please come forward thank you your honor good morning may it please the court stephen wax legal director of the oregon innocence project for the appellant this appeal involves one issue whether mr b presented sufficient evidence of innocence to undermine confidence in the verdict and pass through the gateway so that the district court can assess and consider the substantial merits of his ineffective assistance of coun seedings my office the organism's project and many others have challenge that to date unsuccessfully so if we were to have done that we would not have been able to succeed in all likelihood unless the state supreme court changes would involve consideration of testimony from j b young woman who when she was seven made the allegation who at age fifteen recant has presented a videotape twelve minute duration to the district court to the extent that there are concerns about whether that recantation is reliable is the product of her memory and development as her therapist said when she was fourteen to fifteen just before this recantation she was working on developing an independent voice from her mother and her own independent voice those issues could be explored in addition the psychological experts who provided the declarations regarding child interviewing techniques and memory and the way in which memory can be tainted would be called as a witness if i had that opportunity and if it were needed to specifically address the district court statement that detective rodriguez says testimony at the trial that parents often conduct the st interview should not have outweighed the testimony of the experts that as one of the experts called it outrageous that it occurred in this way what a difference because her her recantation right now is pretty generic but you judge what she has said in the video is to give an explanation of why she came forward when she did with the recantation that was not tested judge marsh said well it's possible that her memory faded it's possible that she gave that  influence that hasn't been tested i think that before a recantation is rejected as a basis for passing through the schlub gateway the young woman now eighteen years old deserves the opportunity to look judge marsh in the i have him look her in the eye and to say judge this is the product of my own memory so you're suggesting that looking at the video was insufficient to you all proffered or i do not believe it was insufficient our position was in the district court and our position here is that we have presented sufficient evidence to pass through their slop gateway judge marsh said well a person could a reasonable juror could see it otherwise with that having been said we say as an alternative that this case should not be dismissed without further explanation of that issue now this is a very difficult and unusual situation i know it's a difficult situation i just trying to figure out if it's in the sense that unfortunately regrettably there are lot of children who are abused at a very young age various ages so i'm just trying to figure out so every time in any other case someone came comes forward an evidentiary hearing or just even just let it go through the shop date me no your honor this case is unique what we attempted to do in our brief and in the reply brief is distinguish the facts of this case from every other case decided by this court and what is your strongest case i'm curious that where this kind of evidence is enough to overcome there are very few much i can find which guidance about getting through the gateway well with with this kind of evidence is there any case out there that says you can get through it with this kind of the arnold case from the th circuit comes closest and we urge you to follow what they said there which is that recantations are difficult it's different than d n a it's different than other physical evidence but the reality is that on occasion false allegations are made and if a young lady comes forward and says it did not happen she deserves to be heard arnold said have an evidentiary hearing and what we see as so different in this case is the combination of the recantation she can't say x y and z happened when i was seven all she can say is i was not abused i'm not sure what more detail be provided as i read his opinion reviewing oregon law he is saying a lie detector tests are generally not considered reliable however in the schlock context the courts are clear that admissible and and i think that we gave the twenty eight dollars jail letter the gable case which i think is very important in terms of its pointing out how critical it is to assess not only the circumstances under which but also the circumstances under which the initial allegation is made here those circumstances were horrific state court granted custody to mr bean real world tells us granting custody to a father is unusual the animosity between mrs fane the child's mother and mr bain was extreme starting with the photograph you sent to him while he was serving at a forward operating base in afghanistan the five explicit threats including some foul language you're never going to get these kids but there in that case and gable you're talking about that yes that the witnesses  soon after their initial towse testimony and some even and i think it was during the trial and they each explained why they had to lie in the st place and i think in that case it was due to police coercion i and so i think i think it seems important that the core how none of the witnesses were close family members and in fact some had acrimonious relationships with the defendant when they had you only have i don't know if you want to respond over time but if you don't respond to that to be sure the gable facts are different what is the reality here in almost all child sex abuse cases you're going to have an allegation made with no eyewitnesses and no physical evidence on rare occasions a child later comes forward and says it didn't happen and even rarer occasions that's corroborated by an inquiry into the circumstances under which the initial allegation was the combination that's presented here of the threats which the jury didn't hear of the expert psychological testimony which the jury didn't hear that significantly impeaches and undermines the circumstances of the