[00:00:02] Speaker ?: Mr. Thompson. [00:00:06] Speaker 03: Good morning. [00:00:17] Speaker 01: Good morning. [00:00:17] Speaker 01: May I please the court? [00:00:18] Speaker 01: Adam Thompson on behalf of the appellant, John Osby. [00:00:21] Speaker 01: I'd like to reserve two minutes of my time for rebuttal. [00:00:24] Speaker 02: We've got new microphones, and I don't... Can you hear? [00:00:34] Speaker 01: Of course. [00:00:35] Speaker 01: The government in this case presented false and misleading testimony from an FBI forensic scientist that reported to scientifically link Mr. Rosby to, among others, five hairs found on the decedent's body, including two hairs that were found in the area of the decedent's rectum. [00:00:50] Speaker 01: In a case that was entirely circumstantial, where the identity of the perpetrator of this rape and murder was the sole contested issue, where the government purposely developed and elicited false forensic testimony to go directly to that contested issue, and where the government repeatedly relied on the false testimony in closing argument and in a devastating rebuttal argument that directly undercut Mr. Osby's defense, [00:01:14] Speaker 01: This court must reverse because there is at least a reasonable possibility that the false hair testimony had an effect on the jury's verdict. [00:01:22] Speaker 01: When the government has affirmatively corrupted the truth-seeking function of the trial with false evidence that it was knowingly presented, as it did here, [00:01:30] Speaker 01: The test for reversal is not whether subtracting the false testimony from the whole of the government still had a sufficient case. [00:01:36] Speaker 01: The analysis in NAPU cases looks at the effect of the false testimony on the trial that actually happened, giving deference to how lay jurors interpret evidence, apply the presumption of innocence, and hold the government to its heavy burden of proof beyond a reasonable doubt. [00:01:51] Speaker 01: The question. [00:01:52] Speaker 04: I'm sorry. [00:01:52] Speaker 04: What does it mean to affect the jury's judgment [00:01:59] Speaker 04: When, as you said, it doesn't mean just subtract the bad evidence and see if there's enough left standing. [00:02:04] Speaker 04: Does it mean they relied on it? [00:02:08] Speaker 04: Does it mean they dispositively relied on it? [00:02:11] Speaker 04: Does it mean it could have factored into their decision? [00:02:15] Speaker 01: So the standard for this court, which is very strict against the government, is there any reasonable possibility that this false testimony might have played a role in the jury's verdict? [00:02:28] Speaker 01: And that's something the court has made clear in Cunningham and Smart and multiple other cases. [00:02:35] Speaker 00: Just to be clear, so when you say might have played a role, [00:02:38] Speaker 00: It could play a role in the sense that the jury might have talked about it, but what you mean by it might have played a role is it might have played a role in that it caused the jury to find the defendant guilty. [00:02:49] Speaker 00: Yes, I think that's correct. [00:02:52] Speaker 04: Does it have to be causal in that sense? [00:02:55] Speaker 04: What if they go back to a jury room and go, [00:02:58] Speaker 04: Tons of circumstantial evidence here, and there's a hole here and a hole there and a hole there. [00:03:03] Speaker 04: Boy, there's a lot of circumstantial evidence. [00:03:05] Speaker 04: And you know what? [00:03:06] Speaker 04: We don't have to deal with those holes, because this expert came and told us all about how the science itself pointed to this guilt. [00:03:14] Speaker 04: Is that affecting the jury's verdict? [00:03:15] Speaker 01: Yes, that is exactly affecting the jury's verdict. [00:03:18] Speaker 04: So they actually have to cause the verdict, if they could still come to the verdict anyhow, if it just influences their processing of the case, their thinking about the case? [00:03:29] Speaker 01: Well, to be clear, in this case, this is false forensic testimony that went directly to the contested issue at trial. [00:03:38] Speaker 01: I think in that instance, this court can't be certain that there is no reasonable possibility that the jury didn't use that false evidence in some way in reaching its verdict. [00:03:48] Speaker 01: And that's the standard that this court has to apply. [00:03:53] Speaker 00: When you say use it in some way, because I think a lot turns on the exact [00:03:59] Speaker 00: role that the evidence plays in the jury's decision making. [00:04:04] Speaker 00: So suppose the jury says that hair testimony is quite something and they talk about it at length, the jurors talk about it at length, and then they collectively say, you know, I think it seems pretty clear to me that we would find the defendant guilty anyway. [00:04:20] Speaker 00: But the hair testimony just makes it a little bit