can the sixth circuit is pleased to be able to sit here and this is story quite room to hear arguments and two cases this afternoon as you know a member states are michigan ohio kentucky and tennessee and the scene of the court is in cincinnati so that is traditionally where the court sits and hears argument it's not unprecedented for the court to have heard arguments and other states and other been used but as a general rule our court hears argument in cincinnati judge go mariet judging fire and myself are very place this afternoon that so many students are able to be a part of the audience for arguments this afternoon and we are thankful to dean let's sue in the staff of the university of memphis school of law for accommodating the court for purposes of these arguments i know the parties who have not had to travel are appreciative of being able to have the arguments heard locally we have two cases on the docket this afternoon and before the court calls the first case relief all of which are meritorious however there are two arguments in this case two claims that are truly exceptional and it's those two exceptional claims that i'd like to focus martin on this morning that is the brady claim and the false testimony claim they're exceptional for several reasons the first reason is neither of these claims are restricted by the deferential standards set forth in the n t terrorism and effective death penalty act because neither of these claims were discovered until through no fault of mr thomas claim basically we just apply the substantive constitutional standard which is with respect to brady that there is information that was exculpatory that was withheld that had it been disclosed was material which one of the brady standard is whether there's a reasonable probability that it would affected the verdict and then with the false testimony claim that there is testimony that was false that was knowingly false and it was material under the standard is there any likelihood that it could have affected the verdict those words always play to talk about the materiality argument because we get these standards that we used to try to flesh out what the court has said about that but what's also explore new about these claims is how much is actually stipulated by the government and all these claims if we look at for example the brady claim it has been stipulated by the warden so it's conclusive before this court that that law enforcement made a seven hundred fifty dollars payment to angela jackson that that payment  that that knowledge that payment was withheld from the defense that mr thomas and counsel did not know about that it's been stipulated had they known about that they would they would have used that in cross examining impeaching angela jackson it's been stipulated that knowledge of that payment has been imp the secu sion because you don't have a situation where police are incentivized to hide evidence and not tell the prosecution about prosecutor i actually know about this well it wasn't in the record your here's what happened we requested an evidentiary hearing and one of the elements in the false testimony claim is different than the brady claim and we had a hearing requested an evidence hearing on the false testimony claim and what happened was the warden conceded that briefing knowledge for the false testimony  claims do require actual knowledge they're a little bit different than the bradys that's been conceded yes sure that's been conceded and that's what rendered moot our request for an evidentiary hearing so again going back to how unique these claims are the only issue remaining with the brady claim and they've conceded that it's materiality that's the only thing this court has to decide is whether or not had the jury known about the seven hundred fifty dollars payment is there a reasonable probability it would have made a difference with respect to the false testimony claim and light of the concession in the briefing of knowledge of the payment by the attorney general the only thing in question is given that the prosecution knew about the seven hundred fifty dollars payment is it is an angel of jackson's testimony jackson as a witness was so material that that these actions would likely have caused the jury to come to a different result in the context of the church material this court does look at the jury trial record to see what was the evidence that was presented at trial and we get a lot of guidance from six circuit precedent of how do you determine that the key cases from the six circuit are robinson versus mills which is a two thousand and ten case and per curiam opinion that was published last year barton versus  high warden which your honor was on the panel both discuss materiality and question of law or fact material value is a question of the law all applying the facts of the record there's a record that the court has to look at the state court record misconduct case it really doesn't matter what angela jackson thought this is a due process type claim where that there's an obligation on the government to correct false testimony so the issue with the false testimony claim is here we have a prosecutor where it's been conced embracing knew about the seven hundred fifty dollars payment but they're trying to present angela jackson is this witness who's a scared spouse who has no reason to come before the court to testify except for it's the right thing to do and in the context of building that argument the prosecutor general was when she's going through the examination first asking her about the f b i did she says did you receive a reward no did you did you did you get a reward no did you receive a reward no on cross examination michael schol who's the defense attorney always up with another broad question did you get any reward for this to which she says no and finally general route wire account redirect says you didn't get one red cent for this did you and she said that's correct i did not so the concern with the claim is not what angela jackson  the prosecution has an obligation to make sure that correct testimony is presented before the court ok but at the time she me with this made that statement swearing had the payment already been made because in the record it seems like there's a little bit of dissonance between when she got the money and the timing of the testimony all of that in my this was and this was a a very unusual case because we had the robbery and  shooting outside the walgreens but mr day the person was shot did not die so there's a federal prosecution for federal charges the robbery and the gun charge then after the federal trial mr day after the federal trial andrew jackson was paid  seven hundred fifty dollars then mr day died and within a couple years he was retried then in the state court system for murder both of them mr bond work i do think with respect to materiality though there are dollars by today's standards this is a woman that testified that she made about seven bucks an hour so that would be like two weeks payment for angela jackson when i took her deposition deposition the times under oh she said no i didn't get a payment no i didn't get a payment then when i showed her the receipt which she signed for i don't remember the payment that was testified to five times then on cross