Appellate Oral Argument Before South Carolina Supreme Court | Full Video Federal Criminal Appeals

Good morning. Please be seated. The next case for argument is State v. Carpenter. As with the first case, the Chief Justice is not sitting this week, and in his stead, we have Chief Judge Williams of the Court of Appeals. Chief Judge Williams, thank you so much for participating in this case. Ms. Franklin-Bess, you ready to go forward? I want to say hello to my longtime friend from Greenville, Mr. Smith. Pleasure to see you, sir.

Same for me, Mr. Smith.

Me too.

All of us.

Thank you, Justice Kittredge, members of this court. To begin with, there is a photograph at issue in this case. It is our intention to simply refer to this photograph as State's Exhibit Number 14. We do not intend to otherwise describe it, unless for any reason it becomes necessary. We don't believe it will. Petitioner raises 3 separate claims for this court's consideration, but there is an overarching theme to all of these claims. Petitioner challenges the propriety of the State's introducing evidence relating to his unorthodox sexual proclivities in this trial, to decide whether he was guilty or not of sexually molesting his grandchildren. We concede that some amount of educating the jury would be appropriate, given the children's allegations in this case. I think that is This is a small retreat from the position that we took in our briefing, but there are ways that the State can do what is necessary to prove its case, and then there is what happened in this case. In here, the State's manner of educating the jury about these sexual interests became instead a referendum on his unusual sexual interests. The improper inference here was that since he is a coprophiliac, he is also a a child sexual abuser. And that is the logical piece the State used this evidence to make, but there was no evidence to support that inference. There was no evidence in this case that was offered to show that someone who engages in this behavior is more likely to sexually abuse children. And we know from the computer evidence in this case, there was seemingly not any interest in child pornography or pedophilia. And I think that is a pretty interesting omission.

Wait, did you just say there's no evidence that someone who does this outlandish stuff is likely to engage in abusing children?

There was no evidence presented at trial.

Well, I mean, if I'm— that seems to me to undercut your Rule 403 argument because, because Because your Rule 403 argument is that these other acts, as depicted in this photograph and otherwise, are impermissible propensity evidence under Rule 404.

And that's why—

But if the other acts don't have the tendency to prove that he committed sexual misconduct, then how are they improper propensity— how is it improper propensity evidence?

Well, I think this is why it was argued as irrelevance, first of all, and then, to the extent that it was admitted, it was improper propensity evidence. I mean, the improper inference is that because he's a sexual deviant, that he must also have been a sexual deviant towards the children, towards children.

There's a good argument that it goes toward the element of intent, under, in the CSC charge. In other words, he didn't do it, just because he thought it was fun. Did it to be aroused?

And again, I mean, there's a rule—

And that is an element under the CSC charge, correct?

And again, I mean, there is, you know, the State had the right to show some, I mean, educate the jury about this.

That's the legitimate purpose for it.

That was a legitimate purpose.

That's the legitimate purpose. You can see that. So, once you get past that, then, you're into Rule 403. Yes. And going back to the question I asked you, If you're saying that what he, what is, what he is depicted as having done in that photograph does not tend to show that he is more, is the kind of person who would sexually abuse a child, then I hear you as having undercut significantly your 404, your, your 403 argument.

I mean, well, respectfully, I mean, I don't. I mean, I think using this was used to kind of provoke, to elicit feelings of disgust and revulsion towards the petitioner. And it was done so in a way as to show that he was more likely to have committed child sexual abuse. I mean, so either it's—

You mean in the mind of the state?

In the mind of the jurors.

Well, I— Like going back to what Justice James just said, it was done so to demonstrate that this is how he achieved sexual gratification.

Which is why some amount of it would have been appropriate, to talk about this. That's why I'm saying that we're retreating a little bit from our position in the brief. There was a role for some entities.

We're in Rule 403. We got to that point. So, on the probative value side, this photograph is evidence that what the defendant was doing to these children, was done for the purpose of sexual gratification. That's the legitimate purpose, right?

Uh, yes.

What's the illegitimate purpose that you are arguing constitutes unfair prejudice under Rule 403?

That he is a sexual deviant, and disgusting, and, you know, revolting.

But didn't the trial court take that into account, and, uh, pair, excuse me, pair all this evidence down to one photo, and one video.

Yes, and I think we should probably, maybe, go and talk about State's Exhibit Number 14.

Was the video actually admitted? I thought, ultimately, it was not.

