issue in this case because mr sentence capital conviction is the result of a due process and as the court knows there are two main issues in front of the court brady violation and claim of ineffective assistance at sentencing i'm going to spend most of my time talking about the brady violation and if time permits i'll discuss sentencing bille ation is a close question the court is faced with competing legal principles and the fact that this is brady violation was not discovered until mr mr sentance case came into federal court and the state of tennessee waived exhaustion the district court permitted an evidentiary hearing and made made factual findings and legal determinations so there there is no deference and this court may apply the constitutional principles that as it sees fit so is it clear that when you said they waived i had the same thought they waived exhaustion that vitiate the cullen versus pen holster ruling or is it that cohen only applies when you are applying a the district court over whether this this evidence could have been developed in state court mr sutton the evidence actually after his case had completed post conviction at the trial level the tennessee board of medical examiners released an order revoking dr harlan slides a step back the issue of when death happened was clearly at issue in the state proceedings right so it wasn't newly discovered in that sense that's that's correct the issue was the qualifications or the attacks appalling one or more of the witnesses the issue is that the state of tennessee called dr harlan that was the trial that was the only scientific evidence that the state offer in support of its theory about the case  qualifications and he made a point of saying that because he was a license for in sick have ologist and because he was the state of tennessee as medical examiner he had better qualifications and then dr wolfe who was mr sutton's expert about the time when you said he was or was that was it clear that that was past tense because there was stuff in the public press he was no longer the state of tennessee medical examiner at the time of the trial is that correct there was defense counsel ask dr harlan to clarify that specific issue and dr harlan explained that that was a matter of debate there was some press at that time because dr harlan was involved in such a political dispute with then mayor of nashville bredesen however almost all of the brady material that's in this record were confidential t b i files and we're not public records and are so far removed from the political skirmishing that dr harlan was having at that t i'd also point out that one of the discovery missions in the district court this day the attorney general's office agreed to provide the discovery as long as a protective order was put in place and the only way the bulk of this discovery the bulk of the brady material could have come to light was through federally ordered discovery but even even as dr harlan testified in this trial we now know and the tb i knew at the time of this trial that dr harlan was under investigation even as he sat in the witness stand he was under investigation by the tennessee bureau of investigation several of the investigations are quite frankly shocking there investigated there are findings that dr harlan fabricated causes of death that he missed causes of death that he falsified death certificates there was an investigation into whether he was allowing and why soon non medical people to conduct autopsies there was an investigation into whether he committed questionable billing practices and problem that the t v i had with dr harlan was there would be a case that was obviously a criminal homicide case and dr harlan would come back that it was an accidental death and so to me i had sought outside expert opinion that opinions to try to understand this and one of the experts in particular reviewed one of the cases dr harlan worked on and noted that it was far outside the professional standards that one expects of a medical examiner and all of this investigation by t had extensive and investigation it's fair to say they were the lead investigative agency t b i conducted numerous and i mean i believe it was around thirty five witness investigation witness interviews every step of the way in this investigation when t v hack conducted a witness interview they topped up a report and sent it to the prosecutor  agents take statements from gary certain t b i agents testified at his jury trial and there's there's no question but the t b i led the investigation in this case but your your point is also that t b i simultaneously with investigating dr carl and dr harlan yes yes the same tom yes that the timeframe of those overlap there on all fours and the district court when it held a hearing it was constrained to find that this evidence was tory and i don't believe the prosecution is going to say it was there the attorney general is going to say it was not clearly open torrey in the sense of it would have been extremely useful for cross examination really yes if you knock it definitely would help you to knock out his testimony and if you knock out his testimony you're you rely better than back on circumstantial evidence alone is that a fair reading it is and  the supreme court has said that when you're looking at the materiality of evidence what you need to do is look at how did the prosecution view this evidence  after mr sutton had called dr wolfe who was a general practitioner who had served as a county coroner and although he was poorly qualified he was experienced with things that indicate what a fresh body is so after dr wolfe explained these factors to the jury that was the end of the case the the defense rested and instead of