examination that when the attorney general started asking our series a leading question as to what she said yes yes yes she was asked what then you mean by reward when you didn't you think you were being asked whether you got any money from me or a truck company to which you said yes this lady when she was asked what do you mean about one red cent she said well i thought i was being asked that i got anything but the place angela jackson's testimony is all over the board but i would see and to this court there's never been an explanation about why the government is paying seven hundred fifty dollars to this witness after she testified in federal to a federal witness fee is forty bucks that comes from the marshal's office not from the anticipated there was no reason for doing this the jury was entitled to know about this because frankly baby well could have believed that there was something unusual about this is not every day that the government that there was some kind of promise there was paid that was promised to any let me let me ask you if is there any case any precedent for the proposition of finding falsity where a portion of the testimony now technically true is so misleading as to be effectively false is there some case for that because you know in going through her testimony or the questions she was asked about reward or you know or are paid meaning you getting into now where she didn't remember so my question is well just looking at the statement on its face some of that testimony might very well be technically true but i'm asking is there some case where you found in that situation where it could be considered effectively false because that's really what you're arguing that it was false it was knowingly false well you know we have to obviously with respect to the false testimony claim which is a separate basis for relief in the brady claim  obviously our language is imprecise and the standard has to be unequivocal be false but what i would urge the court to look at in this death penalty case is that this is a huge shift focus on the prosecution the back you didn't receive one red said that it is true she did not receive one red penny there are no red pennies that we're going to live with you to look at it that way that is that one paid but the import of the testimony is being given to the jury is oh she had no reason she's just up there because she's the right thing to do and your honor when we know that that is not not true then you regard this as a perjured testimony case  obligation to put not put knowingly false testimony before a jury in a criminal trial particulate up on top so when the government had knowledge of the seven hundred fifty dollars payment which has been conceded and they then allow the testimony to come forth asking questions about did you get one red cent and hearing no i didn't they had an affirmative obligation as a matter of due process that's what if i wanted to claim as a due process claim to correct the record or prejudge when the government  government knew or didn't know because we didn't get to evidence or hearings because even though i asked for one when the government conceded in their brief actual knowledge of the false testimony claim that mooted the issue so for purposes of this court that is conceded the briefing which is a stipulation this court has to assume actual knowledge of the false testimony claim now in any event though the brady claim is a separate powerful claim for relief and this court has granted relief on seventy dollars payments to witnesses and robinson to the got the defense it wasn't they stipulated that the only thing left is materiality which is whether there's a reasonable probability would have made the difference what do we know about this case enjoy jackson is only one of two witnesses who testified at the state trial that directly implicated thomas the other was richard fisher but he's not credible because he either if i previously two different people as the person that he saw the day of the robbery what curio yeah i guess you're right because side bar judged the judge trial judge says well i don't think mr fisher really has any good recollection of what he said all very early on cross examination when anthony bynes counsel made mr fisher get off the witness stand come down the counsel table look at him take off his glasses did he change his testimony to enter thomas so mr fisher was not a credible witness which leaves the only witness that was the alleged kind of the case with angela jackson ok so what materiality this court should look at three things how important because the evidence because they actually jackson how important it was jackson is a witness she was the with this because richard fisher testified to two other people so you had angela jackson what a way to seal material it i you look at the state court opinion the state supreme court opinion describing the facts there are seven references to angela jackson there's only one to richard fisher there is no forensic evidence linking mr thomas to the scene there was a fingerprint of anthony bo how important is angela jackson counsel yes right in the end good question is what effect on the jury the fault testimony or failure to payment of that marvie two dollars after the federal trial took place and had told the truth about that what effect might that have that would have been are you confident that the absence of this evidence that the verdict is reliable is sufficient it's what you know are we concerned about the case it's something less than the civil standard and what we have here when we have the key witness that we now know is a paid witness and paid two weeks wages with the jury had the jury known that put it in a different light now the state tries to make a couple as you say yes yes yes well first of all because of this court's precedents if we look at robinson first we're talking about factual situation here would it not this is not some other case this is this case in this case the question is my mind is what effect on any particular this forward as an innocent person coming forward just just to tell the truth now we know that she was paid seven hundred fifty dollars she was a ball with this by the state and when she was asked whether she got any money she denied it had the jury known that that puts this case in a totally different light that kind of impeachment this court's precedent has said material and worthy of reversal so in robinson the seventy dollars payment this court found it was material because they said you know when the government is paying a witness then that's the prosecution way that is a fundamentally different character then pietschmann proof that the jury didn't know about the jury very well could have believed that mrs mrs jackson was promised something from the very beginning when she first met those federal federal agents and coupling that with the fact that she lied about it that the jury could believe she lied about it that there's something funny going on that there's something not right here that she was really doing this because of the huge sum of money that she received shown in my reply brief it does not and i think the court can look at that and say it's worthless without angela jackson who somehow magically can look at that grainy black and