[00:00:00] Speaker 01:
is 23-7040, United States versus Brown.

[00:00:10] Speaker 01:
Council for Appellant, if you'd make your appearance and proceed, please.

[00:00:15] Speaker 02:
Thank you, Your Honor, Council.

[00:00:18] Speaker 02:
May it please the Court, my name is Shira Keval, I'm an Assistant Federal Defender in Denver, and I represent William Brown.

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In this first argument, I will be discussing Mr. Brown's trial for killing

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his cellmate at the Oklahoma State Penitentiary, Mark Lawhead.

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And the issue on the appeal is the denial of a requested self-defense instruction.

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The main question is what some evidence of a reasonable subjective belief looks like.

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Our claim is that the government uses circumstantial evidence to prove this sort of mens rea every day of the week and that Mr. Brown was allowed to do the same.

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I think it's very clear what the law is that underlies this case.

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First,

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A person may use deadly force that he reasonably believes is necessary to protect himself from an imminent threat of death or great bodily harm.

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Two, a district court must give a self-defense instruction upon request if any evidence could lead a reasonable juror to acquit the defendant of murder based on a reasonable doubt that the defendant may have acted in self-defense.

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Questions of reliability and weight of the evidence are for the jury.

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Thus, it doesn't matter if there is overwhelming contradictory evidence.

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The instruction may only be denied if the defense is foreclosed as a matter of law.

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In this case, the defense was not foreclosed.

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The district court erred because there was some evidence that Mark Lawhead was the initial aggressor.

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inside the prison cell.

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And what evidence was there?

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I mean, no one saw what went on in that prison cell.

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There's a difference between circumstantial evidence and speculation.

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And what I have a hard time seeing is where we have anything but speculation as to what went on in that cell.

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So help me with that, please.

[00:02:11] Speaker 02:
Well, in your honor, there's not testimony, either supporting the government's case or ours, of someone who saw what happened in the prison cell.

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And so both the government and Mr. Brown were relying on circumstantial evidence.

[00:02:25] Speaker 01:
Sure, but the burden is yours.

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It's not the government's on showing that you have a basis for the defense.

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And what I'm saying is, if we're left in this amorphous phase of, well, I wonder what happened in the cell, you lose, right?

[00:02:39] Speaker 02:
No, Your Honor.

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The question here is reasonable doubt.

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I think that there's a difference between a sort of Deus Ex Machina kind of argument

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that you don't foresee from any of the evidence of maybe some other gang member came into the cell.

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Maybe there was a jailer who came into the cell, and that's not what we're asking for.

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We're looking.

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I think in the briefs, we've identified a significant amount of evidence.

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Two people in the cell.

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One ends up dead.

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And what do you have more than that?

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We have what the government has, which is motive.

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This equivalence, it seems to me, is false.

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What the government has doesn't matter.

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You have to show an entitlement to the instruction and that has to be based upon more than speculation, right?

[00:03:25] Speaker 02:
Correct.

[00:03:25] Speaker 01:
Okay.

[00:03:26] Speaker 01:
Then tell me what you have more than speculation that in fact there was a basis, subjective and objective that would justify the defense.

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We have two individuals who were locked inside of a cell together for three weeks.

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They would have known that they had been certainly rival gang members.

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Mr. Lawhead would have known that Mr. Brown was saying that he wasn't a member of the Indian Brotherhood anymore.

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They would have known that that is a very difficult thing to do based on, again, this is the testimony of the gang expert, and that likely Mr. Brown would have been subject to violence from his gang, and that he would have needed to wipe out his tattoos.

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Neither of those things has happened.

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So we're in a situation where Mark Lawhead would reasonably be suspicious

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of what was going on and of Mr. Brown.

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We also have a situation where... And vice versa.

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Correct, Your Honor, but all we need is evidence that supports a reasonable doubt.

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Well, again, you need evidence so that you can have an inference, not speculation.

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So you've got two people locked in a cell, one comes up murdered, and we have no idea

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We can tell from the evidence, the physical evidence, there was a struggle.

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There's evidence of a struggle.

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But there's absolutely no evidence as to who started the altercation.

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And the fact that they were in rival gangs doesn't, to me, weigh on that question one way or the other as to who instigated this conflict.

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I think the case law is clear that motive is relevant, even if it's not required, but I'll continue.

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But the motive goes both ways.

