[00:00:00] Speaker 01:
this morning is 25-28, United States versus Petro.

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

[00:00:22] Speaker 03:
May it please the court, I'm John Grebelius on behalf of Thomas Petro.

[00:00:28] Speaker 03:
Your honors, this court has twice held that the prosecution violates the defendant's Fifth Amendment rights when it tells the jurors that the presumption of innocence no longer applies.

[00:00:39] Speaker 03:
Yet the prosecution here repeated nearly the same exact argument this court in Starks condemned, calling that argument a serious infringement of the defendant's constitutional rights.

[00:00:49] Speaker 03:
However, unlike in Starks, the government made matters worse here.

[00:00:53] Speaker 03:
by also simultaneously displaying a nude photo of my client in the shower to emphasize its argument.

[00:01:00] Speaker 03:
Now, on appeal, the government correctly concedes that this is obvious error, at least the negation of my client's presumption of innocence was obvious error.

[00:01:09] Speaker 03:
So the only question today, really, Your Honors, is that of prejudice.

[00:01:13] Speaker 03:
And the government's closing argument prejudiced my client for three key reasons.

[00:01:18] Speaker 03:
First, it exacerbated the error by likening the presumption to clothing that had been removed by each piece of evidence that presented, while also displaying that naked photo of my client.

[00:01:30] Speaker 03:
Two, my client's credibility was key to his defense, and the evidence in this case was not overwhelming.

[00:01:35] Speaker 03:
And three, the jury instructions did not cure the harm here.

[00:01:39] Speaker 03:
Starting with the first, the government's misconduct was not as minimal as it claims on appeal.

[00:01:45] Speaker 03:
The government spent as much time undermining the presumption of innocence as the district court ever did explaining it.

[00:01:51] Speaker 03:
Now it told jurors in effect that the presumption had been removed as of the first day of trial when it presented evidence because every text, every photo had removed the presumption.

[00:02:02] Speaker 03:
And so it suggested to jurors that the contested issue of knowledge could essentially be presupposed.

[00:02:07] Speaker 03:
Then, of course, having done so, it displayed a naked photo of my client to amplify this argument.

[00:02:13] Speaker 03:
Now, Your Honors, I really do hate cliches, but the cliche, a picture is worth 1,000 words, really aptly suits this case.

[00:02:21] Speaker 01:
A picture of error, is that what you're saying?

[00:02:26] Speaker 01:
Yes.

[00:02:27] Speaker 01:
Let me go beyond what has been conceded to be clear and obvious error for a moment.

[00:02:37] Speaker 01:
I was left breathless.

[00:02:40] Speaker 01:
But going beyond that, didn't Mr. Petro tacitly concede that he engaged in sexual communications with MV after he knew she was 13?

[00:02:57] Speaker 01:
And if he did do that, and my reading of the record was he did do that, then why didn't he admit guilt?

[00:03:05] Speaker 01:
And if he did do that,

[00:03:07] Speaker 01:
You have a hard time on the prejudice front, don't you?

[00:03:10] Speaker 03:
Well, your honor, I want to clarify what your honor is referring to the August 29th texts, which the government argues.

[00:03:17] Speaker 03:
And I want to make clear a couple points.

[00:03:19] Speaker 03:
First of all, my client never admitted guilt.

[00:03:23] Speaker 03:
He never admitted that this was part of his enticement.

[00:03:29] Speaker 03:
Below, the government never argued that these August 29th texts were enticement by themselves.

[00:03:34] Speaker 03:
And they did that for a very good reason, because it doesn't fit the definition of enticement.

[00:03:39] Speaker 03:
The government used these texts below to attack my client's credibility.

[00:03:43] Speaker 03:
But if you look at those texts,

[00:03:45] Speaker 03:
Well, this court has clearly, but if we re-review the texts, we see that my client did not, contrary to what the government says, introduce the sexual innuendo in that conversation or solicit anything out of the blue.

