may please the court my name is asher steinberg i'm an assistant solicitor general with the arkansas attorney general's office with new counsel tables assistant attorney general rachel kemp and we represent the director of the arkansas division of corrections in these matters generous and brown twenty seven years ago tina jimerson john brown and reginald early were convicted of the grisly murder and robbery of myrtle holmes a seventy eight year old codefendant charlie vaughn had previously confessed in prison to an informant they likely would have been acquitted the district court inexplicably in our view granted relief on those claims and jimerson and brown have been released and we're asking this court to reverse so they can be sent back to prison i'd like to begin with supplemental briefing issues and if the court doesn't have any questions on waiver of exhaustion all proceed to whether brown and generous and were required to exhaust opus remedy well why wasn't there a waiver there was not a waiver because the director asserted the defense of procedural default predicated on the premise the allegation which is undisputed that both brown and jimerson did not exhaust as a matter of fact and the state court remedy now the director took the position that these remedies were technically exhausted because they were no longer available i mean the statement was was pretty quick pretty clear and unequivocal the there were no other things available to them that they could pursue and in the supplemental briefing i didn't see where the state argued that this was inadvertent or something weren't aware of an exhaustion requirement no i don't think our position is that the statement was inadvertent but rather here we don't think that that waived the lesser defense of exhaustion when we have in fact asserted fence a procedural default predicated on the complete failure to exhaust any  remedy but i would add that if you do see that as a waiver i think that under your decision in victor the hopkins that's a waiver that you cannot accept because we raise the defense of procedural default again predicated on the failure to exhaust any remedy in state court and while my friend has suggested that would be mill yard impliedly abrogated or over ruled victor i think that's wrong for a couple of reasons one would doesn't speak to exhaustion it's only about a waiver of statute of limitations and  would is not dealing with the kind of waiver that took place and victor which this court said was an inconsistent and ineffective waiver because the state as we did here was simultaneously asserting the defense of procedural default now i've heard several arguments on the other side about why the answer is no one the remedy is generally described in arkansas case law is extraordinary to the standard for brady they claim is different in arkansas and rd the entire arkansas supreme court would be required to recuse therefore the remedy is unavailable as applied to brown and jefferson so we think all of those are wrong st taking up the matter of extraordinary notice we certainly agree that if this were a case of this case presented claims that were outside the four categories that the arkansas supreme court has held quorum novus was available for then the remedy would be extraordinary it would be speculative whether the arkansas supreme court would extend it to that new kind of claim and it would be outside the ordinary course however the arkansas supreme court for decades now has consistently held that quorum no this is quote available for material evidence withheld by the prosecutor which we think is a class of claims that includes youngblood so i'm going to turn to that later when i get to ryan's but it's very clearly available for brady there obviously have been a number of grants of relief a larger number of reinvest atures of jurisdiction and circuit courts to entertain brady claims so it's the arkansas a court and no it's cases say it's true that quorum nobis requires an error of the kind that would have been known at the time of trial prevented rendition of the judgment and they say that's a higher bar than the brady materiality standard which only sorry which only requires a reasonable probability of a different outcome but as we read the arkansas corum notice cases they say that as it were at the top when they're deciding what kinds of claims be entertaining or novus they've held rightly or wrongly i suppose that brady is such a sort of claim and then as we read these cases they applied the brady standard in a perfectly orthodox way and notice relief if all the traditional elements as described in federal law are satisfied so how are we to know which standard they would apply which way to go with the one that you've described at the top of the page o the one that ends it and grant you really i think that you look to the specific instructions that they give to circuit courts on remand i think we either quoted newman or howard in our supplemental brief in this respect where they specifically instructed circuit judge you do brady element one brady element to brady element three if you find all of those you were to grant a new trial and this statement about preventing judgment is just a generality about the kinds of claims that will be entertained in coron know this not an overlay that you're supposed to apply over all four of those classes of claims and i would add  pointed to a single case where the arkansas supreme court has ever held well you satisfied the elements of your brady claim but you failed to chin this higher bar therefore you lose and we've looked and we don't think any such case exists now i would just add that if you think there's any uncertainty about that we don't think it's actually correct that a remedy is unavailable because a state court has said that it's applying a different standard from federal law that could just in a particular case result in a contrary to adjudication and then it would get no deference under at but it can't be right that if the state court is point that it's applying a different standard from federal law you then toss out the remedies they're providing so you don't have to exhaust them even if there are direct appeals or whatever because they're not following federal law rather you look at a you see whether there is a contrary to adjudication there and that controls deference but i don't think it's ever been held that it controls whether you have to exhaust now rd day talk about recusal the alleged necessity that the entire arkansas supreme court would have to recuse i don't know that we have a position on that today we certainly agree that justice when would have to recuse and he in fact has from reginald early sta heaviest titian's but in any event if it were the case that the entire court decided that it should recuse the governor routinely appoint special justices and some matters he's appointed a full complement of special justices when there is a matter that goes to the court conflicts with with them and so we don't understand how