one one three one three one one one three one five three keep lamar were to mark how arguments not to exceed thirty minutes per side mr dowton four pallant cross happily rights from back in april one thousand nine hundred ninety three in this case it's important mr lamar was convicted of five homicides but all the homicides were based entirely on inmate testimony there was no physical  evidence no scientific evidence no d n a no films nothing other than inmate testimony there were eight inmates that testified against mr lamar he testified he had an additional five witnesses testify on his behalf  so this came entirely down to the issue of witness credibility the overriding error in this case is the brady issue which pervaded every aspect of the case from the very beginning from the very  started when the defense had requested discovery and requested brady material and the first the prosecutor refused to give it then in order to protect witnesses they came up with a mix and match game where they had basically provided in some forty three names of witnesses and then eleven pages of statements what wouldn't indicate for the defense if which statements went with which defen judge in fact one long with this you know the judge in fact suggested why don't we throw some names in like ok this person didn't say anything so we'll throw his name in so we had a court approved  discovery which they found complied with brady and obviously we disagree the problem with this in the position i think of the warden is well they had eleven months to you know the investigator accuse me they had three months in an investigator and three months why don't you go out in talk to these witnesses the problem with that approach is we're talking about inmates who were going to come out in and provide statements against the prosecution and also statements that other inmates and understand that the homicides in the lucasville case were based basically upon the allegations that snitches were killed so there you know those individuals who were stealing concert read it on the witness list that that they were all incarcerated at that time some of them were in protective custody custody some of them were not in fact the prosecutor stated at the hearing on this that it had they had made promises to some of the inmates that they would protect them if they were going to be testifying that in and of itself would be pretty because an inducement to get someone to testify you know we're going to protect you and will give you in fact they put them all in oakwood institution would be something that should have been revealed so we had a situation where it was impossible for the defense counsel to be able to do determine which statements went with which person well of course the state says that the way you could have determined that or the defense could have would have been to take up the court on its offer of investigative resources and to go in fact speak to the seventy two witnesses that's correct why do you think that was not feasible it wasn't feasible because if you walk into your defense counsel or your investigators need so we would like you to testify and mr o'mara here's a list of statements did you say any of these the idea that one was going to say oh yes i was the one that i mean why not just go have a fresh conversation with each of them and see what they have to say i mean at the end of the day you want to know what the seventy two witnesses that's correct well there were hundreds and hundreds of witnesses well at least the ones that the state as identified well to think not just go talk to them well two things the burden for brady is on the prosecution the they are under a constitutional obligation to provide the material for the defense this isn't a situation we can switch the burden where they're saying look there's there's brady stuff out here and some of it was exculpatory we're not talking just favorable but we're talking actual here's names go find that obviates the state from their need to provide it to the defense you know that there's no cases from the supreme court that allow this sort of thing in fact the supreme claims comment we can't approve it so basically on your hypothetical you're saying the state really doesn't have to and i know cite but that i guess i'm not asking about the brady doctrine pursuer asking as a practical matter why would it have been so much harder for his investigators to talk with these people that apparently was for the state to talk with two reasons one because they had nothing to offer the witnesses who testified for the state be it parole board be it deals to lesser included had reason to talk second  defense had nothing not only that but if they did own up to a statement that was given then you have then you have a situation where they are putting themselves out as the snitch they are living in the institution if the people who gave the statements would have been reluctant to talk because they would be intimidated and and placed in jeopardy and all that it was going to the same reluctance would apply to them if the if they hadn't given you the mains and mass names with statements if they wouldn't submit to an interview with you that these people would not want to come into court and testify well what could have been done whether they want to or not they could have been subpoenaed to come into court they could have been brought into court they could have had a witness for the state set the groundwork yes i interviewed  such and such a witness yes i took a statement and even if the what the person said would have been here say they could have then confronted the person look this is a statement did you give a statement on this day did you say this statement in so that the fence would have had the opportunity to develop it in the other aspect of this