No, it was not. I mean, it is this photograph, which is what I think is—

So, in the judge's mind, she is whittling down everything, to make it, fit in the Rule 403, and you say it's still too much.

It is still too much. I mean, you know—

I'm sorry I interrupted.

And I do appreciate her efforts, and we can talk a little bit about that, because I do think she made some pretty significant efforts to try to protect the interest.

Well, she offered any kind of a curative instruction.

She did, and I mean, she also—

But the counsel didn't want it.

She did it twice.

She also sealed this picture, which I was unaware of until we tried to have it transported down to the court.

Miss Frankenbusch, this is— an unusually long colloquy on the admission of this evidence. It goes for page after page. The patience of this trial judge is really quite remarkable.

No, I mean, I—

Yes, Your Honor.

And it came out during that colloquy that there was going to be testimony as to this fetish. And that didn't seem to be the rub. That didn't seem to be a problem. And don't we have a general principle of law that if you have evidence that's being admitted without objection, mm-hmm, then that sort of diminishes the argument that the photograph on top of it is either irrelevant, or somehow will not survive a 403? And at the end of this, The trial judge, long pages, lengthy discussion back and forth, everyone free to say whatever they wanted to say, and she says, "I've done a 404 analysis, and I've done a 403 analysis, and I do certainly find the probative value outweighs the prejudicial value, and the prejudicial effect of that particular evidence." And that is her ruling, Your Honor.

But I think she's wrong. And that's sort of the gravamen of argument number 2. I mean, this photograph was just obscene. It was shocking.

It was rude.

It was offensive by accepted standards of morality and decency. It is pornography. I mean, that's why it was created. That was the purpose of its creation. That's why it was on his phone. And there was absolutely no reason to show that to a jury. I mean, even if we concede that there is some role for education here, there are ways to do it that do not involve exposing our juries to pornography. I mean, every day in America, prosecutors are prosecuting child pornography cases, and they're doing it without jurors ever having to confront the pornography. You know, there is an acknowledgment—

That doesn't make any sense to me. They try pornography cases without introducing the physical digital evidence of pornography?

Child pornography cases in America are tried without ever showing the jury child porn.

Well, that doesn't mean that's the only way.

No, it doesn't mean it's the only way, but it does mean that it is possible to educate a jury about some of these shocking events without actually exposing them to it.

If this photo had not come in, this video had not come in— and video didn't go in— would that have left room for defense counsel to argue, "Ladies and gentlemen, all you got is the children's word. You don't have any physical proof this stuff even happened.

I mean, I would argue that this photograph is not physical proof that the children—

No, it's physical proof that he had this fetish.

That he had the fetish. Which there are ways to—

With the intent to arouse himself.

Certainly.

Okay.

And why the investigator in the case could not have testified to what was contained on the video. I mean, that would be like another way of educating the jury without actually exposing the jury to it.

So, what you're saying is, under 403, you're riding along with these scales that the judge is balancing under the test, and then the picture just, boom, just kills the 403.

I think it does. I mean, I think this video, or this picture, is shocking.

It is shocking, but what he is accused of having done with these children is also shocking.

It absolutely—

in a way, it seems to me that if the jury simply sees or hears what he is alleged to have done with this, with these children, without knowing that he was doing it— this is going to sound really weird— but without knowing that he was doing it for sexual gratification, it almost reduces the shocking impact of what he did to the kids by realizing that, I mean, it's not just him being mean and disgusting, it's him, not that it's better, but he's doing it for the purpose of achieving sexual gratification.

I mean, I agree with that, but I mean, sort of on the flip side of that, I mean, if you've got a case like this where the allegations themselves are so horrific, but the evidence in support of them is really quite thin, then the introduction of this sort of picture is the kind of thing that can tip the scales, in a way that's completely beneficial.

But in my mind, I'm wondering if this— showing this photograph of what he did to his girlfriend, similar thing he did to his girlfriend, doesn't kind of keep the focus of the fact-finder on the case itself, instead of on the disgusting quality of what he did.

I cannot imagine that the jury in this case would have had any other experience, other than one of just revulsion and disgust, when they saw this. I mean, it doesn't seem to me that they could have sort of gotten over this idea that this is just a really disgusting human being, and one who is more likely to have actually committed these crimes.

That's why curative instruction, I mean, Mr. Smith's riding the fence there, too. We know, the practicalities about curative instructions, that all they might do is turn on spotlight. So where's the— where do we fit into this trial counsel's reasoning for not having a curative instruction?

