speaking only for myself at this point it seems to me that everything's got procedurally a lot more complicated than it needs to be normally when there's no we've discovered evidence one asks the district court for her mission guess we have these two documents but we don't have anything on the record from the state to put them in context we've got some things in the briefing last month i don't think we're very well suited to evaluate it was their duty to tell the trial court at the moment that their memory of them was drafted but we don't even know what it means perjury about what i guess it seems to me just cries out for a kind of factual development that position i will be pleased to receive it because i think it makes your case a little easier but here's here's where it stands and i think for relevant part last action taken defendant perjurers of a trial prelims after six twenty four eighty petition to state newly discovered claims then have an evidentiary hearing on those claims or not and if the court refuses to entertain the amendment and then take whatever appeal may be appropriate you know the record indicates very early in this trial that there was a fact that the district attorney arranged a meeting to allow the defense to go through the entire prosecution file in this case and i have no information that meeting ever occurred that all these documents at one point or another would in made places around well if in fact the representation was made at the rope and that you were getting everything that we have because we have an open file and that was relied upon that might raise a question if in fact what th what the arrangement i think you don't take my point if it is brady material the prosecutor has an obligation to turn over it is not enough to say we have an open file proceeding you're right i agree with you on that point the exceptions to exhaustion ordinarily would be if we were to waive it or if they would be if they were to be any available corrective remedy in the state court  because later for any kind of procedural default that might be raised in the state court upon return but i don't think we're going to see the excuse exhaustible of that claim even if that even if the evidence was developed in federal court is not unusual two sentences say that this was punishment is immaterial now we have a situation in which all three of the participants are needed by the state of california attorney general but all three are equally guilty of murder your honor what you are referring to is the fact that the district attorney made testimonial agreements with both women in return for their testimony against mr morris and that they received reduced charges or no charges at all in return for their testimony for fulfillment of under other obligations other conditions in that agreement which is not unusual in that unconstitutional and that was fully disclosed during the trial  mr morris about what what the treatment was of those two women and so anything about the disparity or or wherever between how those women were treated as opposed to mr morris was fully conveyed and explained at  they were all principles because they were accomplices either as in the felony murder of this or van zandt why did you why did you want to kill somebody execute somebody and on the other hand you have somebody who even threaten the killer mother only three years for an agreement with the previous district attorney this year accounting at that point the way the agreement read assuming she filled the conditions we were in or didn't fulfill the conditions that group were under no obligation to give her the reduced the petition i had struck to amend the complaint in the district court manged on this new evidence on these two documents that recently showed up would you have opposed the amendment on the ground that it was not within the scope of the  this case but not and that's what the discussions have been about than what the mandate was as if it related to other issues that we thought this court already disposed of maybe that's caused so questions and that's where there have been questions below about how far the based upon the scope of our prior remained you might have objected saying you can't amend now but it would have been a rule fifteen argument that's correct ok that would be correct your honor and it would seem to me that based sort of thinking aloud here hasn't been raised that way you know this is come up before in prior discovery motions have been raised in this court on which they want to get full access again to the prosecution's files and all and that's all been part of their ongoing attempt to get information what the defendant believes at this well if your honor if we were having the trial right now and this is information that mr morris wanted to try to to introduce  point you become aware of the existence of these two documents but i was not aware of the existence of the letter for michelle roberts until we actually had a chance to part of the of the entire package of information we delivered even when i deliberate frankly the letter had no significance to me the notation in the file i saw in one thousand nine hundred six when i first looked at this file and how we lost when you first see that we're perjury that's a pretty loaded word and i sought and i read the rest of the record i read it in context i read what miss told her probation officer but wh she was concerned about i was familiar with the i can see my time is spent is nearly all snake you and concluded that exactly as mr marshall is indicated that this wasn't in fact part of the inquiry that our office made to determine whether or not she should receive the benefit of her deal based on the kind of testimony she gave at that trial and ultimately decided to go ahead and give her the benefit of that deal but it was not because there was any undisclosed falsity or undisclosed perjury  in her testimony they had to go with the nature of her testimony itself which in fact as everybody in that at the time of trial had some problematic issues with it prosecution admitted it very literally changed  testimony types during the trial is no doubt that she had problems with complete and truthful testimony and then we had to decide were not we would maintain our obligation whether or not to give really the benefit of the agreement and not only that decision was made to go ahead and do so the mark first we cannot help you know the irony in an argument years after a trial or an opportunity to do with the constitution required of the proponent of the argument before the trial began to ensure that it would be fair it is the well i'm not sure of the obligation always extends there are if i'm a prosecutor and i think that might have occurred i think i might have an obligation to investigate to determine whether it has and then based on my best friend and if i think it has i have an that's obviously since this case is still pending i'm not aware of any final decisions made about what's your calendar may choose or not choose to do about the penalty obviously what they may do we're not used to be affected by what ultimately happens and in the in the proceedings exactly you settle a case in which a jury is already convicted the man and we don't believe that there's really anything to add to what's already been presented to that jury so as a matter of principle a concept at the moment i don't see what mediation would accomplish