Speaker 02: So that's premeditation? [00:20:31] Speaker 03: No, that's not. [00:20:32] Speaker 03: That could be a heat of passion killing. [00:20:34] Speaker 02: Yeah, so how do we know which one of these was? [00:20:37] Speaker 03: So again, in this case, you pull out and you shoot him where he's standing, right? [00:20:41] Speaker 03: You don't stand up and walk behind him. [00:20:43] Speaker 03: and then fire your gun. [00:20:45] Speaker 03: I would submit that if Judge Phillips, in this scenario, made you mad and you shot him, but you did so by positioning yourself in a deliberate place where you can make a shot that extracts a high degree of likelihood that you're going to kill him. [00:21:01] Speaker 03: That's the premeditation necessary. [00:21:02] Speaker 02: Even if I shoot him in the head and I happen to be behind him, would I shoot him? [00:21:08] Speaker 02: Even if Mr. Smith happened to be behind Mr. Arthur [00:21:13] Speaker 02: When he got mad and pulled out his gun and shot him, that's premeditation, even though it was immediate. [00:21:19] Speaker 03: Well, there's no evidence that somehow Mr. Arthur made Mr. Smith mad, and that's why he shot him. [00:21:28] Speaker 03: That's lacking, and Mr. Smith never testified that that's how, again... Nobody testified about any of this. [00:21:34] Speaker 02: Well, that's... If somebody would, you know, testify about any of this, we wouldn't be here. [00:21:40] Speaker 03: Well, we did have testimony that the two men were playing cards at the table. [00:21:44] Speaker 03: So that is the setup, is that they're sitting at the table together, and the evidence suggests that, right? [00:21:49] Speaker 02: There's a deck of cards on the table. [00:21:52] Speaker 03: There's a deck of cards on the table, there's a bottle of Jack. [00:21:54] Speaker 02: There are? [00:21:54] Speaker 02: I didn't see it, but you're saying in those pictures there are? [00:21:57] Speaker 03: Yes, Your Honor, if you look at those, there is, in fact, now it's not spread out, they're not in the middle of a card game, but there is a deck of cards sitting on the table, there's a bottle of Jack, and it does seem that the two men were playing cards at the table. [00:22:11] Speaker 03: And then at some point in time, Mr. Smith stands up, gets behind Mr. Arthur, and puts two in the back of his head. [00:22:20] Speaker 03: And given the manner in which, and why Mr. Arthur is still seated. [00:22:27] Speaker 03: So they're not in some sort of fight. [00:22:29] Speaker 03: They're not in an argument where they're standing and confronting each other in the kitchen. [00:22:35] Speaker 03: Mr. Arthur is sitting in that chair. [00:22:38] Speaker 03: with his back towards Mr. Smith when Mr. Smith shoots him. [00:22:43] Speaker 03: And that was sufficient evidence. [00:22:45] Speaker 03: It's certainly not the strongest evidence of premeditation the government's ever had in any history of its case, but it is sufficient for the jury to find premeditation in this case. [00:23:01] Speaker 03: I also wanted [00:23:03] Speaker 03: to touch upon putting this in the light of the standard of review here. [00:23:08] Speaker 03: So what the defense is asking this court to do is to make inferences that the shooter was recklessly shooting and Mr. Arthur somehow got in the path of the bullet, that it was an accident. [00:23:20] Speaker 03: But given our standard of review, this court cannot reach an inference that is not based on any evidence. [00:23:28] Speaker 03: The government would submit that's unreasonable. [00:23:30] Speaker 03: The court has to make all the reasonable inferences that weigh in favor of the jury's verdict under our standard of review. [00:23:39] Speaker 03: And reaching a conclusion that some fact pattern happened [00:23:43] Speaker 03: where there's no evidence of it in the record cannot be a reasonable inference that supports the jury's verdict. [00:23:51] Speaker 03: So when the defense asks the court, oh, there's all these other ways, this court on this level of review shouldn't engage in those types of hypothetical maybes because they don't support, they're not reasonable and they don't support [00:24:06] Speaker 03: the jury's verdict. [00:24:07] Speaker 03: I also wanted to correct the record. [00:24:09] Speaker 03: The victim's blood was in fact found on Mr. Smith's clothing that night. [00:24:14] Speaker 03: That's at the trial testimony at 464 to 