[00:03:59] Speaker 03:
What he testified was that at that point he was terrified, he did not know what to do, and that he was trying to quietly walk out of the relationship.

[00:04:08] Speaker 01:
Now, looking at those two, a creaming that that's not him introducing sexual innuendo.

[00:04:15] Speaker 01:
And I mean, if I look at the language of the Oklahoma statute to engage in any underlying that my underscoring any communication for sexual or period interest with any minor.

[00:04:26] Speaker 01:
by use of technology.

[00:04:28] Speaker 01:
If you're using technology, you know she's 13.

[00:04:31] Speaker 01:
You're talking about creaming.

[00:04:33] Speaker 01:
Why is that not sexual innuendo?

[00:04:36] Speaker 01:
And why does that not fit the terms of the statute?

[00:04:39] Speaker 03:
Well, Your Honor, I have two responses to that.

[00:04:40] Speaker 03:
First is that statute says it has to be for that purpose.

[00:04:43] Speaker 03:
Now, my client testified that was not his purpose in engaging in that line of texts.

[00:04:48] Speaker 03:
And certainly jurors could have believed him.

[00:04:50] Speaker 03:
Now, looking at those texts, we see that right after that conversation, my client tries to end the conversation.

[00:04:57] Speaker 03:
He says, you know, I'm does it or nodding off or zoning out, however you want to.

[00:05:01] Speaker 03:
I can't remember the exact wording, but I'm trying to go to sleep.

[00:05:04] Speaker 03:
Now, my client did not introduce the creaming innuendo.

[00:05:09] Speaker 03:
What happened was MB and my client were swapping texts and they were innocuous and they were about my client dropping out, not responding regularly from the 27th forward.

[00:05:19] Speaker 03:
And that's born out in the exhibit five.

[00:05:22] Speaker 03:
My client really was dropping out.

[00:05:24] Speaker 03:
Now MB says, you know, I have something else I wanted to say, but I don't know that now is a good time.

[00:05:31] Speaker 03:
My client responds to a previous text noting that, hey, let me know when you're available to talk in the evening, essentially.

[00:05:37] Speaker 03:
And then he says, go for it.

[00:05:39] Speaker 03:
I could use a pick me up before bed, LOL.

[00:05:42] Speaker 03:
And V then responds with innuendo saying, well, I could pick you up before bed, baby, or not LOL.

[00:05:48] Speaker 03:
Then she says.

[00:05:49] Speaker 01:
And what should I infer from pick me up?

[00:05:51] Speaker 01:
And what do you think that means?

[00:05:53] Speaker 01:
I mean, and who's introducing that concept in that conversation you just talked about?

[00:05:58] Speaker 03:
Well, your honor, it's it we don't know exactly.

[00:06:01] Speaker 01:
I mean, the jurors could infer the statue says sexual innuendo.

[00:06:04] Speaker 01:
I mean, what I think, you know, we're all adults here.

[00:06:09] Speaker 01:
That sounds pretty good to me.

[00:06:10] Speaker 03:
Well, again, your honors, the jurors could infer that my client was telling the truth when he wasn't trying to do this for a sexual purpose, that all he was doing was responding to her texts.

[00:06:21] Speaker 03:
And again, the government never presented this particular theory of innuendo only not child pornography to the jurors.

[00:06:28] Speaker 03:
So we can't say that absent this error jurors would have somehow gone with this theory of guilt that was really never advocated to them in closing argument or at any point during trial.

[00:06:38] Speaker 03:
But be that as it may, Your Honors, jurors could certainly credit my client's explanation for what his purpose was.

[00:06:45] Speaker 03:
And that was to walk away from this quietly.

[00:06:48] Speaker 03:
Because at no point did he expand the conversation after that brief interaction with the innuendo.

[00:06:55] Speaker 03:
And I'm not saying that this was appropriate conversation.