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They're rival gang members in the same cell.

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And Your Honor, this is a conversation for the jury to have when evidence goes both ways of what weight to give that evidence and what reasonable inferences to make from it.

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So the government's argument below to the jury was, this is a man who was lying in wait.

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What's the basis for that?

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that a jailer saw Mark Lawhead asleep.

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Well, that jailer also saw Mr. Brown asleep.

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We get to make the same argument for the same reasonable inference that this was an ambush.

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We also have evidence from the medical examiner that Mr. Lawhead had methamphetamine in his system, that it was a low to medium quantum of methamphetamine.

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Council, I'm sorry to interrupt you, but you and I have a complete difference of understanding of the difference between speculation and evidence

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Now, my colleagues have twice asked you for evidence.

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What's the evidence?

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And I'm asking now for the third time on that, what is the evidence that you have?

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Not speculate, but absolutely.

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I swear under oath, this is what happened.

[00:06:21] Speaker 02:
Your honor, we don't need that.

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The government did not have that.

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closest thing the government had, and they had to prove their case beyond a reasonable doubt.

[00:06:29] Speaker 00:
Excuse me, counsel.

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You're the one that has to have that.

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You're claiming that you weren't given the opportunity to raise a self-defense.

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Self-defense is evidence that you have to come up with, not the government.

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And, Your Honor, we need to identify evidence in the record.

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We don't need to present affirmative evidence.

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And I'll continue.

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I haven't finished going through, I think.

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The medical examiner says these wounds are consistent with falling, a dramatic fall, but a fall onto this stool below this top bunk.

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We have a photograph of this stool.

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I thought it was that it was unlikely but possible.

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And that was a response to a different question, Your Honor.

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So certainly there, again, even if the evidence is overwhelmingly in favor of the government, we're still entitled to the instruction.

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But the question.

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So what?

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Somebody fell on a stool.

[00:07:20] Speaker 03:
It still doesn't tell us

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What you have, the evidence of the factors you have to show to get a self-defense instruction, which means you've got to show a perception of danger that is objectively reasonable, even if inaccurate, and a necessary response that is proportional to the perceived danger.

[00:07:40] Speaker 03:
Nothing of what you're saying tells us that Mr. Lawson attacked Mr. Brown and that Mr. Brown feared for his life.

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So again, I do see this as a two-part argument.

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So in terms of the evidence that Mr. Lawhead was the initial aggressor, we again have, I know it feels like a dearth of evidence.

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There's not much evidence at all about what happened.

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The government, I'll step away from that.

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I understand your concern.

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You want me to focus on the evidence that supports our case.

[00:08:13] Speaker 02:
The question that was asked to the medical examiner was falling into the bunk.

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Could that do it?

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And he says that has to be a pretty dramatic fall.

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Seems skeptical, but he does not rule it out.

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And then the question, what about falling straight down onto this metal stool?

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And he says, yes, that's possible.

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He says, yes, the fact that there's no hand injuries on Mark Lawhead, still consistent with the fight.

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These injuries, consistent with the fight.

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This could have happened with this fall.

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Nobody has any doubt there was a fight.

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That's not the issue.

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And the only way that Mr. Lawhead falls down onto this stool is if he went up to the top bunk where Mr. Brown was seen asleep very shortly before this altercation occurred.

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I understand that I'm pointing to adjunctive evidence.

[00:09:04] Speaker 01:
What support do you have for that?

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I mean, the only way that could have happened, that he would have fallen and hit the stool, is he climbed up onto Mr. Brown's bunk?

[00:09:18] Speaker 02:
There are many ways one could break one's back ribs.

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In terms of a dramatic fall onto this stool, we have a person who is 5 foot 11, well over 200 pounds, and I don't need to show it's the only way, so I'll step back from that.

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That is a mechanism for this to happen.

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The government must disprove this.

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beyond a reasonable doubt.

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They have to disprove it if you got enough for a defense.

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If you don't have enough for a defense, the government doesn't have to disprove anything.

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You have to show that you have the basis for a defense.

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Before we get too far down the line, let me ask you just a legal question.

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And let's use very concretely the question of the jaw and the fact that he claims his jaw was broken.

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Do we have to credit that claim?

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And to be more specific,

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You have Britt in Toledo that talk about crediting the defendant's testimony.

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You don't have any testimony here.