moving on to closing argument the prosecution was able to persuade the trial court to halt proceedings and general flynn testified at the evidentiary hearing that he called the the tennessee attorney general's conference and asked to help for help finding the witness dr harlan travel from nashville to bl county overnight and then appeared the next day to testify so clearly dr wolf's testimony about time of death instilled at least in general some doubt about his case otherwise the case would have moved forward at that point this this all of this happened over labor day weekend and the parties had been in witnesses there was no other scientific evidence i'm no i'm but there's a lot to like there is light has it money that they heard gunshots at a certain time of night and that the body was and there's all this evidence about what happened on that night between griffin on the one hand sutton and della drove the other that is correct and her honor brings up an interesting point which is that sutton was actually very close friends with griffon he was as is discussed in the sentencing section mr sutton was very close friends with griffin but he was answer the court's question there is a witness who testified that he heard gunshots at the time the state posits and this was in an area near the great smoky mountains national park in in  lave based on a prosecution personal knowledge requirement and we now know that there are several supreme court cases that say there's not a requirement that the prosecution have personal knowledge when we filed a motion to alter or a me and and argued this case law to the court and talked about the overlap in the tennessee bureau of investigation that the for knology of that the court did grant a certificate of appeal ability and noted that maybe there's not a personal knowledge requirement of the prosecutor but there needs to be a personal knowledge requirement of the person he possesses the person who possesses this evidence needs to be on the team is basically what the district court came down with and i think that's a difficult issue here i mean in terms of how far the net goes if the people if it's the t b i in nashville and none of them are working on this trial in blunt county it's a different part of the state is that enough to break the chain what do you think the law on that is at i think the law is very clear that the prosecution is the architect of the proceeding that's what this supreme court said in one hundred sixty seven in brady versus maryland and arlen as you just explained harlan is not on the prosecution team until the day or so before so the prosecutor here in blunt county pulls in harlan and in some way you've got to you know they're all called state attorneys general but it's the district attorney general it's this blunt county team that you need to connect to harlan's problems right that's i'm not sure i agree with that i think anybody t by by any criminal in the by t b i somewhere in the state that that's attributed to a prosecutor there is actually overlap in the t v as far as there who were experts who testified right essentially though from the timeline you gave us all that's happening before they reach out to look for an expert and happened to get karl that's not like the same tim if the same t b i agents had recommended him you'd be way ahead of the game i would and that's what makes this case difficult that's why i'm trying to help it out how much that tim is the director of the tennessee bureau of investigation had investigated complaints about dr harlan coming into the tennessee bureau of investigation lab and the t v ad director and insistent director had issued directives that dr harlan was not to come in to the to see bureau of investigation laboratory am i right here you write that he had reached out to the attorneys general association together and he didn't reach out to the t b i to get it wasn't the t that recommended harlan it was these other attorneys general that's correct your honor and that that brings up an interesting point which is that on direct appeal mr sens defense attorneys jumped up and down about dr harlan there's this witness we've had no notice on it we can't really do it in a motion for a new probably because we don't have investigative services the end and that turkey general's office argued that that argument should fail everything bad about harland it was public but a lot of bad stuff was public right i mean that he had been discharged that he'd had sexual harassment that he said this girl had laryngitis when she died of a drug overdose and so on and so on that was all in the public press was that none of that recognized in the in blunt county during the trial that they just not know about it they did not know about that and that stuff is inflammatory and the sexual harassment charges  inflammatory but the depth of the bad conduct and the fact that there were no yep i quite agree i quite agree with you that the depth is is quite additional but i was just interested in whether it's sort of looked to me as though there was in the public domain it might not have been found by the defense attorneys at that moment they only had a couple of days you're quite right but there certainly was stuff that could have been used but basically they simply didn't come up with that is that correct dr harlan negotiated his departure from the city of nashville and part of that negotiation was we're not going to throw stones at each other so also discharges the state medical examiner i mean i know he started out with trouble in nashville but am i right he was the state medical examiner and then he was discharged before the trial and that was in the public domain he may have argued that he was still the state