And if I could, on top of Justice James, I think, has made a very salient point, What is our role in reviewing this record, in seeing two invitations for curative instruction that were respectfully declined?

The answer I would have to that is that I think trial counsel made what he believed to be the best decision at the time, which is to not further bring this to the court.

That's a fair response. When you're in a trial, in the heat of battle, it's tough, and it's easy from the bench to second guess. There's nothing negative associated with that question, but we're trying to think about, through the lens of appellate review, how should that impact our review? And in addition to that, um, I would say to the State's credit, in closing argument, on page 512 of the record, the State told the jury, when it referenced the photograph, just in passing, that it was not introduced for a gratuitous reason. It's an element of the crime we have to prove to you. So, that strikes me as a good faith response by the State, sort of an indirect limiting instruction. It's not for this horrific purpose that you want us to glean onto.

Well, and to be fair, I mean, I'm not accusing the state of bad faith here. I mean, I think they had a difficult case, and I think they did what they thought they needed to do to win it, but at the end of the day, I think this case is about what this court will tolerate, and I believe that inflicting pornography, obscenity, onto a juror, not to mention the interest that the woman depicted in the photograph has, I think that what this court has found in Torres, We have a line of cases that say that there are certain images that are improper and can be so unduly prejudicial as they—

Well, she was a co-defendant, right?

Well, she was a co-defendant.

How do we consider her interests here?

Well, I mean, I think that's a question to be asked. I think it's a conversation to have, but I do think that when people are depicted in images in public courtrooms, there is some interest there.

I think that's a legitimate concern in a child pornography case, like you referenced earlier. I can't see the importance of that, on the slightest level, in this case. I see that this woman, who's in that photograph, has no interest that is at stake, in this Rule 403, or 404 analysis.

As opposed to the child pornography cases, like you say, if these are entered into the public record, they can be protected, but not perfectly, perhaps, But, even if we don't recognize the interests of the woman depicted in the photograph, I mean, there is, I think, the interest of the jurors, not to be, to have this put on them, necessarily. I see my time is up.

I think, in our, or in the trial court's 403 analysis, that doesn't show up in us engaging in an effort to protect the jurors. That shows up in us keeping the jurors from seeing things that are going to divert their focus from the evidence in the case, to emotional and other considerations.

Exactly, Your Honor.

So, we're not protecting the jurors. We're— it's actually designed to protect the process.

And respectfully, Your Honor, I would just say that that is an interest that was not protected here. I mean, I think that the jury was sort of led to base its verdict on something other than the allegations, or the evidence in the case, and instead on their revulsion towards his personal— But, you know, one of the things that—

Justice James asked you this question earlier, I think, but in, in the defendant's opening statement on, uh, page 106 or 109— I honestly can't tell which page numbers are correct here— uh, the defendant said— the defense lawyer says, who, who's going to believe this? Like, who's going to believe that this man did these outlandish things. Now, trying cases is risky, as Justice Kittredge was referring to. You take strategic— you make strategic moves, but sometimes when you do that, you open the door. So this photograph is— can be seen as a direct response to that question: who's going to believe that this man would do something quite that outlandish when there's literally a photograph that shows that he would do it.

And that is a very fair point.

A lot of probative value in that.

Even if there is some probative value, at the end of the day, I think keeping an eye on what this jury is considering in finding its verdict here, in a case that had so little evidence tending to prove prove the truth of the allegations. I think this court should find that obscenity can play the same role as, you know, incredibly violent imagery, in that it can deny a defendant his right to due process of law.

I wanna see if there are any other questions. Thank you, ma'am, and you'll have some time with the plaintiff.

Thank you, Your Honor.

Mr.

Blitz.

May it please the court, my name is William Blitch, and I represent the State in this case. The State had to prove an element of CSC III, that he did this act of smearing feces on these children with the intent of arousing his sexual desire.

Let me ask something about that. I hear you, and it may be an argument that carries the day. But these children, according to the state's case and their testimony, they were raped. Yes, they were raped. Was intent really an issue in the case then? I know you must prove intent for CSC III, but it was like he— this fetish had to overlay everything in order to establish the intent. It seems like when he takes the abuse to the level of rape, you don't need to do any window dressing on that ultimate evidence.

