it please the court my name is daniel pearl as i represent albert santana i want to begin this morning by emphasizing the importance of anthony edwards to the state's case because the place that the  wrong in the four four in the opinion denying the four forty was to characterize edwards as somehow a cumulative witness that was absolutely wrong with human life and that's correct the judge you're absolutely right but what he was not cumulative on was the most important fact of all that anthony edwards was the sole solitary eyewitness who pointed at albert santana and said that is the man who shot and killed to kwan philips no other witness put santana at the scene of philip's shooting and if you unpack the reasons for the county court's decision for characterizing him as a cumulative witness they don't withstand the weight the county court relied on the kristin moore contradicted williams's testimony kristin moore who was at the scene of the six twenty eight giffords shooting said that the shooter was close enough that she could have kissed him and she looked at a rented black ford pickup not the blue ford taurus that everybody saw but he was in a rented black ford pickup fifteen minutes after the second crime the blue ford taurus was stopped and santana's codefendants mcknight and edwards excuse me mcknight and alexander were in the ford taurus but santana was not and nobody said anything about a black ford pickup with respect here's another issue that i'd like to killed is the fact that this was the only witness and was the only witness who testified i saw this man shoot the victim was not was not the most salient was not necessary well any murder charge in order to have a fair and balanced review of this evidence you have to take into account kristen more with respect to the jailhouse informant tyree ellen tigh rielle and claimed that santana confessed to both shootings and just look at the jury's verdict it was not as though this jury found santana guilty across the board the jury acquitted him of attempted murder of you keyed will be a key billions acquitted him of reckless endangerment of you keyed williams but convicted him of the attempted robbery of you keep williams so this jury already had some concerns about the people's case but to characterize edwards as somehow a cumulative witnesses misses the point he is the only witness who puts santana they are the only eyewitness if you take him out of the equation you are left only with you kid williams who said i was smoking marijuana that night i was dealing marijuana that night he had a pending court case and the jury clearly rejected his testimony we can't know exactly what was in the jury's mind but the jury did not convict santana of the attempted murder of williams and you're left with the testimony of the jailhouse  informant who was waiting for sentencing and started his testimony by saying i'm hoping to get a more lenient sentence while we know that the jury rejected at least half of his testimony because he claimed that santana fired the gun at six twenty eight gifford as well in the jury acquitted santana of that what is the basis for saying that the impeachment material wasn't turned over i mean the government was forthcoming with other impeachment material correct me if i'm misunderstanding the record but they provided it's undisputed that they provided full criminal histories for williams and for alan they came forward with a very damaging from their perspective exculpatory evidence with regard to the i eyewitness more during the trial  what's the basis for saying that this impeachment material wasn't turned it's important first of all to observe that the district attorney who he handled this for forty motion like the county judge who decided this for free motion had no involvement in santana's trial ok this is and i don't mean to heap unfair criticism on the county court judge he didn't handle the original case a da y had no involvement santana's prosecution ok she was looking at a cold file and there was nothing in the file that said nothing corroborating nothing contemporaneous that says in fact on this day i gave certain discovery to santana's lawyer k nothing of the sort what a da white said was i believe this material was given to santana because the only two sources of information were certificates of conviction and a rap sheet well i've looked at the file and there are no certificates of conviction from florida there is however a rap sheet therefore the information must have come from the rap sheet where the county court got it wrong and where eighty a white got it wrong was they did not take into account this what he's provided document or documents ok and that was a third and independen source of information from which santana's lawyer could have derived the information about all of these witnesses that your honor is referring to ok including that ending fill in each origin new york well he was not asked i don't i don't know we don't have in the record unfortunately although we have it now but we don't have in the record what was in this what he's provided document ok name we don't know what's in it that's in the record if you look at the record that was presented to the county court nobody gave the county court either the what's he the what he's provided document or for that matter the rap sheet ok and that was one of the failings of da white's presentation to the county court was it was a bare affirmation it was no documentation no rap sheet no what he's provided document no affidavit from either of the prosecutors who had prosecuted santana and the even rejected an argument that santana didn't even raise county court spends considerable time in its opinion saying there is no evidence in the record to suggest that edwards cooperated or cut some sort of a deal with the with the consideration that's this case you don't take into consideration the witness who says i was close enough to kiss the shooter and it was not santana that's nowhere in there you don't take into consideration the fact that the jury acquitted santana of attempting to murder you keyed williams you don't take into consideration all of these facts that are in santana's favor and again i don't mean to unfairly criticized the state court but the state court was not familiar with this case a da white was not familiar with this case it was a large record it was a complicated case there were two different shootings and they just missed all of these silly and facts as he says you have point here a case of i'm not arguing actual innocence nor do i think i need to argue actual innocence what i'm is that there is reason to lack confidence in the verdict because the only eyewitness was not impeached with this incredibly important impeachment material we're talking about not just old information ok we're talking about beginning at the opening of his examination what set edwards off was questions about what time and when he spoke to the police following the shooting and that's what set him off but once he says i that's the guy that's the guy who did it now you might as well use everything that you have because you now have one eyewitness only one eyewitness who's pointing at your client's client saying that's the guy who did it decision before he blurted out the identification there would be no strategic justification after none whatsoever again we're talking about four felony charges two separate arrests that took place at crimes that took place within a year but when albert santana went to trial in the same county and edwards pled guilty to a felony in the same building he was prosecuted by the same prosecutor's office what conceivable strategy would there be for your position is if the that any reviewing court should lack confidence that there is a reasonable probability in a different result if this critical impeachment evidence comes in to the trial  rap sheet of anthony edwards right in front of your face i'm sorry said that the prosecutors disclosed the rap sheet which contained his