medical examiner but that fight was in the public domain am i right the fact that he left his position as the state medical examiner that was in the public domain the reasons for that were not and a lot of that material is in the it was good covered in discovery is your honor to be harlan i'm out of time but if the court permits meowing answer the question that is correct as far as the agents on the ground there was a t v detective david davenport who did a lot of the questioning and he operated in east tennessee however it's also correct that tb are the director of t b i and the assistant director over saw all of the investigations that happened and also oversaw the investigations into dr who i mean it gets there in a single agency so of course the gap at the top and you know perhaps another administrator or two i mean this is the folks who oversee the work of the people working on the harlan investigation and the folks who are king of such an investigation would be they would have to be under common name may please the court next bangla in behalf of the respondent here the district court correctly denied the petitioners bready claim because the impeachment evidence regarding dr harlan was simply not material and there are two reasons for this the first reason is that police came and picked the the victim up for public intoxication he admitted that he'd been fighting with his friends later that night witness assault delimiters truck with the passenger inside the passenger seat leaving the victim's trailer just before it went up twenty five pm and just thirty minutes later two gunshots were heard in a remote area where the victim's body was later found the victim died from a gunshot wound to the back of the head a shotgun wound to the back of the head and two shotgun shells the  chose to point out that there is no scientific evidence linking the defendants to this murder but that's not true to say shotgun shells found near the victim's body were determined to be fired from the same weapon discharged a number of spent cartridges found  job at the same time we have all this other circumstantial proof about these two men being together on the entire night at the victim's murder when the victim's sister began inquiring or began asking questions about her brother's whereabouts took her to a bar and got her drunk one of the bartenders there stated that she remembered the seeing the two men with the victim the night before and at that point sudden asked her to leave the bar with him and when she declined he threatened  honor i believe it was admitted for the purpose of showing motive that they were going to cut that they did that to cover up the capital murder case before this court that three zero three shell casing found in the byrd medical was also determined to be fired from a weapon later found in del holland's testimony is rebuttal evidence was simply not essential to the jury's verdict indeed harmon's time of death testimony was largely superfluid given that the defense expert conceded that he was not qualified to testify about time of death and he also his testimony that it was very unlikely that the victim was shot three days before he was found it was only unlikely he did not exclude the possibility that the victim was shot within the window of time that the prosecutor was worried enough  completely negate harlan's testimony of the impeachment or even if we imagine that it was completely negated permitted from the trial we're still like look at this strong circumstantial proof of the victim's guilt and ultimately the defense expert testimony th essentially meaningless given that he testifies he's not even qualified to give testimony about this something he says something like that but the evidence was excluded so we're kind of speculating because actually that part about he wasn't and he says something that's going to potentially have some impact on the jury on forcing your part in position what we're sort of have to speculate about what the jury would have done had this in haarlem testimony been impinged go to your view though as the we we take out both experts and we just leave the jury thinking about the circumstantial evidence which is reasonably and we take out the defense expert from the standpoint because he testified that he's not qualified both now was there a motion any kind of motion to exclude or restrike his testimony not that i'm aware of your honor  reasonable probability not a reasonable possibility that this would not change the verdict but a reasonable probability which is it was or certainly a higher summit let me ask you then i haven't heard you contradict them with respect to the fact that we put this time of death into serious question you put on somebody you brought it back in but what what should we take away from that or did the district court make a finding that would help us there or again look at it and say how close is that the standard is we have to sort of look at what the proof was in the proof was that we had this defense expert who conceded that it wasn't qualified and then we have the harland proof that art you know arguably was subject to some impeachment but that's what that's sort of  scenario we're left to speculate about notwithstanding any proof that they later put on during what why did we get there because of mike my first thought in this was call and you shouldn't have done all this but apparently there wasn't any objection  you did go through it so what under those circumstances what's the wait or what's the standard that we look at that evidence with the district court looked at that evidence with certain your honor and and i guess again it's a separate issue as to what they showed during the federal hay vs hearing and the actual