that would render this remedy unavailable  ben on the question of rinds and i don't believe that brown has requested stay from this court so i'll just address jimerson arguments on ryan's so she says it's a mixed we don't think with the exception possible exception of the actual innocence claim that it satisfies that threshold condition for stay as we understand arkansas haven't just said brady is jubal in court and know this rather they say there is a category of claims material evidence withheld by the prosecutor and this court in fact is held that youngblood claims require a showing of substantial prejudice its use the word materiality to describe those claims so we don't think that it's true the youngblood claims are not cognizable in arkansas quorum novus they have cited one case that they suggest shows that  case name buckley where there was a story videotaped and no relief was granted but mr buckley was in fact raising a brady claim in that case he did not allege the tape had been destroyed and fact later it was found and i believe that relief was granted on the basis of the retrieved video tape so taking actual innocence side which i think we would acknowledge is no but we don't think it can be the tail that wags the dog here such that you say that this is a mixed petition because there's a freestanding actual innocence claim we view it as an unmixed titian now if you disagree about that we still she were timely to present the brady claim and we can see what would be the good cause for a delay not only twenty three years after conviction but then four years and finally on the matter of rinds while the court can reverse for not exhaustion it cannot we think were her rind stay without st considering the state's timeliness defen and deciding whether or not we have a timely petition here at all if i could then turn to the matter of timeliness in jimerson we think that this is an abundantly clear cut case of an timeliness we're not dealing really with a question of diligence here we simply have factual predicates of all generous and claims that were discovered seventeen months before she filed her havey as titian so if i could walk through those factual predicates in january two thousand and fourteen an agent for generous and lawyers mr stein us former secret service agent talks to a sheriff in fordyce arkansas he discovers that an informant was used he discovers according to the district court below that the informant was and sent advised to get information from mr vaughan he discovers that the recording of this conversation was destroyed that there was a confession think that there has been any further evidence on destruction versus loss but he discovered the recording was no longer extent which is all we know today well he did why that he did not intentionally destroyed but did not know where it was  and and the record in any generous and not learn any further information on the status of the recording after january twenty four teen he also learns that the informant discussed were the sheriff believed the informant discussed the death penalty with mr vaughn and they learned of the nondisclosure at this time where it was available to them in the state court record the district found because they were discovery requests on this issue they were fairly pointed and the answer came back that no informants were used and no offers were made and so while my friend has argued that they couldn't of known about the non disclosure until they got affidavit from trial counsel one year later the district court rejected that so what's left that they did not know as of january twenty four teen is that mr vaugh may have said to mr prescott that a girlfriend was the driver and that mr prescott was told that a murder occurred but even as to that fact that was learned one year and six days before the heaviest petition was filed on june th two thousand and fourteen is daniel's notes of her conversation with prescott at i think it's panics where fifty nine say  i talked to prescott and he said he knew about this and i presume that he's saying that he knew about the murder before he went in so the only fact that skiver outside within rather the one year vaughn may have referred to the driver as a girlfriend and his conversation with prescott the district court said that jimerson needed that fact in order to plead to brady claim and that was what transformed this evidence into useful impeachment evidence and without it she just couldn't leave any claim yet when he decides to claim on the merits and grants belief he does not even talk about that fact and he rather says that had the jury only known that von was targeted with an informant then the jury would have discredited the confession so while this fact may have added some color to the claim maybe some strength to the claim the claim could have been brought within a year of the conversation between mr stein us and sheriff ford but that but at the time he talks to the sheriff he doesn't have the name of an informant and doesn't know what the informant got from him so there's no at least as to jimerson there's just no reference to a woman at all correct to her involvement that that this particular informant would affected the case as to her no i i don't i don't follow the the inference between the lack of the informants name and how it would have affected her i do think that while they didn't know the informants name they knew a confession was made to the informant in which the several co defendants were mentioned and so sheriff can't remember the name of the informant i don't think that we could have said you haven't pleaded this with particularity therefore the petition must be tossed rather i think they would be entitled to discovery on who th informant was and they would have found him and indeed they did find a document containing the name of the informant in february and it's not clear to me why it took them four months to figure out that prescott was that in they were able to figure that out from the documents that they got in february sixteen months before they file as to the youngblood claim they do have a superficially i think stronger case for timeliness because there are at least the district court points to one fact discovered within the one year window that he does rely on in the this being the omission of the fact well the emission of the fact that prescott was working for the state in his sworn statement which they did not get into all several months before they filed and from this the district court says you can draw an inference of bad faith and that goes to the motive in destroying or losing the recording we think that the much stronger evidence of bad faith speaking relatively of course is the nondisclosure of the recording the fact that prescott's informant status wasn't mentioned in the statement which wasn't disclosed to defense doesn't really support bad faith very much at all especially when you consider that what we're supposedly talking about being exculpatory is the recording yet the contents of the