the scenes directed in a case that was entirely circumstantial where the identity of the perpetrator of this rape and murder was diesel contested issue where the government purposely developed and listed false forensic testimony to go directly to that contested issue and where the government repeatedly relied on false testimony in closing argument and any devastating rebuttal argument that that directly undercut mr ozzy's defense this court must reverse because there is at least a reasonable possibility that the false hair testimony had an effect on the jury's verdict when the government has affirmatively corrupted the truth seeking function of the trial with false evidence that it was knowingly presented as it did here the test reversal is not whether subtracting the post testimony from the whole the government still had a sufficient case the analysis in need who cases looked at the effect of the false testimony on the trial that actually happened giving deference to how wagers interpret evidence apply to his notion of innocence and hold the government just the standard for this court which is very strict against the government is d is there any reasonable possibility that this false testimony might have played a role in the jury's verdict and that's something the court has made clear in  cunningham and smart and and multiple other cases and just to be clear when you say might have played a role it might have you could play a role in the sense of the jury might have talked about it but what you mean by it might have played a role as it might have played a role in that it caused the jury to find the defendant guilty yes i think that's going to correct them doesn't have to because all in that sense what if what if they come back to a jury room and you know tons of circumstantial evidence here and there's a hole here and a hole there the hole there or there's a lot of circumstantial evidence and you know what we don't have to deal with those holes because this expert came and told us all about how science the science itself played into this is not affecting the jury's  case this is this is false friends interestingly then went directly into the contested issue at trial i think in that instance this court can't be certain that there is no reasonable possibility that the jury didn't use that convict that that much work is enough because that a lot seems to turn on that and so if we thought that the jury i think you your points are well taken that the prosecutor brought along a focus on their testimony so we've got that the jury thought you know i it's pretty clear that this person is guilty anyway but their testimony just makes it easier if we know we have a recording device in the jury's deliberations and that's what we know what would you say about that ye entirely circumstantial and ambiguous and on this point that's exactly the type of case where the jury would be clinging to this type of false testimony that went directly and answered conclusively the question of identity  i think if the jury is is is saying we think this other evidence is strong and yet but there's this this false testimony that answers the question as this court has said in cunningham and smart  multiple times in order to avoid encroaching on the defendant's right to a jury trial this court must apply this this standard that look that doesn't look at the entire record of the case and  has to determine whether it was harmless beyond a reasonable doubt and if this court can't be certain that the force here testimony did not in some way move the jury or the jury's conviction towards the side of in the same way that is that the government has had this that's why the government developed and elicited this false hear testimony in this case and and hundreds of others so that he can often know that here to for example suppose you have a situation innocent was which is it may not be enough be proof that it's the same person and that's where this is just a part of it comes down but if the evidence is just probative to show that it could be this person so it's that the victim has long see that there are long blond hair in the back seat of defense car and you're right that doesn't prove that it was the victim but it proves that somebody with long blond hair was in the back seat of a car does that actually not come in on i don't see i don't know but it's possible that it might come in but again here this was our full of jack to forensic science testimony going directly to the question of identity and it included false testimony that was specifically designed to imply a positive identification and and show the jury that  oils were in this case they were hammering labels and then door testified he sold to the defendant the defendant the day after the  goes to the vendor and says i need another vial whatever of this oil and when i asked why i just told you some recently he said i jumped out a window which is exactly what happened or at least other point is that this is that that oil evidence was consistent with mr obvious defense that he was in the apartment on december ninth and tenth four and five days before the murder left through a window didn't come back and wasn't there during the rape and murder that  was consistent with mr of his defense and again that that's exactly the kind of ambiguity and gap in the government's case in which their testimony would come in and resolve all those ambiguities for for the jury so just because the with the with the oil that bolsters the case for the government right because it's not just that the perfume was found there it's that it was down there in a situation which would be consistent with a struggle that led to it in an effort to jump out the window which is a little bit different to finding it there are not necessarily same as enough but i'm saying that it's more than just finding the evidence there so i think that's right except for there was not there was not any additional testimony this was late testimony about the oil evidence first of all there wasn't any additional testimony about the positions of the bottles that would have conclusively prove that this was dropped in a struggle as the government says it is very that it suggests that but again no matter what this well evidence  reasonable likelihood have affected the judgment of the jury in other words could the false testimony here the hearing testimony have made a difference in the  challenged evidence here or the air testimony would have made a difference will could have made a difference in the jury's alternate verdict definitely could pass and it is definitely a good test in the courts are very very consistent in phrasing it is a been different the defense makes much of the supreme court case called strickler and while we have our own issues with some of the statements in that particular case that cases quite leader in in the greedy context that you know the question or the core in reviewing the brady violation is whether the film the evidence could reasonably be taken to put the whole piece in a different light so as to undermine confidence  into a case so how do we figure it's what's already in there they were trying to figure out whether