issue which is what the effect of impeaching information regarding dr harlan would be so even though i understand you're saying because of the depth of deference maybe we can consider this other evidence about what the time  death actually was that's that's not exactly the question before the court the question is the effect of the impeachment material are you saying that the only question when we're thinking about prejudice is was there a reasonable probability that having the brady material if it is brady material in hand would have had on that jury at that time that's exactly my point then then why what was the reaction now for me it seems like the hearing if assuming it's appropriate was appropriate the hearing before the district court would have been limited to questions like what information was known to the tb yeah at the time of the trial was there any real between the t v yeah personnel who had the information that dr harlan and outside those parameters and as far as why there was no object there really that's something i probably i'm just not able to speak about i was not i'm sort of playing second chair here i'm coming into the case pretty late in the game and i don't know why there was no objection i understand that evidence that came in and just from our review the record did relate more to the imputation issue rather than materiality and certainly it's true as petitioner wanted out i don't believe that the district court ruled on the basis of materiality but certainly this court is entitled to to find any alternative bases that support the district court's ultimate ruling the petitioner should not receive relief on this bridge climb the second point that i'd like to jump to something that was raised earlier as well the district court also correctly denied the petitioners brady claim because the impeachment evidence was available from a source other than the prosecution brady does not apply to information that's not wholly within the prosecution's control or information that's available from another source as evidence about nine hundred ninety five knoxville news sentinel article as well as a civil a nine hundred ninety five civil action for  technology that he had like some computers and whatnot that the state was trying to recover and the petitioner makes the point that within this news oracle and with within that civil action all the information about t v oz investigation was not necessarily included with that and while that may be true the standard is under owens v greta should the petitioner have known the essential facts permitting him to take advantage of any exculpatory information and certainly via these media reports his contemporaneous media reports and contemporaneous civil court filings the petitioner could have been independently from anything that the prosecution disclosed would have been able to affirmatively impeach him on whether or not he was the medical examiner examiner establish that he wasn't and certainly be able to point out other questions about professional misconduct that raised by these media articles such as sexual harassment suits questions that were being raised regarding his determinations on autopsies these were all this is all subject matter that was it was raised w accounts concerning questions about autopsy there was one article i believe that talked about he had come to the conclusion that the cause of death was accidental and that there  some sort of disagreement among local law enforcement about that conclusion to the extent that they went in obtained another another autopsy related to one k relating to what case did you say line what one case as far as i  independently available to the petitioner or he could have cross examined harlan or that he could have cross examined harlan about it and you could also of attack his coming on at all since he came in in this sort of late way that is you might  that with that in hand you might have persuaded the judge that perhaps he wasn't the right guy to certainly and that in that there is a lot of positions that we can't nit pick about specifically what information was different in the t b i falzon versus the information that was in these contemporaneous media reports  you mean in this other case now i am referring to this case to me he's brought in the got to be relying on records or something i mean he wasn't the he wasn't the doctor the conduct of the actual autopsy or i and i was part of the basis that they had in testify because he reported that the time of death appeared to be within i think either the last twenty four hours or more recently than william was that ellington ellington so ellington did testify he did testify and specifically at least i believe this is the case he testified because there was this problem in his i don't know if it was an autopsy report or just a report generally examining the body that i think it said total death unknown or unspecified and something to the effect that maybe it was more recent than the state h theorized and so i think the state felt it was necessary to bring him in to say look i'm not i'm not qualified i'm not ellington did testify then they brought in their expert that attacked him and again they did seem worried enough that they wanted somebody  to but the third point to make is the district court directly denied the petitioners brady claimed because the prosecution had no actual or imputed knowledge of the investigation concerning dr harlan brady does not require the prosecution to discover disclose information that it does not possess or know about why the prosecution is presumed to know about information connected in connection with its investigation of the case a prosecutor has no obligation to learn about information possessed