[00:00:00] Speaker 04:
This morning is United States versus Walker, number 237038.

[00:00:07] Speaker 04:
Counsel, you may proceed.

[00:00:09] Speaker 02:
Thank you, Your Honor.

[00:00:11] Speaker 02:
May it please the Court, my name is Daniel Kaplan, I represent the Appellant, Anthony Walker.

[00:00:19] Speaker 02:
A jury instruction on a crime with lessers is a decision tree.

[00:00:27] Speaker 02:
The jury instruction in this case on the crime of first degree murder was a tree that was missing a crucial limb.

[00:00:37] Speaker 02:
We did, Your Honor.

[00:00:43] Speaker 02:
We did request it, Your Honor.

[00:00:45] Speaker 02:
So what happened was the court, and you may be referring to the government, makes note of our pre-trial written proposed jury instructions.

[00:00:55] Speaker 02:
In the pretrial proposed written instructions, we did not include involuntary manslaughter slash imperfect self-defense.

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In other words, imperfect self-defense as the basis for involuntary manslaughter.

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However, in the course of trial, after the close of evidence, the judge sent the parties to an off-the-record one-hour conference with his clerk to work out instruction issues.

[00:01:22] Speaker 02:
When they came back on the record,

[00:01:24] Speaker 02:
the involuntary manslaughter instruction, which was an imperfect self-defense instruction, was in the instructions.

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We know this because it was referred to seven times by both parties and by the court.

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And that was the point at which my colleague, the trial lawyer, said, we need an additional instruction included within the first degree instruction that tells the jury not to convict.

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if it was imperfect self-defense.

[00:01:54] Speaker 02:
And that's what was denied on the record.

[00:01:58] Speaker 02:
On page 492 of the record, the lead trial lawyer, John Sands, said, and again, this is what he said, at the point at which the involuntary manslaughter imperfect self-defense instruction was in the instructions.

[00:02:21] Speaker 02:
He said in the Ninth Circuit, the government has to prove all the lessors beyond a reasonable doubt.

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So we would ask that involuntary be included as an element that the government has to prove beyond a reasonable doubt for first, second, and voluntary.

[00:02:35] Speaker 02:
Now, if you look at how the instructions came, how the first degree murder... No word of that imperfect shell to finish, though.

[00:02:42] Speaker 02:
No, I disagree, Your Honor.

[00:02:43] Speaker 02:
I disagree, respectfully, because the involuntary manslaughter instruction

[00:02:50] Speaker 02:
which was in the instructions by that point and in the final instructions is an imperfect self-defense instruction.

[00:02:57] Speaker 04:
But not, I think what Judge Kelly was saying, not in so many, the words weren't used, correct?

[00:03:03] Speaker 02:
The words imperfect self-defense were not used.

[00:03:06] Speaker 02:
But there is no reason to tell the jury, this by the way is what we lawyers call imperfect self-defense.

[00:03:12] Speaker 02:
They were told in the involuntary manslaughter instruction what the substance of that finding is.

[00:03:19] Speaker 03:
So in the involuntary... Did you argue that the instruction is given was wrong?

[00:03:24] Speaker 03:
It wasn't wrong.

[00:03:27] Speaker 03:
Before the final instructions were given, did you object to that instruction and state the reason for the objection?

[00:03:35] Speaker 02:
The instruction was correct.

[00:03:37] Speaker 02:
So there was no reason to object.

[00:03:39] Speaker 02:
The problem was it was not... You mean the involuntary manslaughter was... The involuntary manslaughter was correct.

[00:03:45] Speaker 02:
And it was an imperfect self-defense theory.

[00:03:48] Speaker 02:
So if you look at page 51 of the record, which is the jury, the final jury instructions, involuntary manslaughter is the title of this instruction.

[00:03:57] Speaker 02:
And then the first element is, on or about the date, the defendant caused the death of the victim while protecting himself lawfully but using excessive force without due caution and circumspection, which act might produce death.

[00:04:11] Speaker 02:
So this was submitted as the theory of involuntary manslaughter, an imperfect self-defense theory of involuntary manslaughter.

[00:04:19] Speaker 03:
Well, that is not containing the involuntary manslaughter by itself.

[00:04:25] Speaker 03:
Somebody's got to say something about it.

[00:04:28] Speaker 03:
Imperfect self-defense, it does not automatically enter voluntary manslaughter instruction.