466. [00:24:17] Speaker 03: They did DNA analysis. [00:24:19] Speaker 03: They actually seized two different pieces of clothing. [00:24:22] Speaker 03: He had gray sweatpants on that night. [00:24:24] Speaker 03: They also seized from Mr. Smith jeans from his bedroom. [00:24:27] Speaker 03: Mr. Smith's blood alone was on the jeans. [00:24:30] Speaker 03: But the victim's blood, along with Mr. Smith's blood, was on his sweatpants that he was wearing that night. [00:24:37] Speaker 03: So there is evidence. [00:24:38] Speaker 03: She was talking about the blood splatter. [00:24:40] Speaker 03: We would have seen that. [00:24:40] Speaker 03: Well, there was, in fact, blood on his clothes. [00:24:43] Speaker 01: What kind of shirt? [00:24:46] Speaker 03: That's a great question, Your Honor. [00:24:47] Speaker 03: I can't recall what kind of shirt. [00:24:50] Speaker 03: I know he had sandal shoes on, sweatpants. [00:24:53] Speaker 01: Short sleeve, long sleeve? [00:24:56] Speaker 01: Because he had time to clean up. [00:24:58] Speaker 01: Yes. [00:24:59] Speaker 03: Well, and that brings me to another so much time to clean up. [00:25:02] Speaker 01: But if you're wearing a long sleeve shirt and you shoot from within four feet, I assume there might be some blood there, something at least to consider. [00:25:12] Speaker 03: There could be. [00:25:13] Speaker 03: It's a little tough because there's also blood on the ceiling. [00:25:20] Speaker 03: There's blood on the fridge. [00:25:21] Speaker 03: There's blood on the floor. [00:25:22] Speaker 03: So there was. [00:25:24] Speaker 03: an aggressive zone of blood splatter as a result from the shooting. [00:25:28] Speaker 03: And I understand the point you're making, Your Honor, is that we would then expect if you're holding the gun that some of that blowback would hit the shirt. [00:25:38] Speaker 03: But I think that you hit the nail in the coffin where whatever shirt he had on when police arrived, [00:25:44] Speaker 03: who knows if that's the actual shirt he was wearing when the shooting took place. [00:25:50] Speaker 03: And let's talk about that timeline for a second, because Lena Anderson, first of all, she gives a little few different conflicting accounts, but under all of her testimony, she at some point wakes up [00:26:03] Speaker 03: And she goes to the bathroom, and she's there for 10 or 15 minutes. [00:26:07] Speaker 03: And she wakes up to either the gunshots or immediately after the shooting takes place. [00:26:12] Speaker 03: So he's got 10 to 15 minutes to clean up while she's in the bathroom. [00:26:16] Speaker 03: Then she comes out, and they call 911. [00:26:19] Speaker 03: 911 gets called at 10-04. [00:26:22] Speaker 03: Dispatch, the 911 operator says she doesn't dispatch anybody until 10-10, and then the officers arrive a few minutes later. [00:26:28] Speaker 03: Defendant's already outside when they arrive. [00:26:30] Speaker 03: So he's got some additional time if he has items of evidence on him, like a shell casey, to go outside and dispose of that. [00:26:38] Speaker 03: Maybe there's extra clothes, but he has a significant amount of time. [00:26:43] Speaker 03: And we know, at least during some of that time, he gets the tarp, he puts the body on the tarp, and then he pulls that into that front living room area. [00:26:54] Speaker 01: Do we know that the 25 was in the home at any point? [00:26:59] Speaker 03: I don't think that's in the record, Your Honor. [00:27:01] Speaker 03: The 25, he had possession of the 25 when they went to Pawnee. [00:27:05] Speaker 03: They returned to the home, but I don't think [00:27:09] Speaker 03: because it would only be Lena that could put him with the gun in the house since Mr. Arthur is deceased, and I don't think the record supports that. [00:27:20] Speaker 03: Just, of course, the .25 caliber ammunition that was found in the home. [00:27:31] Speaker 03: So turning to, unless there are more questions about sufficiency, turning to the issue of the jury misconduct. [00:27:39] Speaker 03: Your Honor, it doesn't really matter who said what between PB and Underwood, the attorney. [00:27:47] Speaker 03: That there are discrepancies about that conversation isn't really the focus of the analysis. [00:27:55] Speaker 03: The focus of the analysis is what did the remaining jurors learn? [00:27:59] Speaker 03: about that conversation, if anything. [00:28:03] Speaker 03: And so there would frankly