[00:06:58] Speaker 03:
I want to make that clear.

[00:06:59] Speaker 03:
But it wasn't criminal.

[00:07:01] Speaker 03:
at this point, jurors could have certainly have inferred that based on his testimony.

[00:07:05] Speaker 03:
He never then solicited any photos from her.

[00:07:08] Speaker 03:
He never amplified or tried to extend the argument or the conversation.

[00:07:12] Speaker 03:
He simply tried to end it to go to sleep.

[00:07:14] Speaker 03:
And that really was the last form of texting he ever did with MB despite her repeated texts back to him over the next day and a half or so.

[00:07:23] Speaker 02:
Counsel, you began your argument by comparing the closing argument in this case to the closing argument, Starks.

[00:07:30] Speaker 02:
And I think your point is well received that this one's worse because of the use of the photograph as well.

[00:07:36] Speaker 02:
But Starks is a cumulative error opinion.

[00:07:38] Speaker 02:
And here you're raising only one error.

[00:07:41] Speaker 02:
And so how do we assess, again, the prejudice prong here compared to Starks when Starks had other issues that the court led the court there to reverse and vacate?

[00:07:52] Speaker 03:
Well, Your Honor, Stark certainly doesn't set the floor for harm.

[00:07:56] Speaker 03:
This court in Stark's also noted throughout the opinion that this was the most concerning error, noting that it had actual prejudice.

[00:08:04] Speaker 03:
So it treated this really as the primary error.

[00:08:06] Speaker 03:
And yeah, we don't have these other errors.

[00:08:08] Speaker 03:
But yes, we do have a situation unlike Stark's where we have the photo.

[00:08:12] Speaker 03:
We also have a case where my client's credibility is central.

[00:08:16] Speaker 03:
And the Supreme Court and Taylor in this court in Mahoney noted that when you undermine the presumption of innocence,

[00:08:23] Speaker 03:
You're adversely impacting the jurors ability to assess the defendant's credibility.

[00:08:28] Speaker 03:
And that's exactly the problem here.

[00:08:29] Speaker 03:
And that's why they know that that is particularly a pernicious error in cases where the defendant's credibility is so central.

[00:08:37] Speaker 02:
One other question about that.

[00:08:38] Speaker 02:
In your brief, you mentioned

[00:08:40] Speaker 02:
prejudice that the burden you have is to show reasonable probability and you argue that's a lesser standard that even preponderance of the evidence and you cite starks that's not what stark says it just says it's a different standard it doesn't say it's lesser or more so how do you view uh what your burden is here to show that this error affected your client substantial rights

[00:09:00] Speaker 03:
Well, Your Honor, I do stand by that it is a lesser showing of preponderance.

[00:09:05] Speaker 03:
I think that that's partly what it means by different, but we have shown that in this case.

[00:09:10] Speaker 03:
There is a reasonable probability that the error undermined my clients or that it affected the outcome in this case.

[00:09:19] Speaker 03:
This court has been clear repeatedly that this type of error

[00:09:22] Speaker 03:
is highly detrimental in cases where clients credibility is an issue.

[00:09:27] Speaker 03:
And I did note, you know, the evidence isn't overwhelming.

[00:09:31] Speaker 03:
And I'll point back to the fact that again, MB herself testified

[00:09:38] Speaker 03:
that she told my client that she wanted to role play as a younger person and she never walked that back, not even on redirect as the government contends.

[00:09:47] Speaker 03:
She did not walk back that she told my client that she wanted to role play.

[00:09:51] Speaker 03:
What she did on redirect was simply say that when I allegedly told him I was 13, that wasn't role playing because, well, I was 13, but she didn't say anywhere in redirect that she communicated that to my client or communicated it in such a way that he would have understood that she was breaking character.

[00:10:12] Speaker 03:
Your honors, I just want to briefly shift now to the jury instructions.