Well, I think the response is twofold, and I think you can kind of look at some of the cases that this Court has dealt with in the past, Nelson and Fonseca, and the fact that in certain circumstances, the intent behind the act is certainly identifiable by the act. An anal rape, or, you know, being held down and raped by your grandfather like the little girl had happen, I think we can all acknowledge the intent behind those. Having feces smeared on your back and being forced to wipe feces off of your sibling, I don't think 99.9% of the people in this world would ever acknowledge that the intent behind that was sexual.

But does it matter, Mr. Blitzsch, does it matter that here he openly admitted this fetish?

Well, we don't have any clue that that's going to happen at the time that we have to present a case. We have to get past directed verdict.

I mean, you knew that the investigating officer had been showed, he showed the officer his phone, and said, I have a varied sex life.

Certainly, but we can't go in and—

It was like he was proud of it.

Well, there was certainly some level of that. I will not disagree with you. But, in terms of the State presenting its case, we get one chance, and we have to survive a directed verdict. And one of the elements that we have to have the judge say that we put evidence of into the record is an intent behind his actions in smearing feces are of a sexual nature, to arouse his desires.

And that's where, and I hate to keep going back to this, because I respect trial counsel's decision to say, "No, I don't want a curative instruction." The trial court should have said, ladies and, or could have said, "Ladies and gentlemen of the jury, this photo is only relevant to the issue of CSC III, and specifically on the issue of intent. It is not to be used for any other purpose." I 100% agree. Alright, so, I mean, that's perhaps an answer to Justice Kittredge's question, but still, we've got to fold that into a 403 analysis, as to everything, and that's what your opposing counsel wants us to concentrate on.

Well, again, I'm not sure you can get much more probative of evidence, than the evidence being used to prove an element of a crime. I mean, that's pretty much as probative as it gets. And to say that something—

but the CSC 3rd charge was kind of a junior varsity charge to all this other stuff. The photo perhaps did corroborate the children's testimony that this is what he did to them, by showing that it— that he took pictures of having done it to others. So that's a credibility enhancement.

Correct.

That's not improper.

I, I don't think I mean, number one, we don't have any kind of challenge to severance, or, you know, the, the joinder of the, the charges. So what we have are two CSC firsts and a CSC third, and then, you know, the HIV or whatever other charge was the other one. And so we don't have anything that says these should have been separated out so that the, the feces-related charge should be separate and distinct from the You know, we didn't have any of that. So, we have to look at it in total, what was presented in total. And again, I think it's exactly like Your Honor said, where we get the jury instructions that you have to consider the evidence of one charge separate from the others, and that's exactly why that limiting instruction would be as strong as it is, in a situation in which you have some charges, in which the probative value of that photograph, There is some. As you pointed out, it certainly enhances the credibility of these children overall. The fact that a jury is not looking at them and going, "There is no possible way this granddad smeared feces on them for a sexual reason." That's just, that's outlandish. Nobody's going to believe it. He's either was being mean and, you know, as I think Justice Few pointed out, he's being mean, he's being debasing, he's doing it for some reason that's not sexual. He is demented, he's kind of losing his faculties, and he's doing something like this. There's no way this— that hurts the overall credibility of these children, if that's what the jury is left with. This photo is the single reason that the jury can't come to that conclusion, because it sees the sexual nature behind these actions, and knows what's there. And as you pointed out, previously, we have a situation in which we have a trial judge who was confronted with a pretty vast amount of evidence that could have been considered. And when you're looking at what was here, you had multiple photographs, you had videos, you had numerous internet searches of various types, you had the actual language of the various websites and things that were were visited, that all support this same concept. And you have a judge that basically took everything and did this nice funnel and said, okay, this is what's going to be able to come in to be able to prove what you need to prove. I realize you have to do it. I realize we're going to have to step into the waters of something that is disgusting. We're going to have to step into the waters of something that is gruesome, that nobody wants to look at, or talk about. But as this court has recognized multiple times, just because something is disgusting, just because something is gruesome, doesn't mean it's inadmissible, just for that reason. And that's basically the argument that's being made, is this is so bad to look at, we should keep it out. And I don't think that's the standard. The standard is, is there a reason for it to come in? Clearly there is, to prove this element. To overall benefit the credibility. It is corroborative testimony, which is one of the reasons— or corroborative evidence, which is one of the reasons evidence comes in in the first place, is to corroborate some other aspect of the testimony. This certainly does that. It is the only link we have that ties the defendant himself to this sexual fetish that these children are claiming they suffered. And so, when you're looking at that level of probative value, there isn't prejudice that could outweigh that. And I think that's what this judge came to the conclusion of, was, "If I get rid of all of these other pieces, and I narrow it down to this one, yes gruesome, yes disgusting picture, then I have eliminated that prejudice, which could override," the probative value that comes by its admission. That's where we are in this case. We have a situation, we have an argument.