by other government agencies having no involvement in the prosecution or investigation of that case brady may only brady material may only be imputed to the prosecution team that means those over whom the prosecutor has authority here the prosecution team did not include anyone with actual knowledge of the harlem and information that is the prosecutors had no authority over any individual from any agency that had knowledge of this harlan information the only state agents with knowledge of the harland investigation were employees of the department of health  tennessee bureau of investigation and even the attorney general's office but those agencies investigations of dr harlan should not be imputed to the prosecution because those investigations were indeed separate and apart from the from the prosecution's investigation of this capital murder case agents admittedly participated in the investigation of this capital murder case none of those agents were involved in the unrelated harlen investigation and vice versa while other t b i agents were certainly involved in the harlan investigation none of those agents were actually part of the prosecution team thus the knowledge of what i'd call these non prosecution team agents from the t b i must not be imputed to the prosecution because to do so would a spouse a monolithic view of the government a view that federal court have repeatedly declined to take for example in the strickler decision the supreme court held that are prosecutors do to you to learn of the exculpatory evidence extends only to information known by others acting on the government's behalf in the particular case being prosecuted similarly and look the second circuit refused to impute knowledge of exculpatory f b i reports even though certain f b i agents were part of the prosecution team because those f b i reports were prepared by other f b i agents that had no role on the prosecution team and similarly similarly in quinn the second circuit refused to impute the knowledge of the u s attorney from florida to that attorney or u s attorney from new york and what that demonstrates both in quintanilla caution is that a government agency  employees that are part of the prosecution team and employees that are not part of the prosecution team but that the knowledge of those non prosecution team employees need not be imputed to the prosecution unless those matter less unless they're actually on the prosecution team that may sound like a little bit circular logic but it's important to focus on the involvement of the specific individuals of an agency rather than the agency as a whole and i think that's particularly appropriate in cases like this where you have a more senior level senior level investigative agency that's not directly beholden to a local district attorney's office some familiar with a law that says local police that knowledge is imputed to the district district attorney but that's that makes sense because of the close relationship between those law enforcement agencies versus when you have sort of a higher level investigative agency that all the information that's known to them should not necessarily be imputed to a local local prosecutor's office again because no one on the prosecution team had knowledge or information about the harlem core correctly denied relief and i believe i will limit my argument to this issue since we did not address the ineffective assistance claim unless the court has specific questions about that claim or any further questions about this claim and  the court had some questions about dr ellington and certainly encourage the court to look very closely at the trial in the district court record dr ellington was the blunt county medical examiner and he he did do the autopsy on mr griffin and on his autopsy report he wrote that the date of death was the date the body was found the the district attorney file has a note about conversations with dr ellington in which the district attorney noted although dr ellington believes he's not qualified he is not is not a forensic medical examiner he still believes this is a fresh body so right in the beginning the prosecution had an autopsy report that didn't fit with its theory of the case and when the prosecution called dr ellington they have a phone conversation about this and dr ellington says ok well that's that's outside my expertise but i still think it's a fresh body and that's in the prosecution  they never from the beginning this was an issue or are you saying that's brady material that you eat or you did get it we offered that at the district court level ok so you had that he testified in person to something you examined him or undermined him so that's all on the record is dr ellington testified at the jury trial that he did the autopsy and that on cross examination they tried to bring out the several well established factors that control time of death and dr ellington stuck to the prosecution line that's not my expertise and it's pretty  and they knew they had the autopsy report this is one time of death and when they interviewed him prior to trial he had the opinion this is outside my expertise and i just want to be clear about this so you did not make any brady claim about some notes that the prosecutor had where he persists in saying it was a fresh body and you didn't have that note or you saying that you really had the same information from the autopsy report and from talking to dr ellington defense counsel had that information about what dr ellington for purposes of troubles yes you had the just to be more specific you had the information that he had recut lack of there were informal opinion to the prosecutor that it appeared to have to be a fresh body although he was not qualified