is you know they they argued materiality or the lack of materiality there is nothing more material than these statements the reason being the defense in this case was i wasn't there i was in the yard he had a couple of witnesses testify that you know i through this period of time he checked in but i saw him for an hour and a half in his periods in the yard when you have witnesses saying i saw also and so kill mr spedding for example and doesn't mention keep the fact that he's not identified as being there is the best corroborative evidence that you could have you don't have a single witness among the seventy to understanding is that none of the witnesses who are the subject of your brady claim were people who said i saw mr lamar in the rec yard that wasn't part of the some results correct i guess the concern i have with your argument regarding curiosity is here we have a bunch of murders that undisputedly had multiple participants and we have some of these people are saying he did participate i know you're focused on the ones that said that didn't mention him but you know why isn't the ohio supreme court right when they say look you know the fact that they mention some other participants doesn't exclude by any means the possibility that he also was a murder to see because that's not a great system with their theory because that's not brady what brady is if there's favorable evidence that you're required to provide it to the defense in so that defense can use it if they choose to do so and then it's a jury question well no i mean i'm talking about the materiality i'm talking about that because the issue is was he there certainly if you have say fifteen statements from people who identify other people as killing the victims and don't mention keith as being present then you have this clearly that's a great way to the jury backs up keith's testimony he wasn't seen he wasn't there the prosecutor is free but the was a totally chaotic situation where it was like it was three people in a big empty room what i mean but seems like a stretch to say the files which i think fits perfectly in piles they noted that the reason why the prosecutor if anything should err on providing is because it will tend to preserve the criminal trial as distinct from the prosecutor's private deliberations as the chosen form for ascertaining truth it in this case what the ohio supreme court allowed was for the prosecutor to make determinations of credibility and determinations on strength of evidence and based on the prosecutor's belief on this then they didn't have to comply with brady they didn't have to turn it over that's where it goes right up against kyle's really frustrated about that i don't blame you but i'm i'm looking at a different part of brady again we have to make an assessment about whether we think the trial might have come out differently had he gotten the statement and i would like to address that and that that's not about there it's whether we have confidence in the outcome which is the stuff and here's the problem the witnesses the did testify one the f b i planted a microphone in his head one said i couldn't recognize keith but i heard a voice one said he had a t shirt pulled over his head in admitted that he didn't mention mr lamar's name but after the ohio patrol mentioned his name he said oh yeah that's probably the guy so you know what we have here is hundreds of witnesses that the state trooper has access to all these witnesses in they're going through and they're in we have generally the least credible witnesses that you would have in a criminal case and they're all trying to cut deals from themselves possibly in through this they get a thread that mr lamar's a key suspect but based on like mr bass is testimony the truth they start suggesting the name to him so what we have here is a situation where it's all hearsay it starts spreading the troopers have complete access to him and based on their credibility as witnesses alone i'm not sure how much credibility or how much confidence he would have in their credibility alone but then when you mix in that there were in i'm not even talking about the federal discovery stuff but then when you mix and there were a number of witnesses talked to in summaries given in which they found other people killing the victims and don't mention mr lamar the defense has every right to have access to this because the strength is the classic example in the whole thing and giggly it was look when you have a situation where it's based on the strength of the witnesses it's a different ballgame than when we have a case where there's physical evidence backing it up or d n a backing it up scientific evidence backing up it's a whole different standard so in this case the defense had every right to to bring in the witness and in confront them you know isn't it true that mr could say well the prosecutor can cross examine say well that doesn't mean he wasn't there he could have been so somewhere where you could say yeah that's fine and that's the jury's decision in the basis of kyl the key part of kyle is that it's the jury you can't have the prosecutor making credibility determinations you know deciding what a witness says is ridiculous i suppose if you had a witness that said i saw marsh or you know another person shoot this guy with a machine gun and it was you know it was a beating maybe at that extreme it might be proper b but i doubt it i mean i think that the whole point of brady is to make sure that all favorable all impeaching all school is given to the defense in a manner that they can use and provide and present as they see fit and in this leo and i don't think we can have confidence in a verdict based upon this testimony long we know all this other stuff is out there which brings us to the federal discovery statements would have