recording are all documented in that statement what's emitted from the statement are facts outside the recording so we don't see how an evidence of the police's knowledge of the exculpatory value of the recording can be drawn from the admission of other facts and the statement that wouldn't be on the recording documenting it was so you're saying that the hand that handwritten statement yet that used your position is that that contained everything that was in the recording yes yeah how do we know that we don't know that but what they are pointing to that they say makes their claim timely is the discovery of the emission of prescott's informant status which of course wouldn't have been disclosed to brown in their conversations that were recorded from the statement that my support and inference of bad fa about the police's use of an informant but not i can't see the contents of the recording but but what if but if you're trying if you're trying to avoid the defense learning that there's a recording one reason may be because there's something in that recording that is it's called tory and the way that that confession was obtained from mr von isn't at least an inference of bad faith by what was omitted from that statement in other words hiding the recording hides more than just police involvement it it hides the substance of the recordings themselves yes but but i think they get that inference bad faith for timeliness purposes simply from the non disclosure of the recording i'm not seeing what you so you think that you think that the just the not turning over the recording itself would be sufficient in your mind for a court to find that seems to me you've got to have something that you can infer that there was something shady going on something purposeful and just a simple non disclosure that's brady right well that's not youngblood they have they have the fact that the recordings not disclosed they have the fact in january of two thousand and fourteen that the sheriff says we were told by prosecutors that we couldn't use the recording and then they don't turn the recording over now you have this statement documented by the way before vaughan's lawyer is present  and the statement isn't even turned over to defense counsel and i don't i don't follow how an inference can be drawn about bad faith from a document that itself remains internal and actually documents the contents of the conversation and omits facts that aren't present on the recording so for those reasons we think that the youngblood claim was untimely as well if the court doesn't have questions about actual innocence i'm happy to address actual innocence which i think is an alternative ground in this case to affirm because the district court below rejected actual innocence not even getting into the credibility of hurley's confession but simply saying that it's insufficient to outweigh all the other evidence in the case and that it doesn't suffice to say that no jury would have voted to convict in light of it all if the court doesn't have questions about actual innocence  so the brady claim here is that had the court known sorry had the jury known of this earlier confession by vonta prescott and that it was enticed through the use of an informant they then would have doubted the credibility of the later guilty plea that vaughn made and we think that suffers from at least two fallacies the st is that evidence of an earlier confession that seems to us the veracity of the later confession made in court could somehow ever help them and the nd is that there is some necessary inference that one draws an informant is used that an informant has a tendency to cause people to make things up and testify falsely in order to avoid greater sentences so we think that both of those are wrong now on the earlier confession at trial jemison and brown presented a coherent enough theory of how this confession was induced and why von would testify falsely of on said that he did not want to be executed he said that his lawyer convinced him he should plead guilty he mentioned his lawyer in his recantation testimony by name approximately twenty seven times and said that mr r counsel had him all confused and that was a coherent enough theory that he would plead guilty take a deal in order to not be executed now if they introduce this confession to prescott they would have to explain why von is not only confessing to the court and to prosecution and thereby getting a lower sentence but why he's confessing to an apparently disinterested rd party in prison who stages a fight with  e to appear as independent from them as possible and part of that would be what that informant came to mr van with right in what that conversation was and i understand i think it's undisputed that mr von had some cognitive limitations so i think i think maybe it oversimplifies it to say that it's a prior confession and i think what the police are saying it was the creation of that of that confession right how how did that come about i i can understand the theory that prescott could induce von could persuade yvonne theoretically to to make a guilty plea that's at  conceptually possible what doesn't make sense is vaughn confessing to his me saying that he did all these things because he's scared of being executed von cannot sorry prescott cannot lower his sentence prescott as far as he knows can't do anything for him and unless the we don't have a guest to to interject there we don't know what prescott said so so actually prescott was called as a witness by generous and at her evidentiary hearing as friendly with us and prescott said quite a lot about these conversations did he remember most of it or did he say did he say one way or another how much of that conversation over the course of those several days he recalled he doesn't say that he has a perfect recollection for instance he is not sure that vaughn actually called generous and a girlfriend  he does does recall quite a bit and what he said was that they talked for about thirty minutes to an hour a day that sometimes vaughn would bring the topic of his own alleged crimes up to him sometimes prescott would start the conversation he says that he doesn't actually believe that he mentioned the death penalty that he might have in an effort to get von to start talking but he does not recall in any way a very coercive or aggressive set of questions on his part the interaction between that he could extract not only extract a false confession but get it to be told to him and that would tend to undermine the jury's already weak credence well in that what was the evidence of the record of the evidence that was presented at the hearing on how much mr prescott knew about the crime before he went in or as he was talking to bond that he got from someplace else presumably th sheriff my understanding of the testimony is very little he was told at a an old woman was murdered he said that that bothered him and that he wanted to help the police investigate this crime but he was not told about a woman and fact generous