easier. [00:04:23] Speaker 00: But we would definitely find, it seems pretty clear to me we would find the defendant guilty anyway. [00:04:28] Speaker 00: What would you say about that? [00:04:29] Speaker 01: I think the fact that this court is kind of speculating about what the jury might have said on these points in its deliberation shows that it very well might have affected the jury. [00:04:41] Speaker 00: If you could just engage the hypothetical, because at least I'm trying to figure out how much work is enough. [00:04:50] Speaker 00: that a lot seems to turn on that. [00:04:52] Speaker 00: And so if we thought that the jury, I think your points are well taken that the prosecutor's rebuttal argument focused on the hair testimony. [00:04:59] Speaker 00: So we've got that the government itself thought that the hair testimony was at least significant enough that the rebuttal needed to focus on it. [00:05:05] Speaker 00: So I think at least I take your point that the government thought that it played some role. [00:05:12] Speaker 00: And then the question becomes, well, what did the jury do with it? [00:05:14] Speaker 00: And if the jury thought, [00:05:16] Speaker 00: You know, it's pretty clear that this person's guilty anyway, but the hair testimony just makes it easier. [00:05:23] Speaker 00: We know if we have a recording device in the jury's deliberations and that's what we know, what would you say about that? [00:05:29] Speaker 01: Yes, that is most definitely an effect on the verdict under the standard that this court must apply because the jury didn't have to wrestle with the ambiguities in the rest of the government's case. [00:05:41] Speaker 01: Mr. Osby presented a very clear defense theory that was consistent with the remainder of the government's evidence. [00:05:48] Speaker 01: as shown in the prosecution's rebuttal argument, that false hair evidence was deployed to directly undercut that defense. [00:05:56] Speaker 01: And so in that instance, the jury surely, to your understanding, hypothetical, if the jury was saying, well, here's the hair testimony, we don't have to deal with the rest of the evidence, yes, that's an effect on the verdict. [00:06:09] Speaker 00: Now what if the jury says, we definitely would find the defendant guilty, regardless of the hair evidence? [00:06:14] Speaker 00: But that hair evidence was really interesting and quite powerful, but we would find it authentic anyway. [00:06:22] Speaker 04: Just to add, the mixes feel really confident in our judgment that we would reach otherwise. [00:06:28] Speaker 04: Is that okay to add? [00:06:29] Speaker 00: Yeah, sure. [00:06:32] Speaker 01: Yeah. [00:06:32] Speaker 01: Well, to be clear, we [00:06:35] Speaker 01: We don't think that's what the jury would have been doing, because the evidence in this case, as we've said in our briefs, incited the gaps in the government's evidence. [00:06:44] Speaker 01: It was entirely circumstantial and ambiguous. [00:06:47] Speaker 01: And on this point, that's exactly the type of case where the jury would be clinging to this type of false forensic testimony that went directly and answered conclusively the question of identity. [00:07:00] Speaker 01: I think if the jury is saying, we think this other evidence is strong, but there's this false testimony that answers the question. [00:07:10] Speaker 01: As this court has said in Cunningham and Smart and multiple times, he [00:07:17] Speaker 01: In order to avoid encroaching on the defendant's right to a jury trial, this court must apply this standard that does look at the entire record of the case and has to determine whether it was harmless beyond a reasonable doubt. [00:07:33] Speaker 01: And if this court can't be certain that the false-hair testimony did not, in some way, move the jury's [00:07:42] Speaker 01: conviction towards the side of conviction, then that is an effect on the verdict. [00:07:50] Speaker 02: Can I ask you your position if just the hair had been introduced? [00:07:56] Speaker 02: In other words, a black male hair found on the body of the victim without anything else, probative or not. [00:08:08] Speaker 01: extremely probative, Your Honor, especially given the locations where these hairs were found. [00:08:12] Speaker 01: And that's exactly... All right. [00:08:14] Speaker 02: So why wouldn't that be admissible? [00:08:17] Speaker 02: In other words, no expert testimony, just what was found at the scene of the crime. [00:08:21] Speaker 01: Oh, I'm sorry. [00:08:22] Speaker 01: I missed that there wasn't expert testimony. [00:08:24] Speaker 01: I don't think that would be probative at all, Your Honor. [00:08:28] Speaker 02: You don't. [00:08:29] Speaker 01: I don't. [00:08:30] Speaker 01: In the same way that the government has... That's why the government [00:08:35] Speaker 01: developed and elicited this false hair testimony in this case and hundreds of others. [00:08:41] Speaker 