scully from the office of the state appellate defense here i'm here this morning on behalf of a broken sallust in this case after opening statements have been given and one witness has been called the trial judge  state's motion and over the defendant's objection declared a mistrial on the basis of the declaration of the mistrial was that the defendant's counsel had on intentionally withheld some discovery information would do at the gonzalez home when she came in the morning and waited for her ride to school that she would sit on the couch or sometimes she would clean house or sometimes she would leave letters for the family the second part on the amount home deals with g b talking bad about the video to nancy the defendant's wife and leaving letters for the defendant actually ship left letters for everyone in the family too i have read this initially as there was only one movie but in fact there's other instances in the right where the defense attorney says i've talked to witnesses there were two different movies that she went to the family to see so this really only deals with what movie did they see when they stood snuck in and didn't pay the third is when they watch t v where g b sat in the family home when they were watching t you go talk to these witnesses these two witnesses first of all they were state and defense witnesses they were at court they had days so when they were sitting there waiting it was about i think knew when this came up he said can you go talk to  witnesses the state's attorney said i can't possibly do all of this in one day why no explanation was ever given for why this information not only did it not have any bearing on any of these charges but a lot of this information was just further details about information that the state had already provided to the defense especially the letters these letters were actually there in the discovery packet in the records were actually given by the state the state knew about the letters and we're g b sat when she came into the and in fact i'd like to point out it's very concerning in this case it seemed like from the very outset of this case the judge was not simply just trying to accommodate the state but was acquiescing and i think that starts with the discovery order the judge entered a discovery order at the state's request requiring that every time an attorney spoke to a local witness or potential witness that person had to that the attorney had to summarize them writing and turn that over to the other side and it seems to that the state was match just asking for summaries even of conversations they want be details everything these witnesses said and i think that's apparent from the opening statement when defense counsel says i'm going to pull his defense counsel says she would be different jimmie would show up in the morning at first and knock on the door they let her in she would sit have a couch until the family was ready to go the couch was right by the front door at that point the state's attorney objected and asked for a sidebar and told the judge would actually the appropriate response of that point really should have been so what she says to the couch with this it have to do with this case instead the judge had a sidebar as defense counsel did you give this information to the state and he said was preparing my opening statement last night and just talk to him and nancy got some of the details and the judge said did you write that down in a memo and turn it over to the other side and he said no i didn't and the judge said that's a problem objection sustained there were even any other objections during the opening statement to any of the things the defense attorney said although later the state trying to say that defense counsel statements about the movies also was not to schools but in fact if you look at defense counsel's opening statement about the movies he is telling the jury what g b u is going to say about the movies and there also is in the record  seems three one seven the memorandum that the sting gave to defense counsel as to what she had said about the movies and it says on there she said the defendant in this family would go to the movies and they would sneak in without paying she said everyone in the family would go into separate theaters that didn't come from from lydia lydia said nothing about who went where she just named two movies that they saw when they snuck in and didn't pay when did the judge give the state the opportunity there were witnesses saw obviously they had talked to her before and for her to just outright used to even make the effort to speak to these were this is i think was completely unjustified and the incidents happened there's no physical evidence supporting this these cases are these allegations how does any of this information affect either how the state's going to present its case or how the defense is going to present its case so i mean the judge would have even been entitle to say look we're just going to go to trial if these witnesses had said any of these things during the direct by the state or across by the stating that they were just rolled with it there's were i thought small this state that they would give them the entire remainder of that day and even the right to investigate not just during the lunch hour but out right the whole time they said that there was one too much information they couldn't do much information to investigate where the horrible disadvantage without ever explaining at no point did the prosecutor ever explain how did this impact their case how did it affect the theory that and i think that hard dext who can support my defense well prosecutorial the prosecution i would help had withheld information at the second trial defense counsel started telling the jury the prosecutor committed misconduct in this case they withheld evidence from you to advance heads to casting aspersions on the other side and claiming that they hid evidence you don't have to say that that's prejudicial that affects the impartiality of the jury obviously  also i think it was this court case in badly involved a case where the state could not find a video of the defendants the actual arrest and it was discovered during the trial and the judge said well i can't really withhold this because it's actually the third offense itself so in an instance the judge declared a mistrial and again it's  apparent from that how it affects the case because it's actually the offense itself but in this case there is there's no reasonable impact on the state but i think it's also telling too that it wasn't part of what the judge knew with the time but when they end the hearing on the motion to bar re prosecution is two months later and by that time the state still hadn't spoken to  theory of the case was jeebies not a credible witness they're also off the case itself it didn't get far enough along but you can tell from what happened up to that point and from the opening statement evidence so they were dealing with a witness at the goal that was not a credible witness the the judge i think those really disingenuous  prosecutor below when the prosecutor was demanding all the specificity and yet the defense was not able to get any more particularized information about when it except for one date during this charged it happened in the fall or it happened near a holiday so it's pretty disingenuous of the prosecutor to say i need specifics on every single thing that every single witness is said but we can't give you any specifics in fact at one point the this move for reconsideration of its motion to bar an alibi defense and what the judge ended up doing was entering an order requiring the defense if the defendant had information as to where he was at any point over this eleven month period that the defense had to turn that over to the state so there were a lot of hearings on work records and bank records and phone records so basically the judge was requiring this fence to turn over almost essentially it's file but this state didn't have the same burden on its end do you can see that this was a discovery violation or no no i don't because i happen i don't think it i get it i get what i think the state was demanding and what the general is apparently agreement was that you don't have to it's not just a summary you have to give verbatim details if you think you've been made in details then what does that mean that i mean you might as well take a video camera when you're interviewing a witness and they had over the this to the other side discovery doesn't go to that extent all this attorney did was ask about when she came to your house what did she do i don't see how that discovery violation when they already knew she came to the house in the morning they're running out they are and they knew everything except for just really insignificant details that had no impact on their case so we would ask your honor state you find that there was a manifest necessity in this case and that watch on t v going to movies are any of those things that they outlined an  and i don't think anybody's going disagree with that went to point by point by point by point of the various things and you're just going to decide whether his point by point decisions were c defense isn't just didn't have any problem with the whatever discovery was getting it could be asked for more we didn't want more on this far as what the state was asking is he did it the several times but it was because the defendant the state's position was this is this victim is a child and we can't tell you anything other than it happened sometime between august and july but in this this is you detail in limited it in your work that you do you see a lot of these transcripts is it unusual for a prosecutor to say do you remember if you were in school during that time that you were august do you remember if you were in the jacket or maybe s defensive about not having provided this information but my the thing that just i keep coming back to him oddly his woman or him or her it's nothing the defense didn't know that the judge to that point thank you very much think you the defense was always this didn't happen she's lying that this happened saw none of this went to that defense i think the prosecutor self might have s hour and then come back and tell me what it is you still need to investigate he didn't even do that and when she's arguing the against a motion of barbary prosecution at one point she says i asked up there judge i think i'm confusing myself with some of the facts i think this is what's going on in this case she didn't want to go and talk to these two witnesses because she didn't want to know that there was no basis for this mistrial she just had this knee jerk reaction that she didn't get a verbatim statement and that