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Why do I have to credit that he says his jaw was broken when he refuses to be examined so that anybody could know that his jaw was broken?

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Why do we have to accept that?

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Because Stevenson versus United States says that credibility and the weight of evidence is a question for the jury and that

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All of the cases are.

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The fact of him saying his jaw was broken, the question is not whether, do we, I mean, that is the fact.

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My point is, do we have to consider that in the universe of things that determines whether you're entitled to the instruction?

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There are actually two steps.

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One, his jaw was broken and Mr. Law had broke it.

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But I'm going to stick right now with the question of his jaw being broken.

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And what I'm saying is I don't see any reason I have to accept that.

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There's no other evidence to support the fact that his job is broken, but him saying it, right?

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And your honor, I recognize that the specific issues in cases has had to do with testimony and therefore the statements of this court have talked about crediting the defendant's testimony.

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But every case consistently has said that weight and credibility are questions for the jury and that you must draw every reasonable inference in favor of the defense.

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and that contradictory statements by the same defendant, which we don't have here, we have contradictory evidence but not contradictory statements, are not enough to defeat that and to allow this court to discount it.

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We have evidence that was admitted, it was admissible, we have nothing in the law that distinguishes between types of evidence.

[00:11:44] Speaker 01:
What evidence are you talking about?

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What evidence do you have that was introduced?

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The only evidence you have is evidence coming from third parties in part as to what Mr. Brown

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said to them, my jaw is broken.

[00:11:56] Speaker 01:
Well, that's a whole lot different than Mr. Brown saying under oath that my jaw is broken, which you had in Toledo and you had in Bred.

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And so, well, I struggle to see what I do with that.

[00:12:07] Speaker 01:
But beyond that, even if his jaw is broken, it doesn't go to the basic question of

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What does that prove?

[00:12:15] Speaker 01:
I mean, if everybody accepts the fact that he was in a fight, so what?

[00:12:20] Speaker 01:
His jaw was broken.

[00:12:21] Speaker 01:
That doesn't say that it establishes that he had some fear that his life was in.

[00:12:25] Speaker 01:
I mean, Judge McHugh articulated the standard, and as lawyers, we know we could add an A, we could add a B, we could add a C, we could add a D. There are a lot of elements to that standard.

[00:12:36] Speaker 01:
I don't see any proof to establish any of that.

[00:12:41] Speaker 02:
In an earlier question, you mentioned, if we raise enough, then the government must disprove the unreasonable doubt.

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In Barnett, this court made very clear that the existence of the reasonable doubt is enough.

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There is no additional burden of production beyond pointing out where on the record the reasonable doubt as to self-defense exists.

[00:13:04] Speaker 01:
Most certainly.

[00:13:05] Speaker 01:
But the point I'm making is, I don't see you doing that.

[00:13:08] Speaker 01:
I mean, if we've got a speculation, a reasonable juror is not going to find a reasonable doubt based upon speculation.

[00:13:15] Speaker 01:
That's not so.

[00:13:16] Speaker 01:
That raises the question again.

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What is it that would have allowed a reasonable juror beyond speculating about what went on in this cell to conclude that Mr. Brown met all of the elaborate standards that's been set out that he has to show?

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Proportionality, the fact that he has subjective fear, he had objective fear.

[00:13:38] Speaker 01:
How do we know that?

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So I know that Your Honor has trouble with the argument I'm making about initial aggressor.

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But assuming you could accept that there is some evidence of initial aggressor, I think everything falls in place.

[00:13:50] Speaker 02:
In the United States Supreme Court, and Farmer versus Brennan says, if a risk to an inmate is obvious, then we can presume that is some evidence of the jailer's knowledge of that risk.

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Certainly, it would be the case that if the risk to an inmate is obvious, that inmate himself

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can be that some evidence that the inmate himself had that subjective belief.

[00:14:11] Speaker 01:
If we're relying on Farmer versus Brennan, I think we're moving pretty far down the road.

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I mean, Farmer versus Brennan is not a criminal case that has nothing to do with this case.

[00:14:21] Speaker 01:
But let's assume if the jailer would know there is a risk, then the inmate would know there's a risk.

[00:14:27] Speaker 01:
Well, Mr. Lawhead would know there's a risk from Mr. Brown, too.