Part of what you're saying, I think, is, and Justice James made this point in the last argument, we're not talking about prejudice. We're talking about unfair prejudice.

Correct.

What you're saying the judge did is to keep the prejudice that will arise from this grotesqueness from being unfair.

Correct. That's exactly what happened on this.

Keep it on point instead of off point.

Correct. And you know, we, we had other testimony. The video may have been better. Evidence for the State, because it shows it all in action and everything else, that didn't get put in. There were other things that you could look at and say, that is worse than this picture, which again, is horrible in and of itself. But, this judge did exactly what we want judges to do, which is to figure out what level is required, and then stop. The solicitor in this case, she said, basically, "This is what all I've got. I'm going to narrow some of it down for you, Judge. I'm not gonna put in all of this.

Let's just kind of talk about a couple of things." Do you agree that pretty much at every turn, defense counsel posed the proper objections, even the nuances of those objections, and the trial judge took everything into account, And this was a case where, as you said, the issue was teed up by both sides, and the trial judge exercised proper discretion.

Unlike the last case, there is absolutely no doubt this judge knew what was going on, or what the judge needed to do.

The lawyers on both sides were in step.

Yes. I agree.

I'm right there. And also, unlike the other case, The State, this is like, from your standpoint, a perfect example of what is a legitimate purpose, that is not propensity.

Correct.

Everybody in the State knew perfectly well what it had to do to show that the purpose for admitting this evidence was legitimate under Rule 404.

I completely agree. I completely agree. This, you know, I don't know that I have seen very many cases, on both sides tried as well as this one was. Everybody did what they needed to do, what was in their client's best interest. They went forward. The judge really and truly did exactly, like I said, what we want every trial judge to do, which is to consider all of the arguments, to weigh everything that needs to be weighed, and to come to a conclusion. And just because somebody may come to a different conclusion doesn't mean it's reversible. It has to be no one could have come to that conclusion. And when you look at this, it's disgusting. There is no doubt that picture is disgusting. But it is what we have that ties him to the sexual desires that we had to establish as one of the elements of the crime. And when you get to that, you know, when we're looking at the other evidence that's out there, one of the other arguments that they had related to the searches for the enema and stuff, Again, we have to dispute that that was done for a medical reason. That's one of the CSC firsts. There is a medical exception to that, so we have to prove that enema was not placed in that boy for a medically appropriate reason, and the way that we do that is to show this is why he's looking at things related to enemas, that's why those searches were available, even if this court gets past the clear procedural bars, of addressing some of that information. The testimony that came in was his testimony. Even if this court found somehow this, this picture shouldn't have been admitted, any admission was harmless. His testimony went above and beyond what the State presented. It went farther. This jury, if they were looking at somebody, and as opposing counsel argues, that they're making a decision based on deviancy, His own testimony supports it, every bit as much as this picture does. But, the State submits the picture was properly admitted. It was probative. It was highly probative. There is no way that any prejudice outweighed that. The trial judge did exactly what the trial judge should do, and this court should affirm. If there's no further questions— Any questions? Thank you.

Alright, thank you, sir. In reply.

Yes, sir, Mr. Stewart.

Your Honor. Pleasure to have you here, sir.

Thank y'all for having me. She argued ably for this side, but I would say that I do think this was unfair prejudice because of the fact that—

But remember the rest of the test. Y'all, I guess you've agreed that it's had some probative value.

Yes, sir. Well, I don't agree that it actually had probative value with regard to the children.

Well, you don't argue that in your brief. You just argue 403. But look, probative value, we agree perhaps there might be— well, definitely there's prejudice. That's why they introduced the evidence in the first place. Yes, sir. Like videotape of an armed robber is prejudicial. You're saying it's unfair. Right. But the probative value has to be substantially outweighed by the danger of unfair prejudice. That's a steeper hill for you to climb.

I think we've climbed the hill to the extent that if you see feces on an adult, it doesn't necessarily translate to feces on a child. I think going back to what Justice—

John.

John.

