morning we're on record in case number ten dash nine nine zero zero nine sanders versus cullen we have just the one case on the calendar this morning and are ready to hear arguments so you make good morning  three exhibits that i have today are the prosecution's notes regarding leslie white were eighteen and four twenty nine yes and that's it and i so the blow up there although that's fine that's fine i think mistaken eyewitness identification lying criminal informants and prosecutorial misconduct are the leading causes of wrongful convictions and this case has an abundance of all three of those factors exhibits solid credible evidence in the form of transcripts and notes in the prosecutor's own handwriting that detailed the tampering of witnesses in this case tampering of evidence manufacturing of evidence and here we are beyond any fair minded i scuse me beyond any up possibility of fair minded just agreement that he made a prim and he was entitled to an order to show us discovery and an evidentiary hearing and here we are twenty two years later and he has yet to have a discovery or an evidentiary hearing  the two witnesses that i wish to discuss today this morning of course i'll be happy to answer whatever questions of course but the two witnesses that i wish to discuss are the jailhouse informants leslie white who is being used behind the vulnerable victim eyewitness also do you have anything in the record should tell us when that relationship started we don't know specifically but what we do know is there is a time when we know that abramson asked for a discovery hearing because she had some inkling that leslie white was tampering with defense witnesses she had some inkling that tammy rogel way was involved with other prison inmates one of whom was r defense and mr guess and testified under oath that tammy rolled away was involved with leslie white in a quote unquote sordid romantically sordid sort of way he so that's the first we learn that that there was this relationship but we don't know the whole truth and i think it's important in terms of think you got some of this information later long after the trial pursuant to public record disclosure request but when you said just then we don't know the full truth you mean at the time before trial you didn't know the full truth no ok and so what was left out simultaneously right those are those are my understanding from the record as those two events happened months apart that i'm that i'm not sure about because i think mr guest was kind of vague about what exactly was going on but what i want  to emphasize about why what was not known and why this relationship this actual relationship was not known i would really like first of all to quote something from you know and versus united states as an opinion of justice o'connor it's just a quote it's not the whole thing but she says one of the most effective ways to lie is to mix falshood with truth especially truth that seems particularly persuasive because identification from the video of the lifeline up yes i know your there's another issue on the last card and all that but there were officers who testified that she did identify mr sanders from the video so do we know whether leslie white had a relationship with tammy rocha away at the time that she made that and we don't know that but i would like to discuss that a lineup a done if occasion because that's very important let's go back to the preliminary hearing guess the prosecutor he says you did not it's a leading question even you did not a den of fi anybody had that video of did you and she says no ok so that testimony right there is buried in it's a little problematic because there are several i think three questions about her ability to identify freeman freeman freeman freeman and then it says you didn't pick anybody out of eline up and she says israel says no and then the next question again  it back back to the question about freeman so by my read and i just want to give you a fair chance to respond short by my read that page if you will of transcript when i read the whole thing together it's hard for me to know whether miserable w intended to be saying that she didn't pick freeman or whether she was intending to say that she really didn't pick anybody at all out of the video lineup on january second well first of all the word anybody is anybody but what happened further on in that preliminary hearing does show that she did not identify senders because what happened during that pulmonary hearing mr sanders is sitting behind a blackboard right ok and mr brody who was the defense counsel at the time when they get through direct and cross examination mr brody even says i object to any in court identification because she just said she didn't him at the video lineup and so any advantage for cation in this courtroom would be suggestive and mr guess does not disagree with that but the judge overrules the objection they remove the blackboard and she says simply he was there now and turns of losing her lineup card and i think that's the other one of these problems is here you know in kyle's versus whitley talk about the sloppy police investigation her line of preliminary hearing for mr freeman this is what happened at the preliminary hearing for freeman which was a separate hearing she does not have down to five him she remains in the courtroom and she sees i believe it was rhonda robinson who says that she can identify him so then she approaches the prosecutor and she says oh yeah now i can identify him he lets her take the stand she identifies him but mr guess is very concerned about that you know that that vulnerable she is easily suggestible in the prosecution is aware of that and why do we know that harvey guess was aware before he testified on february the twenty fourth that in fact the relationship was more than just a bunch of you know some visits at the jail how do we know that in fact they took place outside of the jail because of this other no seventeen eighty two yes the next line down refers to in court on twelve twelve eighty two it says simply like he's talking to her on twelve twelve eighty two you know what we harvey guess is never submitted a be a mistake right away you just you highlighted the two seventeen eighty two number and i think that your argument is that it was created in february i don't know that and i'm asking you to help me place it if that's important to your argument well i think it is important but again we haven't had an evidentiary hearing harvey gives us never testified he's never submitted any kind of a declaration and her putting these notes it's possible that this is a mistake or that is a mistake we don't know but what is important i think is that let's look at that note in comparison to what leslie white testified he testified as a defense witness in the case of people versus marshall and harris that he was being released on these f that he was having his relationship with at the time he doesn't name it