and had not been arrested and told on mentioned her he wasn't told specifics he wasn't told he may have been told how many people had been arrested at this point three but beyond that i don't think that he's given many details and yet in spite of that what he gets according to his sworn people that being said he even if we could set aside the fact that vaughan actually confesses to prescott it's very hard to understand how this extra piece of evidence that a person mentioned the death penalty in conversations with von would tip the balance and cause the jury to think that this confession was not true vaughn testified perhaps not in great detail but but very insistently that his lawyer warned him of the death penalty scared him about this possible sentence he knew that he was indicted for capital murder before he ever talked to prescott and that it was his lawyer he said twenty seven  caused him to make this confession and he then said at the end of his testimony under questioning in italy leading questioning that there were two other people who mentioned the death penalty to him who worked for police or prosecutors and so if you add a th person who perhaps has the least ability to influence and not as a lawyer not a prosecutor not a representative of the police but a cellmate who's telling him you know you've been indicted for capital murder that means that you could be executed we can understand the inference that the jury then would have thought well that that influence was probably what caused this false confession case as to generous and because prescott is not send in with information about generous and or even about any woman and you know what happens is that von mentions that there is a woman who's a driver and then and his plea he names her now the girlfriend fact is perhaps the only color of lee exculpatory piece of evidence in this whole business with prescott that we can see but that cannot possibly get you to a reasonable probability of acquittal for a whole lot of reasons so st prescott has a very uncertain recollection of whether vaughn called this woman a girlfriend at one point he even says i presume that she was a girlfriend because one would imagine that such a person who's driving people around to commit a crime like this must have a close relationship with these people second yvonne could be confused about whether this woman was a girlfriend of these people rd she could actually have in fact  girlfriend though she testifies that she wasn't there is testimony in the record below that there were at least romantic overtures made to generous and by some of these co defendants so i don't see how introducing prescott's on certain recollection and on called the driver a girlfriend could cause the jury to say well it couldn't have been her because in fact she's not a girlfriend  further side i think that's a fair characterization that testimony if i could then turn to the youngblood claim where we acknowledge a somewhat lesser showing of materiality is required though this court's precedent hold you still need a showing of substantial prejudice we think perhaps the easiest way to decide that claim is that there is a total one of evidence in the record as to when this recording was lost or destroyed and it's an element of the claim that it must be lost or destroyed pretrial or otherwise there is no due process violation and there's also a total one of evidence on the record about whether it was destroyed last merely negligently lost and the negligent loss doesn't get you to a young blood claim and then for the reasons i've discussed we don't think that these recordings of an extra confession that van makes to a disinterested party would at all be helpful to them and in fact we can't imagine that they would have wanted to play this recording a trial we think prosecution would prisoner was untimely because he failed to discover a federal sentencing commission's report that contained certain facts about geographical disparities and certain mandatory minimum sentences my friend as  tried to distinguish that case in two ways st she says that it would have been even harder for brown to see jimerson save us petition than it would be for ingram to find a sentencing commission's report while in prison i don't know about the accessibility of sentencing commission reports while in prison but here we have abundant evidence in the record proffered by brown himself that he could have accessed the heaviest petition by  talking to generous and through his cousin who was in correspondence with generous and generous and wrote back really the difference between monitoring your own case and monitoring someone else's case i think that when would we be swayed we'd be stretching room if we went to direction you want to go house to go so i don't know that reading sentencing commission reports that provide generalized data about disparities in the country is monitoring your own case but even accepting that characterization i think that when somebody is tried with several defendants on the same evidence the very best possible source of information that they could look to for facts supporting any b s position they might bring is ones that their co defendants have brought much better than a sentencing commission report much better than that on a lopez checking your appellate docket when your lawyer is already told you that i filed a direct appeal and certainly no lawyer would ever night elect to look at these pleadings if he were trying to help brown and we think that rather minimal minimal duty of diligence holes on brown when there's there's no real dispute that he could have gotten this petition through his cousin who he offered below as evidence of his diligence or efforts on his behalf so if there are no further questions i'll reserve the balance my time for very well her brady and youngblood claims with the state lied about and in fact destroyed evidence in her case and the part where the state did not present the evidence and the part about the evidence no longer existing is not in dispute so here sheriff donnie forward sent informant ronnie prescott into a jail cell with charlie vonn who at the time was represented by counsel and who showed signs of having mental defect prescott was armed with a hidden tape recorder and a promise from johnny ford that if prescott got fanta talk about the murder prescott spending drug charges would go away prescott then before recorded three or four conversations with and ultimately requests allegedly recorded a conversation in which charlie vonn confessed to participating in the murder of myrtle holmes in which he implicated ms jefferson as the getaway driver after ford listened to the tape he took the tape recorder from prescott and he called to the prosecuting attorney now we know there must have been something exculpatory to ms jemison on that tape based on the behavior of law enforcement and based on the behavior from the state's attorney from there when ford spoke to the prosecuting attorney and the two determined that the