to give an opinion that's correct and he that the defense attorneys had talked with so dr walsh and dr harlan neither one of those experts had the opportunity to view the body they were looking at when form one issue went out and violent that was a death scene checklist that was completed by first responders that noted several factors like the presence of rigor mortis the lack of decomposition and these are the type of facts that dr walsh said yeah everybody that's in this business looks at this and based on these well known factors this is a fresh body but the prosecution was able to we there was a discussion about whether dr wolfe conceded his  actually had a very heated argument with the jury out as to whether they could get dr wolfe to say he's not qualified and the trial court instructed the prosecutor he could no cross examination which i'd probably made that is clear is my head and i would like to follow up on and the standard for materiality it's not a sufficiency of the evidence sutton does not have to show that he would've had an acquittal all he needs to show is that this evidence would have ender mond the jury's car would have ender month confidence in the verdict let me ask you that  i was interested in what the next thing you were going to say was because i've seen cases that use the phrase a reasonable probability of a different outcome and i've seen cases that use the phrase that you did sufficient to undermine confidence in the in the outcome are those alternatives or is one a definition of the other or am i using them in the wrong context or are they really the same i believe they're the same thing honor and it's is this a verdict worthy of this court's confidence knowing that the jury was invited to consider dr harlan's testimony and knowing that the jury didn't have accurate information about dr harlan i would like to point out that the district court classified the evidence as a battle of the  experts he stated this case is about all of the experts so given that it's a battle of the experts the jury should have very expert the jury and the the jury should have had accurate information about each expert also did his own have a question i also invite the court to look very carefully at all of the records to be clear there was inflammatory news articles about dr harlan six expats there were a lawsuit saying dr harlan seem to be a bit of a media person but the extent of and professional gaffes and the use of nonexistent science which is documented in the t v after that was not in the newspaper that was not a public record that was only undercover undercover through federally ordered investigation counsel what i was going to ask was in terms of a battle of the experts at the district in the federal district court level you also had sort of a battle of experts and we had some discussion about that did the district court make any incredible testimony that you could pinpoint the time of day you know precisely by looking at slides so the district court stated that because there was a hearing he didn't want to dissect the claims he would let the parties put on their proof that that was the court's reasoning for that and there was also as as the attorney general argued there's a question about d so there was in the petition there was an ineffective assistance claim based on using dr war and so that was part of the district court's reasoning for permitting everything they can here ultimate finding as a result finding of fact from what all the experts said before him as far as the time of death or anything he did know what he he just said well there you know it's an imprecise science you've got a both talk about the prosecution duty to inquire to actively inquire about the presence of brady material the prosecutor at this case testified that he never asked a single person about brady material related to  harlan and it's for that reason that although this is a close case fundamental fairness would suggest that mr sutton should get a new jury trial ask you about that last thing because that's actually rob's going to come back to you to both press you and let you sum up which was you started out by saying this is a close case a lot of the things you've argued i'm sure you don't think are even close what's the part that makes it close that ought to be the last thing we look at it turning on is it is it close because it might be material is it close because it might be prejudicial is it close because they might not have known which part of it is close i'm sure some of them you think are not even close i think that that lower court right and that judge marlin was troubled by that but i would argue that the supreme court precedent is consistent from not hundred sixty up to now that the prosecution is the architect of the proceeding and their goal is to see that justice is done and in this case phrase come from particular case it came from berger and in this case the prosecution was troubled about its  trial it found it expert but it didn't ask a single question on an expert who's available on labor day weekend didn't ask a single question and that does not comport w impala that why bet on that labor day who didn't ask a thing good question of anybody i know that you make the point that the prosecutor didn't cast the net wider or not is that the think a question we're talking about correct the supreme court says the a i mean i felt like it's something a disciplinary matter would consider but what do we do with the i don't question the question for this court is was gary sentence trial failure under brady and due process that that is the rubric that this court is going to look at going to be one peter that will put in there that analysis of how you figure it well that get in