of all of the evidence i mean if you have if you have somebody who's done a one hundred things wrong but you also learn that there was an eight hundred dollars payment or twenty two dollars on calls i don't think it's it matters that that's the only evidence important witnesses in this case well the state the state might have in its brief characterized merrill like that but as i read the state's closing argument in the trial they tried to stay away from merrill as much as possible but you can't be both  arizona supreme court issued its final decision in june of ninety five dollars so why is it the bagley would be clearly established law here for two reasons three reasons why hoover was not fired until january  the finality and that may have changed after the district were made that made that ruling that you're referencing back in two thousand and eight i anyway i mean let's set back we've decided to go ahead with your argument assuming bagley does apply central question but but wasn't mr merrill i mean wasn't it brought out that this deal allowed mr merrill to himself avoid the death penalty yes or and mr how does twenty to himself avoid the death penalty well i think a lot is is fairly clear at least from my reading of it your honor that a failure i mean had enormous bundle of e p a suppressed impeaching particularly in this case they think what you just said kind of brings me back to what the definition of stand is with way you phrased it was couldn't have made a difference and i think you know i might be more inclined to agree with you if that were the standard but it seems to me that what we're looking at is this has to be material if if there's a reasonable likelihood that the ball's testimony could affect the  jury i think is the standard but now the but i guess the question for you is where you know what are you perceiving the standard to be that there's just the possibility that i don't respect i respectfully disagree with your when it came to the attention of lucas an extra will judge it was quite outraged not only did he grant the motion for a new trial based upon this suppressed evidence but he  was acquitted so there is that is some evidence that it was material journeys and ours wasn't probably a closer chase hers i don't know i don't monetary benefits you know as a motivating factor for a picked particular witness is qualitatively different than other types of benefit so yeah so you know i'll give you that but every case sort of price for falls on its own set of facts and here you've got you know a few one thousand dollars in change in financial benefit kind of weighed against immunity which avoids for mr merrill the death penalty possibly and then a whole host of other impeaching evidence against him as well you know so you know how do you weigh that in terms of the material materiality standard even assuming that bagley applies i think it's much closer case and that's why i started questioning you with regard to the findings by the arizona supreme court because there's a clear finding by the arizona supreme court that the key witness really is not mr merrill he's he may be an important witness but again the arizona supreme court characterized his testimony as merely corroborative and i'm looking at the arizona supreme court's discussion it said the undisclosed information impeaching him in the end right had no effect on the key testimony of marilyn redmond so in light it even talked about other cases where the witness is a key witness maybe the only witness who can place the feminine at the scene or who can tie the defendant to the i think that might be a different case we can debate whether at the reviews would cause you to lose that case as well but that's a much closer case and here we've got a case where yes you've got a qualitative up disclosed information that should have been presented to the jury you weigh that against a lot of other impeaching evidence but you also have to consider the context of the case where a witness was really characterized by arizona supreme court as being merely gravity that i don't know corroborative and not pivotal and the undisclosed information impeaching him had no effect on redmond and finally unlikely because there are significant amount  a distinction between the kind of evidence and whether it's qualitatively different and whether that qualitatively different evidence was a basket so can you i think judge bennett has this question or you're talking about you know death penalty henschel death sentence murder conviction being taken off the table for merrill or any of those cases dealing with that situation because i think your argument would have more force if this were money you know in addition to hey immunity for some minor role in a separate offense but when you're talking about a role in murder where at least two of the other conspirators received  different and more tawdry incentive it's purchased testimony which you're tempted by a defense lawyer in a criminal case but you don't get way to does any of that deal with the cases where you have there can't be that many relaxed prison cell because he was allowed to come back to arizona by himself even though you had a murder warrant out for him he was allowed to take it out of jail to have sex with his differently at they had that evidence earlier as it seems like everything ultimately was presented or could have been presented pretty well i return to was an affirmative duty on the state to disclose now both but but respectfully counsel i guess that they did get it during trial yeah and it's only even arguably a brady violation if there was something about the late disclosure that prevented them from using it effectively since they actually did get it there's no case that i know of that says brady absolutely requires photographs and the police report for you to even begin to climb up hill as to those two issues well there is