[00:04:37] Speaker 02:
Well, I'm not sure I follow the point you're making, Your Honor.

[00:04:41] Speaker 02:
This is a full involuntary manslaughter instruction, which is based upon the court's model involuntary manslaughter instruction.

[00:04:48] Speaker 02:
I'm very familiar with the model instructions.

[00:04:52] Speaker 02:
So I'm not understanding the point you're making.

[00:04:55] Speaker 02:
Because this is phrased, and the part I just read shows that it was phrased as an involuntary manslaughter instruction based on imperfect self-defense.

[00:05:05] Speaker 03:
No, I don't think it says that.

[00:05:07] Speaker 02:
Well, that's what the language causing the death while protecting himself.

[00:05:15] Speaker 04:
Well, counsel, let me try it this way, see if this helps.

[00:05:20] Speaker 04:
So I take it Mr. Walker asked the court to include involuntary manslaughter as an element of first degree murder for the government to, I guess what, disprove?

[00:05:36] Speaker 04:
All right.

[00:05:36] Speaker 04:
So is that correct?

[00:05:38] Speaker 02:
Yes.

[00:05:39] Speaker 04:
All right.

[00:05:40] Speaker 04:
And I think that's what, there was an involuntary manslaughter, a freestanding involuntary manslaughter.

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And I think we're kind of, so let's focus on that one.

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The one that was requested and not given.

[00:05:55] Speaker 04:
That's what we're talking about, right?

[00:05:57] Speaker 02:
That was the flaw.

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That was what we were protecting.

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There was not a problem with the involuntary that was given.

[00:06:04] Speaker 02:
It was correct.

[00:06:05] Speaker 04:
Okay.

[00:06:05] Speaker 04:
So let's focus on what you say should have been given but wasn't given.

[00:06:12] Speaker 04:
And what I'm interested in is if you embed the involuntary in the first degree murder instruction and second and so forth, but let's just say the first degree murder,

[00:06:27] Speaker 04:
How would that be an imperfect self-defense instruction?

[00:06:33] Speaker 04:
How does including that make it an imperfect self-defense instruction?

[00:06:40] Speaker 04:
I think we need some help understanding that.

[00:06:43] Speaker 02:
Well, it should have been treated in the same way that heat of passion was treated.

[00:06:50] Speaker 02:
So heat of passion, voluntary manslaughter, and

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imperfect self-defense, involuntary manslaughter, were the two mitigators that were in the evidence that were requested and given as mitigation that nullified malice, if believed nullified malice.

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And this court said in break, citing Sarawap, that to prove malice, the government has to disprove any mitigators that are part of the case.

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And those were the two mitigators that nullified malice in the case.

[00:07:20] Speaker 02:
So what should have been done

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Because what was done for heat of passion was, it was an element of the first degree instruction.

[00:07:27] Speaker 02:
It said, element sixth, the killing was not done in the heat of passion on sudden provocation.

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And then it said the killing was not done in self-defense.

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And what should have been added if our request had been accepted was, eighth, the killing was not done while the defendant was protecting himself lawfully, but using excessive force without due caution and circumspection, so that the

[00:07:51] Speaker 02:
jury would be informed not to convict on first degree if they found what is in essence the substance of imperfect self-defense.

[00:08:00] Speaker 03:
The imperfect self-defense does not excuse the person from any crime.

[00:08:08] Speaker 03:
True, true.

[00:08:10] Speaker 03:
And what you're suggesting is that if they had done that and put in

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something more than just a voluntary manslaughter charge, it would have been an excuse for the crime.

[00:08:23] Speaker 02:
No.

[00:08:24] Speaker 02:
No.

[00:08:25] Speaker 02:
I'm not suggesting that.

[00:08:25] Speaker 02:
And that's the Sago case, as you're well aware.

[00:08:28] Speaker 02:
But that was fundamentally different, because in Sago, there was not an involuntary manslaughter instruction.

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The jury was not given the lesser crime to convict on.

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Here, there was.

[00:08:41] Speaker 02:
They got the involuntary manslaughter structure?

[00:08:47] Speaker 02:
Exactly.

[00:08:48] Speaker 02:
So if we got what we want, the jury would have been told, if you think this was in essence imperfect self-defense, don't convict on first degree, but they would also have been told you can convict on involuntary manslaughter.

