MARa ‘ ndensclt™ 940 Page 942, 1 worst instruction I have ever seen 101 saves 1 Mr. Thompson didn’t have to object to this 2 doubt. It goes beyond any instruction that has been _| 2 instruction, Under the law, if it is constitutional, 3 found unconstitutional by the Idaho Supreme Court and | 3 there is no need to make an objection. It was 4 by the U.S. Supreme Court. The leading case in Idaho, | 4 defective performance not to have objected to this 5 State v. Cotton, 100 Idaho 573. That case in 1979 5 instruction. And, in any event, it was a bed 6 specifically approves the instruction on reasonable _| 6 instruction. On that bass alone, let alone when you 7 doubt. It was later confirmed in State v. Carter, a 7 combined it with the sccumulative issues that we 8 number of other cases and it all goes back to In Re: _| 8 presented throughout this past conviction proceading, 9 Winship, which was the original U.S. Supreme Court | 9 that, in and of itself, isa bass to strike down this 10 defining reasonable doubt, a 1970 case. 10 verdict, 1 Another very important case where the U.S. 11 Let's talk about the meat of the petition and 12 Supreme Court struck down an instruction that is not — |12 the meat of what we have been here for several days 13 even as objectionable as this one is Cage v. Louisiana. |13 now. 14 ‘That is 111 Supreme Court 328. It's a 1990 case. This |14 The eading casei, of course, Strickland v. 15 instruction has vague terms stacked one upon the other. |15 United States. That's on effective assistance of he 16 counsel. They actually describe it is defective 17 First, it has the moral certainty language 17 performance. "Ineffective assistance is a term of art 18 that specifically is struck down in Cage v. Louisiana, 18 that really doesn't describe what you are looking for : 1 ‘Second of all, on page two of the 19. when you are analyzing tral counsel's performance. Wes ion, it shifts the ‘much higher 20 it deficient?” J21 burden for the Defendant to show reasonable doubt than {21 The second standard is whether or not there's is the law. 122 prejudice suffered, Those are the two prongs that we ‘The next paragraph is strictly a prosecutor's [23 must meet. And under the Tdaho case of Reynolds v ‘argument. This is what I used to argue when I was the |24 Idaho ~- I'l get you a cite on that in just second. ¥ }25 prosecutor. “A. doubt produced by undue sensibility in [25 I just have the Idaho numbers. The cite is Page 941 ‘Page 943 1 the mind of the juror in view of the consequences of 1 93.13 ICAR 655. Reynolds v. The State of Idaho. We - 2 his verdict is not a reasonable doubt and juries are 2 have to show by @ preponderance of the evidence that SOURCES OF it 3 there was defective performance and that there was 4 It goes on our pon you 4 prejudice. That's our burden. We have to show that it 5 no obligation to doubt when no doubt would exist if 5 was more likely than not that there was defective a\ 6 there was no oath administered, the jury should not go | 6 performance and, asa result, Mr. Whiteley was 4 7 beyond the evidence and hunt up doubts. A doubt 7 prejudiced. Justifying an acquittal must be reasonable." That 8 Nov in State v, Allen, that's 123 Idaho 880. ‘sentence is probably okay. 9 T's a very interesting case, They get into the fact “Unless itis such that where the same kind 10 like here, that case came dow to literally the 1 of doubt interposed in the greater transactions of 11 vctim's allegation against the Defendant with litle life, it would cause a careful, reasonable, prudent man |12 or no physical evidence at all, And it gets down to 13. ~ that's almost a civil standard ~ 10 pause and — 13 the question of credibility of who you believe. 14 hesitate before acting. It would not BeSumicient to [14 ‘judge, I think itis conceded or, atleast, 15 authorize a verdict oF acquit.” 15 we believe the record supports that this was a close 16 ——So- trams BE a Great doubt, not a real 16 case. [think your reading of the transcript and the 17 doubt is good enough under this paragraph. It has to |17 materials, hopefully, you will arive atthe same 18 be a great doubt. Then, the next paragraph suggests _|18 conclusion that this is one of those trials thet could 19 that the 19 have gone either way. "You heard Mr. Thompoon describe lao ining a reasonable doubt, "An inner feeling that }p0 that, you heard him say Mr. Haycock agreed and, fe eee ba 22. _—Don+t know Where this inst 22 ‘So, the question in our mind becomes, first, ‘You that the Idaho Supreme Court, if this 123. was it deficient for Mr. Thompson not to have called Ja4 had been brought up on appeal, would have struck this |24 these five witnesses and presented these additional j25 down. |25 exhibits and was there prejudice as a result. Whether Page 940 - Page 943 L Was. Siieis A Maren Foumare pot Nyt ‘