created by dr steven hayne the state's for ins a pathologist the child in fact had been found dead in his own bed three months later hayne had the child's body examined so that he could create a movie that's a plaster cast of the child's face using what he called the death mask at trial he testified that a large hand would favor a male hand and suffocated the child for years the legal community believed that in was a fraud there was in a double evidence  there were many petitions such as osborne's filed that relied on the same anecdotal evidence of the courts consistently dismissed those petitions the court said anecdotal evidence unsubstantiated believes are not enough criminal defense lawyers cross examined him about his qualifications in his opinions they believed that he testified falsely but they could not prove that in two thousand and eight something changed the innocence project the newly formed in mississippi publicly accused pain of forensic  fraud he in turn sued the innocence project for defamation the innocence project used that federal lawsuit as an opportunity to finally obtain discovery of from an about pain the transcript of that deposition is what ultimately led to this petition and this petition by the way attaches the declarations of the innocence project counsel in the legal fellow who attest as to how they obtain the facts on which this petition is based what are those vital facts what did the innocence project obtained in discovery use at deposition and give to oz born number one innocence project obtained letters to and from the mississippi ethics commission which showed that it had grave concerns that the state's arrangement with pain would compromise public health priorities no one knew about these letters before discovery in the innocence projects lawsuit the innocence project learned about them when hayne himself produced one of the letters in discovery and that prompted their public records request of the release magazine articles newspaper articles even a concurring opinion of the mississippi supreme court justice in the case tolerably and lots of those things petitioners already submitted to courts and courts said these are unsubstantiated beliefs these are not factual predicates back to these these two letters we knew that hanging conducted an unconscionable number of know is that the state knew the state knew that this was problematic but exploited it anyway the state made his record breaking number of the all time seize further proof of his superpowers as you have not addressed it now the district courts that have addressed these issues the district courts that reviewed anecdotal evidence in preceding cases before this petition that's the american board of pathology exam the legal community knew that that hand was not a b p certified but he lied about why he said that he had walked out of the exam because there was a question on the exam regarding the colors of death that insulted his intelligence in fact that's not true the innocence project also obtained undergraduate records that showed that paine also perjured himself in testimony regarding his academic performance these facts which did not exist before the innocence project obtained these records in discovery would have been critical to osbourne's my case because if ozment could have shown that hand perjured himself he would not have been qualified to testify in any case including osbourne's finally and i call this a vital fact that it's really a facts the innocence project gave to oz born the body of evidence its legal fellow compiled on in that year of research at the mississippi department of archives and that body of evidence shows that hate routinely perjured himself by offering testimony that was unscientific and directly contrary to testimony he offered in prior cases so you took your take on all this together and the needle moves a lot i mean whereas before everyone believed it was a fraud now they could actually prove it the state concedes that this evidence is at least impeachment evidence the district court in its opinion says that the district court did not reach the merits of osborne's claims however because it concluded that he should have filed them a long time ago and therefore this petition is untimely describing as as vital facts this newly discovered evidence the innocence project also gave them the same evidence again osborne those two individuals flags and ross were actually successive  filers whereas us born is a st time filer and they as successive filers have a much much much higher standard to me they have to prove by clear and convincing evidence that but for constitutional error did not state a basis for success on the merits and in any event on his claims or untimely that did not however conclude the next court excuse me the next panel in jail rather believe you are on this panel from giving r s permission to proceed on his claims which are so much of the claims alleged here but you instructed the district court there to st determine whether it believed his claims were timely so that case like this case went to the district court and the district court looked eros as claims and asked whether they are timely the district court said no process claims are untimely and in any of it he will not succeed on the merits ross asked because they concluded he could not meet that very high standard for success of file or of proving through clear and convincing evidence that the result would have been different but it did find that they were timely either right that my point is simply before the innocence project shared the information with him the state does not contend that osborne had any actual knowledge of the facts underlying his petition the state argues instead that if the innocence project  facts and we offer it's attached to our petition the declarations of two criminal defense lawyers who tried to under these facts who cross examined pain in many cases and had trouble proving that his testimony was false they could not was a fraud and they publicly accused him of that but it wasn't until he sued them that they had the opportunity to actually conduct discovery