[00:10:16] Speaker 03:
Obviously, that's been briefed extensively, but I did want to circle back that even had the district court repeatedly instructed the jurors on the burden of proof and the presumption of innocence, and it didn't, contrary to what the government says, it still would not have cured the harm.

[00:10:31] Speaker 03:
These instructions were way too generalized.

[00:10:34] Speaker 03:
to counteract the very specific attack on my client's presumption of innocence.

[00:10:39] Speaker 03:
And certainly this court in Starks rejected the idea that these generalized instructions could do that.

[00:10:45] Speaker 03:
And indeed, that's why I think this argument was so effective is because it was not inconsistent with the jury instructions as given.

[00:10:53] Speaker 03:
It allowed the prosecution to do that without jurors even having a chance of knowing that was inconsistent with what the law says.

[00:11:01] Speaker 03:
Now, just briefly, Your Honors, one last point.

[00:11:03] Speaker 03:
The government notes speed of the verdict shows that this error was harmless.

[00:11:09] Speaker 03:
And of course, my position is we can't infer that from the verdict.

[00:11:13] Speaker 03:
But I also want to point out, Your Honors, that we know from the record, from the time the jurors selected a foreperson to the time that they reached their verdict was 26 minutes.

[00:11:24] Speaker 03:
Now the jurors in that time were supposed to have read all 20 jury instructions as instruction 19 says, and I got to say as a lawyer, I don't even know that I could do that in 26 minutes, but they had to read all 20 instructions

[00:11:38] Speaker 03:
weigh the evidence, consider the evidence, and then render a verdict all in 26 minutes.

[00:11:44] Speaker 03:
That is not a quick verdict.

[00:11:45] Speaker 03:
That is a hasty verdict.

[00:11:46] Speaker 03:
And that suggests to me that shortcuts were taken, which is not a surprise because the government in closing argument told them exactly that, that they could take a shortcut.

[00:11:55] Speaker 03:
They did not have to start from zero when they went back there and began their deliberations.

[00:12:01] Speaker 03:
They could start anywhere along that continuum between zero and guilty, and that's exactly why this is prejudicial.

[00:12:09] Speaker 03:
I'd like to reserve the balance of my time, if I may.

[00:12:12] Speaker 04:
Council, can I ask one question, please?

[00:12:15] Speaker 04:
Of course.

[00:12:16] Speaker 04:
Did you at any point object to the only instructions being given before any evidence was put in and not before or after your closing arguments?

[00:12:35] Speaker 03:
Yes, Your Honor, I did.

[00:12:37] Speaker 03:
Um, so I reviewed the instructions and the court read aloud instruction number one

[00:12:43] Speaker 03:
And then during each break, if the court admonished the jurors at all, it was to tell them not to speak to one another about the case.

[00:12:49] Speaker 03:
There was no instruction on burden or presumption in between.

[00:12:53] Speaker 03:
I hope I answered your honor's question.

[00:12:54] Speaker 04:
You did not object that the instructions were not read following or immediately before the arguments.

[00:13:02] Speaker 03:
That is correct, your honor.

[00:13:03] Speaker 03:
And it's not my position that that itself was error, just that it exacerbated the harm as it did in Starks.

[00:13:09] Speaker 04:
Thank you.

[00:13:14] Speaker 00:
Good morning, your honors.

[00:13:15] Speaker 00:
May it please the court, Lena Lahm for the United States.

[00:13:19] Speaker 00:
There are three reasons that Starks doesn't govern the outcome of this case.

[00:13:24] Speaker 00:
The most important is the overwhelming strength of the evidence against Mr. Petro, that Mr. Petro knew that the person he was communicating with on sexual topics was a minor.

[00:13:39] Speaker 04:
Well, who initiated the conversation, counsel?

[00:13:43] Speaker 00:
The conversation that took place, the initial, the way they met was initiated by MV.

[00:13:55] Speaker 04:
However, as this court made clear... She lied continuously about how old she was in the beginning of this role playing.

