i wonder if those lawyers would step up and tell us who  third stage was the question of time list is not properly before him at the point is i would i would not have any problem with that i think that if i asked the courts decide merits of the other issues i would probably change the result on retrial that's the third element what is your view as to what the trial judge preliminarily if anything has to do when he has a free standing claim of actual innocence and timeliness is not an issue does he still have to address those three matters before he proceeds to an evidentiary hearing and i think that  you think that just relates to something that's not you think it's more of a and the shooter that is mr mr smith and the defendant there had been testimony at trial that mr smith and mr brown were actually sitting around drinking before this whole incident occurred and that they left this apartment affidavit although there is some confusion about exactly where they were physically in relationship to each other indicates that he shot mr brown as well because he was a witness now in light of the testimony that had already been heard at the trial i assume at some point somebody you do in the course of the have additional hearing or the trial court before he proceeds to it has to make a finding about with the credibility of mr smith with respect to this happening right now and when you're assessing his credibility what is it what is it assessed with against what was already known or there any out any kind of requirement in the system that when you say something is newly discovered that you put some sort of timeframe around it for example we can take traditional notice it all that it came about this i mean petitioner william brown doesn't say when he came to happiness information smith says i didn't argument i think that he has to show that it's trying to resurrect this culpable negligence requirement that the actual innocence claim has eliminated i think it's sufficient to explain why it wasn't but this issue has been with briefed on the evidence there but and we have enough guidance from the supreme court just what constitutes newly discovered evidence and what the elements are in order to make that determination so we could do that right here could you could order this issue i believe to the third stage we could actually take away from the trial court the decision as to whether or not it was cumulative or not yes we could find it it's not cumulative we could find that it's it is in fact merely discovery in it could we go to the final station this and say that if that in our view it would change the result why would we need a third trial i guess my point would be i would think that and not to argue against mr brown's interest but i would think that whether or not it would affect the outcome the trial would just dismiss credibility i think you're right analyze it in light of this education well i don't think even here it's a yes or yes if you don't think you should it is not an offer and you know most people that don't write well you know i have my own as to whether they were continuously walking together or whether one was going whether it the defendant was actually veered off to go to his fiancee's grandmother's house and smith continued on to his his girlfriend's house is unclear from his own affidavit as to what where exactly they were standing which pretty clear from the testimony of the case the defendant testifies that he was walking with him and then smith pulled out the gun and walked away and he continued to his grandmother's house that it does it doesn't address the specific issues here but what we do have is a recent decision in people person anderson where it was a success of petition but it was an actual innocence was made by yes it was and it work did address some of the issues as to whether it was an actual innocence claim and the appropriate itself look to does it meet the does it meet the factors that the initial the initial four factors that you know just this morning stated in that i would go so far as to say it's it's not that he's looking at the credibility but there have to be an assessment of what was in the record here we have a decline and filed two affidavits himself and then he also that this is something new because it isn't there wasn't a single person that put the rotten rate the defendant's statements and i didn't have anything to do with this and that he to that determination and the determination would be that this is not a proper actual innocence quite what the state is asking that instead of sending it all the way back to the trial court to do that this court has the authority to do that arguably under  people versus andersen you have that authority it doesn't need to go back to the trial court it fails as an actual innocence it is not truly discovered there's nothing in the affidavit to show that the defendant himself used to diligence and  a short and it's certainly not a situation just that it's not the situation that we had in ortiz where the only witness was unavailable for ten years and had fled to wisconsin the only witness that could testify in exonerate for actual innocence it is a total vindication for complete exoneration here the very best we would have someone who would corroborate but the defendant already said at trial so it's not someone that answers somebody else he's saying the exact same thing there's nothing new that he's saying that he's not in the position of the he's and he's another person who's right so i think if someone else say it it's different then the person whose interest is clearly stake it could be but under this analysis for the post conviction it under the whether it's an actual innocence claim yes it is something that's cumulative we've already had the and said he didn't know that this was going to happen at the very best assuming the truth of what the affidavit actually says it's cumulative it says the same thing he's not offering anything you know he's not offering and for that fails for that reason to show it feels under the progs are newly discovered in actual innocence and the work can certainly come to that the term a nation without sending all the way back to the trial court to reach the exact same determination there is nothing that explains in th why the defendant didn't seek this out earlier he certainly knew him there was testimony that they were part of the same getting it and it there's nothing in there to say why he sent it later why he said he filed this first affidavit the defendant said defendant's first affidavit again no mention of smith shooting at him no mention of anything that would private with smith the same then on february fourth of two thousand there's a procedure invented one and that's where he thousand and then we have a gap of like five years because the defendant requests a private attorney private attorney comes in in two thousand and five but you know well it's bennett had not made a motion for march twenty ninth two thousand and then we have private attorney thousands appearance on june sixteenth five there is some question about when some question its own answer actually when he actually discovered  taking evidence from smith or somebody well the judge would certainly make that determination at the second hearing as to whether it was actually delayed discovered and whether he could have discovered it sooner the record i want to say that how would he do that he has to look at the argument and authorities in opposition a second sol just missile in that actual innocence is in a tiny little footnote that that's the extent of the actual innocence claim all i have so sure of the fact that it sent a footnote really makes any difference i  you don't give them an evidentiary hearing you'll never be able to prove them well there are certain procedural steps he needs to show in order to get to that stage to prove it he's come he's he falls well short of that no a standard it doesn't need to go back to the trial courts that extent this court can make that determination was it actually actual innocence claim with a proper one and he really said yes if we could do that right yes you can as you did in people versus henderson where the judge made witness was completely unavailable and under the definition of actual innocence did exonerate here we don't have that we have cumulative we have affidavit that is not of such conclusive character that would change anything we have smith basically pleading witness who testified to him being there there weren't many races there was one witness she said that she knew this stuff william brown since i think second grade is a good thing to grace his nickname  so shit oh shit and she said she recognized him and that he had a carbine at his side and that when the shooting took place she was down but she heard multiple number of shots she said that the other who was someone she spent some time with and had a personal relationship break up after he was shot with multiple gunshot wounds to pull it o'shea and what was  did the court error when it when it determined that timeliness was something he could dismiss that i don't believe he put i think it should go back for him to review whether tonight having a gun he denied everything and then officer glenys was called in rebuttal to impeach him so we have a witness and eye witness that was not impeached and we have a defendant that was affirmatively impeached and that is all very important in the grains and in the grand scheme of whether this actual innocence claim it is something that it is of such conclusive character that would change anything this court certainly has its already to be able at this point to determine it's not is going to have to make those three terminations and then if he decides favorably on all three then it goes to an evidentiary hearing yes that's how i understand it it seems that the fusion is because sometimes well the confusion this is that he didn't finish the job but this time around at least he didn't have the benefit of court t v s we should point that out to win it on and probably arguably felt that it was appropriate to consider timeliness in conjunction with that he standing there with the rifle the right right above where the scene was presumably luck lying also off all that i believe this is new and it goes to the central issue of this case who did it so i