00: So, doesn't it happen often though that, for example, suppose you have a situation in which the victim has long blonde hair and then there's long blonde hair found in the backseat of the car of the defendant. [00:08:54] Speaker 00: Would that evidence not come in? [00:08:56] Speaker 01: I think in that case, the judge would be hard pressed to find a reason that that would be probative. [00:09:04] Speaker 01: As we've seen in this case, in the government's own admissions, even a hair that's been compared under a microscope, the analyst has no idea how many people that hair could have come from, and yet this evidence making it [00:09:17] Speaker 01: unmistakable to a jury that that was a conclusive identification, a positive identification, which was false, was developed specifically to get around... I didn't mean to jump in on the hypothetical. [00:09:28] Speaker 00: I'm sorry. [00:09:29] Speaker 00: I think I'm trying to ask the same question which Judge Henderson was, which is it may not be proof that it's the same person. [00:09:36] Speaker 00: and that's where the statistical part of it comes in. [00:09:38] Speaker 00: But if the evidence is just probative to show that it could be this person, so it's that the victim has long blonde hair, and when we looked in the defendant's car, we saw that there were long, and the defendant doesn't have long blonde hair. [00:09:53] Speaker 00: Sorry, I should have made that clear. [00:09:54] Speaker 00: Let's say the defendant has short brown hair. [00:09:56] Speaker 00: And then when we look in the backseat of the defendant's car, we see that there's long blonde hair in the backseat of the defendant's car. [00:10:04] Speaker 00: And you're right. [00:10:05] Speaker 00: That doesn't prove that it was the victim, but it proves that somebody with long blonde hair was in the backseat of the car. [00:10:10] Speaker 00: Does that actually not come in? [00:10:11] Speaker 00: I honestly don't know, but I assume it would. [00:10:13] Speaker 01: It's possible that it might come in. [00:10:15] Speaker 01: But again, here, this was powerful objective forensic science testimony going directly to the question of identity. [00:10:22] Speaker 01: It included false testimony that was specifically designed to imply a positive identification and show the jury that Mr. Osby was guilty beyond a reasonable doubt, just on that evidence alone, because of the locations where the hairs were found. [00:10:37] Speaker 01: And again, that's the exact argument, this rebuttal argument, to devastate Mr. Osby's defense. [00:10:42] Speaker 02: How probative do you think the oils were in this case? [00:10:48] Speaker 02: They were handwritten labels. [00:10:51] Speaker 02: that the vendor testified he sold to the defendant. [00:10:56] Speaker 02: The defendant, the day after the murder, goes to the vendor and says, I need another vial or whatever of this oil. [00:11:08] Speaker 02: And when asked why, I just sold you some recently, he said, I jumped out a window, which is [00:11:16] Speaker 02: exactly what happened or at least what they feel happened when they found vials of these oils beneath the window. [00:11:26] Speaker 02: To me, well I'm not the juror, but that's extremely probative evidence. [00:11:33] Speaker 01: Well, Your Honor, I think no matter what that oil evidence could suggest to the jury, it wasn't even close to the kind of conclusive testimony that came from this forensic expert. [00:11:42] Speaker 02: I think it's a signature. [00:11:43] Speaker 02: I think it's a signature. [00:11:44] Speaker 02: That's how probative it is, but go ahead. [00:11:47] Speaker 01: Well, my other point is that this is, that oil evidence was consistent with Mr. Osby's defense, that he was in the apartment on December 9th and 10th, four and five days before the murder, [00:11:58] Speaker 01: left through a window, didn't come back, and wasn't there during the rape and murder. [00:12:01] Speaker 01: That evidence was consistent, the oil evidence was consistent with Mr. Osby's defense. [00:12:05] Speaker 01: And again, that's exactly the kind of ambiguity and gap in the government's case in which the hair testimony would come in and resolve all those ambiguities for the jury. [00:12:16] Speaker 00: So just to be clear, with the oil-perfume evidence, it would be consistent with the defense if the perfume and oil were found in the unit. [00:12:27] Speaker 00: I get that. [00:12:28] Speaker 00: But it's the placement and the way it appeared [00:12:33] Speaker 00: that bolsters the case for the government, right? [00:12:37] Speaker 00: Because it's not just that the profane was found there, it's that it was found there in a situation which would be consistent with a struggle that led to it and an effort to jump out the window, which is a little bit different than just finding it there. [00:12:51] Speaker 00: I'm not necessarily saying it's enough, but I'm