cases is that they are not simply an act of god they are not random coincidences rather we know that many of these cases particularly this one arise because of specific misconduct committed by either police officers or criminalists or in this case both perhaps one of the best ways to appreciate the evidence that was relied upon to get a conviction in this case to be gleaned from a letter written by the led to this conviction there was the eyewitness testimony there was the fact and i quote that when first contacted by detectives on this case mr atkins was wearing that distinctive black leather running shoes with the red and white flag on the jury turned out to be false turn out to be fabricated turned out to be would have been completely neutralized had the officers and criminalists complied with their brady obligations and the third being with i with this are going  suggested activity on the part of the law enforcement officers now the problem in this case is that the lower court simply failed to comply with the rules for summary judgment  competing facts he resolved them in favor of the defendant the best example of this and we submit is the smoking gun is in that very letter dated may fourth two thousand signed by the prosecutor mr bentley in response to the judge's ruling the judge ruled on the summary judgment motion quote there is no evidence that hall told them we hold the serranos just working for the california department of justice crime laboratory in the same building as the riverside county sheriff's department there is no evidence the hall told batley that only four point four percent of the black male population could have contributed to semen found on kelly is in the record right all of the record every bit of it but that's the first problem we had was that the judge simply ignored evidence that was presented to him he ignored the fact that we had three not one but three different experts the court to do at that point is durak the permissible inference that given all those stages that that is evidence that in fact when she was shown the shoes she said those aren't the shoes ok she didn't recognize them the judge refused to do that simply saying that evidence of absence is not enough doesn't get you anywhere and that's not true in the summary judgment context he's required to draw inferences if we present some evidence to support that inference and that wasn't done another instance where he refused to draw inferences based on the evidence had to do with the here and here in this case is critically important absolutely undisputed by the miller by the criminalist by the photograph and by a report written by miller saying to the criminalist i want you to examine the semen in pubic hair on the sweater the photograph shows the p wrote down no hair no hair observe but for the one item of evidence with the police specifically sworn and there's no question by the way that the hair was in the bag with the sweater with the semen at the moment the hole opened it up because the where he refused to consider any of those factors as well so that's to begin with where i believe the district court went wrong on this next furthermore they went wrong because they had for fabrication of evidence and there's no question that would be clearly it's down to just we've known for forever in the history of anglo saxon law are that you can fabricate a piece of evidence to get a conviction and we also know that you can't fabricate a piece of evidence even if you believe the guy is guilty oh where he went wrong was endeavor are they then laid out what is the best way to assess whether this is a fabrication when the type of evidence involved questioning of witness all over this country right now where criminal lest feel they're part of some you know team to convict somebody and they're willing to literally you know stretch it beyond where they should go we've seen it happen in a number of stories that i'm sure you're a problem of justice crime laboratory working in the same building as the riverside county sheriff's department and he is a criminal is not a local crime laboratory he's not in private practice at all so there's no question by the way there's a  as a plaintive and civil rights lawsuit is by showing that the criminalist or the officer did not turn over the information to the da because if they did that their homes pretty ok maybe angry with the prosecutor who don't have a civil rights lawsuit but in relied on an explanation i got from the criminalist ok which we now know is false so obviously he didn't tell the d a the truth and that constitutes the grave violation we know when  a sums up on how these sneakers matched ok it was very interesting how that was exploited to trial as well with nearly if you want to say if you want to argue that these sneakers mats the ones first great case here miller carries the sneakers into court even though he admits in the deposition now that there is very compelling evidence that she didn't recognize the sneakers when he walked into work and actually no evidence that he did to the county and captain miller i began my brief by pointing out they have a large portion of the plan is brief it's not based on the record before you two and the trial the trial testimony of them miller was told by the prosecutor and he simply testified to what i just ask you about what happened at the jailhouse at the end of it he never says anything  representation was made by your adversary that he was asked whether if the victim had already stated that he took the shoes out to the victim and that if the victim had identified them in his normal practice he would have written it down and look at the actual record one one eighty one eighty three the hospital and was shown a number of mug shots and since she had mentioned that he was high school age she was also shown your books from local high schools and she mentioned to people being somewhat similarly what the right ones but there were some identifications but if the victim is here now these are the issues that the defendant was wearing when we arrested him and the victim can't identify shells he stated that all has admitted that he told the prosecutor that only five only ninety five percent of the people could be excluded but not mr acton's that's absolutely false in fact it's likely led to the kind of an argument that was made by the press and no i wouldn't i wouldn't deny that it very well could have led to the argument that the prosecutor made however mr hall is not responsible for that because he questioning by the prosecutor granted it's irrelevant but it's it is not false information and most importantly he has an absolute chance to moni on unity for what he testified to a trial that in unity is had actually conspired to provide the test one through mr hall that mr racoons was part of only five percent of the population who couldn't be excluded that would clearly be a conspiracy and under franklin  that case the issue was whether a night gown had blood on it and the laboratory technician performed several luminol tests some were negative some were positive for life the fact that there were negative tests would have the very same thing the threat in stride and that is undisputed in we've cited in our brief where mr hall testimony can be found i just want to emphasize this because i think it's a little unclear at times the package now even granting that there could be a tribal issue of fact about that they have no evidence what happened after that under the youngblood case mr racoons has no constitutional right to have any particular refused to chance it because he knew it would exculpate mr x and that's what they have to prove under young boy to show a due process violation on mr hall's park they can't do that all they want to do is argue to the jury well mr hall must  issue you start the quote from the guy for the most important part i call the court's attention to the record is six thirty three and the testimony is on page one eighty seven of the deposition the last question  answer he gave you when you read from the record was a question i'm asking to the best of your recollection right now the fact that she did not identify those issues as having been won by the perpetrator the rate answer i'm sorry i don't remember actually cut it off after that question now if in fact given your practice and what you know of what you did if in fact she had affirmatively identified those sneakers that would be considered a material part of identified him correct answer by miller yes question and if she had identified the ring as the ring one by the perpetrator you would have also included that in the report correct answer yes question and if you had identified the necklace as being one by the perpetrator you would have included that in the report correct answer yes question and the same for the pants right answer yes question and if in fact there is no report that she did identify those four items were any of those items as belonging as belonging to the perpetrator then that would be evidence to you that when you showed her those items she failed to identify them as such correct answer yes so she even acknowledged that given his practice that he would have written it down if it and the fact that he didn't write it down he even acknowledges evidence that it wasn't helpful when he showed those items that's the only point i want to trial there's no question that it was there and it's not going by the way he says i didn't see a hair but you can't say there was exculpatory because of what we know now well that's interesting we know it wasn't his hair that we know and we or that somehow it got destroyed and there is no evidence of bad faith or evidence that this faith is one that he didn't know anywhere that there was no hair on the sweater despite the fact that the he was instructed to examine the hair on the sweater where it's all the other item population so in answer to your question he did explicitly do that you know what he delivered to the da one year before trial and two with respect to the report and that's how i like you say that the only statistic that's population has this type only six percent of the white population has that type that's the second fabrication and neither of those dr cations are protected by testimonial immunity this court decided pain versus the city of one pocket and that whereas the actual testimony of fun is certainly a medium those pretrial meetings with the district attorney are not and it has to be that way because otherwise a police officer could could plant a gun and fabricate evidence and then