[00:14:31] Speaker 01:
I mean, and so the question, going back to Judge McHugh's point,

[00:14:34] Speaker 01:
All right, so they both are at risk from each other.

[00:14:37] Speaker 01:
They both agree to live with each other.

[00:14:39] Speaker 01:
I think you had a line in your brief about stab on site.

[00:14:42] Speaker 01:
Well, there wasn't a stab on site because they were living with each other.

[00:14:45] Speaker 01:
So what do we derive from the fact that they both view each other as a threat?

[00:14:51] Speaker 02:
And Your Honor, again, that's why the first half of my briefs is always focusing on this idea that it is not proven beyond a reasonable doubt that Mr. Lawhead wasn't the initial aggressor.

[00:15:01] Speaker 02:
If Mr. Lawhead attacks, if Mr. Brown just says, this is a danger, may I finish?

[00:15:06] Speaker 02:
Yes, of course.

[00:15:06] Speaker 02:
If Mr. Brown just thinks, okay, Mr. Lawhead is a dangerous, he is danger to me, we're missing eminence.

[00:15:13] Speaker 02:
We're missing certainly a lot of issues.

[00:15:15] Speaker 02:
But if Mr. Brown has been attacked, imagine a situation where there's a video camera in this cell.

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It is silent, it is only pointed at the top bunk.

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And it shows Mr. Lawhead climbing up there and it shows Mr. Brown asleep.

[00:15:28] Speaker 02:
And it shows Mr. Brown waking up to this and pushing Mr. Lawhead down onto the stock.

[00:15:34] Speaker 01:
And that's it.

[00:15:35] Speaker 01:
We'd love to have a video.

[00:15:36] Speaker 01:
Because I think that video would be great.

[00:15:38] Speaker 01:
You'd be showing us that video.

[00:15:39] Speaker 01:
We don't have the video.

[00:15:41] Speaker 01:
That's the problem.

[00:15:42] Speaker 02:
Right.

[00:15:43] Speaker 02:
But if the evidence supports a reasonable inference that that is what happened.

[00:15:47] Speaker 02:
So again, I'm promising this on that first half of my argument.

[00:15:50] Speaker 02:
But if so, that

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in this situation under this legal framework where all reasonable inferences must be drawn in favor of the defendant is the equivalent of a video.

[00:16:00] Speaker 02:
And if we have that video, then the question for this court when it comes to those specific elements of self-defense is would that do it?

[00:16:08] Speaker 02:
Would that be enough in combination with the other evidence that these men are locked inside, that they're isolated, that you can't scream for help, that you can't wait for help, there's no means of retreat, not to mention no obligation to retreat,

[00:16:19] Speaker 02:
Would that be enough?

[00:16:20] Speaker 02:
And so that's why I see this as a two-step argument.

[00:16:25] Speaker 02:
But given the extremely friendly nature of this standard of review and that this court has never affirmed the denial of a self-defense instruction in a homicide case, I believe that we have met that standard and that this is not a request for a jury to speculate, but rather for these conversations to be had in the jury room instead of with judges.

[00:16:47] Speaker 00:
Are you arguing this case or your other case?

[00:16:49] Speaker 01:
This one.

[00:16:49] Speaker 01:
And we've never affirmed it, but the reality is this case is not like the ones that we've had before, right?

[00:16:56] Speaker 02:
I believe that's true.

[00:16:57] Speaker 02:
I think that the closest case, I know I'm very over if I may continue.

[00:17:01] Speaker 01:
I'm letting you go over, so go.

[00:17:03] Speaker 02:
Thank you.

[00:17:04] Speaker 02:
I think the closest case here is going to be the Ninth Circuit case in our brief, United States versus Morton.

[00:17:11] Speaker 02:
And it's slightly different because that's an assault on a federal officer case.

[00:17:15] Speaker 02:
But the Ninth Circuit, so the defense is slightly different.

[00:17:17] Speaker 02:
It still involves a subjective belief.

[00:17:20] Speaker 02:
Still requires a bona fide, I don't remember exactly the phrase, but a belief that the person is not a law enforcement officer.

[00:17:28] Speaker 02:
And in that case, the Ninth Circuit said, is it relevant that the defendant has not testified?

[00:17:32] Speaker 02:
There was also no statement at all by the defendant in that case.

[00:17:36] Speaker 02:
And the court relied on two different types of evidence.