saying that it's more than just finding the evidence there. [00:12:56] Speaker 01: Well, I think that's right, except for there was not [00:12:59] Speaker 01: there was not any additional testimony. [00:13:01] Speaker 01: This was lay testimony about the oil evidence, first of all. [00:13:05] Speaker 01: There wasn't any additional testimony about the positions of the bottles that would have conclusively proved that this was dropped in a struggle. [00:13:14] Speaker 01: As the government says in its brief, it suggests that, but again, no matter what this oil evidence could suggest to the jury, it paled in comparison to this false forensic testimony that came in and resolved all of the ambiguity that would have been raised in the jury room between [00:13:28] Speaker 01: weighing, you know, lay testimony from, that was in some ways, equivocal about when Mr. Osby returned to the shop. [00:13:35] Speaker 01: And weighing that against this false hair testimony that directly resolved the issue. [00:13:44] Speaker 02: All right, we'll give you a couple minutes to reply. [00:13:54] Speaker 03: Good morning and may it please the court, Jessie Liu for the United States. [00:13:58] Speaker 03: The question before this court is fairly straightforward. [00:14:02] Speaker 03: As this court has said, in evaluating a NAPEW claim, it must determine whether the false testimony could, in any reasonable likelihood, have affected the judgment of the jury. [00:14:15] Speaker 03: In other words, could the false testimony, here the hair testimony, have made a difference in the jury's ultimate verdict? [00:14:23] Speaker 04: Can you answer my same questions about what effect [00:14:28] Speaker 04: the judgment of the jury means in practical terms, if it has to mean something different from changes the quantum of evidence in a way that would create reasonable doubts. [00:14:42] Speaker 04: We put aside that. [00:14:43] Speaker 04: What does it mean to affect how the jury's judgment is made? [00:14:48] Speaker 03: Well, Your Honor, our position would be that to affect the [00:14:52] Speaker 03: judgment of the jury means that the challenged evidence, here the hair testimony, would have made a difference or could have made a difference in the jury's ultimate verdict. [00:15:02] Speaker 04: It's definitely a could test and not a would test. [00:15:04] Speaker 03: It is definitely a could test and the courts are very, very consistent in phrasing it as a could test rather than a would test. [00:15:12] Speaker 03: But if you look at the sort of body of case law [00:15:15] Speaker 03: with respect to Brady violations, for example, and Naphew violations, and harmless error test. [00:15:22] Speaker 03: The question is, would the result have been different? [00:15:25] Speaker 03: The defense makes much of a Supreme Court case called Strickler. [00:15:30] Speaker 03: And while we have our own issues with some of the statements in that particular case, that case is quite clear in the Brady context that [00:15:40] Speaker 03: You know, the question for the court in reviewing a Brady violation is whether the favorable evidence could reasonably be taken to put the whole case in a different light so as to undermine confidence in the verdict. [00:15:54] Speaker 04: And there's been a lot of talk in the... I'm having trouble flipping that around when the problem here isn't that something was left out that was a sculpatory, but something was put in with the veneer of expert scientific force [00:16:09] Speaker 04: into a case, so how do we figure, so it's already in there, and we're trying to figure out whether what was in there could have affected the jury's judgment. [00:16:19] Speaker 04: So does that, to get back to some of the hypotheticals, if the jury went back and said lots of powerful circumstantial evidence, really very, very powerful. [00:16:34] Speaker 04: But thank goodness, there's also this expert [00:16:38] Speaker 04: That just makes this job easy. [00:16:41] Speaker 04: We're done. [00:16:43] Speaker 04: Did that affect the judgment of the jury? [00:16:46] Speaker 03: I think if this court can conclude from all of the other evidence before the jury that the jury would have reached the same conclusion, then there was no error. [00:16:55] Speaker 04: That's a good question. [00:16:56] Speaker 04: I'm telling you how it happened. [00:17:00] Speaker 04: It's counterfactual. [00:17:01] Speaker 04: We can't go back and say what would they have done without it in a pure sense. [00:17:04] Speaker 04: We don't know. [00:17:05] Speaker 04: It was there and we're asking what impact this scientific expertise could have had on a jury in an otherwise circumstantial case. [00:17:18] Speaker 04: Back to my hypothetical, would that count if we thought what most likely happened? [00:17:23] Speaker 03: Well, I think if the court most thinks what most likely happened was that the jury thought, well, we have a [00:17:29] Speaker 03: Pretty good, strong circumstantial case, but we're not quite there in the hair test. [00:17:34] Speaker 04: No, I didn't have that. [00:17:36] Speaker 04: I said, I'm not saying we're not quite there. [00:17:38] Speaker 04: That would be too easy. [00:17:40] Speaker 04: Wow, what a great circumstantial case. [00:17:42] Speaker 04: Very, very powerful, but it's circumstantial. [00:17:45] Speaker 04: Thank goodness there's also the scientific evidence. [00:17:49] Speaker 04: We're done. [00:17:53] Speaker 03: I think it's a little bit difficult, obviously, to answer that hypothetical because the question is what effect could this evidence, the hair testimony, have had on the jury's verdict? [00:18:05] Speaker 03: Of course, we can't know because we don't have a transcript of the jury deliberations. [00:18:11] Speaker 03: That's the test, unfortunately. [00:18:14] Speaker 03: If that's the best thing that we have, my argument would be that that is not enough to overturn the jury's verdict. [00:18:23] Speaker 00: We have... The way that Judge Millett articulated the question, you think in that situation it still wouldn't be enough under the APU standard if they say, this makes it easy. [00:18:39] Speaker 00: That there's a lot of powerful circumstantial evidence, but this expert testimony makes it easy. [00:18:45] Speaker 03: It's a vast situation, Your Honor, where I think it really would be right on the line. [00:18:51] Speaker 00: And who does the tie go to? [00:18:53] Speaker 00: Because I think, at least on some of our earlier decisions, we used language that discussed naphew. [00:18:59] Speaker 00: We said, mandate a virtual automatic reversal of a criminal conviction. [00:19:05] Speaker 00: We used language to that effect in talking about the naphew standard on the theory that among the various materialities slash harmless error standards, a naphew standard is at the [00:19:14] Speaker 00: most defendant favorable and along the lines of a Chapman standard. [00:19:19] Speaker 00: And if that's where our decisions seem to put the NAPU materiality standard and in a situation in which you're in some equipoise about which way it should cut, does that not indicate that it should cut in favor of the defendant? [00:19:33] Speaker 03: If the jury is truly in equipoise, then I think you're right that the hair testimony [00:19:44] Speaker 03: you could affect the jury's verdict. [00:19:46] Speaker 00: Sorry, I didn't mean to say that the jury was an equipoise. [00:19:49] Speaker 00: I'm saying that the jury says what Judge Millett asked, which is that very powerful circumstantial case. [00:19:55] Speaker 00: But this hair expert testimony makes it easy. [00:19:58] Speaker 00: And then I took your response to be, well, that puts me in kind of equipoise on whether that's enough under the appropriate materiality standard. [00:20:05] Speaker 00: And I guess my question is, if that puts us, not the jury, but if that puts us in equipoise as to what should happen, then when I look at the language of some old cases that it should be a virtual per se rule of reversal, I start to think, well, maybe in a situation in which I wonder whether we're in equipoise, then the defendant [00:20:22] Speaker 00: the apparently defendant favorable nature of the materiality standard would tip the balance for us. [00:20:29] Speaker 03: Well, again, I could only go back to the way that this Court has formulated the standard, and it is again a could standard, and the Court to some extent has to [00:20:42] Speaker 03: work with a counterfactual not knowing exactly what the jury was looking at. [00:20:46] Speaker 03: But I do think it's important in this case as in other cases to look at the other evidence in the case. [00:20:52] Speaker 03: And the case law has suggested that even in a situation like this, the reviewing court cannot ignore all the other evidence in the case. [00:21:01] Speaker 03: And here, as we've said- I'm sorry. [00:21:04] Speaker 04: Have you seen cases where expert testimony [00:21:11] Speaker 04: that freestanding expert testimony, proving something that nothing else is proving, has been held to be harmless? [00:21:24] Speaker 03: I am not able to cite you anything off the top of my head about that. [00:21:28] Speaker 03: I do have a few comments that I'd like to make about the impact of the fact that this was expert testimony though. [00:21:34] Speaker 03: There are cases in this circuit that talk about expert testimony in the case of ambiguous other testimony. [00:21:42] Speaker 03: Our position is that the circumstantial evidence in this case was not at all ambiguous. [00:21:47] Speaker 03: It was certainly circumstantial, but there were a lot of circumstances [00:21:51] Speaker 03: and they all pointed towards this defendant. [00:21:54] Speaker 03: Second, as is common in the district courts today, the district court in this case was very careful to