helped you the most i think the one most was mr kelly and i think he testified that the one of the victims was killed by the area brotherhood it was revenge for somebody being a snitch against the ar brotherhood so we have a totally different motive we have a totally different set of people which which is credible in prison you know because you know i mean it's not i don't think it would dispute that there are gangs in prison and so   in prison in the life in prison which is hard to imagine but we've got a glimpse of it through this there are all sorts of inside motivations going on particularly with snitches so you have in alternative bases  moni there is there is a reason there is a purported statement and it gives them a basis a real motive out rather than an imagined motive which happened here because someone else had a mole had a different motive that's w kelly kelly had said you know he was killed by you know different people because of snitching against the area and brotherhood in the fact that there is a there's no motive with keith keyes case he was there and they said let's get the snitches but what isn't in the record and wasn't a trial was why would what ever came out against mr lamar i mean when did anybody snitch against mr lamar in there was nothing to hide there was no victim that had ever done anything to mr lamar that would give him motive to do this other than just the general sniff out of someone else having a motive indicate that because that would because it would it would show to the jury this wasn't the  you know the the muslims deciding to have a riot and i think mr gordon said and therefore he tells keith and he warns them you know get a bunch of people to come in and out of the blue he decides what's going to witnesses but there's nothing connecting their actions with mr holmes tell a statement undermine what kelly because it gives a a viable motive as to why least one of these people who would have been killed for a specific reason not just the general it's there is a specific reason undermines the lack of the i guess i'm not following now but i sure does if you if there's someone other than mr lamar that had a reason to kill the you know huge in this case again we have the giglio standard of you have somebody who isn't based entirely upon inmate credibility there's nothing else that ties key to the case and i see that cannon were tried afterwards in that case obviously the prosecutor had second thoughts about the procedure in he did tie up the statements with the particular person when they found out they filed motions you know saying look this is what we would have done and then they kept trickling stuff and they were supplementing their true new trial motion through the trial and they filed a second new trial motion in which they said here's what we would have done they didn't do anything at trial because obviously they didn't have the person declared who had made the favorable statements or some point the statements and the yes the visual names were yes with yes when did you say that occur after march trial there are two other people tried for the same killings mr matthews and mr cannon in the pretrial motions for those trials they did tie up the names of the declarant with what was said in when counsel for lamar discovered this they when when you were given the names and statements of the summers of statements at that time initially what did you do to try to playing these statements interview witnesses all investigate these people whose names were provided at that well it's my understanding from the record is that they started to unfounded few tall it but they didn't follow up on every name they didn't go talk to every one of the forty three names in about defense counsel yes i'm going to how many to talk to i don't know that answer from the record i don't know isn't that important thing to know now i don't even if we agree with your i q man wouldn't we want to know but but here's the problem is that before in the hypothetical that you present what is being said is it's it's not the prosecutor who has the duty to provide the evidence to the defense they just have to throw crumbs and have the defense go get it i mean that's it's like the case is when you put that used to be you know four thousand pages of discovery and you have something scopa taurean one page in defense go find it but they are arguing for as i understand it that the information was not there the information might be otherwise available to you and that somehow lessen their brady obligation and i know you have your answers thank you very much may please the court or the state court concluded that lamar's application to reopen his direct appeal was untimely filed the district court was correct in observing that if lopez and pace case names applied to lamar's petition lamar would not be entitled to statutory tolling however the district court erred as a matter of law in applying the chevron oil balancing test to conclude that lopez and pace did not retroactively applied to a mars petition where harper rule of retroactivity clearly supplanted the chevron oil balancing test this court should reverse the district court on the statute of limitations matter and told under holland which would make you petition time specifically your honor the two word answer to that three were and if you want the three word answer to it was you know the one yes yes yes or no i mean when he filed it he had every reason to think under our own precedent that it was time and so i mean why should why should we penalize why shouldn't we grant equitable holding the somebody who relies on our precedents to think that their petition is time your honor and i'll answer that question to begin with this to be clear judge kathleen the warden does not dispute that at the time lamar filed his petition