be no point in bringing in Underwood to have her talk about what she and PB talked about when the relevant inquiry is, OK, we're getting PB off the jerk. [00:28:16] Speaker 03: He's gone. [00:28:18] Speaker 03: Did he relay any improper information [00:28:22] Speaker 03: to the rest of the jury pool so that they have had outside influence injected into their deliberations. [00:28:31] Speaker 03: And there's simply no evidence that he did. [00:28:35] Speaker 03: He said he didn't. [00:28:36] Speaker 03: The fourth person said that he didn't. [00:28:39] Speaker 03: And the third surer, I believe it's ABJ, she also said that he didn't. [00:28:46] Speaker 01: And so. [00:28:46] Speaker 01: Did he have any information to inject? [00:28:48] Speaker 03: Well, and that's another argument the government makes in the brief. [00:28:51] Speaker 03: The government's position is no. [00:28:53] Speaker 03: I mean, they had this very strange conversation where Underwood is, and she says, I'm struggling to understand what he was talking about. [00:29:04] Speaker 03: I didn't really, and so I kept asking him questions, like what do you mean? [00:29:08] Speaker 01: Does she being the attorney? [00:29:09] Speaker 03: Yes. [00:29:09] Speaker 01: He calls an attorney, that's the problem. [00:29:11] Speaker 03: Yeah, well, I mean, he also lied about it to your honor. [00:29:15] Speaker 03: I mean, I don't want to downplay the problems with what PB did. [00:29:19] Speaker 03: Like, he violated several parts of his oath as a juror. [00:29:24] Speaker 03: But he calls her trying to get information. [00:29:27] Speaker 03: And if you hear what under what the attorney says is, I didn't understand what he was talking about. [00:29:32] Speaker 03: I said, are you talking about an Allen charge? [00:29:34] Speaker 03: Which he wasn't. [00:29:35] Speaker 03: If you kind of follow it through right, he's looking for that phrase, a distinction without a difference. [00:29:41] Speaker 03: which then if you marry it up with some of the things that the jurors talk about later, right, they describe him, the defense describes him as a leader, but I would say he's not a leader, he's [00:29:54] Speaker 03: seems to kind of be the annoying juror, right? [00:29:57] Speaker 03: Well, they say he's not taking a position. [00:29:59] Speaker 00: He's a questioner. [00:30:00] Speaker 03: He's a questioner, right? [00:30:01] Speaker 03: Exactly, Your Honor. [00:30:03] Speaker 03: Because he's not taking a position. [00:30:05] Speaker 03: He's not trying to tell the other jurors we should decide this way. [00:30:09] Speaker 03: What they say is he wants us to prove why we're right. [00:30:12] Speaker 03: And he's always questioning us. [00:30:13] Speaker 03: And he's always making us explain why we're right. [00:30:16] Speaker 03: That's who this guy is. [00:30:18] Speaker 03: So he's not leading them to a certain conclusion. [00:30:23] Speaker 03: making them answer a lot of questions. [00:30:26] Speaker 03: And you can tell the other jurors are getting fed up because they also talk about that conversation in the morning, right? [00:30:32] Speaker 03: We did have a conversation. [00:30:33] Speaker 03: It was about the process. [00:30:35] Speaker 03: It was about what we were going to do to move forward to discuss this case because of how annoying they found PD. [00:30:43] Speaker 01: Are there times when a court needs to talk to every juror? [00:30:47] Speaker 03: Oh, sure there are, Your Honor. [00:30:49] Speaker 03: I mean, I would never stand up here and say, no, absolutely not. [00:30:52] Speaker 03: But I think that, and if I may answer, I see I'm out of time. [00:30:56] Speaker 03: Please do. [00:30:57] Speaker 03: I think that the court is rightly concerned with moving the proceedings along, getting them back on track, getting them back to deliberating. [00:31:05] Speaker 03: But also, if you look at the questioning of the four person in ABJ, [00:31:10] Speaker 03: The court starts off by trying to be vague. [00:31:14] Speaker 03: And then it's like, OK, sorry. [00:31:15] Speaker 03: Here's what happened. [00:31:17] Speaker 03: And I think there's an argument that if he went through, if the judge went through and told every single juror what happened, that's putting more extraneous information into that jury pool. [00:31:29] Speaker 03: That doesn't need to be there, because then they all, is it like the hot gossip of the jury