instruct the jury about what use they could make of the expert testimony and so they were told that they should give it the amount of weight that they deemed appropriate and [00:22:12] Speaker 03: that they could reject it if they believed that that was the appropriate thing to do. [00:22:17] Speaker 03: In this case, the expert testimony was but one small part of a very, very strong case that all pointed towards the defendant. [00:22:24] Speaker 04: It was evidence that spoke directly to the critical issue in the case, and that was, was Mr. Osby in the apartment in the bedroom at the time of the attack? [00:22:41] Speaker 04: it spoke directly to that most contested issue because it wasn't disputed that he'd been in the apartment at some point beforehand. [00:22:49] Speaker 04: I'm trying to figure out when you have an expert that's speaking directly through science to the central issue in the case, how would one write an opinion that says that could not have [00:23:05] Speaker 04: affected the jury because there was a lot of other circumstantial evidence surrounding it. [00:23:10] Speaker 04: I think we'd be making new law in harmlessness that way, and maybe we have to. [00:23:15] Speaker 04: It might be appropriate to do so, but I just hadn't seen cases that involved evidence of that central force and had the extroveneuropean scientific expert. [00:23:24] Speaker 03: But I don't think, Your Honor, that the hair testimony was the only evidence that this defendant was in the bedroom and was the person who attacked this defendant. [00:23:34] Speaker 03: The rest of the evidence is all circumstantial. [00:23:37] Speaker 04: I said going directly to the key issue in the case. [00:23:40] Speaker 04: You were trying to say it was a small part, and I think it was going right to the core of what was debated in the case. [00:23:46] Speaker 03: Right. [00:23:47] Speaker 03: And there's certainly the argument on the defense side was that there was a lot of evidence that this person had been in her apartment. [00:23:54] Speaker 03: And my point is that there was not only evidence that he had been in her apartment, but that he was the person who was in her apartment the day of the murder and that he was the person who escaped through the window when her boyfriend was knocking at the door. [00:24:08] Speaker 03: And so I guess the way that I would look at this, Your Honor, is that in the totality of the evidence, which is what the jury saw, [00:24:15] Speaker 03: in order to believe the defense theory, the jury would have had to conclude that the defendant was in the apartment on some time before the murder, that he dropped these bottles of oils for no apparent reason, and that he had gone through the window to escape even though there was no apparent reason for him to do so, and on one other occasion, [00:24:36] Speaker 03: he had left another woman's apartment through the kitchen door, even when she was there. [00:24:41] Speaker 03: But he nonetheless, on this occasion, when there's no indication that he was in a rush, the woman was not at home, recall, she hadn't stayed there for a couple weeks, decided to leap out a window with an 18-foot drop, that he lost his oils but he didn't recover them, and that he had the incredible bad luck to have someone else go into her apartment [00:25:01] Speaker 03: and attack her. [00:25:04] Speaker 00: We can talk about how far-fetched some of the alternate scenarios are. [00:25:07] Speaker 00: You could have an alternate scenario in which the perfumes are actually dropped during an exchange with somebody else because of the way they were located. [00:25:14] Speaker 00: And you could come up with arguments. [00:25:16] Speaker 00: And I know you're responsible people. [00:25:17] Speaker 00: That seems far-fetched. [00:25:18] Speaker 00: But one place that we can look concretely to some extent is a prosecutor's closing argument. [00:25:23] Speaker 00: I mean, I'm sorry, a rebuttal argument. [00:25:25] Speaker 00: And the rebuttal argument, it did seem like the prosecutor could have said, [00:25:31] Speaker 00: I'm not worried about the hair testimony because there's so much other stuff that you don't even need to worry about it. [00:25:37] Speaker 00: But instead, the closing argument focused in some detail on the hair testimony, the rebuttal argument. [00:25:44] Speaker 00: And the rebuttal argument did say [00:25:47] Speaker 00: about the expert's testimony, but he further elaborated, it's not a positive means identification, but it amounts to a positive means here, and then recounted some of the numbers, 35,000 people that the person, that the expert had encountered in the past, and whatnot. [00:26:00] Speaker 00: So, if we place some significance on the way the government itself framed the significance of the hair testimony, it seems like there's at least something to be gleaned by looking at the way that the government framed the rebuttal