[00:14:04] Speaker 04:
And we've just got a lot of issues that needed to be aired out before the jury.

[00:14:12] Speaker 04:
And I didn't see that happen.

[00:14:17] Speaker 00:
The fact that she initially misstated her age to Mr. Petro and then corrected it was before the jury, Your Honor.

[00:14:26] Speaker 04:
No, she misstated her age at least twice.

[00:14:31] Speaker 04:
from 26 and then 18, and then this role playing issue.

[00:14:36] Speaker 04:
And there was never any introduction by the government of any of the earlier copies of messages.

[00:14:52] Speaker 00:
Yes, Your Honor, the exchanges that took place on the whisper app, which is designed to maintain the anonymity and secrecy of those communications,

[00:15:01] Speaker 00:
were not obtained or introduced by the government.

[00:15:04] Speaker 00:
However, the victim testified that she initially told Mr. Petro that she was 26.

[00:15:12] Speaker 00:
The 18 only comes in through Mr. Petro's testimony.

[00:15:16] Speaker 00:
I don't believe the record reflects that she ever claimed that she was 18.

[00:15:20] Speaker 00:
She told him in that first conversation that she was 13 years old.

[00:15:27] Speaker 00:
And that's the testimony that the jury heard.

[00:15:30] Speaker 04:
Well, however, it's important to know.

[00:15:32] Speaker 04:
Stop.

[00:15:34] Speaker 04:
Just a minute.

[00:15:35] Speaker 04:
That was the issue was the defendant said that didn't happen.

[00:15:41] Speaker 04:
She said it did happen.

[00:15:43] Speaker 04:
Now, who makes that decision on credibility?

[00:15:48] Speaker 04:
The jury, correct?

[00:15:49] Speaker 00:
The jury, Your Honor.

[00:15:50] Speaker 04:
All right.

[00:15:50] Speaker 04:
And so if something is done to totally negate the burden of proof and the and the beyond the burden of proof and the credibility, doesn't that hurt that case?

[00:16:10] Speaker 00:
An error, the error that took place in saying that the presumption of innocence had been removed by the evidence

[00:16:18] Speaker 00:
It was a serious error.

[00:16:20] Speaker 00:
However, the proof here was nonetheless overwhelming.

[00:16:24] Speaker 00:
In particular, it's important to note that under this court's precedent, a defendant may be held liable for enticement even when a minor propositioned the defendant or was otherwise eager, predisposed, or willing to engage in the prescribed conduct.

[00:16:45] Speaker 04:
Well, that's only if you believe what the alleged victim said.

[00:16:52] Speaker 04:
If you don't believe what she said, then it's going to make a big difference.

[00:16:59] Speaker 04:
It's not going to be overwhelming.

[00:17:03] Speaker 00:
Actually, in this court's in suite, the court found that the evidence in an enticement case

[00:17:12] Speaker 00:
was overwhelming and overcame a prosecutorial misconduct in closing argument because the jury heard the victim's testimony describing the entire course of their relationship.

[00:17:28] Speaker 00:
And that testimony was corroborated by digital evidence presented by the government.

[00:17:36] Speaker 00:
And that's the same evidence that was presented here.

[00:17:38] Speaker 00:
Although the government was not able to obtain or present

[00:17:42] Speaker 00:
the communications on the whisper app, the text conversations between the victim and Mr. Petro, 300 some odd.

[00:17:53] Speaker 00:
Reading those communications corroborates the victim's testimony and undermines the defendant's testimony.

[00:18:03] Speaker 00:
Critically here as well, the jury had the opportunity to hear the victim testify and to hear Mr. Petro's attempts

[00:18:13] Speaker 00:
to explain away the various comments that took place in those text exchanges.

