of more than five thousand five hundred ages and did not contain the records that actually mattered for the purposes trial what was disclosed was that the complainant suffered from mood disorders and sensed the presence of her dead grandfather but not that she had a poor grip on reality and that she would fantasize confabulate in law now the state courts and in the any very words of the state courts decided this appeal this was a he said she said case in the words of the court of appeals in which in the words of the rd the department an acquittal would have been reasonable so this was not an open an against this was a close case the state courts acknowledged that the be that and under those circumstances the failure to disclose the full psychiatric record was a violation of brady versus maryland pennsylvania versus ritchie and their progeny and it was unreasonable for the state courts to find the state court systematically undervalued the withheld materials and was essentially looked at them in the light most favorable to the prosecution that's an appropriate outlook for a sufficiency challenge but not for a brady jail the standard under brady is whether there's a reasonable probability of a different  the supreme court teaches us in coddles and then i became a says is that great the reasonable probability is not a sufficiency test and it's not a preponderance test a reasonable probability can be less than half and moreover in cases such as aggers and more recently we reverses came the supreme court has told us that where a case kynges on the testimony of one w where it stands or falls on whether the jury believes the complainant which was certainly true here that even in the words of the aggers court even evidence of minor significance is enough to clear the brady threshold and to establish a reasonable probability of a different a can we can can we go back to the procedure that was used in which the trial judge reviews five thousand pages thirty or eighty pages or is it your position that the judge was obliged under brady to produce all ready material and to omit turning over only those parts of the complainants mental health file that did not have bearing upon the case well your honor i would submit under richey and its progeny that the state court did have an obligation to withhold only those parts that it not bear on the case and that the defendant was entitled to the disclosure of those records that did bear on the case and particularly those that dealt with the complain document and and all the judge did remove things that dealt with say i don't know an eating disorder or or something that did not have bearing on the case well i think that it should be up to the defense council to determine what placate it and watch not i mean waffen something that seemingly duplicative in fact add something to the other records and in fact sometimes even the fact that a condition is repeated over a period of time and something even though there are records over that time reveal the same condition but in answer to further answer to your question i would add i would say that if the trial judge if that one if it was permissible for the trial judge to turn over a sample which we would submit that it was not it at least should have been a representative sample it should have been a sample that is closed all of the conditions with which the complainant had been diagnosed not just a mood disorders not just seeing her grandfather but all of the conditions relating to her grasp on reality her confabulation her selective memory fantasizing  should have done and i'm inclined to the view that the trial court should have turned over anything that had an ex girlfriend very bearing on the case i'm not sure when the judge what the judge meant by a sample frankly  a sampling of the total record or a sampling of the things that might be exculpatory but focusing on what the appellate courts in new york did it was my impression that what they were doing was reviewing this record to see whether what the district it is a thing that the trial court failed to turn over that would have had a created a reasonable prob ability of a different verdict may they do that badly or wrongly but is that your understanding of the standard that was applied by the well that's to say the new york court of appeals as the final word on this well the court of appeals did analyze the disclosure supreme court in weary felt that even though that witness was impeached in other ways the fact that this new more powerful impeachment was available was sufficient to overcome the brady threshold and  systematically minimizing the significance of what was withheld drawing inferences in the prosecution's favor as to you know what did yuri would have thought of that and on what whereas what they should really be looking at  a close case could the jury have made a determination that if the complainant lied want she was lying again could the jury perelman that if she was misunderstanding the event that with identified a document that the new york appellate courts had not considered the district or thought was worthy of consideration and or what significance do you think we should give if any of us discover in the five thousand five hundred pages yet another document was not explicitly considered by the new york appellate courts does does that matter do we then argue  we look at the significance of that particular document or how should we deal with that kind of situation well what i would submit st of all is that any document that was not reviewed and analyzed by the state courts  them to review and find and analyze all of the documents that are on the complaint on the case on the complainants truthfulness on her ability to perceive recall a recount document was produced when the complainant that believe was thirteen approximately five years before this incident no reason why we know