but it's very clear that it's robel way and he says that he passed information on to her that he learned from the jail much of which that he knew was untrue and was detrimental to the defendants in that case let's hear best evidence that that happened that sequence of events happened before she identified sanders i think that gets back to judge wins question that's what we're trying to figure out a densified him at what so we have all of those dates but what i don't have is a date that i can of really look so i welcome your help short about when the relationship you're just describing started well they clearly took place some time when those on the record correction and before the automatic appeal had been decided but leslie white testified at length before the grand jury that investigated the jailhouse informant scandal about what was going on is your argument that the state courts fact finding process was constitutionally infirm because you weren't given an evidentiary hearing absolutely so if that's the case of course you would have to find it's a reasonable and i think posing counsel's going to want to talk about the other eye witness i would be happy to talk to my other my lawyer says if we lie so why would it be unreasonable for the state court to have decided that your client was not entitled to an evidentiary hearing because of the eyewitness testimony provided by mr malone way well mr malloy for example let's go back to kyle's versus w y because we're talking about tainted eyewitness identification based upon say brady violations in that particular case and what the california excuse me the united states supreme court made very clear that the the lower courts keep getting this wrong the mr malloy has there are problems with his testimony as well but let's just say because he was their star witness and they're going to argue that today but and you know he clearly was i mean he said by some some sort of so i think since before he made identifications i do believe that we can say that the work that his testimony is tainted for a couple of reasons apart from the inconsistent descriptions we have the fact that somebody he insisted on direct examination that somebody wrote on his word positive on his lineup card and that that was not his handwriting but we also have david lynch before you leave that and i don't want to feel like you have to rest today because we're going to take all the time we need sir but my understanding is that he thought that didn't look like his handwriting but he said unequivocally that that had been his identification is that right he does say that but what we have to look at all of the identification testimony in this case together we have to we know that eyewitness identification  is very important and i don't mean to interrupt you know and so please go back to answering judge when question i just want to you mentioned the handwritten note on the card i want to make sure we take these as they come up and and that really really careful with the record so go right ahead you were why is that eyewitness identification not as you put it rock solid it's not rock solid because he gave numerous and insistent descriptions of the robbers because you know there went from  red eyes to golden eye as to how tall he was and that sort of thing there are numerous inconsistency in the record that miss abramson went over with him at length we don't know exactly what he saw at that video lineup because i think quite clear to me what line up what video lineup or what line up he actually saw but he wasn't december twenty third i think only the video line up is that your understanding that is my understand that's certainly what the prosecution contended given that then i'm not i need a little help with your statement about it's not sure we're not sure what he saw ox it seems to me we're real sure if he saw the video lineup we've got that so can you help me out with that because there was extensive testimony about what exactly what video he actually saw because detective st admitted during the defense case that the video because there are numerous different videos that were taken and we don't know if the video that moment i actually saw show that sanders was verify it and also goes back to the there are numerous videos of the live lineup that include it sanders are you talking about video of lineup including that included other people i'm talking about videos that were taken of the  lineup that included senders or certainly were other one ups i'm not talking about those but that did more than one video that included sanders that's correct because detective stock up said on  during the defense case that it's quite possible that the video that mr malloy saw showed that sanders does not have shoes on because the video that i've submitted to the court and that that it did show that he did he was not wearing shoes i think i've read that testimony i'll go back and double check my my recollection is that he said he thought that the folks who were actually in the room would not have seen bare feet  write that far i think he you know i think he may have said that but you know we think about the fact is that that's not what that's what the officer said that's not what the witness ok so does any witness say they saw bare feet i don't believe that that is ok and then and then getting back to judgment question because malloy course wasn't in the room he saw the video that day and now you're explaining that you think there may have been according to this witness more than one video that's correct with sanders in it that's correct it's the same different different videos different taping of the same lineup but i also want to talk about the lineup itself which also affects m moyes the accuracy of mr moyes testimony the remember mr sanders when he was arrested was a very early beaten by the police he was there's no evidence at all nobody testified that he resisted arrest he was watch the line of the look at it carefully and it's not on the subtle suggestions he has trouble breathing in the video only because he's in the center of videos he's always being watched everybody else standing in that line up has a nice nonchalant kind of expression on their face he looks terrified and when they ask him to speak he can hardly speak and he can hardly walk he has walking very guardedly and if you don't know why he's like that you would think maybe he's guilty he's feeling guilty or he's scared or something like that it's subtly suggestive and miss abramson argued that the lamp was unfair so we have we don't know exactly what video mr malloy saw we have is inconsistent descriptions we have the video lineup we have the fact that somebody wrote on his lineup card and then we have that and i want i want to talk about writing on or he thinks perhaps as somebody wrote the word positive on his line of car we now today there's an there is absolutely no dispute that the fact that somebody says that they are positive has