[00:17:39] Speaker 02:
One of them was a bystander who says, I saw this.

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And I wasn't convinced this guy was law enforcement.

[00:17:48] Speaker 02:
So they say reasonable to make that inference from there that the defendant felt the same way.

[00:17:52] Speaker 02:
I recognize that's different than the evidence here.

[00:17:54] Speaker 02:
But it also relied on the circumstances.

[00:17:56] Speaker 02:
It relied on the fact that the person's badge wasn't immediately visible, that he was wearing plain clothes, that he looked like a construction worker near a construction site, that it was a dangerous neighborhood.

[00:18:08] Speaker 01:
I'll go back and refocus on that case.

[00:18:10] Speaker 01:
Thank you, counsel.

[00:18:11] Speaker 02:
Thank you.

[00:18:28] Speaker 04:
Good morning, Your Honors.

[00:18:29] Speaker 04:
May it please the court, Lisa Williams, representing the United States of America.

[00:18:36] Speaker 04:
What the defense is asking this court to do is push beyond the boundaries of Toledo and Britt and impose a new standard for entitlement to a self-defense instruction, one that is not tethered to any evidence of a defendant's subjective belief, but instead

[00:18:57] Speaker 04:
tethered to some objective standard of, well, of course someone would feel threatened in this position and want to respond with force.

[00:19:06] Speaker 04:
Because there is simply no evidence in this record that Mr. Brown held a subjective belief that deadly force was necessary and he had to defend himself against such force.

[00:19:19] Speaker 03:
Is it your position that a defendant has to testify in order to be entitled to a self-defense instruction?

[00:19:27] Speaker 04:
No, it is not, Your Honor.

[00:19:28] Speaker 04:
There can certainly be evidence in addition or separate from a defendant's testimony that speaks to his subjective belief.

[00:19:38] Speaker 04:
We'll confront that situation in our next case that we're going to argue.

[00:19:42] Speaker 03:
I'm sorry, go ahead.

[00:19:44] Speaker 03:
We don't have a video.

[00:19:46] Speaker 04:
Correct.

[00:19:46] Speaker 03:
You've got two people locked in a cell together and one kills the other.

[00:19:53] Speaker 03:
if the defendant doesn't testify, the only one who survived the altercation, I mean, what evidence can a defendant come up with in order to prove the right to a self-defense instruction in that situation?

[00:20:10] Speaker 04:
Sure, so in this case, if Mr. Brown would have had defensive wounds on his person, suggesting that he was engaged in an altercation where he had to defend himself.

[00:20:20] Speaker 03:
Why would that tell us?

[00:20:21] Speaker 03:
I mean, you know, they're in a,

[00:20:24] Speaker 03:
They're obviously fighting to the death.

[00:20:28] Speaker 03:
And they're both going to have wounds, defensive and offensive.

[00:20:34] Speaker 04:
Except, Your Honor, that Mr. Brown didn't have any wounds, a broken jaw.

[00:20:39] Speaker 04:
Well, he claims he has a broken jaw.

[00:20:41] Speaker 01:
Well, what do you do?

[00:20:41] Speaker 01:
Well, let's talk about that.

[00:20:42] Speaker 01:
What do you do with the broken jaw claim?

[00:20:45] Speaker 01:
I had some conversation with the opposing counsel about that.

[00:20:48] Speaker 01:
I mean, in Brett and Toledo, if Mr. Brown had gotten on the stand and said he had a broken jaw,

[00:20:54] Speaker 01:
We clearly would have to take that.

[00:20:57] Speaker 01:
What do we have to do in this situation?

[00:20:59] Speaker 04:
So Toledo does say, Your Honor, that for the purpose of determining the sufficiency of the evidence with respect to the jury instruction, the testimony has to be accepted most favorably to the defendant.

[00:21:10] Speaker 04:
So I think this court does have to accept that Mr. Brown had a broken jaw.

[00:21:14] Speaker 04:
But what Mr. Brown didn't say is that he broke my jaw during the fight.

[00:21:20] Speaker 04:
There's no evidence of that.

[00:21:21] Speaker 04:
The only evidence is that Mr. Brown

[00:21:24] Speaker 04:
said, I have a broken jaw.

[00:21:26] Speaker 03:
That might be getting into an inference rather than speculation.