[00:09:00] Speaker 02:
That's what should have happened.

[00:09:01] Speaker 00:
And you're saying the jury never reached the involuntary manslaughter?

[00:09:05] Speaker 02:
They were specifically told not to.

[00:09:06] Speaker 00:
Not to, right.

[00:09:07] Speaker 00:
Because they found malice on the first degree.

[00:09:11] Speaker 00:
You're saying they found malice without the instruction being included in the... Exactly.

[00:09:17] Speaker 02:
They found malice without ever having to think about committing it.

[00:09:21] Speaker 00:
Is there a pattern instruction that

[00:09:25] Speaker 00:
would include language about imperfect self-defense that could have been used?

[00:09:29] Speaker 02:
Judge Kelly, in his separate opinion, and I believe as it was in Sago, I think he observed that he couldn't find any patterns that deal with this.

[00:09:38] Speaker 02:
However, you know, what I just read to you is based upon following the structure of what was in here.

[00:09:47] Speaker 02:
So in other words, what I said

[00:09:49] Speaker 02:
imperfect self-defense slash involuntary manslaughter should have been treated exactly the same way that heat of passion slash voluntary manslaughter was treated to make sure the jury would not... Are you combining imperfect self-defense with involuntary manslaughter?

[00:10:08] Speaker 03:
Are you saying that if there's involuntary manslaughter, that automatically is imperfect self-defense?

[00:10:14] Speaker 03:
No, because there's other types of... Manslaughter is incorrect.

[00:10:20] Speaker 02:
Well, this court said in Britt and many other cases that if imperfect self-defense is accepted, the result is involuntary manslaughter.

[00:10:29] Speaker 02:
That's what they said in Britt most recently.

[00:10:32] Speaker 03:
Well, it was also raised, and imperfect self-defense was specifically raised in addition, and the judge was required under Britt to prepare an appropriate instruction even though one was not hindered.

[00:10:48] Speaker 03:
which our rules sort of require.

[00:10:52] Speaker 02:
Well, I understand.

[00:10:53] Speaker 03:
I think we're mixing apples and oranges there with trying to force imperfect self-defense into an involuntary manslaughter instruction in all cases.

[00:11:05] Speaker 02:
No, I'm not suggesting it should be in all cases.

[00:11:10] Speaker 02:
Involuntary manslaughter can be based on pure recklessness or extreme negligence.

[00:11:15] Speaker 02:
That's not this case.

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That's not a possible theory in this case, and nobody asked for it.

[00:11:21] Speaker 02:
But this is a case where we have a defendant who was scared, he was knocked on the ground, he thought they were following him.

[00:11:30] Speaker 02:
So many factors, people talked to him, they were scared for him, who saw what was happening.

[00:11:34] Speaker 02:
So in other words, and he made comments to the FBI, that he was scared, he thought he had to act before they came after him.

[00:11:41] Speaker 02:
So this is a case where the theory of imperfect self-defense

[00:11:45] Speaker 02:
is very much in the evidence, and it supports an involuntary manslaughter instruction which was given.

[00:11:53] Speaker 04:
But the question is beyond whether it's in the evidence.

[00:11:57] Speaker 04:
The question is, was the request clearly made, specifically and clearly made, to the court?

[00:12:07] Speaker 04:
And it seems as though the request in Britt was a lot more clearly made than it was here.

[00:12:14] Speaker 04:
I mean, you have to defend what happened in court.

[00:12:17] Speaker 04:
I understand that.

[00:12:18] Speaker 04:
But just by virtue of the questions you're getting this morning, it doesn't seem like it was all that straightforward.

[00:12:26] Speaker 02:
At first glance, it doesn't seem straightforward.

[00:12:29] Speaker 02:
But when you put it in context of the instruction that was given, what Mr. Sands is saying is, for the other lessors, every lesser is built into all the graders.

[00:12:40] Speaker 02:
Every lesser, every greater, the jury is told, you must find not every remaining lesser.

[00:12:45] Speaker 02:
And then you go down a level, you must find not every, and he said, we should be treating and volunteering the same.

[00:12:50] Speaker 02:
I'd like to, if I could, just reserve the balance of my time.

[00:12:52] Speaker 04:
Well, I've got another question for you, if that's okay.

[00:12:56] Speaker 02:
Okay.

[00:12:56] Speaker 04:
I mean, we're looking to you to help us.