and things turned up and they were successful in proving that he had testified falsely in many cases and they took that evidence and immediately turned it over to i was born i'm so it was the lawsuit alternately that that resulted in the discovery of these facts might be i'm sorry when is that a district court had already held that it was not enough that justice die as his belief that that hayne was untruthful was was not enough to constitute a factual predicate jeffersonville united states which we highlight in our brief there's a tension here on the one hand you know for instance you have this concurring opinion of justice dying as you have a newspaper article a magazine article on the one here as here the judge says well why didn't you time that when you read the newspaper article when you thought it was just as dire as concurring opinion but if he had he would have been dismissed just like all the other that well we don't know what that would have happened on a pale and we don't know if he was dismissed that he couldn't bring a successive insight was newly discovered evidence so we don't know what would have happened had he actually gone through the effort to file when the information was out there in the public just respectfully i think just asking you you put a petitioner in a bind because if he sees that other people are being dismissed he doesn't want to waste his st file on a petition that he expects will be dismissed because the standards are different the st file in a nd found standard is very different and we summarized on page thirty five of our brief the cases that i'm referring to in which district cour in mississippi said this is anecdotal evidence simply is not enough what do you have any authority to support your argument that the that newspaper articles cannot trigger the at home limitations period at least two circuits paper articles in general could be triggered at but you're not saying it couldn't i'm not saying as a general rule a newspaper article that the defendant himself possessed would not trigger no i'm not saying that that a something that is so widely publicized that an incarcerated prisoner is even made aware of it could not trigger nobody wadley pas publicize a pretty innocence projects in press releases there's it's articles in national magazines there's a supreme court opinion from the court that issued his opinion his says own opinion this is pretty publicized yes your honor and at the same time plenty of judges in mississippi table that that evidence is not newly discovered albeit in an unpublished decision and that was the flags decision up to six months ago way and they said that the evidence providing the factual predicate is not new is this exact same evidence paine has been widely in publicly criticize for several years before the deposition and certainly before the filing of the application and that was admittedly a successive application but the due diligence stand on appl as this court is aware that the question in this case this case is clearly time forward if we utilize the date that the conviction became so the pivotal question is when this evidence could have been discovered through the exercise of due diligence the district court in this case i believe correctly hailed that it begins on the day they were put on notice of facts which is what they're claiming not the day that they could discover every scrap of evidence that is the bad of facts underlying the crime that are important as opposed to evidence out of the two thousand two hundred pages that show that they could have been put on notice to dilfer further or to inquire further the claims in the petition or that insufficient to trigger the state i think the concurrence alone but i think if you look at the other evidence that was up there in a certain of those cases cited the appellant's brief those were cases where were looking at whether that was enough to find actual innocence as opposed to true to the statute of limitations or enough to find that counsel is ineffective as opposed to twenty to forty one day question of due diligence does th not trying to disrupt your argument i'm ok i just albums i mean i'm pretty sure i know we have them so i believe they are right maybe they just didn't you know how sometimes don't always that are in the record don't make it to the record letter and judge burton in the roles case considered as exact evidence in the success of contacts but she also had to make the due diligence determination and she found what actually was discussed in that ethics commission letter never came to fruition because he was never appointed as the state medical examiner so he was allowed to serve in the position he was in and he was not required to have the certification that they argue he's required to have as a state medical examiner and then with the district court families these these questions with regard to that him walking out on the a p me exam that's been widely publicized and he's been cross examined on those facts the vital fact that they claim they could not have discovered was the fact that he was failing that his when he is possible in actual innocence and it's not free standing probably and that's and that complicates things the argument this court rejected this the actual innocence argument in the ci or it already you did argue actually it is not free standing and reese wearing to and we don't have that but is it related to brady or napalm or anything i don't believe any of these  or take in the blood system and he pointed out to the arresting officers that the brazing in the particular was indicative of that as fixation and ultimately the younger brother was removed from the home and he actually alerted his parents or his relative to the fact that joey who is the defendant took the life out of charlie and he was taken to a forensic examiner and he described to that friends examiner how joey took the life out of his brother covering his face the dolls face with his hay and so dr height was not the only evidence in this case the mother testified that she looked at the pill bottle with those are taken there was no desire to missing