[00:21:29] Speaker 03:
If you've just come into a cell where they've had a fight, and one person is dead, and he says, my jaw is broken, I don't think that's too far afield of a reasonable inference.

[00:21:43] Speaker 04:
Except, Your Honor, there's no bruise.

[00:21:46] Speaker 04:
I mean, again, imagine the force necessary to cause it.

[00:21:48] Speaker 03:
That's now taking issue with whether the jaw is broken.

[00:21:51] Speaker 03:
not whether it was broken in the fight.

[00:21:53] Speaker 03:
And there are two different issues.

[00:21:54] Speaker 04:
I think that you can accept that the jaw is broken without accepting that the jaw was broken during the fight.

[00:22:02] Speaker 04:
Those are two different issues.

[00:22:04] Speaker 04:
And if the jaw was broken two weeks ago in something completely unrelated to the fight, that would explain why he's not in immediate pain, why there's no bruising,

[00:22:13] Speaker 01:
And let me just be clear on your point about us accepting that the jaw was broken.

[00:22:19] Speaker 01:
Toledo used testimony in connection with the fact of a defendant who actually testified.

[00:22:24] Speaker 01:
So, I mean, I'm not saying that it's wrong.

[00:22:28] Speaker 01:
I'm just trying to, I mean, when I read that, it immediately occurred to me that at least there's a question as to whether that maps onto this situation.

[00:22:37] Speaker 04:
And, Your Honor, I think that hits nail in the head.

[00:22:42] Speaker 04:
Excuse me.

[00:22:44] Speaker 04:
It's not that there was a fight.

[00:22:47] Speaker 04:
It's that there has to be evidence of the defendant's subjective belief.

[00:22:51] Speaker 04:
And in Toledo, the defendant took the sand and said, I was scared.

[00:22:56] Speaker 04:
I thought he was going to kill me.

[00:22:58] Speaker 03:
That gets me back to, does the defendant have to testify in order to have a right to a self-defense instruction?

[00:23:05] Speaker 04:
And here's another example, Your Honor.

[00:23:09] Speaker 04:
So after this fight, the defendant alerts security and says he OD'd.

[00:23:14] Speaker 04:
If instead he would have said, oh my gosh, he attacked me in the middle of the night and I had to defend myself, come get him.

[00:23:22] Speaker 04:
And for somehow that evidence, it's here so we'd have to work through, but if it was admissible at trial, then that would be evidence of his subjective belief that doesn't come from the defendant testified.

[00:23:34] Speaker 04:
And maybe they get it in as an excited utterance, but there's a world in which

[00:23:38] Speaker 04:
A defendant's statements come into evidence without the defendant testifying, and that would speak to his subjective belief.

[00:23:47] Speaker 04:
But that evidence doesn't exist in this case.

[00:23:51] Speaker 01:
We do have the jaw from somebody else.

[00:23:55] Speaker 01:
We don't have him talking about his subjective belief, but we do have him talking about his jaw that we get from somebody else.

[00:24:01] Speaker 01:
And I'm not going to belabor the point, but the language in Toledo is full credence to the defendant's testimony.

[00:24:09] Speaker 01:
And obviously, we don't have the defendant's testimony here.

[00:24:13] Speaker 01:
But let's assume for the moment that we accept the fact that the jaw is broken.

[00:24:17] Speaker 01:
Your point is that that doesn't tell us that the jaw was broken on that night, right?

[00:24:21] Speaker 01:
Doesn't tell us that it was broken in a fight.

[00:24:26] Speaker 01:
Yeah, let's make a record.

[00:24:28] Speaker 04:
I do try cases.

[00:24:31] Speaker 04:
I should know better than that.

[00:24:33] Speaker 01:
And doesn't tell us that he was in fear for his life, right?

[00:24:37] Speaker 04:
That's correct.

[00:24:38] Speaker 04:
And that's the problem with just that one single piece of evidence standing by itself is this court has never held that a fearful situation

[00:24:51] Speaker 04:
by itself entitles a defendant to self-defense instruction.

[00:24:56] Speaker 04:
It's always held that the defendant has to have a subjective belief that then the jury measures, is it objectively reasonable?

[00:25:06] Speaker 04:
And so what we have here is a failure of proof on that first prong that there is a subjective belief by this defendant that he was in fear for his life.

[00:25:16] Speaker 04:
I think that if you read Toledo and Britt, if the defendant testifies and says,

[00:25:21] Speaker 04:
I was afraid of my life, they're going to get the self-defense instruction.