[00:12:58] Speaker 04:
Sure.

[00:12:58] Speaker 04:
So, I'm going to ask you.

[00:13:00] Speaker 04:
Sure.

[00:13:01] Speaker 04:
How, let's say that the instruction had been given.

[00:13:05] Speaker 04:
How does the government go about disproving

[00:13:09] Speaker 04:
in perfect self-defense if it's proven malice.

[00:13:15] Speaker 04:
Well, they can't prove malice if it's in perfect self-defense.

[00:13:18] Speaker 04:
But malice is already in the first degree instruction, and if they proved it... Well, they haven't proved it until they've negatived all of the mitigators.

[00:13:29] Speaker 02:
That's what this court said in Zerulop and Britt.

[00:13:31] Speaker 02:
Part of proving malice is disproving all the mitigators.

[00:13:33] Speaker 04:
If you've got a case example from our circuit where

[00:13:39] Speaker 04:
something like this imperfect self-defense is embedded in the first-degree murder instruction.

[00:13:48] Speaker 04:
You got a case where that's happened?

[00:13:51] Speaker 02:
I don't have one off hand.

[00:13:53] Speaker 02:
I might be able to find one and file a real 20-J letter.

[00:13:55] Speaker 02:
That'd be helpful.

[00:13:57] Speaker 02:
Okay.

[00:13:57] Speaker 02:
All right.

[00:13:58] Speaker 02:
Okay.

[00:13:59] Speaker 02:
You've got some time left unless you want to say something else.

[00:14:01] Speaker 02:
I'd like to reserve for a bottle if I could.

[00:14:03] Speaker 04:
Thank you.

[00:14:22] Speaker 01:
Good morning, Your Honors.

[00:14:23] Speaker 01:
Lisa Williams here on behalf of the United States of America.

[00:14:29] Speaker 01:
Listening to the court's questions, I believe the court got right to the main issue here, which is that there is a radical difference between imperfect self-defense and involuntary manslaughter.

[00:14:42] Speaker 01:
One, of course, is an affirmative defense, while the other is a lesser included offense.

[00:14:47] Speaker 01:
And while all imperfect self defenses

[00:14:50] Speaker 01:
reduce culpability to involuntary manslaughter.

[00:14:54] Speaker 01:
Not all involuntary manslaughters equal imperfect self-defense.

[00:14:59] Speaker 01:
And because of that, the defendant was required to specifically request an imperfect self-defense instruction if that's what he wanted.

[00:15:09] Speaker 01:
He failed to do that, and then he failed to object to the exclusion of imperfect self-defense in the court's jury instructions.

[00:15:17] Speaker 01:
And again, Rule 30 requires

[00:15:19] Speaker 01:
all objections to the instructions to be clear and to be made on the record.

[00:15:24] Speaker 04:
So how would you compare what happened here with Britt?

[00:15:27] Speaker 01:
So in Britt, they actually asked for the imperfect self-defense instruction.

[00:15:32] Speaker 01:
And the issue in Britt was the defense instruction that was proposed was wrong.

[00:15:36] Speaker 01:
It was legally incorrect.

[00:15:38] Speaker 01:
And the court threw up its hands and said, well, you gave me a wrong instruction, so we're not going to do it.

[00:15:43] Speaker 01:
And what this court found was error is the court's

[00:15:45] Speaker 01:
refusal to craft the correct instruction because it found that the defense properly asked for it.

[00:15:52] Speaker 01:
There was evidence to support the instruction.

[00:15:54] Speaker 01:
They teed up the issue and at that point the court has the burden, I wouldn't say burden, but responsibility of putting together a correct set of instructions.

[00:16:03] Speaker 04:
Do you agree with counsel that the evidence here would have supported an imperfect self-defense instruction?

[00:16:12] Speaker 04:
I know you're arguing that it was

[00:16:14] Speaker 04:
wasn't requested properly, but was the evidentiary basis for it there?

[00:16:20] Speaker 01:
I think I have to agree to that, Your Honor, because I've thought a lot about it, and I don't know how you could say that evidence supports self-defense, but not imperfect self-defense.

[00:16:30] Speaker 01:
Because imperfect self-defense simply is a self-defense instruction that says, but your use of force wasn't reasonable.

[00:16:37] Speaker 01:
You weren't reasonably

[00:16:39] Speaker 01:
justified.