prosecution could not use the recordings the recordings disappear they don't surface anywhere else in this case law enforcement then staged to do over of charlie bond's confession this time with his attorney present and this time mentioning nothing about ronnie prescott's role in the case law enforcement her attorney issued discovery requests specifically asking about informants used in the case specifically requesting any recordings taken from witnesses and specifically requesting information on ind should know this from the record but did did vons lawyer know about prescott at the time fons lawyer from what i understand knew that prescott alleged that vaughn had made a confession to him there's nothing now again the prosecution denied the existence of any informant the prosecution did not turn over any of the tapes that were taken from ronnie prescott and the prosecution denied that there were any induce made to any witnesses or informants in the case twenty two years later after mr emerson did discover the informant information and brought her claims into federal court the state opted to stand on procedural bars that it created to attempt to deny ms jefferson any relief in court so why wasn't there enough known by january of two thousand and fourteen in january of two thousand and fourteen the only thing information didn't tell mr emerson the contents of their conversations so she didn't know if any evidence might have been favorable to her that information didn't tell ms generous and that the information was certainly suppressed from her she could know that until she spoke to her attorney and additionally ms jimerson didn't have the identity of the informant and without having that information again she couldn't confirm what the informant had spoken to bond about in the well surely she would have known that at least her lawyer didn't tell her that no one told her that there had been this informant who had gotten the confession she would have known that right now even if that was the case again the information would have had to be favorable to her and it would have had to be exposed to tory and she had no idea what it is that took place between the informant and charlie bond without speaking to the informant well mr steinberg said she knew that he was incentiv that in correct without speaking to the informant she had to figure out who he was and check into his case to see whether his case had actually been so the sheriff the sheriff didn't disclose to the investigator the that there was an favorable information exchange between the open i think your whole argument is the the having an incentivised informant coerce mr vaughan who susceptible  that fact in and of itself is favorable right isn't that your materiality argument that's part of our materiality argument but the informant we later discovered elicited also elicited information that the getaway driver was one of the co defendants girlfriends and that was a piece of information that mr emerson did not know ahead of time and we also knew that the informant had information about the murder before speaking to charlie bond which would have explained how charlie bond would have been able to give at least some information about how this crime occurred if he wasn't there and she have to know all the details or does she just have to know just enough that this undisclosed information would have been favorable to her she has to have enough information to survive summary dismissal and that information needed to be all of the vital fact claims and for brady and women with those are two different things right surviving summary dismissal is different than knowing all the details relevant to your client not all the details relevant but she had to plead the vital fact  and that that wasn't disclosed to you from someone you know to be you know to not have the full capabilities in that case all most generous and would have had was that an informant elicited a nd i guess a st confession from an informant again the information had to be favorable to her and material to her case well you're arguing now that that is right i'm arguing that's part of it but again say and from the information gathered that there was a mistake and a case of mistaken identity as far as she knew then because regularly had not yet confessed and she could have argued that she was not in fact the woman who had driven the getaway car and she also could have explained why charlie bond would have falsely his mistress is mr steinberg correct that that fact wasn't even put in the claim for really no he's incorrect on that fact and he is also incorrect that the district court did not address it in the addendum at page ten the district court did in fact address the girlfriend piece was part of the exculpatory evidence wouldn't have enough information at least by then because if i understand correctly prescott ident does say there was a girl at that point in that conversation he confirms who gets the information about what what happened why isn't prescott revealed that what von had actually said was that it was a girlfriend but on a more practical note having a brief phone conversation with an unknown party on the other end of the phone that's not evidence i mean that's the reason that often in state post conviction proceedings allegations have to be supported by affidavit in still my colleague ms daniel could speak to mr prescott in person and  eleven of the civil procedure so your experience you don't put forth and an attorney affidavit or anything like that you can't just say counsel has spoken with this particular witness and here's what he has said that's not sufficient in your views under under the rules and procedures for presenting the claim in my experience that's correct what we would have needed was that affidavit from the informant himself who was willing to come forward and share the knowledge that he had in the case but like to turn to the mirror of his generous and timely filed brady claim in this case as i mentioned the state suppressed evidence of the informant that's not in dispute as i mentioned the favorable evidence was the portion where girlfriend of the codefendant drove mr emerson and also without the informant information  sufficiently explain why charlie bond would have confessed to a crime and then recanted at trial later the circumstances of the conversation that he had with robbie prescott were important in that way and they were essential to her case to that extent we believe mr emerson met all of the requirements of brady and that evidence was suppressed that it was favorable to her and that it w why is that likely to result in albeit you know from incentivised informant and all why is that likely to result in a different outcome the confession was the piece of evidence that led to his jimmer son's arrest and it's what caused him as generous and to be convicted there was other circumstantial evidence but that evidence as the district court noted had credibility issues so the confession really was would have been able to be