[00:18:21] Speaker 01:
All the more reason that I need a precise answer to what I understood to be Judge Kelly's line of inquiry, which was, do you accept the notion that this error as it relates to a presumption of innocence can have an undermining effect on how the jury perceives the credibility of the defendant?

[00:18:43] Speaker 00:
I think the error could have an undermining effect on the defendant's case as a whole.

[00:18:49] Speaker 00:
However, contrary to what I heard Mr. Gravelli say, I don't think I can answer my question, answer the precise question.

[00:18:57] Speaker 01:
Can it have an undermining effect, not on the case as a whole, but on the specific issue of credibility of the defendant?

[00:19:07] Speaker 00:
The cases, no, because neither the Mahorny case nor the Starks case suggests that the impact of the prosecutorial error in closing argument went to the credibility of the defendant.

[00:19:23] Speaker 00:
The only time the word credibility is used in either of those cases, it is talking about the credibility of the government's witnesses, the credibility of Ms.

[00:19:33] Speaker 00:
Avery, which the government vouched for in Starks,

[00:19:37] Speaker 00:
and the credibility of government witnesses in a footnote in Mahorny.

[00:19:42] Speaker 01:
Okay, and so if writ large, as it relates to the credibility of other witnesses, credibility can be undermined, if I understand that to be your understanding of Starks.

[00:19:52] Speaker 01:
Other witnesses, why can't that be the same thing when the key star witness here is the defendant himself?

[00:20:00] Speaker 00:
But in neither Starks nor Mahoney is that discussion of credibility in the context of the removal of the presumption of innocence.

[00:20:09] Speaker 00:
It goes to the weight of the other evidence and whether that other evidence is substantial enough to overcome the plain error in removing the presumption of innocence.

[00:20:22] Speaker 01:
here are riddled with comments that suggest that she was a minor, talking about mom, talking about all these things.

[00:20:28] Speaker 01:
Why in the world could not a jury?

[00:20:31] Speaker 01:
Why?

[00:20:31] Speaker 01:
What about that is overwhelming evidence?

[00:20:34] Speaker 01:
Why does that not correlate with the defendant's testimony that she he understood her to be role playing?

[00:20:42] Speaker 00:
Because in Starks and in this court's other cases, we take the record as a whole.

[00:20:49] Speaker 00:
And reading those texts as a whole, all of those references to the victim's age and to her activities that were consistent with that age were not in the context of their sexual communications.

[00:21:03] Speaker 00:
They were in the nature of logistical conversations.

[00:21:08] Speaker 00:
She repeatedly talks about when she can talk to him being constrained by when she has to go to school or do her homework.

[00:21:15] Speaker 00:
She talks about being sad to be turning 14.

[00:21:18] Speaker 00:
These aren't in the context of their sexual interactions.

[00:21:22] Speaker 00:
These are logistical conversations.

[00:21:24] Speaker 00:
I submit to you that it is virtually impossible to read the communications

[00:21:29] Speaker 00:
that take place from August 10th to August 29th and conclude that those references to her age and her life are in any way related to sexual role playing.

[00:21:44] Speaker 01:
Score the word virtually there because I'm not sure that I agree with that premise.

[00:21:48] Speaker 01:
And let me ask this, if in fact the evidence is not overwhelming, do you lose then?

[00:21:56] Speaker 00:
I think if we're talking about the record as a whole, perhaps that argument could be made.

[00:22:07] Speaker 01:
Asking you a question, I'm not making an argument.

[00:22:09] Speaker 00:
What's the answer to the question?

[00:22:10] Speaker 00:
The answer is no, because of the communications that took place on August 29th.

[00:22:15] Speaker 00:
And in particular, as you identified, the Oklahoma statute, Title 21, Section 1040.13a, specifically makes it a crime

[00:22:31] Speaker 00:
to solicit sexual communications with a minor by use of technology.

[00:22:36] Speaker 00:
And the communications that took place on the 29th were sufficient both to prove completed enticement based on those communications.