initial allegation with a young woman who you've had the opportunity to see who says i submit in a very poised way once i got out from under my mother although i started to question this while living with her and went through therapy i can now information here that the paternal family strongly believes that this did not happen she was allowed to speak to the petitioner while he was in custody there's just a lot of facts here that are distinguishable from any of the other cases and i think unfortunately we can the basis if you're wanting us to do a searching with the best response i can give your honor is if you have those concerns order a hearing and let her and the grandmother testify and provide under cross examination more complete explanation than it was but that's not the standard under the facts of that case and the facts of this is in essence the courts are saying there's look gateway can never be opened with a written and that it seems to me i would submit is not or every case will be so opened with th with respect your honor and i'm just i'm not i'm just asking that to challenge you i just because it's so let me say one extreme i can state the other and i'm just so i'm not appreciate that trying to send you in any way i want to having a hearing means you meet the gateway just means that we that we would view that on a record means that as we did in jones for example yes it means we would go back to the district court and we would make the best argument we could and hope that  live testimony and interaction between j b and the court would convince the court that her memory has not faded that she's offering her own independent statement this did not happen and we then get to the merits that are incredibly you may not get to you may not get to the midpoint the judge may say i've heard everything you haven't met the schlub standard i'm not going to the merits understood and that's what we hope we at least get the opportunity p's testimony was the only direct evidence of it was indeed it was the only evidence there was the initial accusation the context in which the initial accusation was because j j b allegedly said something to her brother and it was the circumstances surrounding the initial accusation provide search some circumstantial indicia of reliability that support that beyond simply being absence of j b s accusation you would not have a case would you correct ok and we've got three lie detector tests which the judge says without any other explanation are unreliable how can we review those conclusions some of which seem to be credibility determines without enough attention or hearing well i think the most interesting aspect of that to me is that i'm it's unclear to me what exactly the sort of evidence sheree findings are predicate to walk in let me give you up now let me give you an example if if lie detector tests even if not nature of him the judge saying that they were unreliable was a categorical determination that even if they had been presented there's nothing that would happen in the context of an evidentiary hearing that would change what is now let's hear the record ability when the judge couldn't a judge determine the reliability of those tests and you have an entry here i think you could determine the reliability of those tests from the documents that were presented to him and so you think this judge made a determination on these documents that these particular tests were unreliable think no i think the nature of the judge's ruling was more closely polygraph evidence is not reliable evidence of absence but there's more of this now that it is not a mistake in the in the shop context i don't think cases say if you have a lie detector of innocence and therefore i think as i read the opinion therefore they were necessarily going to carry less weight in the totality of the account he said i'm not going to consider them because they're on reliable as i read it so and so i'm guess i think we're  for cases like this involving young children and a conviction based on the child's testimony or what kind of evidence aside i guess from direct examination which we have goes back to the whole of it entry hearing so the judge is analyzing the inference is that reasonable jurors could draw from this total record but that's why i'm having a difficult time the judge says i assume that she wasn't unduly as in making the  well i think he's also acknowledging that the record the record relevant to the shlep analysis also would permit reasonable jurors to infer that the recantation was not just influenced by the family but in terms of basically a gradual process in which the memory of the initial event faded and the general context of doubt that she's surrounded by as she grows up leave question or question  that the district court performed in this case and it determined correctly that that evidence failed to establish that that no reasonable juror would now vote to convict in other words a reasonable juror considering all the  issues involved there are whether given the sort of procedural nature you know the federal courts have only ever assumed without deciding that in freestanding actual innocence right is there one in oregon i know well so the most recent court of appeals case on that sort of goes through the same process of saying we assume without deciding that this claim exists but even if it did exist the petitioner in that case would have been able to have that leads to the question i really want to ask you which is if they refile this in state court would the state the verdict in this case was not unanimous it was ten to two we believe that that's significant to the slope consideration because there was a weak case one of the factors that the court has to consider in a in these circumstances we submit that even a small piece of new evidence would likely have tipped the balance and lead no reasonable juror to convict nd point that i'd like to make use the phrase preclude the possibility of a reasonable juror saying guilty respectfully submit that there is a significant difference between proving innocence and raising a substantial question a sufficient question that a person would not be found that no reasonable juror would this could would divide we submit occasionally gets confused and we heard that in the state