coerced into saying that he did something he didn't do and why he would have been able to be coerced into implicating other individuals who were not involved with that mr stanwood of undermine the credibility of the state's case and in addition she would have been able to impeach police officers who testified that charlie brown had just made one single confession and and the state's entire case would have crumbled from there and she would've been found not guilty having no credible confession and again that confession was the only piece of direct evidence against is generous and in this case are no other questions on that mr emerson posits that because she was able to show the merits of her brady claim and because the state suppressed the evidence for her she did meet the cause and prejudiced her to overcome her procedural default to move onto her youngblood claim she also has a meritorious claim there that excuses any default she might have had here the evidence certainly was potentially useful to her the informant could have said anything as your honor noted that the informant could have in fact threatened charlie bond he could have said hey if you confess you won't get the death penalty but we don't know because the tape fourteen days after mr emerson was charged with this crack the state responded and said that the only tape the only recordings in this case were from two other witnesses kenny and lee parsons if there's any truth to that on the tape no longer existed within the amount of time that the state had to answer the discovery requests but in addition we have the circumstances that also lead us to make a bad faith determination in this case for one thing there was the do over of charlie bond confession that didn't mention the recordings at all there was the statement that ronnie prescott said he did not write and could not read and contain names that he did not have that also made any mention of the tape and then you have the one page police report in which wright prescott is mentioned as being someone who owned a business and who was interviewed in the case but didn't mention any the tape doesn't surface at any point before trial despite requests and despite there being other documents taken before trial so i think the only reasonable explanation is that the tape was destroyed before trial also have an actual as to claim that cannot be reconciled with the decision below in mr brown's case which rested on mr earlies confession and credibility and if mr marson can show sufficient evidence to pass through the  gateway of sloop versus dello than that over all of this it overcomes timeliness that overcomes diligence that the state is arguing and the state must find in her  i just want to end by responding to some of the state's points on exhaustion st the state affirmatively waived any exhaustion defense and to the extent that  they did not what they did was wrap it up in procedural default rule five b of the b s rules requires that a respond at address procedural default and exhaustion along with statute of limitations and non retroactivity here the state chose to raise two defenses of statute of limitations they raised in their response and they also raised procedural default  that shows that the attorney general sat down looked at the case what defenses the attorney general could raise and raised to the ones that the attorney general intended to raise and did not raise exhaustion because they did not mean to and miss generous and did in fact exhaust all of her claims as the arkansas supreme court has said numerous times is an extraordinary remedy it is not within the standard review process was contemplated  potentially useful evidence in bad faith has not been one of the circumstances that have been accepted as a court notice petition by the arkansas supreme court the state has acknowledged that mr emerson's actual innocence claim is claim and her brady claim they won on their merits and this court may affirm regardless of the court's findings on that matter and so for that reason i ask that good morning your honour's may it please the court my name is trisha bushnell and i hear represent mr john brown jr and before this court this case presents the rare instance in which an innocent person was convicted of a crime they did not the discovery of previously suppressed evidence the st ronnie prescott the use of ronnie prescott as an informant in this case was never disclosed the fact that he received a deal and in exchange for securing the testimony from mr vaughan was never disclosed in such that mr prescott even testified in his subsequent sentencing hearing that he got them all they wanted and more the fact that he had a hand written suppose a handwritten statement that he himself admitted he could not have written because you don't read or write at the time was never disclosed the fact that he had made a recording of his conversations with charlie ron was never disclosed and the fact that those those recordings were not even put into the statement that was written for him the fact that the recording was destroyed never and never turned over was never disclosed in addition chief poor lieutenant bradshaw to law enforcement agents testified at court they left the impression that van had confessed voluntarily that had it all come forward even though the state knew at that time there ronnie prescott had been the only individual that had a conversation with which then charlie brown came forward for three years this is a case that crime that occurred in  eighty eight that went unsolved for years it was incredibly difficult experience for the community that's why they brought in the investigator michael joe early throughout that entire time charlie vaughn had denied any involvement they requested a sample of his blood to compare to the the officers stating or indicating or suggesting applying that it was the only the st confession how many were were there i apologize i don't know the total number of officers but these were the only two that discussed the conversations with charlie vaughn and his and his statement in addition we we now know that the other pieces of evidence the other threads occurred through different incentives that were not previously disclosed the day also failed to disclose evidence about the person were two individuals who testified that mr brown had come to their house had worn bloody clothes and had been seen with other individuals we now know that mr part the parsons were in and out of jail at the time even though the state had replied and said they knew of no former convictions of any of the other of the other witnesses they were in and out of jail they had significant drug abuse kenny parsons had been in and out of a state institution for mental health problems and their father was the head of the jail trustee program at that time which again previously undisclosed and why all evidence that a defense attorney could use to impeach their testimony the parsons had actually given a statement three months after the crime much closer