[00:22:47] Speaker 00:
And remember, enticement doesn't mean asking for an image.

[00:22:50] Speaker 00:
It doesn't mean soliciting something.

[00:22:53] Speaker 00:
It means to draw on by arousing hope or desire.

[00:23:00] Speaker 01:
Well, what about the defense argument that, well, if that's such powerful evidence, why didn't the government emphasize that as a theory of guilt?

[00:23:09] Speaker 01:
That's what I understand the defense to say.

[00:23:12] Speaker 00:
I would commend to the court to reread the government's argument, because the government absolutely did reference those August 29 communications as standing alone sufficient to show that the defendant was guilty of enticement.

[00:23:30] Speaker 00:
As well, the defendant was charged not just with enticement in this case, but with attempted enticement.

[00:23:39] Speaker 00:
And attempted enticement can be established by showing the defendant had the requisite intent and that he took a substantial step.

[00:23:49] Speaker 00:
And a substantial step as defined in these jury instructions and in this court's case law includes grooming a victim.

[00:23:59] Speaker 00:
And these conversations were nothing but grooming, including the conversations after the defendant admitted he knew she was 13.

[00:24:07] Speaker 00:
He continued.

[00:24:08] Speaker 01:
Again, the defendant position as articulated today is that that conversation

[00:24:15] Speaker 01:
suggests that he didn't have a purpose to do anything.

[00:24:18] Speaker 01:
At least the jury could have found that he did not have a purpose to do anything, but get off that call.

[00:24:25] Speaker 01:
And what about that is mistaken?

[00:24:28] Speaker 00:
So, as this court I think explained in flex, a defendant can deny that he had the requisite intent, but the jury can reject that argument by looking at the defendant's actions and words in the in the totality of the communications

[00:24:48] Speaker 00:
And conclude and reject his assertion that he did not have the intent to entice and looking at these communications as a whole, as a whole, there is no way that the jury could read the statement, I could use a pick me up before bed lol.

[00:25:05] Speaker 00:
and believe it referred to anything other than sexual enticement.

[00:25:10] Speaker 00:
And at the very least, grooming, which would have supported a conviction under the attempted enticement theory.

[00:25:16] Speaker 00:
Both of those were available to this jury in the jury instructions.

[00:25:21] Speaker 00:
And so based on that August 29 communication alone, after which the defendant had admitted that he then knew that the victim was a minor,

[00:25:33] Speaker 00:
That communication alone provides this court with overwhelming evidence to sustain his conviction.

[00:25:41] Speaker 00:
However, not just that.

[00:25:44] Speaker 00:
The defendant's theory that the reason he was starting to pull away in these last few conversations, he claims it's because he learned for the first time that she was 13, although she was actually 14 at the time.

[00:25:58] Speaker 00:
If you look at the,

[00:26:00] Speaker 00:
those communications, particularly on the last few days before the termination of this exchange, the thing that Mr. Petro learned in those last few days was that the victim was starting to tell others about him.

[00:26:17] Speaker 00:
And he expressed repeatedly his anxiety that others would find out that he needed to keep it a secret, at least until she was of age.

[00:26:27] Speaker 01:
in communications with her after this communication, the one that we're talking about, the creaming communication.

[00:26:35] Speaker 00:
That was their final conversation on the 29th.

[00:26:38] Speaker 00:
Her phone was seized by law enforcement on the 30th.

[00:26:41] Speaker 00:
So no, he did not.

[00:26:44] Speaker 02:
To ask you about Starks again, I'm going to make two suggestions and get your position on comparing this case to Starks.

[00:26:50] Speaker 02:
One is the thread that Judge Kelly began about credibility.

[00:26:54] Speaker 02:
In Starks, the defendant didn't testify.

[00:26:56] Speaker 02:
So that makes this case different because the credibility of the defendant's testimony now is something the jury has to consider.

[00:27:02] Speaker 02:
And the other is the comparison of the closing argument.