[00:16:40] Speaker 01:
And so if the other elements of self-defense have been proven, which the district court found, I think that the only difference, right, is the reasonableness of the defendant's subjective belief.

[00:16:52] Speaker 01:
And that's an issue that the jury should decide, not one that should prevent the instruction from being given.

[00:16:58] Speaker 01:
It's almost like imperfect self-defense is a lesser included

[00:17:01] Speaker 01:
of self-defense in a way.

[00:17:04] Speaker 01:
So I don't think that you could argue that the evidence is insufficient.

[00:17:09] Speaker 00:
I mean, if you agree that an imperfect self-defense instruction would have been appropriate here, and here they essentially do, they are equal.

[00:17:16] Speaker 00:
And they did request an involuntary manslaughter instruction be included within the first-degree murder instruction.

[00:17:25] Speaker 00:
Why wouldn't that have solved the problem?

[00:17:27] Speaker 01:
Because they didn't ask for it, Your Honor, and here's the thing.

[00:17:29] Speaker 00:
Well, I'm asking if it had been given, wouldn't it have had the effect that counsel says it would, to have essentially put imperfect self-defense in front of the jury?

[00:17:42] Speaker 01:
You mean if the imperfect self-defense instruction was given by the jury?

[00:17:46] Speaker 00:
No, if the involuntary manslaughter had been included where they wanted it to be.

[00:17:53] Speaker 00:
The jury would have had to deal with it.

[00:17:55] Speaker 01:
The jury, first of all, did deal with the issue because of the finding of malice.

[00:18:01] Speaker 00:
He says Sarah Wopp and a couple other cases basically say you have to disprove

[00:18:10] Speaker 00:
all the different imperfect, all the different lesser-includes.

[00:18:17] Speaker 01:
And that's the distinction.

[00:18:19] Speaker 01:
What about that?

[00:18:20] Speaker 01:
That's the really interesting part, especially how Lofton plays into this.

[00:18:24] Speaker 01:
So the case law is that the government does have to prove, well, what Lofton says is that the government does have to prove that the defenses, the affirmative defenses, have not been proven.

[00:18:39] Speaker 01:
What Lofton does not say is that the lesser included have to be.

[00:18:44] Speaker 01:
And if you look at the objection language that Mr. Sands used at the trial court, he said in the Ninth Circuit, the lessors all have to be included.

[00:18:52] Speaker 01:
And that may very well be true.

[00:18:54] Speaker 01:
But in the Tenth Circuit, it's not that the lessors have to be included.

[00:18:58] Speaker 01:
It's that the defenses have to be included.

[00:19:02] Speaker 01:
And so when you properly put Lofton in that context and read what it requires, then the failure to include the involuntary as an element of the murder instruction is not at all error because we don't require the lessors to be included here.

[00:19:18] Speaker 01:
Moreover, the issue, the concern with

[00:19:21] Speaker 01:
not including heat of passion and the affirmative defenses is a lot of what was argued in what Lofton lays out, that the jury won't properly get to consider the defense.

[00:19:31] Speaker 01:
But here, because involuntary requires the absence of malice, the jury necessarily rejected involuntary when it found defendant acted with malice.

[00:19:46] Speaker 01:
That is not the same as heat of passion and as voluntary.

[00:19:49] Speaker 01:
The involuntary is kind of a separate issue that is dealt with through the first degree murder instruction because of that.

[00:20:04] Speaker 01:
But what this court has to do, first of all, is separate out this imperfect self-defense from the involuntary issue.

[00:20:11] Speaker 01:
And if you go through the defense reply brief, the defense argues

[00:20:16] Speaker 01:
that they asked for imperfect self-defense because they argued imperfect self-defense in opening and closing.

[00:20:25] Speaker 01:
And that is not sufficient under this court's precedent to constitute the required request of the court.

[00:20:34] Speaker 01:
Simply because they argued it doesn't mean they asked for the instruction properly or filed a proper objection to the lack of inclusion.

[00:20:43] Speaker 04:
Have we said that in a case?

[00:20:47] Speaker 01:
I would say the Davis case, yes, Your Honor.

[00:20:55] Speaker 01:
Because Davis says when the defense is not squarely raised, the jury need and malice is not presumed, which is this case, right?

[00:21:03] Speaker 01:
The government had to prove malice.