no relationship scientifically to any accuracy so we have that and then we go over to the fact that and i really want to talk about david lynn because i think that this is a very important i realize that we have separate argument but it does affect his the accuracy of his identification now david learned who was the security manager or whatever it is the head of security for bob's big boy he was clearly a prosecution agent he was the liaison between the police and the prosecutor and the witnesses five nine six when they are in pretrial discussions and there's you know the lawyers are fighting and you know they're still freeman's lawyers and then mr gibbs says the defense attorneys are complaining that the  witnesses will not speak to them and mr guest says quote i told dave lind to call every witness from by and tell them not to talk to anyone unless i was first calm because what i was going to simply demand was that they not talk to anyone from mr koppel side and so on so mr guinness is saying that he's actually using david lynn as a liaison to these witnesses now david lindh is seriously compromised because bob's big boy has a lot riding on the line financially it's not like the prosecutors who are supposed to seek justice and find the truth david lynn is concerned about the liability of bob's big boy financially he admitted any testifies not only that was a reward offered by bob's big boy which the informants are clamoring for but all of these witnesses had sued bob's big boy they had  suggestion that they've it lin somehow participated in the lineup or point mr malloy to sanderson any way you are said he had to identify somebody from that particular line up certainly i don't have that specific information that would be something that an evidentiary hearing and just cover you would let us find out but what i do have in making my circumstantial case is that during one logan said in the proceedings and in the in my brief and i'm sorry i don't have the trans the e r site in my that it into my brain but is there he said that david lynn told him when to go down to the lineup and that is good news because they've arrested someone in the police think he did it now so what else he told these witnesses we have no idea but there's a very suspicious that's what lin told logan right but because  is basically the handler for every single one of these witnesses and because it is it is self evident that his interest in seeing somebody convicted is far different from the prosecution who simply wants to win a big case that they were going to be robbed we don't exult exactly when that place that's always a mystery and there's no written verification that they were robbed but can you imagine i mean bob's big boy it's not just their liability to the  employees and the patrons in the restaurant who were injured by this but it's a nationwide chain of restaurants who's going to want to eat and bob's big boy after this happened i mean particularly they had been warned and they did nothing so we don't know if they had been warned that still happen the air but in fact because what they testified at rogue away last so they were they went out of their way to make road elemental look like he had been lying so we don't know but he's clearly compromised so and he spends a lot of time david lind spends a lot of time with michael malloy and michael malloy was on the witness stand for several days and david lynn was there so your argument as i understand it is that you're asking us to find it a reasonable assumption that lindh made this statement to logan and that he must have said the same thing and the fact that the missive lee suggested is that you have got it yes  other the other factor that i wanted to talk about in terms of malloy's why his testimony cannot be relied on to execute mr sanders because there was also the carnival photo and i'm sorry i didn't bring the whole thing i just we've all tried to narrow all these eyewitnesses and one of you know this is notorious horrifying case they're all being brought to court to testify at the preliminary hearing they have the witness waiting room where all the witnesses are before they're being called into the wind and the police have left the blue the evidence notebooks in that room that's unbelievable i have this you know i've never heard that before or since and then they open it up and they see this carnival photograph but does anybody know they whether they saw the photo and when and whether the folks were truthful about that but if i could just establish first i think the record tells me that that photo wasn't introduced by the prosecution but that it was introduced by the defense that one of the officers mentioned it i think at sanders testimony and then the defense actually offered it and then also called the gentleman who ran the photo booth to to to explain that it was a sort of a gag photo out at an amusement park basically i want to make sure that yes that's right that's correct ok so then getting back to your point when you said no who knew you mean as at the time the preliminary hearing when they were back in the room with the witnesses have had reason to know that it was a gag photo no they didn't understand your argument exactly that the witnesses the vulnerable victim eyewitnesses who have been subjected to obviously very terrifying event  d you know are unsure of what's going on brought to this witness waiting room to go in to testify and there are six that photograph and nobody tells them that is a carnival photograph that it's a gag photo and i think this is important harvey because miss abramson attempted to try to find out what was going on the she was one of the other witnesses that did you know that they're over there and they've got this photograph there this was the one piece of evidence that judge and i just want to ask what is the clearly established supreme court of thirty years relying on for this claim clearly it's a brady claim they did not they did not just close that they had in fact left this photograph in the and then  that they had left this photograph in the witness waiting room and that mr guess went out of his way to cut off further cross examination about it and you know here's the thing is once this issue came up that the witnesses have been exposed to this photograph without knowing you know the truth of the truth of it didn't mr guests under the clearly established authority have a duty to find out what was going on i mean prosecutors have a responsibility here this isn't a gladiator contest well if you should have done something let's talk about materiality because  prong argument and there's four how were four eye witnesses a trial that's right and i think that mr malloy was late but he was there on december twenty third and saw the video and my understanding is that mr luna was i think at the time a teenager was not injured in that in the shooting and so he was also there and witnessed the live lineup is that right i think that's