was what was the history of the production of that document in this case so that you could see it and the courts could see well your honor we have never seen it complain that the petitioner and his attorneys had never seen it was produced and reviewed in camera and  corpus the state court correctly applied supreme court law and analyze petitioners claim as implicating his due process rights and in doing so the court reasonably held at the undisclosed documents are not material because there was not a reasonable probability that their disclosure would affect the outcome of the trial in this particular case you water this state court did not apply the reasonable probability standard set forth and under the federal standard under brady instead the court applied the more lenient standard a reasonable possibility found and the new york state constitution so the court of applied a more lenient materiality how the victim's illnesses affected her behavior and for the for the defense to be able to impeach her trial testimony the defense can learn not only about the victim's medical diagnoses and the information about fear the disclose information inform the defense that she suffered from epilepsy and that provides the defense an opportunity to learn that those who suffer from epic seizures often suffer from memory loss but and even in addition to that the defense was informed that there was one and this one incident where the victim was found wandering the highway and couldn't remember how she got there that information was there deuced to the defense and the defense did attempt to question the victim about it so that is information of the defense did have to know that her illnesses had effect on her memory what would would you concede that there's a difference between saying that somebody has a certain condition which can in some instances or many maybe most impair memory and and evidence that that this particular complainant or written is actually experience memory problems yes and the the disclosure that she was found wanting to have way without remembering how she got there does it tell the defense that she is having problems with her memory but in addition to that your honor the court of a court of appeals but there's also a document that says that that is a characteristic of her memory that when something bad happens when somebody does something to her that that she was sense she tends to forget the good of their relationship which in this case could mean that the the that the the pleasurable part of the that there was a pleasurable part of the encounter which was voluntary and that it would turn bad she no longer remembered that well your honor st she was able to remember most aspects of the date while all the other as it's up to date she was able to recount all the people that she met that that day the places that they went she was able to recount that she did have consensual kissing and fondling it ition or during the course of that da the only thing that they are divergent on is the actual sex act itself and according to petitioner the violence happened immediately after the sex because they were struggling over her try to extract money in exchange for sexual or sexual of favors but according to her that the fight happened prior to the sex that the fight was the lead in to the sex it doesn't make sense that she would forget that she consented to sex but that  remembers that she had sex but she forgot that she consented to it that let me ask you this thank you but when the going to still court judge reviews a one thousand documents to decide what ought to be turned over for brady purposes is it the court's obligation to turn over everything that that is and that is that that would be brady material or  according to to the extent that his gregory testimony was consistent with what he said a trial his defense was this woman had consensual sex with him and then far over payment for failing to get money in exchange for sex if it is a document that suggests that that that she had done away with somebody is clothing or shoes on a cold day by her father in that case the court did stop short of stating that the evidence was inadmissible under the rape shield law as that decision is a matter of the trial court's discretion but it did make clear that that sense to somehow involve the defense in those in those choices those arguments not necessarily are are that the same the same truck or that made the decision to withhold it would have been the would be for the trial court to determine in the st instance whether this could be something that could affect the outcome of the trial because it may or may not be any miscible if the court determines that it w that the allegation even if false against the father doesn't inform the jury about the brassy of the allegations made here but that's a little bit peculiar isn't it i mean the appellate courts in new york said this is a case where one side or the other is lying now and that was of some significance i think because there were least it became significance to the district court have been that the defendant is the victim i'm sorry it was prone to delusions or to confusing things that happened with things that didn't of possibly having flashbacks to unpleasant things when after you experience something unpleasant and so on it's more complicated story i think than just one person is telling the truth and the other one must be lying isn't it not necessarily your honor the kitchen was what was trying to get across that the that the victim said which he said to get back at him for not paying for sex that she that after consensual sex occurred they fought because she's trying to crack money from him and having failed to do that she goes outside and completely changes demeanor from be silent and and cold to what other witnesses say crying and screaming and and yelling that he had been right