[00:21:04] Speaker 01:
So when the defense isn't squarely raised and malice is not presumed, there's not an error with the instructions, the jury need not be told

[00:21:12] Speaker 01:
the government must disprove heat of passion.

[00:21:15] Speaker 01:
Davis was a case that kind of limited Lofton.

[00:21:17] Speaker 01:
But it says, if you don't squarely ask for it, then the government and the court don't have to include it in the instructions.

[00:21:24] Speaker 01:
And I really want to get to the heart of why that is.

[00:21:27] Speaker 01:
It's because this is a strategic tactical issue that the defense makes.

[00:21:32] Speaker 01:
Requesting instructions, lesser included and defenses, is a strategic defense decision.

[00:21:39] Speaker 01:
This case screams,

[00:21:42] Speaker 01:
first degree murder.

[00:21:43] Speaker 01:
This man, the confrontation happened over the middle school.

[00:21:47] Speaker 01:
He got bested by a group of teenagers in front of other people.

[00:21:53] Speaker 01:
They threw his bike, which I think is pretty disrespectful.

[00:21:56] Speaker 01:
So he's in a mood.

[00:21:58] Speaker 01:
They drive away.

[00:21:59] Speaker 01:
These teenagers go to get sodas and he sees them and he stops his bike out of the drive-through line where they're waiting, puts his bike down,

[00:22:10] Speaker 01:
gets into his backpack, he pulls out a knife, he looks at the car, and we know because it's all on video, looks at the car, and then he approaches the driver's side window and he stabs the victim in the heart.

[00:22:22] Speaker 01:
It screams first degree murder.

[00:22:25] Speaker 01:
And as a strategical decision, defense counsel may have decided to only go with self-defense, which is a complete acquittal and muddle the issue of

[00:22:39] Speaker 01:
the defendant's state of mind and whether it was reasonable, subjectively reasonable, or objectively remodel that issue.

[00:22:46] Speaker 01:
Maybe they didn't want imperfect self-defense spelled out in front of the jury.

[00:22:51] Speaker 01:
Maybe they wanted to go swing for the fences and try to get a self-defense.

[00:22:56] Speaker 01:
And that's why they didn't ask for it.

[00:22:58] Speaker 00:
They asked for an involuntary manslaughter instruction to be included with the mouse instruction.

[00:23:04] Speaker 00:
Isn't that evidence of what they intended?

[00:23:07] Speaker 01:
Well, not the way this involuntary manslaughter instruction reads, because it is nowhere close to any type of imperfect self-defense.

[00:23:14] Speaker 01:
The language and the issues that are present in that are completely different than self-defense.

[00:23:19] Speaker 01:
And they did hammer self-defense in opening and closing.

[00:23:23] Speaker 01:
And so, again, very well could have been a decision that they made in consultation with their client to say, listen,

[00:23:30] Speaker 01:
Would you rather try to just get a total acquittal, or would you go for something lesser?

[00:23:35] Speaker 01:
And maybe they decided, let's just go for the acquittal, because this is not a good case for us.

[00:23:40] Speaker 01:
And it's not.

[00:23:41] Speaker 01:
I mean, this is very strong evidence of first degree murder.

[00:23:46] Speaker 01:
But all we know is that they never asked for imperfect self-defense.

[00:23:51] Speaker 01:
So to put an obligation on the district court to Sue Esponte, get involved,

[00:23:55] Speaker 01:
and trial strategy and bring up affirmative defenses on its own is something that this court has never required from the district court, and it shouldn't require it in this case either.

[00:24:06] Speaker 01:
Because of that, the government's position is that the issue regarding imperfect self-defense is either waived because they affirmatively requested instructions that didn't include it, or at the very least, this report reviews on plain error review.

[00:24:23] Speaker 01:
The only preserved issue

[00:24:25] Speaker 01:
is whether the involuntary lesser included offense should have been included in the Martial Law instruction for first degree murder, which we've already discussed.

[00:24:35] Speaker 01:
And because it's a lesser included, not an affirmative defense, Lofton and this court's case law doesn't require it to be included.

[00:24:43] Speaker 01:
And because the government had to prove malice, there was no need to include it.

[00:24:50] Speaker 01:
When you look at me that way, Judge Moritz, it makes me think that I'm not making sense.