that circuit precedent allow lamar to conclude that the filing of any sort of application to reopen direct appeal with state court would be an act that wouldn't click off the statute that was pursuant to circuit precedent we're not disputing that as a matter of fact magistrate murmurs made that very conclusion so we're not disputing that point  that is correct now the second step in this is i believe it's important to keep in mind in terms of equitable tolling about circuit precedent the magistrate on that topic also concluded that because of the dynamics of that question of law as it was percolating through eventually to be reversed by lopez versus wilson the magistrate who the nature of the which way the wind was blowing correct pretty standard i mean i mean understood lower profit than i and i you know they that they should've known that our president was going to be tossed intersperse one issue we were there other cases though that distinguished braunau and said that in rule and anticipated locus but just were argued not to have sufficiently some judges that they didn't distinguish or could overrule wrong on others that it was different from right now your honor the circuit precedent which by virtue of circuit rules bro now was the lead case however there were other circuit limitations case or it was partner on the statute of limitations case brown yes well now was the case that said as far as ohio was concerned an application to reopen direct appeal was part of the direct appeal itself therefore it caused an application to reopen direct appeal to be sun type of tolling event since the statute was allowed a one year term until from the conclusion of direct appeal blown out said direct appeal was not over until an application to file to reopen direct appeal was filed  subsequently undone by lopez versus wilson but there were other panels in between time that said we disagree with the  and find some reason to distinguish it which cause the magistrate at the district court level to conclude in our own art that i hate this practitioner in the capital field would have known that all was on shaky ground meaning that there was another procedure basically you file the petition and ask for a stay in the bay is all it would have to do instead it getting right the and there there is three cases from this court there are reported in the a pelleas brief i believe the case names first names henderson johnson insurer would where this court has said and correctly so that where  has justifiably relied on circuit precedent that was subsequently overruled and this is the key point but they were diligent they were diligent in pursuit  the application to reopen direct appeal that was filed with the fourth district state court of appeals was filed on aug eleventh two thousand and four which was more thing am almost five years past the fourth district court of appeals decision the twenty six b procedure in the state of ohio said a timely twenty six b would be within ninety days if you file outside that submit an affidavit for good cause for the delay and in this case the twenty six b application to reopen appeal was fi to that question would be that the warden's position is that johnson versus united states five forty four us to ninety five two thousand and five which defines the due diligence as prompt action on the part of the petitioner as soon as he is in a position to realize he has an interest in challenging a permanent state court terminations would mean that for equitable tolling purposes state activity and federal activity are looked at together not just federal activity but it would be state and federal activity that's the warden's position it would come out of johnson versus united states the warden would also point out that in these this court's analysis of these three cases henderson johnson insurer would wear this court determined that reasonable reliance on overruled circuit precedent justified equitable tolling there was in those three cases a diligence analysis that included as i've read the case included diligence on the state side not just the federal side but in the warden's position is because this court and the henderson johnson and sure would case went to the extra effort of engaging in a diligence analysis it would lead the warden to conclude that this court has determined that in order to be entitled to equitable tolling for justif lions on overworld circuit precedent the petitioner also has to be diligent in state and federal court the warden's position is in this case that lamar was not diligent in state court he slumbered on his rights for a mere four and a half years and obviously the affidavit for just cause to excuse the delay was rejected not only by the fourth district court of appeals but by the ohio supreme court because the affidavit to excuse the delay essentially was a finger pointing that the other attorneys should have done something didn't do something and that excuse was not justifiable for the lack of diligence so the warden is and i believe that this court and where i wanted to look at where we are dealing with a collateral remedy or as opposed to direct review and question before the court is a question of federal statutory interpretation of twenty to forty four d it's a federal statute of limitations question and i do i am not aware of a circumstance where t would be called on to analyze a question of what petition is in fact civil litigation and the question is relative to twenty to forty four d a federal statute of limitations question so consequently even in terms of time has nothing to do with criminal adjudication or a criminal claim then really even have anything to do with the brady claim any of the hey biggest claims it has everything to do with whether or not s petition generically is or is not timely and under that