[00:25:25] Speaker 04:
They're gonna be entitled to that.

[00:25:27] Speaker 04:
That's gonna, it's not up for debate at that point.

[00:25:33] Speaker 04:
I think that's what Toledo and Britt stand for.

[00:25:36] Speaker 04:
What they don't stand for is to then say, well, anytime anyone may be in fear of their life, let's just give them self-defense.

[00:25:43] Speaker 04:
There has to be some evidence.

[00:25:46] Speaker 03:
Well, and I guess the argument on the other side is the evidence is,

[00:25:50] Speaker 03:
that these were members of competing gangs that there would be natural animosity between and they're in a situation where nobody's going to come to help because they don't have a third party witness is there or someone who's going to quickly break it up and so that you can infer from those facts that once an altercation started that he would be in fear for his life.

[00:26:22] Speaker 04:
And I think one of the problems with that train of thought is the very end of what you said, Your Honor, once an altercation started because it's incumbent on the defendant to prove that Mr. Lawhead started the altercation in order to be entitled to self-defense.

[00:26:37] Speaker 04:
And this too is exactly what the district court was concerned with and why it didn't give the instruction because the court, I thought, gave a really

[00:26:46] Speaker 04:
well-reasoned explanation and really gives this court a record to evaluate whether or not it abused its discretion.

[00:26:54] Speaker 04:
It talks about Toledo, it talks about the other cases that it had read, and it says that certainly there's some aspects that raise reasonable doubt maybe for premeditation, but the testimony that's been referenced doesn't go to the defendant's belief, which is the standard in Toledo.

[00:27:12] Speaker 04:
And that's the puzzle piece here, your honor, that's just missing, is that there's just no evidence as to what was going on in Mr. Brown's mind.

[00:27:21] Speaker 04:
And without that, he cannot show entitlement to a self-defense instruction.

[00:27:27] Speaker 04:
He can use all of these inferences and all of this speculation to try to attack the government's claim that he premeditated this murder, that he lied in wait to attack Mr. LaHead.

[00:27:38] Speaker 04:
Those are certainly

[00:27:39] Speaker 04:
inferences and arguments that can be made in closing, but to trigger the entitlement to a self-defense instruction, the case law in the 10th Circuit simply requires more.

[00:27:53] Speaker 00:
Well, the case law in the 10th Circuit, as your opposing counsel has already stated, the requirement is very, very low that you have to come up with as a trial lawyer defending it.

[00:28:05] Speaker 00:
I mean, it's low.

[00:28:09] Speaker 00:
That's what I'm looking for.

[00:28:11] Speaker 00:
Where is the evidence, even no matter how low it may be, if it's evidence, our law in this circuit and the district judges have been applying, is that you get the defense.

[00:28:25] Speaker 00:
Am I correct?

[00:28:28] Speaker 00:
The bar is very low.

[00:28:29] Speaker 04:
The bar is very low that as long as there's evidence of a defendant's subjective belief.

[00:28:34] Speaker 00:
That's simply been my question.

[00:28:37] Speaker 00:
Show me the evidence.

[00:28:39] Speaker 00:
I mean, I'm still dwelling on that first question that Judge McHugh asked.

[00:28:46] Speaker 00:
Show me the evidence.

[00:28:48] Speaker 04:
I agree, Your Honor, and the government's position is it just does not exist in this case.

[00:28:53] Speaker 04:
There's not one shred of evidence, even circumstantial evidence, that you can point to to then build on all of these inferences.

[00:29:01] Speaker 01:
What do we do with the

[00:29:03] Speaker 01:
What role does the methamphetamine in the system of Mr. Lawhead play into this?

[00:29:08] Speaker 01:
I mean, does it provide the basis for some inference that he was more aggressive, more erratic, anything of that sort?

[00:29:15] Speaker 04:
No, Your Honor.

[00:29:16] Speaker 04:
Plenty of people use methamphetamine every day, and they don't go around and murder people.

[00:29:20] Speaker 01:
Well, thanks for informing me of that.

[00:29:23] Speaker 04:
And I don't think I need to inform the court of that.

[00:29:26] Speaker 03:
We have a raised hand.

[00:29:29] Speaker 04:
We're currently on that.