I was saying, my friend, was in Nelson, I think you had somewhat of a similar situation. If the court is, in this case, going to limit Nelson, because I think you had some similar arguments in the Nelson case, where the court, the Supreme Court, set some standards with regard, what was unfair prejudice, with regard to photographs and other items that was in the Nelson case. And so, therefore, I think that if the court is going to limit Nelson by saying it's okay, in a circumstance where my abled sister says that the pornography, pornography can be introduced in order to inflame a jury. I mean, if you looked at it, and I think all 5 of you have probably looked at it, it inflamed you.

Well, let me ask you about that, because— and so what we're talking about when you stand up and you start your argument, as, as, as you were wise to do, by focusing on the unfairness, the unfair aspect. All right, so let's take this in order. Look, we had this pre-trial hearing. And the judge was very clear about how she planned to rule. But change the scenario a little bit. Let's say you had the pretrial hearing and the judge says, "Well, I hadn't made my mind up yet. Nobody mentioned this during opening statement. Nobody mentioned this photograph during opening statement." So then you get into opening statements and the state and the defendant in their opening statements are telling this jury that this man is accused of rubbing these things on these children. Now, the grotesqueness and the impact of this act is now in front of the jury. Yes, sir. And I mean, so, you know, if there's anything unfair, it's there already. What— now we move a little farther into trial. You hear the testimony of the victims. They testify that the man rubbed the stuff on them and so forth. So now this jury has come squarely face to face with this notion that this man does this kind of stuff. It's gross, it's awful, it's nasty. Now you see the photograph, the jury sees the photograph. What adds, what's the additional unfairness of showing them the photograph after they've seen what the man is accused of doing?

All right, Your Honor, may it please the court, what I would say is when the trial judge instructs the jury, they tell you in opening statement that these are not, this is not evidence. So, when trial counsel gets up and argue, uh, in front of a jury with regard to an opening statement, the judge instructs the jury, "This is not evidence. These are arguments of counsel." So, at that point, I don't think the prejudice actually comes in.

All right. But now you got the children who have now both testified. And the children count. That is evidence.

Right. And then, under 404, I think the character evidence, the defendant has to put his character evidence He has to put it in first. And there's no evidence, I believe, that comes in that the defendant actually placed him, his character, in evidence first. And as such, then it becomes that 404 violation. Then I get to 403, and I add that on to it, and I'm like, I'm stacking this stuff up right. On the 403, it's still so highly prejudicial that it actually diverts the jury's attention from actually considering the defenses that the defendant may have when he presents his case.

And that's a great argument, and you made that argument to the trial court, but as Justice Kittredge mentioned in his questions, in your initial argument, Ms. Franklin Best, there's page after page of the trial judge soaking all this in, filtering things out, making decisions, exercising discretion. So, we have to decide whether or not it was— I don't really like the words "abusive discretion"— whether it was error under the standards that we have, to let this photograph in. But, we have to— Our appellate role is not to make the trial court ruling. Our appellate role is to review what the trial judge did.

Wright. And she's an outstanding judge. I've appeared before her. She's a very meticulous judge. And actually, she served on, on the family court. But I think in this case, we're saying that the error is too much. It's just too much. And that, you know, and I respect her, you know, her judicial acumen. But in this case, I think, you know, if the average person sees feces on a female who's been demeaned, I mean, this lady who who was in the bathtub with feces all over her body. I mean, she was completely demeaned. Voluntarily. If you have jurors who are on the jury who actually are females, I think they're going to be completely repulsed to see an actual female. And I mean, this is not going to near to the benefit of sympathy from anybody toward this defendant. So, you add all that, and the allegations of the children that he sexually abused, abuse them, I think it tips the scale over to unfair prejudice rather than just simple.

But in this case, regardless of the photograph, you had a tiger by the tail.

I believe so. But, but the State actually admits when she's arguing the motion to the judge that, you know, we don't have this picture, we can't win our case. So, well, You know, it's— the thumb's got to be all equal, but the thumb on this scale was kind of like tilted against the defendant with this photograph, because I don't think anybody actually thought about anything else once they saw the photograph. Y'all much smarter than me, so I'll sit down.

No, sir. We got—

Anything else you want to bring to our attention? Are there any other questions?

No, sir.

All three arguments were excellent, well prepared, and Mr. Blitz, you had to do back to back. That's a hard thing to do. You were very well versed on both records, and we appreciate that so much. Thanks to all of you. We're adjourned.