recent new york cases the trial court ordered the prosecutor to provide the  in the file she did not have any certificates of conviction from florida and that therefore the questioning of edwards about his florida cases could have necessarily only come from the rap sheet itself in addition and the district and the trial court had ordered the prosecutor to turn over the certificate of conviction or the raf yes yes and in addition to that one of the a d a s who handled the case recalled that they were able to get any certificates of conviction from florida questions you know defense counsel asked edwards questions about his florida cases there was no other source of information with that could have come from other than the rap sheet now and petition when when me to prisons talking about what he's provided document that's an abstract with the witnesses name date of birth criminal convictions and pending charges that didn't become an issue until mr perez made that an issue here but what happened at trial defense counsel said this judge this doesn't comply with the statu and the judge told the prosecutor give him certificates of conviction or a rap sheet so there's no reason to believe that the prosecutor didn't comply with that i mean the prosecutor as you pointed out point you know turned over all other impeach material he's the one that told defense counsel that kristen moore told me after her testimony that this was not the shooter so there's no reason to think that the prosecutor would somehow just withhold these recent new york cases and also edwards edwards testimony was really not material it was cumulative he was called because he wrote down the license plate number of the blue ford taurus he saw it at the time of the crime he called the police right after it happened said here's the license plate number and don't want to be involved leave me out of it of course fortunately he was involved and this happened all before he was arrested all before these you know this possession of stolen property and the fact that he identified the defendant as the shooter first of all happen on cross examination not on the prosecutors direct and there's and for the defense counsel did try to ameliorate that he knew for an issue while saying i said didn't receive notice of the id and the judge said well there was no out of court id you're the one that elicited the id on cross he became a pretty important witness when he identifies the defendant as the shooter right although it and it actually is not that significant because the defendant was convicted  felony murder he wasn't convicted of actually being the shooter he just had to be part of the robbery in which someone was killed deeply incriminating testimony in this would have been pretty substantial impeachment right these these are charges that are pending in this in the very courthouse where the witnesses testifying so you could imagine a line of cross examination that would be pretty pretty important don't you have a motive here to cover your testimony offer testimony to the prosecutor i'm sorry you can win it this testimony these particular charges would have been very helpful in cross examining the fact that there were charges pending against that witness in the very courthouse in which he was offering his testimony well it could have been you know useful i mean defense counsel had the charges on the rap sheet the witness repeatedly said i have a lawyer and my lawyer told me i don't have to get involved in defense counsel didn't say what do you have a lawyer for he chose not to he asked him many questions about did you ever provide the police with a description did you provide the grand jury with the description that you provide the prosecutor with a description p g you mark the pending charges in new york right but that may that again was not a very significant serious but they were new or they were no or right they were very recent in fact they were they were he had pled guilty and he he was paying restitution and he wasn't sentenced for a year after the trial was over so they were they were pending following well first of all you have two primes that occur very close to each other i think a few miles apart fifteen minutes apart you have three independent witnesses who saw the license plate number three witnesses that have nothing to do with a judge or so and they all wrote down the license plate number two of those witnesses got in touch with the police right away you have petitioners own statement that he that he participated in this robbery that came in through the jailhouse informant and you also have your key williams who testified as to the first robbery and attempted murder saying that that was a robbery as well and although the jury acquitted him of the charges what with which he was required to be the shooter there were certainly enough they convicted him of the attempted robbery of that of the cases well so they obviously believe that least some of his testimony so you have petitioners own statements you have the fact that he's one of the three participants in the car it is his car and you have your  use testimony as well as the shell casings and the ballistics evidence so there's certainly more than sufficient evidence to find that he was a participant of that second robbery and therefore was guilty of felony murder this is no question that the victim was killed by bringing at this point in the process not to waive your right to pursue this i'm sorry the i apologize for bringing that up at this late date the i realize as i was preparing for argument that his ineffective assistance of counsel claim is an exhausted because he made clear in his leave up location that he was not that he wasn't raising it in his waive the right to bring it to a sooner because he just missed it i  two pages of critical evidence to me the night before they filed their brief and we are proceeding under a facade with all due respect there's not a rap sheet there's two rap sheets there's a rap sheet for new york and a rap sheet for florida there is so much about this case that is wrong it should have been turned over to the four forty court wasn't turned over to the four forty court and the state in their brief and even here today can't argue their case without relying on extra reg record evidence that what he's provided document is not a document it's at least four sheets for different witnesses that have summaries that are not in the record in yet here still today the state stands before this court and says well these w abstracts with names and crimes it's not in the record they have no right to argue material that's not in the record i'm talking about rap sheets separate rap sheets with that's correct i'm talking about a persecutor well that's right the court didn't but the court didn't have any reason to believe forget about the rap sheets let's look at the what he's provided documented at least somebody could have looked at the trial transcript and said well you know the defense lawyers standing here talking about some other material complaining that it's not sufficient what is that and counsel complained to the judge that it was  yes turn to the fact you didn't say give them the material yes the judge turned to the prosecutor and said under the c p l you have to give them either a rap sheet or a certificate of conviction your basis for saying that it happened is largely the fact that there was no cross examination as to those charges my basis for saying that is not only because there was there was no cross examination but also because i know it as a factual matter is i'm standing here on february seventeenth i have it in my hand now that's all it simply asked what you know that was not done i mean mr percentage and with all due respect us who trial counsel either the d a s office or the county court judge they were doing difficult work this was a complicated case with a twelve hundred page trial transcript and nobody had any direct involvement in this case neither the prosecutor nor the county