correct yes on a third so he had i think the rights of those that sort of the timing on that and then robinson was there on december twenty third in person yes ok and we've established a wasn't she she came and watched the video on january second correct ok so the preliminary hearing that you're talking about with the notebooks and that photo in particular were made available to the witnesses that was the february preliminary hearing that's correct ok so just backing up when we get to materiality because the prosecution's going to imagine want to talk about this i'd like to hear your side of the argument absolutely that malloy had already identified unequivocally identified mr sanders at the from the video lineup that mr luna had identified mr lin it was pretty wobbly i think in his identifications and then you have and robinson who we've already talked about the extent to which they were not certain in their identification so so does this brady argument come back on the materiality prong does it circle back to blowing it does circle back to malloy but it doesn't destroy the has to be assessed collectively not item by item and that when you have a show that there have been brady violations with regard to what certain many eyewitnesses you can still reverse and order  a new trial even if the brady violations don't extend to all of the witnesses and so that would be of course the fall back position for the prosecution obviously is going to be mr malloy but let's just say we agree that you know  reasonable probability that undermines confidence in the outcome of this case mr sanders does not have to prove that he would have been acquitted had there been no brady violations and he does not have to prove that for example the prosecution cannot survive the misconduct in this case by sufficiency of evidence test it is not as if to say well it's like this let's just remove all of that here and there's enough left to convict that's not the standard may i ask you when did the defense first learn about that photo being available in the blue notebook being bailable in the freeman preliminary hearing or waiting area well  four zero two hearing but trial ok at the trial it was it was it was not resolved as to whether or not they had really seen this mr guinness did not want to allow ms abramson to continue to go into this area with with rhonda robinson forgive me a match we're not communicating but that's probably my fault no no i'm i'm just trying to figure out when did the defense know this was an issue when did when did the defense because this is brady claim and your argument is that they didn't the prosecution didn't this was not the preliminary hearing this is the trial and this abramson did not handle the preliminary hearing she only handled the trial right there were four o two hearings and that's what's causing me to have the question about when the defense first learned about that photo the diff was that it was seized i think from let me just back up maybe this will help that that photo was seized from when mr sanders was arrested correct when he's home right correct ok and so you don't know at what point it was produced what do you mean by pretty that certainly the defense knew that there was this carnival photograph just didn't know that that witness had may have seen it exactly tell some time before trial i thought i thought on cross examination of givens actually defense counsel it from givens that in fact my lawyer was one of the people in the room when that is correct so the fans were knew all of the information that you claim was suppressed during the trial i just don't see how that could be the  know who was in the room because she saw malloy in the room when the books were there so i guess i'm just puzzled as to why you think this is a brady bill because i think that timing is of the essence in this case because we ran the rom and because where it should have been fully disclosed was at the time that rhonda robinson was on the witness stand and if there's any failure for me there's clearly something that she wanted to go into at that time that would have acted rhonda robinson robin's sees me robinson's eyewitness identification and mr gets cut off all further inquiry and so at that time because brady violations timing is always of the s and if they win it that's what i was trying to get at in response to this i agree with judge wofford there's this issue about givens being pre she's right or not i don't know but she certainly identified malloy as being in the room but robinson was questioned about this and was unsure about who was in the room i can't understand your argument that the defense counsel didn't know when robinson was on the stand that robinson seen that notebook so  know denied during that four sanders trial she denied seeing these notebooks well i think there's a discrepancy about whether she denied the notebook or the photo seeing the notebook or seeing the photo was she ever asked directly whether she saw the photo i know she was not she what happened was that her testimony at the trial was leading and abramson was attempting to try to get her to admit that freely admits that she saw this photograph that she wasn't asked earlier i don't believe them i'll just tell you because you're going to come back i'll just tell you that my read of the record is i can't find any place where robinson tonight see the photo i can't find a place where she was asked about the photo so i'll just give you that heads up so you can maybe respond when you come back and you did you want to talk about reese woods yes i would love to talk about what's in terms of what happened at the trial ok bruce was is in the jail he freely admits this is at the preliminary hearing the joint pulmonary hearing with  mr sanders and miss stewart that he's in the jail he wants to know how he can get out some other inmate tells him well you know call up and see if you can offer something to the prosecution because he claims that earlier i i don't know that there was any specific date that it was that pinpointed to but that he was riding in a car with someone named conny and someone called holly who he claims a steward and that he had been asked or they had just been discussion about quote taking down bob's big boy that's the testimony at the preliminary hearing then he surfaces at th with a statement that mr sanders allegedly made to him and the testimony that is a list of it at the trial about what happened is  that woods testifies that he has a skip away order he's not supposed to be in the same van or same bus jail bus going back and forth between the jail and and the courthouse because of this keep away order and hoops they put him on this bus or it was a van and there was a very specific testimony about it was a station wagon there was only one other person besides sanders and woods in this little station wagon and goes to the jail and then in that short bus ride woods claims that sanders threatened him that