in time in which they stated they knew nothing about the case they knew nothing they did not know anyone any  any information it wasn't until the trial came now three and a half years later that they suddenly come forward when they are released on the jail trustee program in addition tora bryant who is the other individual who is used to bring the defendant very close familial relationship with investigator michael joe early that again was never disclosed and in his testimony in the hearing below mr early has said he never used her before he never used her again but miss bryant who he described as suffering from drug this where the evidence is already weak any of this makes a difference especially when considered cumulatively which is what the court is required to do in the king and instance of a brady claim in fact this had this case had two trials but the st trial the jury  dollars and that was based looking on immediately recanted confession of charlie brown at that time without additional information about the creation of the statement this in this inculpatory statement from mr von that literally existed for twenty four hours mr von has a statement with the ronnie prescott that goes undisclosed they come they bring counsel they take his plea within that twenty four hours he never again says that he did it and hearing that the jury found six  could not reach a decision now taken into account a properly instructed jury if they heard all of the evidence and they removed the evidence that was created by brady misconduct would certainly find these defendants not guilty and that they were actually innocent in itself the standard for actual innocence is not that this court must decide to a degree of all certainty whether or not someone who did it if you think the analysis is to remove the evidence that was created by the brady misconduct even if it was to be just to be taken in light of certainly the court the jury a properly instructed jury would have significant doubt has to be a liability of any of these witness and particular mr vaughan who is the only witness who puts any of our clients at the crime scene and in fact d n a evidence you know i wonder as a matter of strategy having many years ago donald criminal defense if you' really a criminal defense lawyer i would try to make sure that that st confession never saw the light of day because it's probably a th amendment violation right well certainly the t amendment violation but that would only be a constitutional right that charlie vaughn himself could raise that is not something that would have been at issue in teenage emerson's and mr brown's case and in fact does not remove the state's obligation to lawyer could have made that determination because it was never disclosed agree with that but it certainly and what we now know from confession cases false confession cases around the country is the creation the circumstances surrounding how that confession comes forward are critical and it was critical here charlie ron denied ever having a part of a role in this case and in some of the details that he provides are factually incorrect he testifies that they went in through a window there's no evidence at all to suggest that they went in through a window he makes up reasons about why they stopped at this individual's home and he says he doesn't know it all are things that mr early provided credible testimony for in addition he doesn't even know the weapons that were used you can see in his exchange with the court the court even tells him i'm not trying to put words in your mouth i'm just trying to see what happened he says well used a pipe oh no not a pipe was it a skillet yes it's a skillet all of that information even if it's considered a prior consistent statement it's the circumstances of it it's the information and the details in which he gets wrong that another defendant would certainly want to use i can't speak to what mr ron's counsel would want to use but mr brown's would and in fact his counsel testified at the hearing below that had he had the statement he had this information that he had the information about ronnie prescott he would have used that to impeach the testimony testimony that the st jury already doubted when they could not reach a decision at six dollars to six dollars and it's most importantly charlie bond's testimony was that all three of the male co defendants sexually assaulted the victim in this case but d n a shows that's not true in fact charlie vonn and john brown were both excluded at the time of trial as contributors to that d n a evidence so even by his own testimony we know from d n a that it analysis in actual innocence analysis that is something that this court must consider what that d n a evidence combined with the new information about ronnie prescott and the information about all of the other impeachment evidence of the did immediately went to went to mr jenkins and told the truth in that regard this is a case where everything was always tenuous and looking at it in absolute clear air in a finding of actual innocence and in its attempt to argue that mr brown should not be able to overcome this case in which it is layered upon layer of state misconduct the attorney general ha argued that mr brown was not diligent in making this finding that is certainly something that the district court was troubled by below where in a case like here where the state has suppressed evidence that it could then use the fact that there was that evidence was not found sooner as a reason to bar a defendant from relief and that is simply not the case nor has this or the united states supreme court held that in fact it has always found that it is not that a prosecutor may hide and that a defendant must seek it is what a defendant is unnoticed that was the st time he had counsel and was the st time that he had ever been put on notice to be looking for these claims and he filed within a year of that and within a year of reginald confession the state looks to ingram and who there there certainly seem to be different disparities and racial disparities in this case and was troubled by them and that that there may even a been a potential claim there letting mr ingram on notice that he should be looking for the evidence that would support a claim that the court had already indicated it was troubled about now mr ingram did not do that he did not file to the only mechanism that exists the only body that makes that information available which is the sentencing commission and said he waited until this court made a decision in the younger case but even then he did not even file within a year of the younger case coming out so by any measure mr ingram was not timely for something that he should have been on notice of since the sentencing and then certainly even when he found about about it in the court now in regards to mr and who lopez and who lopez believed that his attorney had filed the case on his behalf right but he did not check his own docket until well after a year to know oh my gosh no one ever