[00:24:53] Speaker 00:
No, I'm actually just thinking about I was thinking that there was actually some

[00:24:59] Speaker 01:
Request and maybe or maybe a reference to imperfect self-defense in closing argument by defense counsel at some point There was pretty clearly there was some language, you know, it may not be reasonable to you Right, but it's it was followed right along the line with imperfect self-defense And that's that's my point your honor is maybe that that was a strategic move to try to confuse the jury about what self-defense required I mean we just

[00:25:26] Speaker 01:
We just don't know.

[00:25:27] Speaker 01:
Maybe they forgot to ask for improvement.

[00:25:30] Speaker 01:
We don't know.

[00:25:30] Speaker 04:
Well, but as I understood what you said earlier, I think what you were arguing is it doesn't matter what was said in opening or closing.

[00:25:40] Speaker 01:
That's correct.

[00:25:42] Speaker 01:
That's correct, Your Honor.

[00:25:43] Speaker 04:
So even if in closing, the argument was, well, we've argued self-defense, but maybe we haven't quite made it there.

[00:25:52] Speaker 04:
It's not perfect.

[00:25:54] Speaker 04:
That isn't, from your standpoint, that's not going to be enough.

[00:25:58] Speaker 01:
That's correct.

[00:25:59] Speaker 01:
You can't request a jury instruction in your closing or opening statement.

[00:26:02] Speaker 04:
All right.

[00:26:03] Speaker 04:
So we are actually back to what they did request.

[00:26:08] Speaker 04:
And let me make sure I understand this.

[00:26:09] Speaker 04:
Because if I understand the appellant, it's they, in effect, asked for imperfect self-defense when they asked for the involuntary manslaughter

[00:26:23] Speaker 04:
the first degree murder instruction.

[00:26:25] Speaker 04:
And what you're saying is, no, those two things can't be equated because involuntary manslaughter is a lesser included, and imperfect self-defense is an affirmative defense.

[00:26:39] Speaker 04:
So that's your answer to that argument.

[00:26:43] Speaker 04:
Have I got that right?

[00:26:44] Speaker 01:
Yes, Your Honor.

[00:26:46] Speaker 01:
And you can tell that because you can read the self-defense instruction at the court case.

[00:26:51] Speaker 01:
And an imperfect self-defense instruction would track this language exactly, except then it would say, for imperfect self-defense, a defendant's belief that such use of force was needed does not have to be reasonable.

[00:27:07] Speaker 01:
The defendant needed to subjectively believe that the use of force was necessary.

[00:27:13] Speaker 01:
And then you flip to the involuntary manslaughter instruction.

[00:27:16] Speaker 01:
And these two are night and day.

[00:27:18] Speaker 01:
There's just simply nothing comparable about the involuntary manslaughter instruction given in this case.

[00:27:25] Speaker 01:
And so you cannot equate the two of them.

[00:27:28] Speaker 01:
They're just radically different.

[00:27:31] Speaker 01:
So asking for one cannot mean you ask for other.

[00:27:34] Speaker 04:
But this proof of imperfect self-defense or government's failure to disprove it

[00:27:44] Speaker 04:
knock the crime down to involuntary manslaughter?

[00:27:49] Speaker 01:
If a jury were to find that the defendant acted in imperfect self-defense, yes.

[00:27:55] Speaker 01:
It's not a full acquittal, like self-defense.

[00:27:57] Speaker 01:
It is a conviction for the involuntary manslaughter.

[00:28:01] Speaker 04:
Yeah, but because of that, because they're paired in that way, why doesn't that support the appellant's argument?

[00:28:09] Speaker 01:
Well, they're paired in that way because of the malice requirement.

[00:28:13] Speaker 01:
And counsel conceded that during his argument time.

[00:28:17] Speaker 01:
You cannot prove malice if there's imperfect self-defense.

[00:28:22] Speaker 01:
And involuntary manslaughter is a type of killing without malice.

[00:28:26] Speaker 01:
And it's the only type of killing without malice.

[00:28:28] Speaker 01:
So if somebody kills someone in imperfect self-defense and acts without malice, the only type of killing they have committed is an involuntary manslaughter.

[00:28:39] Speaker 04:
Well, I get that.

[00:28:40] Speaker 04:
But I think, if I understand

[00:28:42] Speaker 04:
the other argument correctly, jury gets instructed on malice.

[00:28:48] Speaker 04:
And I think what the argument is, but they should have been told that when you're thinking about malice, you ought to think about whether there's this something short of full self-defense, but some defense when you're thinking about malice.