analysis cases that discuss such as teague whether or not magnitude of the interest involved i'm just months years as simple as you're making your honor if i could respond to that i will say that the question of equitable tolling if in fact the court doesn't get to the question of equitable tolling unless it determines which the warden believes it should that this case was statutorily and timely if the statutory if if the if this court determines that the petition was timely file pursuant to the statute there's no reason to even discuss equitable because it statutorily timely but the warden's position is it statutorily untimely for the reasons expressed in the brief with that being said then the next step relative t questions of equitable tolling i think a key buzzword there is equity and the warden certainly would say that if this court is sitting as a in reference to the brady question i think it's important to keep in mind first i'd like to say that the warrants analysis  your the analysis the questioning that you are giving is consistent with the wardens position now with that being said factually i think it's important to keep in mind in this is getting actually getting back to the series of questions the judge kept which i asked you begin with there's about four hundred inmates in elf six during the ride actually there was a number of inmates who were actually compensated by the state from a lawsuit under the theory of failure to protect there was actually anecdotally is it that the state paid four million dollars to a group then mates who sued they were confined back in else related to the mix and match your honor there was four hundred there was four hundred trial the state provided the defense with a list of i believe it seventy six names essentially saying of all the inmates that were behind the walls during the riot they were not under the control of the state of ohio but were in some measure behind the walls at the riot here are seventy six names and they narrowed it down from four hundred seventy that is correct that's the lord's position arrow it down any further so the fact that they narrowed it down before doesn't really address their argument well your hon or the ones your answer is to there are even they have an argument makes a certain amount of sense i wonder what france or to it is the argument is you give us a bunch of names and a bunch of statements and you didn't connect them and so it wasn't very useful and at some level of abstraction it's got to be true that just giving people information without connecting it is going to be useless they're saying if you reach that here you gave a seventy six names or however many and you give us forty statements or however many in there isn't even the statements of the summaries of the statements and then said go to it you figure out the rest that seems to be the nature of their argument was the answer to that the answer is your honor that since the information was in the possession of the defense three months prior to trial along with an extra five thousand dollars for investigators fees why not just give it to him under sam your honor the rationale that was provided by the prosecutors at the time at the time of the disclosure was that there was security issues concerned so it would be insecure for them to have certain information your honor that was a rationale that was provided but they could get that information so how is that helping security just to make it harder for them to get the information they were getting well your honor the stable we want you to get the information we just want you to have a hard time getting it or we don't want you to get the information your honor the warden's position is that a brady violation initially requires of evidence that in this case there was not a setlist say that camouflaging it at some point becomes suppression and they could put all the words in alphabetical order and say you've got the words now put them together i mean at the is that the disclosures took place three months before trial with an additional five thousand dollars worth of investigative fees and the defense was not in any way precluded from narrowing down a list and then gave them the tools to to uncover the obscuring and that may not apart from whether that's a violation why would you do that your honor the answer to that question as provided by the prosecutors at the time this hearing and the ration now provided was it was for inmate security but you're not depending on your honor i don't i'm not attempting to defend or not defend i'm asking you're not sending it you're just saying that's what they did and we just go see what that's part of the state court record and the state of ohio was within reasonable balance what i mean i thought brady was a little more simple so i thought if the the prosecution possesses evidence favorable to the defense they have to give it to the facts here not this sort of well you know if we think we have a security reason or some other good reason we're going to just give some fragmentary information but we're not going to give the actual exculpatory or semi exculpatory statement we have and what case would the state point to for the proposition that brady has an exception that would allow the state to withhold those let's talk just what the statements of the state have forget about what's in the witnesses had the statements they have some statements that supposedly are somewhat exculpatory what case does the state point to that lets the state not provide that statement exculpatory information but only to a complete failure to disclose that's the case we would point to understand what you're in addition your honor the case of owens versus quita five forty nine f three d three ninety nine six circa two thousand and eight stands for the proposition that if