the only conclusion the jury can can can reach the can we reach about that is that she as he was lying about that's his that's his theory of what's going on in her mind he's not but he's not a psychiatrist and he's not privy to what's actually going on in her mind he only knows if his story of what happened is true what she did and he is creating his own theory of what happened i don't know that counsel for him is  say that's that's what you the jury have to believe or that's the only reasonable doubt you can have for to cure only if counsel had access to psychiatric records that might suggest a better theory of why her account is inconsistent in the defense version with what actually happened you know what i'm just i'm just puzzled over why the new york appellate courts would  rule evidence out as unlikely to affect the case on the theory that the jury had this stark choice of it we either believe that she is intentionally lying to have a reasonable doubt about whether she is intentionally lying in order to eat quit quit and i'm wrong about that and you know one thing about that you are but given that this was an immediate outcry and given that he and said he didn't recognize a photograph of one of the locations where he later said they whacked yes he did he he lie repeatedly specifically about the facts of this case he lied to the police  to his best friend when he meant to his house immediately after after he left his jacket behind him immediately to his friend's house bang on the door of the many injury and said that the victim suggested that the victim had and you want to i just want to make one other point that was brought up on my opponent's argument the fact that the that this a court may or may not have discussed a particular document is not necessarily indicative that they did or did not read it if there are documents that the court has reviewed that will not discuss in the other decisions that doesn't mean that the court hadn't considered it given three minutes that we bottle your honor to your honor to briefly address a couple of the points counselor this is not the case where one or the other person had to have been deliberately lying the conditions that the complainant had been diagnosed with included confabulation which is your honor pointed out means and as the people i mean in fact the respondent stated in their brief means putting together fantasies putting together false memories that and it may have been a situation where as the court of appeals demised with the incident with her father that she thought she was being ra and the her behavior afterwards would be consistent with someone who thought she was being raped in addition to being consistent with someone who actually was someone who thought that he would had just been raped might make an immediate outcry but might be wrong annette outcry and there were also as the appellate division pointed out there were some other flaws in the complainants testimony such as discrepancies in the length of time that the very various parts of the incident lasted and cast the money about a struggle that was far you know in her as she related it was whil not incredible as a matter of law it was inconsistent with her minor injuries so this is not a case where someone had to be lying and it's not a case where it was that the jury would definitely find that that person was the defendant i mean there's certainly other reasons why the defendant might have said what he said either fear nervousness you know as anyone would would experience who would just been in a stru whether that struggle was sexual or not and i showed a photograph of the house you know and mr mcrae sees hundreds of houses every day you know he he might not recognize the outside of that one on a moment's notice this is not a case where l would not have been unreasonable in terms of the incident regarding her father the trial court never made a decision about whether that was admissible and neither did the state appellate courts and certainly as the dissent pointed out there is some significant commonalities between that incident in this one starting with the fact that she described her father pushing her against the wall in a sexual position which is exactly how she claimed this incident started so there is a reasonable probability i mean again we're going back to reasonable probability this would have been admissible especially in light of the confabulation is specially in light of her admission that he lied on other occasions and then especially in light of the further evidence that she just did not have a steady grip on reality which we are supposed to know same as in the hard thing for you about this case is the standard of review isn't it them and yet as you just said you argue that there is we should conclude there is a reasonable possibility probability that the case would have been  well had been turned over but isn't it the case that what we have to decide is not whether we would have voted with judge rivera in dissent in the court of appeals but whether the majority opinion there unreasonably few differences between fuentes in this case for when days the defendant didn't get any psych records it will hear he got and five of one percent of the psych records and none of the ones that actually mattered so i would submit functionally this recall and recount so i would submit that issue is even more compelling case than when this and i would also submit going back to supreme court precedent that this is a the state court on reasonably applied various progeny of brady including aggers and weary which had very point the things to state that when close cases even evidence that a court might believe is mine or even evidence that impeach is further a witness that had already been impeached in other ways and i would submit that it was unreasonable for the courts state courts not to pay heed to that or