conservative federal appellate court in the country. so we felt our chances of prevailing were very slight. >> in yet another face-off with donald zelenka, the 4th circuit court's three-judge panel heard oral arguments in september of 2010, and remarkably, they came down hard on zelenka. >> the time of death, we were locking it down because the defendant was seen at 9:30 headed towards that direction. >> locking down the time of death based on what his alibi was. i thought you locked down time of death by science. >> the judges have moral righteous indignation in their voices and what they're saying. >> you put in evidence there was hairs found on the bed there was a big part of the conviction? >> yes, it was. >> not one photograph was taken where the hairs were supposed to be. does that make sense to you? >> well, i don't know. >> do you think that makes a difference now that we know he is mentally retarded? >> no, not at all. >> in this case, this is just a constellation of problems. >> even though the judges seem to be raising some serious questions, i came out of the argument feeling negative about