the evidence in question is not wholly within the control of the prosecution which actually your honor the evidence if you're talking about evidence in court it's actually sitting inside the inmates head i mean one could argue that the statements that the prosecution had seventy two statements that were not provided that those themselves could be could have evidence or value because you couldn't peach from a witness who testifies contrary to his statement of trial but they never get those statements they have to go off and you know i mean they didn't do it but they have to go off and try to question these people themselves and your honor the words position is the state of ohio was within reasonable bounds to conclude that did not amount to a brady violation it's perhaps not the clearest friendliest type resolution but it's within band so there was an opportunity afforded different circumstances make different cases if this was perhaps the eve of trial this was two days before where there was no opportunity whatsoever and we would also like to point out that it would or rule is that of the state court reasoned and dealing with this issue in respect to what your honor how the state court is that how the state court rule is that what the state courts analysis was what you just say well this was a marriage determination by the highest supreme court and the ohio supreme court concluded that this is good enough to give this information to have ninety days materiality that this was a case where you know there was a physical evidence it was the credibility of the prosecution's witnesses against that of the defense witnesses and introducing into the mix a number of people who purportedly would say that they saw other people committing the murder might tip the balance of credibility in the defen e favor what's your answer material the very short answer is lamar's defense was alibi because what the jury heard from the defense which mr  did not have to put on a defense case but part of what the jury analyzed was lamar's defense that i wasn't even there not at all and as the court judge catfish pointed out in its questioning that none of the disputed statements took mr lamar out of the l six area which would have been consistent with his defense so the very to answer some questions in regard to the to the breeding opportunity to investigate one of the statements mentioned here was that five thousand dollars and one hundred dollars an hour that's fifty hours  whether that's relevant but all the supreme court decision you know i understand because defense counsel did in fact address that at the evidence rehearing in what he said is we tried and tried and we kept going up against a you know again that the difference is that when you ask was there a supreme court or allowed this sort of thing no because the supreme court decision say you can't play that game it's got to be straightforward they cited a six circuit case which said if there's a then it's fine as long as you give it in time and as long as that was complete the whole argument here is the way in which it was done it was never provided that it was tantamount to a deprivation what was even worse it was holding the carrot out in fro dog and not letting him you know catch it because you know there's something that's out there that can help you but you can never use it you can't find it it's even more frustrating what's going on and again the problem here is that the trial judge went along with this the trial judge actually assisted in the names and how to format this so that the state court finding when the supreme court said that's fine they found that this procedure was compliance with brady in that's where it's wrong that's where it's totally unreasonable application of brady and particularly of kyles the last point that i would like to make is in relation to the holland case this wasn't a case where four and a half years before he filed at this time with keith it is cases there was an appellate decision and then we got put in a position where it had to be ninety days the murnaghan had to be ninety days from the appellate decision so he would have had to have raised ineffective assistance on the same counsel who are representing him to the supreme court of ohio so during this four and a half years there was direct appeal litigation timely that was going on throughout this entire time when the there and you know if you there was a dispute over who was going to fire what was it two how public defenders was the people that were signed they weren't going to get paid so once it came out holland says there can't be a delay in the filing of the hey b s petition there's no mention in holland whatsoever with any delay in state courts and everything in state court outside of the twenty six b was timely filed there was litigation going out throughout this period of time state court that again throughout this entire procedure there was timely pending direct appeal litigation going on and when it was over  council who was appointed six months later how to choice we can depend on brown on in then if it's done which it was we presented this case to the district court in its entirety all the issues were done it was all exhausted there was no reason for stay in a bay which is not automatic in so it was presented in its entirety not piecemeal litigation to the court which would seem to be the reasonable way to do it especially at that time when you're depending upon circuit precedent so based on that the decision was eminently reasonable by counsel and certainly is not any type of undue delay for the filing of the petition and frankly for murnaghan itself because it was filed within a year of when the united states supreme court decision was so we're not talking about an extremely lengthy time thank you very much you know the cases