zander says you know why are you going after carlie this young and you know where you live and if i'm convicted they'll give me the gas and the prosecution at this stage of the case i think is trying to argue that that's not what big deal but there was a really really big deal because harvey guinness in his closing argument he says what a godsend bruce was is that quote unquote god sent the sheriff's up wow what a godsend they screwed up and they put woods on the same van or same bus with sanders and he makes a very damning statement and he even said that bruce because what how can you how can you say that didn't happen you know what i mean or whatever but she her argument is that all the sheriff's department doesn't make mistakes like he's lying he's clearly lying because they don't make mistakes like that but flash forward to the jailhouse informant scandal which was heavily investigated by the independent prosecutor called judges and prosecutors and informants and deputies and all kinds of people and that what they concluded was that i mean th pattern of placing informants deliberately placing informants with defendants particularly in high profile cases to make it look like they had overheard something  resulted in false claims of confessions that is exactly what the grand jury found and in fact in that video which is part of the evidence and the hay vs evidence lesl white demonstrates you know clearly i mean in that particular video he's talking about getting caught how you can get confidential information what bruce would testify to is anybody can just make that up you threaten me you know he whatever it is it's not something that is do you have to show that the government arranged this as opposed to making a mistake yes i do have to show that he that they arranged it and that i think that is what i am alleging and the reason that i am alleging there is the as we ha this grand jury findings we're not saying the further development would not to shore up our claim and prove that you know the argument is that it fits into the pattern absolutely absolutely it is a class just house informant maneuver as i did but it's not the case that you were unaware of this he was cross woods was certainly subject to cross examination at the time of the trial when he made this revelation and so i'm struggling a little bit to figure out whether or not one point in the briefing i thought you were sort of contending that you were entitled to an evidentiary her yes didn't get it but which was actually on the stand when this came out he was cross examined so exactly what is your argument my argument is that and that's why i mentioned how leslie abramson tried to deal with bruce was in her closing argument she saying all the you know come on this is ridiculous because the sheriff's department doesn't screw up and put informants on the same bus with defendants but it was not until the revelation when leslie white went on sixty minutes in one thousand nine hundred eight and exposed without any question was how these informants were being more manipulating the district attorney's office it was like a symbiotic relationship this big confidence game  that one and i think crucial final touch in order to make these so called jailhouse confessions believable is to get themselves placed in on a bus or something like that with the defendant and the grand jury said you know we have heard an unbelievable number of confessions taking place on the short bus ride from the from the county jail to excuse me the courthouse to the county jail and they made a finding that the district attorney and the sheriff's department had violated their ethical responsible these that they had not in fact been scrupulous and keeping informants and defendants together that they had in fact intentionally placed them together with the result that false claims of confessions would write and miss abramson could not possibly have dreamed that this was being done the corpus petition in the california supreme court we clearly requested an evidentiary hearing on this issue on everything the way the way you file a petition in the state court in the prayer for relief the prayer for relief as you know to grant the petition here else and grant an evidentiary hearing discovery take judicial notice of all of these records you know that sort of thing we clearly asked for that and everything in your federal do make a taylor versus maddox argument about the denial of that hearing affect the state's fact finding process or what is it that we have before us where this is exhausted it's exhaust you mean this wood's claim testimony it's and you know whether it has performance on sixty minutes the woods thing every single piece of evidence that we have put in our lengthy sixty four volumes messiah claim well we did in the opening brief we do argue that some of these claims we could get relief like sandor james versus ryan without an evidentiary hearing but that court cannot deny relief without an evidentiary hearing and specifically woods is one of those claims that we would need an evidentiary hearing and i asked him minute ago and i'm not trying to be for another but i'm really trying to be clear whether the bruce not let me just check out but between your presentations we're going to take a brief break but i want to make sure any questions you have to take a break then anything else you want to say before we know take i'm happy into the bob's big boy demanded money and property from them threatened them that they were going to get hurt and fired a shotgun into them thus the district court properly denied relief on sanders or certify claims without holding up an engineering warning for their robinson said she she saw or observed sanders and when i say i'm full opportunity the certainly without dispute michael i had the most opportunity to observe mr sanders because he was following into instructions from sanders to get the money and to get property from the victims themselves do you know how long he said he had to observe mr sanders i don't know exactly what he said but we know that for the majority of the time that the robbery was happening malloy was with robinson because malloy was the manager he was ordered to give them the money to put the money and a bag and to collect the property from the other victims in a bucket so turning first to the tammy roadway claims the brady claims for brady claim fails for one simple reason and that's because it's clear from the record that harvey guess disclose the relationship between tammy right away and leslie white there was nothing there that was not disclosed and it's clear from the record the trial counsel knew there was a romantic sexual relationship with between white and broke away and in fact this was the reason that guests was reluctant to use rego in the first place not because white was a prosecution or was an agent of the prosecution but because he was run away apparently came from a good family as he  the note and