[00:29:04] Speaker 04:
And the jury never got told that.

[00:29:07] Speaker 04:
And that's what defense counsel at TRI was trying to do.

[00:29:11] Speaker 01:
And I see my time is up.

[00:29:12] Speaker 01:
May I answer your question?

[00:29:13] Speaker 01:
Please do.

[00:29:14] Speaker 01:
So the jury was given a full definition of malice within the first degree murder, marshaling instruction.

[00:29:21] Speaker 01:
So the jury full well knew what malice meant.

[00:29:25] Speaker 01:
And if defendant had requested and received an imperfect self-defense instruction under Lofton, it probably should have been included, but that's not what they requested and that's not what they received.

[00:29:40] Speaker 01:
What the issue is, is that the involuntary language should have been in there.

[00:29:45] Speaker 01:
And because of the way this involuntary works, they would never, if they find there's malice, you know, they're going through the first degree murder, they find there's malice, then that automatically means that they cannot find him guilty of involuntary manslaughter.

[00:30:02] Speaker 01:
It's almost like an either or, you know, you can't have both.

[00:30:07] Speaker 01:
And so once they make a decision, there's no need for them to also consider whether or not imperfect self-defense or involuntary manslaughter existed, because they've already decided in a way that it hasn't.

[00:30:20] Speaker 01:
So they shouldn't have to separately, again, debate the same topic, I guess, is what the government's position is.

[00:30:24] Speaker 01:
I understand your argument.

[00:30:26] Speaker 04:
Judge Kelly, anything further?

[00:30:28] Speaker 03:
No, thank you.

[00:30:30] Speaker 04:
Thank you.

[00:30:31] Speaker 04:
All right.

[00:30:32] Speaker 04:
Thank you, Your Honor.

[00:30:33] Speaker 04:
Thank you.

[00:30:33] Speaker 02:
We have some rebuttal time.

[00:30:36] Speaker 02:
Thank you, Your Honor.

[00:30:36] Speaker 02:
Well, just now, the government conceded that I should win, because you heard what she said toward the end there.

[00:30:41] Speaker 02:
She said, if the circumstances were that they had an instruction on involuntary, that was an imperfect self-defense instruction, and they asked that it be incorporated into the malice part of the first degree murder instruction, they probably should have gotten it.

[00:30:55] Speaker 02:
That's this case.

[00:30:56] Speaker 02:
That's exactly what happened.

[00:30:57] Speaker 02:
We had.

[00:30:58] Speaker 04:
I'm not sure she would agree with you, but that's OK.

[00:31:01] Speaker 02:
Well, she wasn't thinking about it that way, but that's what she said.

[00:31:04] Speaker 02:
What she said also at the end there was that the jury found malice, therefore they rejected imperfect self-defense.

[00:31:10] Speaker 02:
Well, I think as Justice Matheson was observing, it doesn't mean anything, and Justice Martz too, it doesn't mean anything that the jury found malice when they weren't told, don't do that if you think it was imperfect self-defense.

[00:31:23] Speaker 02:
And they were not told that because our request was denied.

[00:31:26] Speaker 02:
If they had been given the instruction as part of the first degree,

[00:31:30] Speaker 02:
they would have been told not to find malice if it was that he was defending himself, protecting himself, but in an unlawful manner, in an excessive manner, et cetera.

[00:31:39] Speaker 02:
And that's the flaw.

[00:31:40] Speaker 02:
And Britt and Sarah Lopse rejecting the mitigation is part of proving malice, and the government was not required to.

[00:31:47] Speaker 02:
And the instructions, as in Lofton, the instructions specifically told the jury, stop what you're doing and go home.

[00:31:54] Speaker 02:
If you find these things under first degree,

[00:31:57] Speaker 02:
None of which told them to even think about what constitutes imperfect self-defense.

[00:32:02] Speaker 02:
That's why Lofton is on point, and that's why, as in Lofton and Britt, we need a new trial in this case.

[00:32:09] Speaker 02:
If there are no further questions.

[00:32:12] Speaker 02:
Thank you, counsel.

[00:32:14] Speaker 04:
Thank you.

[00:32:18] Speaker 04:
You've both given us a lot to think about, so thank you for the arguments this morning.

[00:32:22] Speaker 04:
The case will be submitted, and counsel are excused.