[00:27:06] Speaker 02:
And it's hard to imagine something more prejudicial than these statements in the context of that photograph being shown.

[00:27:12] Speaker 02:
So why can't we look at those two or how should we think about those two differences with Starks and weighing this case against that?

[00:27:20] Speaker 00:
I think it's the key, and I'll start with the photograph.

[00:27:25] Speaker 00:
The photograph absolutely made the error more prejudicial.

[00:27:30] Speaker 00:
The difference between that and Starks, though, was that in Starks, there were two separate errors, the vouching for the weak cooperator's evidence and the references to the improperly admitted testimony, expert testimony of the troopers.

[00:27:48] Speaker 00:
I see my time is up.

[00:27:49] Speaker 00:
May I finish my answer?

[00:27:51] Speaker 00:
Those two errors were separate errors that cumulated with the presumption of innocence error in a way that required reversal.

[00:28:03] Speaker 00:
Here, the photograph was part of the same error.

[00:28:06] Speaker 00:
It did make that, I acknowledge it made the presumption of innocence error worse, but it wasn't a separate error that could be cumulated to determine that reversal was required.

[00:28:19] Speaker 00:
And for that reason, Your Honors, we would ask that this court affirm Mr. Petro's conviction.

[00:28:25] Speaker 00:
Thank you.

[00:28:29] Speaker 03:
Your Honors, I want to focus on the credibility argument here.

[00:28:32] Speaker 03:
This was absolutely a case about credibility.

[00:28:35] Speaker 01:
And I want to know, do you disagree?

[00:28:38] Speaker 01:
Council was pretty adamant that this was a theory of guilt, this creaming conversation and how that in itself was sufficient to support guilt.

[00:28:47] Speaker 01:
I understood you to say to the contrary.

[00:28:49] Speaker 03:
Where, which is it and what basis in the record do you have for telling me that it's not your honor when I reread the closing arguments, I understood the government to be saying that these August 29th text blew my clients defense out of the water because it made him look incredible.

[00:29:07] Speaker 03:
It was not that these alone satisfied this other Oklahoma statute.

[00:29:12] Speaker 03:
Now I could be incorrect.

[00:29:15] Speaker 03:
I could be mistaken and I'll certainly go re review the closing, but that was my understanding of the closing argument that it was only focused on child pornography all throughout the closing argument that my client was essentially asking for and receiving child pornography.

[00:29:29] Speaker 03:
That was the focus of the case.

[00:29:31] Speaker 03:
And that's my understanding.

[00:29:33] Speaker 03:
Again, I could be wrong.

[00:29:34] Speaker 03:
I'll double check.

[00:29:36] Speaker 03:
But again, this was all about credibility.

[00:29:39] Speaker 03:
Even on the August 29th text, my client had an explanation.

[00:29:43] Speaker 03:
And absolutely the Supreme Court has said this affects credibility in the defendants.

[00:29:47] Speaker 03:
Taylor v. Kentucky, when you undermine the presumption of innocence, the risk to the defendants having a fundamental fair trial was heightened because the trial essentially was a swearing contest between the victim and the accused.

[00:30:02] Speaker 03:
That's Taylor v. Kentucky at page 488.

[00:30:05] Speaker 03:
That's exactly what we have here.

[00:30:07] Speaker 03:
And it makes sense, Your Honors.

[00:30:08] Speaker 03:
If the jurors go into the jury room and they're not presuming that the defendant is innocent, that's going to affect how they're going to assess his testimony from trial.

[00:30:17] Speaker 03:
If he wasn't innocent before, why should we believe him now?

[00:30:20] Speaker 03:
I'm out of time.

[00:30:21] Speaker 03:
Thank you.

[00:30:22] Speaker 01:
Council.

[00:30:25] Speaker 01:
Case submitted.

[00:30:26] Speaker 01:
Thank you for refined arguments.