i'm speaking of e r thirteen ninety three and the discrepancy between the two dates on that note i have no i can't unfortunately shedding new light on the of course we would be speculating as to why there's a difference in the dates there but i know i do not have any information as to why there's a discrepancy in the dates why wasn't the notes produced that's why the that's why we don't know because the note wasn't produced correct so there was an opportune tell long after the trial  t to i think requests for a public records request that's correct your honor so there wasn't an opportunity to ask those questions would you like to respond to that yes so the disclosure here was not every single piece of information hard to guess had about rug away and whites relationship the disclosure here is a general you know it was a general obligation to say look i'm going to i've decided to use ten year old boy as a prosecution witness not only to testify as to what happened to her that night b ut for identification purposes and therefore because of all the stuff that's come out because let's see what has told me that this other inmate quine is trying to turn tammy is trying to get information from her to put away freeman  to have to turn this over to you because this is certainly relevant to the defense what did he turn over he turned over the letter the quien hundred which gets represented at this discovery hearing that white himself had turned over to guess represent it doesn't say if white was free and out and therefore he was able to visit with tammy this conjugal visit that she had a conjugal visit right that's correct ok and so was that disclosed he said all i know is that indication that harvey guess knew about these for a lower orders the for lord have been submitted as exhibits they have nothing to do with standards this case they're in an unrelated case and there's no indication other than  i'm not sure that that's quite right the testimony that came out later is to the effect this is testimony of mr white that he told to me everything and that mr guest did know whites testimony is that he told him to keep his mouth shut or something to that effect i'm paraphrasing but he justified that he testified to that separate there were two separate hearings i think there was a grand jury testimony and then testimony as an expert witness in an unrelated case so looking at what white did say the testimony that he provided as an expert witness in the unrelated criminal case he said at one point he said that he knew about the bob's big boy case because his ex girlfriend told him everything he told him the whole story that's how he knew about it he knew she was a victim and that she told him the whole story about the bob's big boy case so there's no indication that white was giving rogue away information to influence her testimony we do know that some other point i have heard all the stuff going around with other inmates stuff that was bad for the defense and i just told her everything that was being said in prison this is according to white white testimony also that he gave a quine letter to guess yes at the time  trial yes and that's consistent with what guests just testified to at the discovery hearing he said that i gave the letter the letter came to i got it from leslie white so the  important again that porton thing here is there was a disclosure made and there's no brady violation simply because there is no there's no failure to disclose the nature of the relationship was there the opportunity to go and interview leslie why interview was very concerned about quine and about white and about rogue away and i believe there was a pretrial ruling that she was not going to be allowed to go into that and that is not allowed to question about that unless quine and white recalled a trial that's correct disappears sort of out of the record that we have here is there anything i'm missing about why the defense may not have chosen to go forward with those witnesses no and it could just be that after defense counsel  investigated further there was a tactical reason not to call or quien because there was it could be detrimental and i don't i don't need to guess i just want to make sure that i'm not missing any kind of a ruling that would have prevented them from doing so no in addition to the nature of the relationship being disclosed to standers before trial there is no materiality here because identified sanders twice before these alleged conjugal visits ever took place and i know judge kristin you were asking about when this relationship started the allegations that sanders has put forth as a these really these visits had to have started some time between october nine hundred eighty one and the time that guess spend the know february seventeenth one thousand nine hundred two and that was well after why do you think it would have had to start then in october of eighty one was a customer in the restaurant with her boyfriend who was murdered that's correct your honor and then on january second third she saw the video lineup yes that's correct all right and as far as roets testimony is concerned at trial there's absolutely no evidence that that testimony was false was inconsistent to the standards as trial counsel bring out those inconsistency is prior inconsistent statements and sort of you know shut this kind of curious light on why why there was no lineup card here for rogue away when she supposedly identified sanders atta at a video lineup that surely was brought out but that doesn't mean that her testimony was false and there's certainly no no allegations and no evidence i should say it specially even if we're looking at white's testimony he never said yes i went talk to tammy roadway and i influenced her testimony i told her that she should identify sanders or she should do anything else that was improper in this case so materiality is not there as far as the loss of the lineup card that was fully litigated at the trial court level and there was no finding of bad faith and really there's nothing peculiar about the loss of the line of card here particularly because there were two cards that were lost and those two cards were for mr  away and for dion are then who both of them attended the same lineup which was at a separate facility on january second a video lineup and somehow those cards ended up getting lost in the shuffle is if there's an indication somewhere that they were lost cards whether they were actually part of all of the notebooks evidence notebooks that were present and there certainly was an allegation that freemans pretty i guess freeman's previous counsel had taken the cards but certainly that was not explored or even ok so because there is no finding about faith and further because there's no indication that the card itself was it's called the tory there's no trombetta claim here and the card was not irreplaceable roguin was able to replicate her identification or at least testify to it and it