filed for me but the u s supreme court and this court have always  obligated to make that filing for mr brown but mr brown was not obligated to do quite frankly what we don't even know is possible to start checking dockets in we don't even know what court the various courts are different state courts federal courts don't require that you look where someone is being held some require that you look for the person was convicted there for co defendants in this case it was twenty six years we don't even know that he had access to the mechanisms to do that and in fact the state what about the argument i heard this morning about cousin being willing attorneys she herself is not an attorney and the court has not held that we impute the actions of just a relative to a defendant it's always their counsel so certainly that was not what was in the record below that she would even have the knowledge of how to do that and quite frankly they weren't even in touch at that time they've been in touch at various times and that was in the record below that he hadn't spoken to her in some in some time so in those regards mr brown was always diligen assoon as this information came to light he had counsel additional investigation was done that showed additional suppressed evidence by the state and the u s supreme court has held in converses bell that even if there are mechanisms that should have been taken in a state procedure or even if the state procedure itself had found that the defendant was not of had not followed the state procedure correctly where the state suppresses evidence the state procedure cannot be used as the reason to keep relief and that makes sense we cannot have a system that says we can violate rights as much as we want as long as you never find it and if you do find it that you should have found it before and will just keep you from seeing it that's not the point of it and in this case there was there were actually expressed letters or statements to the defense counsel that there wasn't anything correct absolutely and in fact at the time below mr brown has never been put on notice that he was supposed to be doing any extraordinary measure by the attorney general the very responsive party and a critic or unnoticed so if the attorney general fought thought that the writ of core notice was something that needed to happen that is the same party that responds in those measures and never said the u s supreme court and coleman versus thompson and said when no remedy is available right if you would have been out of time for everything you are then procedurally defaulted and those are the defenses that the attorney general raised below and that mr brown has always argued that he overcome by both cause and prejudice with his brady and his brady lot of cases claims and actual innocence but even if this court were to find that that this rather unclear process extraordinary remedy which has never been required as as a part of exhausting a claim but it's certainly it is also unclear as to what the standards even are we have questions today is what is the standard that the arkansas supreme court looks at in its gate where was something was so novel so new we could not say that a defendant was on notice to do it and certainly that is what happened here particularly when the state by its own reasoning waived that claim and again articulated in their response in the supplemental briefing that there was nothing that mr brown could have done he couldn't have filed a quorum nobis even then by the attorney general's very argument leaving him procedurally defaulted and mr brown overcame those procedural default by both cause unprejudiced and actual innocence but regardless actual innocence is the ultimate equity it overcomes everything this court has has never found that leaving an innocent person in prison is something that that we we would stand for and the court sitting in equity has that ability and that is the history of haiti is in itself certain parts of haiti as were came from the common law and equity and then were codified into various degrees and you can see as the case law expands and we look at twenty to fifty four when we  look at post at case law how weird making the determinations of those procedures now that it is codified but even then even in spite of all of that the u s supreme court has always said actual innocence overcomes all of that procedural default it overcomes a statute of limitation it would overcome exhaustion granbury greer also says that we should find things exhausted when when there would be no reason to delay the outcome which is keeping an innocent person from having to go back into prison if there are no if you're the actual innocence claim is based on the early confession the actual innocence claim includes the early confession but it also includes all of the other evidence was actually innocent here there's nothing left that remains that ties mr brown to the crime not the confession and not even testimony that just says he associates with the other co defendants that he in fact is not i think i have four points on jimerson and timeliness this would be a different case if her claim were just that von referred to the driver as a girlfriend but in fact they predicated their whole case on nearly the use of the informant and in fact they say that's part of our materiality argument so we think that they certainly could have brought that claim long before when they did within a year of talking to the sheriff on brown's timeliness arguments they seem to be running away from the cousin who brown introduced below as his means of diligence and his proof that he was diligent that he was working through his cousin talking to his co defend getting court records from various courts to prove that he was diligent and we don't think that they can now disavow her efforts is not his and not something that's chargeable to him on youngblood  what i heard as to the timing of the destruction is that we should believe the discovery response it's representation that there were no recordings even though we know those discovery responses were false in other respects and indeed that's that's the whole predicate of their brady and youngblood claim so we don't think they can have it both ways on the veracity of these discovery responses and absent that there's absolutely no evidence that this recording was destroyed pretrial and finally on brady i did not hear an answer really on how this the fact of this confession would have helped it was said that prescott was coercive that it somehow obvious that the use of this informant was course of and we think it would be helpful in this regard to look at the supreme court's miranda jurisprudence where they've held the use of informants are not coercive you don't need to mirandized people if you're using informants because there's very well court would like to thank all of the arguments today were very very well done i thought and and helpful to the court case will be submitted as a lot of moving parts but will decided in in d