This morning I enjoyed a nostalgic in-person visit to CAAF's arguments, which had an elevated quality thanks to excellent counsel (especially for Upshaw).
I ran into Upshaw's attorneys on the stairs and we had an interesting discussion about Judge Sparks's line of questioning. The conundrum is this: how can an error be tested for whether or not it meets a burden (HBRD) if the error is itself an erroneous description of a burden (Hills--preponderance for past acts). See Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) ("[T]he essential connection to a 'beyond a reasonable doubt' factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings. A reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it does that, 'the wrong entity judge[s] the defendant guilty'” ) (erroneous reasonable doubt instruction is structural error).