there was testimony provide that the innocence project in this suit was a two thousand and one textbooks which is clearly available prior to the trial they could upon their own next birthday could of question dr hein with regard and they did cross examine him with regard but i don't think there asphyxiation coupled with the younger brother's statements to relatives coupled with the fact that there were those or to missing and so when they dr trying to not make this cast himself it was made by odontologist and then he took his regular in the photographs from the autopsy and they just marked open this may laws where the bruising was to show the size of the hand that would have impacted the the bruising was still evident even when they took the body up it was all those slight is what the testimony revealed so i don't think we're looking at a case where somebody is actually innocent citizens willing to discover this and what's with the district court found was because of all this wildly publicized information it put them on notice is its objective standard and it's a reasonable deal in space on reasonable diligence based on what you were aware of fact that you're incarcerated individual and i think the district court pointed out but he did not believe that his incarceration was a factor that it is not a factor that we should consider at all the totality of factors or due diligence or is it a factor but it's not determinative what i think i would say that it is definitely not determinative determinative but i think in this case you look as though he was represented by counsel at the direct appeal and so the question is could counsel have known but because all of this stuff most of the stuff was available prior to trial or could the innocence project who has now stepped in on his book with two thousand and eight he was tried in two thousand and four so these some of this information was not put out by the innocence project until after but dr hein in this case did not even testify to eat thing regarding his undergraduate record he didn't testify about the a i don't think i don't think the fact that he's incarcerated in this case made an impact because he had he was a represented by counsel as a trial who had the opportunity to i don't think you heard whether to be a factor or not i outcome and i add like to just breaks like such on my alternative argument is or is with regard to i but the i believe that this report is correct in that they cannot show the requisite due diligence for discovering the facts the predicate of their arguments and tether those arguments to their claims in the petition but a tentative leeway would submit that that petition be untimely even there as they list the types of cases on which you can take reconsideration in that role and reconsideration on the application propose conviction is not included in that list the list does include for good not only discussed the evidence that was available but he also discussed judge burton's opinion in rows where she walked through every single piece of evidence which was the exact same evidence with the exception of evidence a civic to ross's crime any of those other the trial transcripts autopsy reports she found in certain instances the evidence was not tethered to this particular case which would be the same for in the merits or not before the panel so i would just like to point out that the fact that our brief doesn't speak to that does not mean that we can see those facts are but to the point there's no other case of which i'm aware in which the state relied on those blue laws death mask and if we could have established that haint was a perjurer he would not have been allowed to present that death mask as the only physical evidence a murder trial and you asked the judge override about the due diligence standard applying it to an incarcerated prisoner and there is plenty of time but you have to take their prisoners status as an incarcerated human being into account we have relied a lot on the case of jefferson the united states from the six circuit to argue the district court's opinion here creates a trap that you can't file too soon became fell too late you're out in that case the six arc it observed we are mindful of the reality of the prison system and are careful not to over estimate the extent to which the average prisoner is able to conduct actual investigations given his incarceration and lack of resources this court's opinion in starr and its its both parties cite extensively anecdotal evidence was in the newspaper and the public was aware of it the question is whether the petitioner should be expected to take actions which would lead him to that information and you have to bear in mind that the petitioner in this instance establish actual predicate under the rulings of the federal district courts in mississippi at that time anyway this court in stars refers to easter would be champion t so i think it's a given that you have to take the prisoner's status as an incarcerated human being on into account when you ask whether he conducted sufficient due diligence on such that he did not waive his right to pursue his claim and the diligence need not be a maximum diligence and you know only being do a reasonable diligence and that's what this court historians be injuries held in that case actually the petitioners parents civil lawyer and a wrongful death suit was aware of the facts that supplied the factual would just note opposing counsel began her argument by referring to the flags decision and said oh yes this court has already held that claim such as these are untimely relying on the same evidence the flags  cision is the very same flags decision that i explained in my own argument that decision was followed by the ross decision in which this court allowed a petitioner to proceed ross ultimately ultimately his petition was dismissed by judge burton and opposing counsel described judge burton's findings in his case but again this court did not affirm judge burton's decision on the basis that her ruling that those claims were untimely was correct this court has not held that so this issue is fresh thank you