argument. [00:26:12] Speaker 03: So Your Honor, I acknowledge that the sentence that you just cited is not helpful to the government's argument today, but I also think it's important just as it's important to look at all of the evidence before the jury in the totality, it's also important to look at the government's arguments to the jury in their totality. [00:26:29] Speaker 03: So that was one sentence in the midst of the rebuttal argument. [00:26:34] Speaker 03: But if you would go back to the government's closing argument, [00:26:38] Speaker 03: You'll see that the government spends about 15 transcript pages going through all of the non-hair testimony before it gets to a point at which it then says, is that not enough? [00:26:51] Speaker 03: Based on the evidence I've cited to you, which did not include the hair testimony, isn't that enough to convict this defendant? [00:26:58] Speaker 03: And am I not boring you by going into anything else? [00:27:01] Speaker 03: He then goes and he talks about the hair testimony. [00:27:04] Speaker 03: He talks about the gun testimony, which I think is important to keep in mind. [00:27:07] Speaker 03: because it links the gun that was found on the defendant to the bullet. [00:27:11] Speaker 03: Not a positive ID, but links the gun to the bullet that was recovered from the victim's body. [00:27:18] Speaker 04: Isn't that the issue? [00:27:21] Speaker 04: You just said not a positive ID, but you had the prosecutor saying these hairs are identical twins. [00:27:28] Speaker 04: The expert 17 times said microscopically identical. [00:27:32] Speaker 04: That seemed to be unlike the gun, unlike one fingerprint in a doorway [00:27:37] Speaker 04: in the kitchen, I think. [00:27:39] Speaker 04: That seemed to be the one thing that really, had the testimony been true, locked him in as the one person who was there and did it. [00:27:49] Speaker 04: It's just a little hard to figure out how he would say, how he could with any confidence say a jury disregarded that. [00:27:55] Speaker 03: If I could go back just a moment to finish my point about the rebuttal argument. [00:28:00] Speaker 03: It is certainly accurate that the government prosecutor spoke about the hair. [00:28:06] Speaker 03: He made this statement about this is not a positive means of identification, but it amounts to one here. [00:28:13] Speaker 03: Again, not helpful to our argument. [00:28:14] Speaker 03: He then turns from the hair testimony and goes back into a recitation of all of the other facts. [00:28:22] Speaker 04: So I would just... After he says identical twins. [00:28:26] Speaker 03: amounts to a means of positive identification. [00:28:30] Speaker 03: The other point that I want to make about that statement in the government's rebuttal closing is that when you look at the actual testimony of the hair examiner, it's a little bit more equivocal than the prosecutor made it out to be. [00:28:48] Speaker 03: I think the prosecutor put the best spin for the government that he possibly could on it. [00:28:52] Speaker 03: But the actual examiner [00:28:54] Speaker 03: testifies. [00:28:55] Speaker 03: Now he says some things that are clearly not helpful to us and are the reason why the government conceded that this was a case that deserved further review. [00:29:05] Speaker 03: But he also says quite clearly that hair comparisons are not a means of positive ID and that he cannot say that these hairs came from Mr. Osby's body. [00:29:17] Speaker 03: The jury, as is typical today in district court, was instructed that the arguments of the counsel were not to be considered as evidence and what the jury should be evaluating is the actual testimony from the expert. [00:29:33] Speaker 03: Thank you. [00:29:34] Speaker 03: Thank you. [00:29:34] Speaker 03: For all of these reasons and those stated in our brief, we would ask this court to affirm the judgment of the district court. [00:29:42] Speaker 02: Why don't you take two minutes? [00:29:48] Speaker 01: Thank you, Your Honor. [00:29:50] Speaker 01: So I just want to start by addressing the question that came up in both parts of the argument. [00:29:56] Speaker 01: And that's, what does effect mean? [00:29:57] Speaker 01: And so our position is, if it moved the jury's verdict towards a conviction, if it put the jury over the top, that's an effect on the verdict. [00:30:08] Speaker 01: But at the end of the day, this court doesn't have to know for sure how the jury reached its verdict. [00:30:14] Speaker 01: That's because the standard under which this court must decide this case, it respects the fact that we don't need to know. [00:30:20] Speaker 01: It respects the fact that juries decide these questions. [00:30:25] Speaker 01: So in this case, Mr. Osby had a defense theory. [00:30:28] Speaker 01: The question is, was there a defense theory that went directly to this contested issue? [00:30:34] Speaker 01: And is there a