court ever to hear elmore's case. >> the 4th circuit has the reputation of being the most 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 court's circuit 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 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.