room, and they're all talking with each other, oh, PBJ, calling an attorney. [00:31:38] Speaker 03: That is a distraction. [00:31:40] Speaker 03: And at that point, I think there are even more concerns about what's going on in the jury room if they're all focused on [00:31:47] Speaker 03: the events of PD instead of deliberating in this case. [00:31:51] Speaker 01: Just one last question. [00:31:53] Speaker 01: How long did the jury deliberate? [00:31:55] Speaker 03: Oh gosh, Your Honor, I'm so sorry. [00:31:57] Speaker 03: I usually actually have that question, that answer ready to go. [00:32:00] Speaker 03: They did return a verdict later that day and this all went down. [00:32:08] Speaker 03: They stopped delivering anything at 11 a.m. [00:32:11] Speaker 03: They fixed it all, and they got a verdict in that day. [00:32:13] Speaker 03: So I would say at most five hours, but knowing lunch and getting the alternate there are probably less than an additional five hours. [00:32:22] Speaker 03: Thank you, Your Honors. [00:32:28] Speaker 04: Your Honor, I can answer that question. [00:32:30] Speaker 04: The time between the misconduct and the stopping of the jury, so the time of deliberation with the influence of the improper information was about between an hour and a half to two hours. [00:32:44] Speaker 04: At that point then, the judge stopped it. [00:32:48] Speaker 04: When PB was removed and a replacement juror was placed on the jury, the jury was instructed to disregard all prior and start deliberations anew. [00:32:58] Speaker 04: the entire time of deliberations was one hour and 41 minutes. [00:33:03] Speaker 04: So essentially the entire deliberations that led to a verdict was almost the same as the tainted time period. [00:33:11] Speaker 04: Just briefly addressing this jury misconduct issue, it's unclear to me how the government can represent what the conversation was with such [00:33:20] Speaker 04: conviction when we did not have the opportunity to explore. [00:33:23] Speaker 04: And the judge himself in the transcript on page 699 to 670 specifically says in reference to the text message from the third party attorney that he didn't understand. [00:33:37] Speaker 04: I don't understand that is what he said. [00:33:40] Speaker 04: So he didn't understand exactly what he was hearing from the attorney that the conversation had been. [00:33:45] Speaker 04: And then of course, PB comes in and attempts to minimize and prevaricates on what it was. [00:33:50] Speaker 04: But what we do know is that, you know, the government makes the point that the issue is whether, or excuse me, the issue is not whether the jurors knew [00:34:04] Speaker 04: that PB had spoken to the outside attorney. [00:34:06] Speaker 04: The issue is whether the information that PB got from that outside attorney was introduced into deliberations. [00:34:13] Speaker 04: And we know that he asked that attorney about some of the specific definitions, one versus two seems to me to imply first degree versus second degree murder, and also that he asked about premeditation and malice of forethought. [00:34:27] Speaker 04: And that was the exact topic of the jury questions and the jurors who were [00:34:32] Speaker 04: the two jurors that the court did question did say that they had spoken about that issue that morning. [00:34:39] Speaker 04: So the jury conversation during that at least hour and a half of when the taint was present did discuss the same topic that he had talked about with the third party attorneys. [00:34:51] Speaker 02: Counsel, I think Judge Seymour has a question. [00:34:53] Speaker 00: But what specifically did they talk about? [00:34:58] Speaker 00: that was discussed. [00:34:59] Speaker 04: We know that the jury question was about pre meditation and malice of forethought. [00:35:05] Speaker 04: PB spoke asked questions related to that to the juror or excuse me to the third party attorney, and then went from the jury restarted deliberations. [00:35:14] Speaker 04: They spoke about the same topics. [00:35:18] Speaker 02: I did just want to address I hate to be picky, but you're about two minutes over time. [00:35:24] Speaker 02: Okay, thank you. [00:35:26] Speaker 02: Just going up. [00:35:28] Speaker 02: Thank you very much, both counsel. [00:35:32] Speaker 02: Your arguments in your briefing and your arguments today were excellent, and we so appreciate it. [00:35:38] Speaker 02: The court is adjourned.