reasonable possibility that instead of [00:30:38] Speaker 01: of having to grapple with all of that ambiguity and the circumstantial evidence and the gaps in the government's case that the defense pointed out. [00:30:46] Speaker 01: And there were gaps in the government's case. [00:30:49] Speaker 04: Well, what happens, though, with following up on Judge Henderson's question, if whatever those gaps were, there just didn't seem to be a coherent theory from the defense as to how those vials would have been spewed around [00:31:06] Speaker 04: and the pattern that they were including in the bedroom and on the bed, and why anybody, somebody who was perfectly comfortable walking out in the hallway other days, would jump out a window. [00:31:17] Speaker 04: It's not like that was an alternative route to go out. [00:31:20] Speaker 04: Naturally, it was an 18-foot drop. [00:31:23] Speaker 04: If there just didn't seem to be any way to reconcile the defense's theory, then does that mean it couldn't have affected the jury? [00:31:33] Speaker 01: Well, I think there were ways to reconcile that evidence with this. [00:31:40] Speaker 01: It certainly was a difficult fact for the defense. [00:31:42] Speaker 01: But the defense did deal with it in its theory. [00:31:44] Speaker 01: There was nothing about the oil evidence that conclusively proved Mr. Osby committed this rape and murder. [00:31:51] Speaker 01: And that's what the hair testimony did. [00:31:54] Speaker 04: The hair testimony- Just throwing out the window. [00:31:56] Speaker 04: It's not just the hair vials. [00:31:57] Speaker 04: It's also how they were sort of skewing around the room. [00:31:59] Speaker 04: on the bed under the coat and then he went out a window and he told someone later that he went out a window. [00:32:09] Speaker 04: Why would he go out that window and drop 18 feet? [00:32:12] Speaker 01: That's a question the jury may well have been wondering until it used the [00:32:17] Speaker 01: the false forensic testimony that directly answered this question for it. [00:32:21] Speaker 04: Well, that's not a question about the government's proof. [00:32:23] Speaker 04: That's a question about whether there's really any explanation, since the defendant doesn't dispute that he was in the apartment. [00:32:28] Speaker 01: The explanation was that he was in the apartment. [00:32:31] Speaker 01: I mean, the jury could have speculated about multiple reasons that weren't addressed by the government, certainly about why the oil vials were... My issue is not to argue the facts, but just to ask if it felt like there wasn't [00:32:45] Speaker 04: a big hole in the circumstantial evidence and there was, in fact, a defense didn't seem to quite hold together. [00:32:51] Speaker 04: There seemed to be a big gaping hole in the defense theory so that whatever would have happened, they would have ended up in the same place anyhow. [00:33:00] Speaker 04: But they didn't have to work through all that because they said, thank goodness we have that scientific evidence. [00:33:06] Speaker 04: That makes it easy. [00:33:08] Speaker 04: Is that an effect on the jury? [00:33:09] Speaker 01: Yes, it is. [00:33:10] Speaker 04: Because? [00:33:11] Speaker 01: Because it allows the jury to not have to wrestle with. [00:33:14] Speaker 01: I mean, certainly, juries have acquitted on far less than this. [00:33:17] Speaker 01: It's hard to prove guilt beyond a reasonable doubt to 12 lay jurors. [00:33:22] Speaker 01: And in this instance, the prosecutor used the hair evidence as its primary means of rebutting Mr. Osby's defense. [00:33:29] Speaker 01: I mean, the government brought up how, in its closing, the prosecutor said, wasn't that enough? [00:33:35] Speaker 01: Well, it clearly wasn't enough. [00:33:37] Speaker 01: for the government, in its presentation of evidence. [00:33:42] Speaker 01: And it wasn't enough in its argument, because in the rebuttal, it came in and used this as, it was an entire third of the rebuttal argument. [00:33:48] Speaker 01: It was clearly the most prominent means of rebutting Mr. Osby's defense. [00:33:52] Speaker 01: And that's not a fair trial, when the government can come in and use false testimony to devastate your defense and not allow jurors to actually have to wrestle with the ambiguities that were in the government's case. [00:34:06] Speaker 02: All right, you need to wind it up. [00:34:08] Speaker 01: OK. [00:34:09] Speaker 01: Well, if there are no further questions, then I'll just point out that just to re-encourage the court, I think it's clear that you have to just read the rebuttal argument. [00:34:20] Speaker 01: It shows how the government employed this false evidence to devastate Mr. Osby's defense. [00:34:24] Speaker 01: And so this false testimony was not harmless beyond a reasonable doubt, and we ask the court to reverse the order of the district court. [00:34:29] Speaker 01: Thank you.