what was in there could have affected the jury's judgement so does that give back some hypotheticals if the jury went back and said lots of how most circumstantial evidence really very very powerful thank goodness there's also this expert  this science science scientific expertise could have had on a jury in another way circumstantial case so back to my hypothetical would that count we thought most likely ha i think it's a little bit difficult obviously answer that hypothetical because the question is what effect could this evidence the hair casually have had on the jury's verdict of course we can't know because we don't circumstantial case but this hair expert testimony makes it easy and then i took your response to be will that puts me in kind of alcoholism whether that's enough under the appropriate areality standard and i guess my question is if that puts us another jury but up with us and standard and the court to some extent has to work with a counterfactual not knowing exactly what the jury was looking at but i do think it's important in this case as another he says to look at the other evidence in the case in the her i am i'm not able to do anything off the top of my head about that i do have a few comments and i'd like to about the impact of the fact that this was expert testimony though there are cases in the circuit that talk about expert testimony in the case of m b he was other testimony our position is that the circumstantial evidence in this case was not at all ambiguous it was certainly circumstantial but there were a lot of circumstances and they all pointed towards this it the amount of weight that they deemed appropriate and that they could reject it if they believed that that was the appropriate thing to do in this case the expert testimony was about one small part of a very very strong  speaking directly through science the central issue in this case how does a line how would one right now opinion that says that could not have affected the jury because there is a lot of other her apartment and my point is that there was not only evidence that he had been in her herman but that he was the person who was in her apartment the day of the murder and that he was the person who escaped through the window with her boyfriend was knocking at the  door and so it's i guess the way that i would look at this your honor is that in the true tally of the evidence which is what the jury saw in order to believe the defense theory the jury would have had to conclude that the defendant was in the apartment on some time before the murder that he dropped these bottles of oils for no apparent reason and that he had gone through the window to escape even though there was no apparent reason for him to do so and on one other occasion he had left another woman's apartment through the kitchen door even when she was there but he nonetheless on this occasion where there's no indication that he was in a rush the woman was not at home recall she had stayed there for a couple weeks decided to leave got a window with an eighteen foot drop could have an office in aereo in which the perfumes are actually dropped during an exchange with somebody else because of the way they were located then you could come up with argument and i know you're responsible that's the farfetched but one one place that we can look concretely to some extent is the prosecutor's closing argument i mean i'm sorry rebuttal argument and the rebuttal argument it did seem like the prosecutor could have sat i'm not worried about the hair testimony because there's so much other stuff that you don't even need to worry about  seems like there will be something to be gleaned by looking at the way that the government framed the rebuttal so you'd rather i acknowledge that the sentence that you just cited is not helpful to the government's argument today but i also think it's important just as it's important to look at all the evidence before the jury in the totality it's also important to look at the government's arguments to the jury in their totality so that was one sentence in the midst of the rebuttal argument but you can go back to the government's closing argument and you'll see that the government spends about fifteen transcript pages going through all of the non hear testimony before it gets to the point at which it then says is that not enough  based on the evidence i've cited to you which did not include their testimony isn't that enough to convict this defendant in a my not boring you by going into anything else he then goes and he talks about their testimony he talks about the gun testimony which i think is important positive id that the prosecutors say these areas are identical twins and the experts seventeen times microscopically identical that seem to be unlikely done like one figure britain  hair he made this even about this is not a he said this is not a positive means of identification but it amounts to one here again not helpful to our argument he then turns from their testimony and goes back into the re is that when you look at the actual testimony of the hair examiner it's a little bit more equivocal than the prosecutor made it out to be i think the prosecutor put the best spin from the government that he possibly could on it but the actual examiner testifies that he says some things that are clearly not helpful and are if tossin are the reason why the government conceded that this was a he said deserved further review  but he also says quite literally that here comparisons are not a means of positive id and that he cannot say that these heroes came from mr aussie's body the government the jury as as is is typical today conviction if it if it put a jury over the top that's in effect on the verdict but at the end of the day this court doesn't have to know for sure how the jury reached its verdict that's because this standard under which this court must decide t to this contested issue and did this is there a reasonable possibility that instead of having to grapple with all of that ambiguity and circumstantial evidence that the and the gaps in the government's case that the defense pointed out and there were defense as to why how those files would have been speed around in the pattern that they were putting in the bathroom and on the bed and why anybody somebody who was perfectly comfortable walking out in the hallway other days would jump out a window it's not like that was an alternative route to go actually his eighteen foot drop is just if they're just didn't seem to be any any way to reconcile the defense's theory then does that mean in the false transit testimony that directly answer this question for it wasn't a question about the government's but that's a question about whether there's really any explanation since the defendant doesn't dispute that he was in the apartment the explanation was that he was he was in the apartment i mean the jury could have speculated they didn't have to work through all happen because they said thank goodness they have that scientific evidence that makes it easy to set back on the jury yes it is because because it allows the jury to not have to wrestle with i mean certainly juries acquitted on