was her identification at the pretrial video lineup was certainly less strong than the others who had a line card to support that as far as her identification at the pretrial video lineup so you talk about the january second line that's what i'm talking about now k r yes or you could cou discuss this notion that there was more than one video tape that mister that did include mr sanders please there's no indication whatsoever that there was more than one videotape sanders's lineup as far as anybody knows as far as what's contained in the record and even the exhibits that have been submitted by mr sanders there's only been one copy of this video lineup and so the notion that there is more than one video lineup as speculative at  just before you this is has nothing to do that you're just talking about with the still photo yes it shows the folks who were you can see their feet was what is where did that come from and was that hughes to by any of these witnesses to make good information to be honest with you identification from the video lineup and his testimony at trial that somebody else appeared to have written positive on his card remind me did he testified that at the time he made th malloy remember that when he made the identification he'd remember that he was he wrote down positive but when he looked down he he kind of was confused and said i this really doesn't look like my handwriting he wasn't really pressed on it any further he just said it really doesn't look like my his handwriting this was on a different day and he said you know what that is my handwriting i did write positive so he said that is my handwriting now if i got this timing right mr malloy had been shot in the eye yes wind up losing a this he made this notation on the card that day and he would have been maybe operating with one eye at that yes that's correct so as far as malloy's identifications  they are his pretrial his identification from the video lineup is the reason well one of the question about that is there anything in the record about him  being under the influence of any medication that day on december twenty third i don't believe that there is any indication as to whether he was under the influence of any medication so just briefly turning to the brady claim relating to  since we are talking about him the testimony he gave at trial was consistent with the testimony that he gave the later civil deposition and that's because at trial he was asked if a policeman ever called him up to tell him you need to go down  identify some suspects and he couldn't remember who had contacted him at the time we get to the roadways civil trial he was yes edition but anyway it's about five years after the robbery so years after his trial testimony honor yes and the line of questioning at the deposition was specifically when did anybody from bob's talk to you after this incident and then he's relaying his remembering the time that he was released from the hospital and that's the first time that he spoke with david landau about the incident and he just simply says no he just told me i was coming down town for a lineup identify the guys there's nothing in that testimony that shows that he testified falsely as far as the carnival photo goes for the brady claim for any of the witnesses the allegation is made to the disclosure was there and we know that the disclosure was there because and forgive me i don't have an excerpt of record with a different witness that deon so this is assuming deion urban had told both myself and mr guess one time while the witnesses were waiting around for one of the prelims by inadvertence we assume police officer suspect book books were was were in the room with them the suspect book that had pictures of ricky and carlie such as the one with the fake tommy guns and that the witnesses were looking through and making comments about the pictures the disclosure was there thank you but i think that the photo with the point the box was left in the room was there already a pretrial ruling that the government was not going to be allowed to use that photo i don't know your honor and then when the folks got to trial when this case advanced a trial that was the rule  ruling and then one of the officers mention the photo right yes yes am i right that the defense offered it at that point you're correct that they offered at  so going back to why there is no brady claim it was evident that this was disclosed that the standards this trial counsel knew about the carnival photo and the prop possible exposure and indeed she question several witnesses about whether they had been exposed to it or not sanders as trial than she was at freemans as trial so that sanders this trial she was asked do you remember if you saw three women blue binder and she said no i don't remember and then the next question was something to the effect of was anybody looking did you see any people any other witnesses looking at photos and she said yes at freeman's trial she remembered either the three ring binder or the box and she actually said yes i looked at the photo so there's nothing  inconsistent about her testimony at sanders this trial versus freeman's trial and certainly nothing that rises to the level that the prosecutor knew that there was false testimony that robinson gave at sanders this trial claim fails because there's no allegation that bruce wood's actually asked questions of sanders while they were being transported back to jail together so the messiah played clean feels for that reason alone and as far as an appalling claim relating related to woods there's absolutely no evidence that was testified falsely and simply because he was an informant so to speak in this capacity this claim is conclusory and therefore on that basis alone the california supreme court reasonably rejected it i just quickly want to go back to one thing about roe v wade testimony and then know about the can of worms that harvey guests had made this was relating to the freemen trial the reason that that can of worms no make sense and there is because there was not previous allegation that quine was writing to gino tammy's friend to ask tammy to give him information and to testify against freeman and therefore it makes sense that there is that can of worms notation relating to tammy and her relationship with quinine or white relating to  in conclusion because there were multiple witnesses and volved in a lengthy investigation there are bound to be inconsistency as an eyewitness accounts but as this court has recognized inconsistency is do not amount to false testimony and as a just report we found one thing was consistent one important thing none of the witnesses expressed doubt about their identifications of sanders indeed sanders cannot explain it mr mona certainly did counsel your statements to brought it's your brought i apologize back up and try to all but i'll back to i'll back up and say that at least two she unequivocally identified him at trial first of