[00:29:32] Speaker 04:
So I don't think that the government's position is that that doesn't give any evidence towards whether or not he was aggressive during the fight.

[00:29:43] Speaker 04:
And it's also a low level.

[00:29:45] Speaker 04:
And again, that's an example of really

[00:29:48] Speaker 04:
trying to pull a reasonable inference from evidence that does not exist.

[00:29:54] Speaker 04:
Yes, they did find medication prescribed to Mr. Lawhead in his cell, right?

[00:30:00] Speaker 04:
And so we can assume that he was supposed, the prison's not giving out extra doses.

[00:30:04] Speaker 04:
So he was supposed to take that medication and he didn't.

[00:30:07] Speaker 04:
And from that, they argue that he was in a psychotic break, delusional, but that is a leap way too far because

[00:30:17] Speaker 04:
You know, I wrote they found 14 and a half pills, nine of which were Benadryl, so I don't think anybody's going on a psychotic break because they didn't take Benadryl.

[00:30:27] Speaker 04:
So we've got four and a half pills that he didn't take.

[00:30:30] Speaker 04:
We don't know anything about the effects of failure to skip those doses of medication on his mental health, if there were any.

[00:30:38] Speaker 04:
So it's really a leap too far.

[00:30:40] Speaker 03:
Let me ask you this.

[00:30:41] Speaker 03:
If there had been evidence that Mr. Lawhead

[00:30:45] Speaker 03:
had told someone else that he was going to murder Mr. Brown that night.

[00:30:52] Speaker 03:
Would that be enough for self-defense instruction?

[00:30:55] Speaker 04:
I think it's certainly closer, Your Honor.

[00:30:57] Speaker 04:
I mean, at least then there's some evidence that he was the initial aggressor that you could build these reasonable inferences on.

[00:31:05] Speaker 04:
So that's a different case, and I think that that would be a different argument.

[00:31:14] Speaker 04:
But again, that's just not here.

[00:31:17] Speaker 04:
And I think that goes back to the point that the courts grapple.

[00:31:20] Speaker 04:
Does the defendant have to testify?

[00:31:22] Speaker 04:
Are there other ways to show that this happened?

[00:31:25] Speaker 04:
And that's why I said at the beginning, I don't think the defendant has to testify in order to trigger entitlement to the obstruction, but there does have to be evidence of his subjective belief.

[00:31:38] Speaker 04:
And so, for example, if the evidence was, oh, well, Mr. Lawhead told me that he was going to jump Mr. Brown.

[00:31:45] Speaker 04:
And so at cafeteria that day, I told Mr. Brown, hey, you better be careful.

[00:31:50] Speaker 04:
Watch your back.

[00:31:50] Speaker 04:
He's coming to jump you.

[00:31:52] Speaker 04:
Then that would be evidence that the defendant knew that he was in danger, that he may be threatened, and may be enough to get entitled to the jury instruction.

[00:32:09] Speaker 04:
And if there are no other questions from the panel, then the government will rest on the remaining of its briefing.

[00:32:14] Speaker 01:
Thank you.

[00:32:15] Speaker 01:
Thank you.

[00:32:17] Speaker 01:
You have, if you want, 40 seconds.

[00:32:28] Speaker 00:
Just as a comment, I'm assuming you've been listening to all these questions from the next case that's going to be.

[00:32:36] Speaker 00:
All right, we're ready.

[00:32:37] Speaker 02:
All right, thank you.

[00:32:38] Speaker 02:
I think that people are conceiving of this subjective belief as some unique standard that does not exist elsewhere in the law, that requires direct evidence of what was going on in the defendant's head.

[00:32:50] Speaker 02:
And it is not different than other types of mens rea.

[00:32:54] Speaker 02:
And in fact, subjective belief is something that is proven in the courts through circumstantial evidence all the time.

[00:32:59] Speaker 02:
Dying declaration, subjective belief in the eminence of death, work product, subjective belief that litigation was a real possibility.

[00:33:06] Speaker 02:
Knowledge, deliberate indifference requires, did not subjectively believe it to be untrue.

[00:33:13] Speaker 02:
Enticement of a minor when you have an undercover believed the person was under the age of 18.

[00:33:18] Speaker 02:
This is simply not different.

[00:33:23] Speaker 01:
Thank you, counsel.

[00:33:25] Speaker 01:
Case is submitted.