an answer and it's a good one these are the things that would have changed dur utilizing the fact of and the descriptions and photographs of three alternatives selection opening statements cross examination of the police who said to a man i believe that the reason the three suspects were apprehended was because there had been tired of the rehashing it was impossible for them to have committed the crime all of those police officers would have been found to be not telling the truth  so although it's difficult to reconstruct it i mean a big part of the problem in the st two examples you gave the problem is if we adopted that you basically be setting up a rule that brady you know would have been asked them where it was an ask because you know well whatever the question would be and i don't know it would have put in the minds of the jurors the fact that there were three alternate suspects who  we are questioning has taken you  your view that the re weighing that was required is satisfied by the p c r qward saying there were no mitigating factors here the arizona supreme court found there were no mitigating factors here so the absence of one aggravator makes no difference because there had to have been a death penalty anyway and because it strikes me that's what they did and is it your view that as a matter of law that's always reviewed for reasonable as under all of the circumstances since i was or why was a reasonable fear i mean there's no cost to having an investigator review something the worst that can happen is you're rather than present mitigation that would be all you know but it was it was an argument that had no basis at all in arizona law i would not i don't think that's necessarily true and that's  because there was no way to mimic play but is there a procedural problem here where the district court didn't actually allow the amendment or provide better reasoning for why she did the claim or whether the court had allowed amendment and then reviewed the claim that way i think we get the same place either way this is not it is this is really a legal claim a legal issue that didn't require actual development or anything that nature so  procedural way in which the court looked at it didn't preclude any factual development of that kind of thing so i think given that it was the same analysis that the court would have done had a lot of men men and i don't think there's any problem with the chordal did i mean is that a suggestion that we should accept the district court as a matter of practicality did allow the of mad men and then rejected a part of it is based on and i don't think they got a clear answer to this in the  i'm not sure you know what the answer be for every case or every type of issue i think that for this particular issue in this case i don't see a problem with mr couper denying amendment based on amendment was to trial because on the merits there's no claim the defense or to the absolute reverse you have both briefs that the state i take it would not object to our reaching the brief as to whether the due process crime was exhausted or n disclosed as correctly identified by the arizona supreme court is whether or disclosure might have made a difference in the outcome there were reference that standard several times so there's no question that the court identified it and applied the grex to enter from supreme court chance that he undisclosed impeachment would have made a difference here yet in the role of his testimony in this case versus that other one well but marwood because what about the argument where were the payments to merr redmon make hoover's case if different that's right that's right and then as far as the finding that this penalty coming off i can't think of a greater benefits you to witness and more information that's more important to have juries in terminations witnesses credibility knowing that this witness was essentially facing the death penalty and because they decided to cooperate with the state and provide testimony in the case that issue that's no longer on the table what about this idea though that there's something i want to data really different  that it just seems to be more cool because the you know the prosecution they have prosecutorial discretion i mean you know merrill had a different role to play here so even though he was technically on the table maybe you know maybe we never really was on the table there's this prosecutor oriel discretion which is fair to put on the table but when you're talking about just payments of money it's just different want to know and we just need to  case i think you know financial benefit is it is always going to be reviewed especially and he had a context in the context of the entire record which is what the arizona supreme court did here with the state's position be different in that case that it would have been more prejudicial in the in the lead swick backs because you would know had this other direct evidence and so therefore merrill would have been more important  therefore it would have been more material that this evidence was left out or would you still be sane hey we all knew that merrill was getting all  no i don't think you can change our position on the conclusion that it was cumulative impeachment it is a change our position i would think on the other piece of the court's finding that his testimony itself doesn't have any questions i would rest on our brief or any of their remaining issues it doesn't appear that we do thank you very much counsel for the argument today examine the nature of the hearing the took place in front of judge patterson when the information of payments bad hearing was characterized by repeated mitigation that has been muster and presented it to the jury or judge is officially substantially our way very vicious if you only way so his strategy was was wrong as a matter of law because he'd never done a terribly sentencing