all we all know what the word conjugal means it's not this it's to the county jail to say hi how are you doing conjugal has a specific meaning in the english language and we all know what that means  tammy one regular visit no forms police escort does that say no forms or no favors it says it looks to me as if it says no forms what do you i'm sorry that might say no favors but this was produced after the trial so we don't know from guess what that says right and he was the author of the no we don't ok but i would like to clarify you know it brings up a lot of can of worms because for one thing  married to leslie white and under the do you think conjugal visit means she went to the jail well it would be really kind of interesting here because if she did go to the jail and she had a conjugal visit that also would be illegal well i'm just trying  to that's as conjugal visit and you just started by saying we all know what conjugal visit means but your briefing talks about illegal for loads of him leaving the jail exactly i mean not matter but i'm just trying to are you alleging both happened well you know at this point i really don't know what happened but we do what we do know is based upon leslie white's very detailed testimony is that they were meeting outside of the jail when he was on these furloughs and his testimony is very clear that he and harvey gives spoke about it and then he hardly gets knew all about it so the thing is that what i would say to a conjugal visit maybe you know but clearly conjugal means that they are having more than just you know a visit behind the glass or over the telephone or whatever it is so whether that took place at the jail that would be very very interesting because that would be completely illegal though what was not disclosed that's what you started to say i've taken you off track what was not disclosed the sexual relationship between rogue away and white was not disclosed and what was not just go as was the relationship between harvey guess and leslie white miss abramson had that harvey kiss testified that he had a relationship white had a relationship with a sordid sort or some some issues that were sort of so something sordid that's a disclosure of a sexual relationship so i know it's not i disagree with that because if the that and what he's concerned about why it's sorted is because she comes from a very nice family he doesn't disclose that they are having that he's being released on these furloughs which are also illegal and that they are meeting outside of the and that harvey that white is reporting back to him and what is the credibility i mean we've alleged and this is leslie white's testimony is very detailed but what's the  and wrote excuse me harvey guess have a much more if you want to say sordid relationship then he let on because this was disclosed in the public records  playing that i filed a mr guess attempted to get an order i don't know whether this was ever signed by a judge or not but it says here is it is hereby ordered that the los angeles county sheriff permit the person of leslie white also kno christopher james an inmate at the los angeles county jail booking number the wired for sound by the los angeles county district attorney's office in order to record any conversation with attorney leslie abramson between blah blah blah and  white harvey guess had a much more intimate relationship than he let on he wasn't just one of numerous informants seeking to get in the car as the expression goes in this particular i said i go back to the quote from justice o'connor the best way to tell a lie is to mix a little truth and in that order proposed order you said you don't know it was ever signed and it's fourteen fourteen for the record that's what we're talking about and pointing to was that ever filed you know i don't know and i don't know if it was signed and i think that's what's it what's very important i wasn't quite done yet and the dates that you  afterwards at the time of that's what i meant to say try going on so as of the time of the four zero two hearing when there was disclosure by mr yes this hadn't happened yet this this draft order hadn't been created yet present swelling that's correct and i think that i also really important to understand the context in which this case was prosecuted and what was going on in the los angeles county district attorney's office and the county jail and the sheriff's department about which there can be no dispute i mean all the minutia and the specific facts but this was a an office that had a lot of high profile murder cases that was out of control particularly w cases where we there were jailhouse informants like leslie was eight and sidney storage and a lot of others clamoring to testify in all of these cases and it was only after the revelations of leslie white and the defense attorneys for example you know were trying these cases and they all were counting on those are going to produce these jailhouse snitches and they're really feeling i'm a total loss at what to do about how to fight this this is just unbelievable until would have been i miss him at the jail because of the county jail could you read the order again yes ok so just to be clear your are you or your allegation is that this was prepared at least it looks like it was prepared during the time of mr sanders this trial or i don't know if it was ever signed you don't know if was ever filed but your allegation is that there was an effort to record ms abramson maybe or discussion about that but not that she was not what she was talking to her client while she's talking to mr what that's correct and so which claim does this fall within this falls with when the all the rogue away claims because it is evidence that when harvey gets testified at that discovery hearing that white was not an agent of the police that he was not telling the truth when you of perjured testimony and i want to clarify that you know before you leave on to anything else brady they're still there's two there's two false claims  it's in somebody else's name you know what was a julian or god and as the testimony developed by i think his name was andrew diamond the district attorney in white wasn't doing anything for the julian our i can get an order we'll let me out he was yeah sure and so then diamond goes to judge leatham was sitting in department one hundred and you know judge leatham i mean they signed all kinds of orders and department one hundred i mean i'm there all the time myself you know but it's something to it well we need this guy and they signed it and according to why he was he would just he was out gallivanting around paul just and the sheriff's deputy said he was not being supervised he was out for days at a time and then he would come back and get another one he would turn himself in he was hanging around on the hard core everybody knew him i mean these were basically employees of the district attorney's office and that was not disclosed where that