and honestly at the time of this trial looking at simply the trial record the evidence that was presented at that time the state going to compelling case against mr snow and they made a compelling case that they got the right guy for the murder of the little at the gas station in fl they have an eyewitness who was further down the street who also seemingly corroborated the testimony of that eyewitness and they have a number of people some of whom are purported close friends of mr snow who came forward testifying or that at various times in the months and the years since that crime mr snow had made him called tory statements about himself and his involvement in that case to the people that i know and at the time it also seems that mr snow had excellent representation from a well known and well respected member a pro se litigant and by counsel that is taking up this case changes changes the the view of this case changes to look at this case that was the purpose of mr snow's post conviction petition to present this new material relevant evidence that would snow to have a real look at the evidence that was presented at trial but respectfully honest that's not true this is new evidence it's evidence that wasn't heard before and it's evidence that just does change the outcome but what is the definition of new discover yourself and so for that evidence i don't think there's an issue there with respect to those pieces there is also certain evidence that's discussed in the petition and that mr snow argues is relevant to the issue of actual innocence that may not itself be new and that certainly some of the  evidence that mr snow has presented but as we argue in the brief and as american before you heard today when assessing an actual innocence claim this court is to assess whether or taking the matter and read traveling all the evidence together would that change the result looking at the landscape of cases to change and were this to be retried today there's other evidence that's come forward that this court should consider as well that collectively would change the result so i quit something which is recantations should we consider to be was knew i mean i understood you said in your brief they've he never specifically said that he saw martinez believes but he never testified at trial that he did see trial there was the evidence was a little bit on your perspective officer people on what and what he actually saw and i think as as mr people discusses in his affidavit that was intentional because there's some question about how the timeline at trial there was a question about how the timeline of what officer people testified in terms of what he was able to see from his vantage point when he arrived at the scene and what he could see at the front of the gas station purses what the major and the specific eye witness testified about what he can see from the gas station the question is all about what officer from i didn't see mr snow coming out of that gas station to i didn't see mr snow because the trial certainly the evidence that was presented suggests that he did not see that person coming out of gas station but the question was did you have an opportunity to see how person because the argument from the state  trial was that the reason why you didn't see that person once he has his attention was elsewhere because at the specific time that the major eye witness testified to seeing mr snow come out i'll bet officer pillows test attention was diverted elsewhere affidavit makes clear that his attention was not diverted elsewhere it makes absolutely clear that from the time he arrived at the scene he was viewing the gas station his attention was directed at that door his attention was directed at the person at the gas station getting gas but we now know  so that's one particular piece of evidence that's new and that's clearly important  there's also the additional evidence follows from that in terms of other evidence that would discredit the key eyewitness and as i said at the time of trial this eyewitness looks like a neutral he looks like a person who has no reason to know mr snow no reason they were available to testify to that at the time trial so i don't i grieve for those particular pieces that may potentially be an issue with them being discovered but as i'm as i'm arguing and maybe not doing the best job of your honor's there's a question of what you consider in terms of what drives the actual innocence claim meaning is there some newly discovered evidence to consider and i argue that there is the second question is would that evidence make a difference on a retrial and i said i think you have to consider that in light of everything that you would know everything that would be presented certainly the hander spreaders affidavits are also i think in play in mr snow's case with respect to the ineffective assistance of counsel and this issue was about trial testimony and about the testimony about the confessions and as i said the affidavit from don roberts from vance nason from ronny wright are all new recantations from these witnesses admitting now that their testimony at trial that implicated mr which he personally admits that although he did he says he didn't receive a deal but he says he testified which would receive one which is different from what he testified to a trial and there's further evidence although not a strongly developed in the petition because it's part of the subject of mr snow was whether the evidence was so conclusive as it would change the result in a retrial and that language is used in some cases but it's also worded a little differently in other places which is whether it would likely change the time trial and i think that's an important distinction because the standard weather  have with the lower court's decision and i agree with your honor's you're considering this to novo but it's also clear from the lower court's opinion that their claim credibility terminations part as we pointed out in the brief there are several places where the court says that it didn't find certain evidence credible that it didn't believe certain  witnesses that found some of this unbelievable and that's all improper and a second stage proceeding mr snow's petition is essentially an explanation of why there's various pieces of new evidence and why that didn't come out at trial one of the main reasons as you just as i just discussed with the court is that some of this evidence was newly discovered there's also certain evidence that wasn't presented because hostile counsel knew about certain issues or whether mr snow knew about certain issues to raise them as opposed to out motion is one thing but there's also issues with respect to the record that mr snow himself only discovered after he took over as kind of pro se counsel for himself on the post a significant murder case some of the most important work that a council is going to do is not in front of the court not in from the jury but it's going to be an investigation thinking about the case in preparing argument investigating courses of argument outside of the courtroom and that's something that the  that he considered but disregarded because he didn't think it was important and the fact that during the same time period as this trial counsel was my own admission at the sentencing at his own sentencing hearing drinking every day and not working out he's outside of work and i think that shows that this is sort of there is a long distance that it would have to travel in order to go to make a showing that there would be a likelihood of a different result and retrial if it starts with a compelling case against him damaging to the prosecution it was already known if you had not seen anybody coming out of gas and this is not a credibility issue and it's something that can be consider because alarm goes then it goes to a dispatch goes to a watch commander the watch commander then puts out and then people gripes their parts of the conceal location behind a building across the south side street gets out walks around and now he can see and then at that point later on he is told any hendrik somebody had left the gas station and went north and there was some currently a hole in the chain link fence and disappeared behind the building so it's not a situation where well if i can clarify my earlier remarks first your honor it's his claim about not just seeing anyone leave the station is not what he does say some other things and then some things have a conflict to do with what danny martinez said like claims of actual innocence and the defendant feel sure that all these but where is their burden to try to show all these elements in order to get any relief on any of these grounds with respect to  testimony not only directly confession testimony but things like when the defendant refused persistently to stand in the lineup was even told he would be chained to the partially held up in force by by other officers and only after somebody said shooting he kept asking them getting agitated once know about why they're looking at them from the clark shooting he wants to know what would happen to him if he knew something about the murder he even said he would have to incriminate himself told the truth conclusive character now they criticize the trial court for making credibility terminations but there's a difference between saying that even if an alleged fact were believe even if it were deemed credible it would still not be good enough to make  no forensic evidence we know something post trial now defense counsel's difficulties we know more now so the defendant was represented by someone who generally is viewed as capable but it suffered a stroke so that limited is ability to communicate and the other individual we now know even though we knew then that there may have been some issue we know that he was an almost adult life alcoholic with a deteriorating personal situation daily drinking bouts and intention to cases attention to how they are examining cross examined would be an extraordinary arduous task why is it that coupled with some of the things that the defense is able to point to why doesn't that make us think case they're being attempting to be objective regarding the fact that this guy is it is that i'll call you who has basically lost his life lost his motion simply denied and i don't want that to fall by the wayside before this court to that is an important part of what mr snow is seeking and again i didn't hear anything from the state much as there wasn't really anything in their briefs explaining why mr snow was not in the final test this case is a classic example of a case where ballistics testing on the bolts found it seem to have the potential to produce material evidence that would point to other suspects and point to the person actually did this and so that's an important part of what i think that would be the idea that if the gun was used to time that it wasn't accessible to mr snow for whatever reason that that shows maybe somebody else was floating around committee robberies or using it was also the same person and that's one possibility and it's also plane and so if this is evidence from the ballistics testing points to someone else that will give counsel room to argue that that's a crime that that person committed without mr snow's involvement but clearly without knowing what that exactly shows we can make that argument yet but we will be able to depending on the outcome of the