white obstructed view and say oh i can identify who that particular person is so now the state also tries to argue all angela jackson was impeached in other ways there was other impeachment evidence so therefore this would be kind of cumulative impeachment evidence now the only other piece but they did that the defen and mr thomas his trial did try to put forth the evidence that they had i mean they had evidence that she denied knowing bobby jackson other women said she did that she promised she was going to get into thomas back she was mean to his child but the kind of evidence that that was not disclosed the payment of seven hundred fifty dollars and the basically the denying that that is powerful evidence of a different sort which is again what this court said and robinson and robinson the government made the same argument it was cumulative and robinson they struck argued the seventy dollars payment would have made a difference because the witness at the preliminary hearing testified she didn't remember anything and she was totally contradicted at the trial testimony this court said the fact that the government that the defense could not impeach with the bits of evidence they had does not mean that any more would be cumulative it means that the more damning evidence was withheld which is exactly what we have here this quote said the same thing in barton reversed the materiality to make sure that if there is evidence of a different quality and that's what we have and here we have evidence we have evidence that we have a top where you have one witness that's the key witness were the witnesses presented by the prosecution is this person coming forward because it's the right thing to do and that leaves the state's case and then we now know that the it's stipulated it stipulated that the government paid seven hundred fifty dollars to this particular witness and it is a lawyer the fundamental fairness of that this is a death penalty trial mr thomas is on trial for his very it one night at a minimum he's entitled to a fundamentally fair trial and what do we know now in the record in hindsight about this trial that supposed to be testify is what evidence is there that mr thomas committed this crime he had a trial there were two witnesses that identified mr thomas there was a change ledge axin and then the richard fisher good benefit to other people we know angela jackson was they were there together that the salesman say that he observed jackson give thomas money or thomas jackson money there was some testimony about money changing hands going from one person to the other argued there's a lot of other evidence here about whether or not that that mr bond did this with andrew thomas or whether it was done with the mr bobby jackson whom angel jackson was also a friend but there could be other reasons that angela jackson had money what i do know is at this trial at the death penalty trial there were two witnesses that implicated in her thomas record one of those is the critical witness where there was a seven hundred fifty dollars payment and that she lied she did that the jury very well could she deny getting any money if that information had been known under this court's precedents and barton and robinson that asked the material here is there any reason to think here the witness jackson may have substituted of the vehicle bobby jackson had been arrested three months later for a robbery of an armored car so there is a lot evidence so your honor i mean his pride there was other evidence in the record my point is in a death penalty case there were two there's a fingerprint on the passenger side of the door the thing a problem the anthony bond ok and then we know that a couple months later there was a and then there was a robbery of a car bobby jackson he was a heavy set male the witnesses said that the driver was a heavyset black was caught i mean his fingerprint was on the car he came cut a deal with the government testified in the federal case got a nice i got a twelve year sentence ok and this is i think ok you'll have your reserved time thank you i'm going to get away with this central question coun beauty that he knew it but what is the evidence that he didn't know it well it's the it's the burden of the petitioner to demonstrate that he did know what your honor and there's no but imputed knowledge suggest imputed knowledge means no your honor we just wanted to make that clear that the representation in the record is that there wasn't there was the the big question one question my mind is where albers case standard applie likelihood that the false testimony could have affected the judgment and that's the question your honor is there any reasonable probability that the judgment of the jury could have been affected in this case and the answer to that is thank you it's just all we have inquired and we understand that it is your desire sir to proceed at this time with your argument that's right we also i would just want to know if the record that we are that's exactly right in this case that information would not have affected the judgment of the joke and my question to you before was how do we know because witness credibility is an essential part of this and the  question and that could be a couple of question well first of all you have to look in the context of the entire record and the deep tissue did a good job glossing over all of the evidence in this case second of all you have to look at whether or not the witness was in fact impeached and whether that credibility was attacked which happened in this case but if we go back to the entire record which is what i think this court wants to recognize the other evidence in this case this is not a situation where this case turned on one witness to distinguish from all of the other cases that  forth between roberts and forces mills and bar and all those other cases this is not instance where we have one witness that is the sole witness to this case it is critical submission or makes out to be the entire record demonstrates that first of all we have the identification  witness identification of richard fisher when asked in court how confident he was with regard to that identification richard fisher answered i'm very sure second of all we have the videotape the petitioner did a good job of glossing over or what that videotape means this trial your honor he was asked to identify who he thought the shooter was and i do not remember him identifying someone different at the state trial when he was presented with a lineup of photographs of who he thought the shooter was he did at the state of the state trial i just what i do not remember him making a misidentification at the state trial i know that prior to the state trial he had done a fighting photographs another individual as being the shooter but when he was asked by make sure that the identification he was me the king was a confident one so when he did that he had benefit of the petition and when he was asked about the confidence level of that identification he did not quit he said i am very s extrapolate from the video for themselves the jury is able to accept or reject all or part of the witness's testimony in this case having the ability to see the video for themselves having that video reduced to stills and looked at individually we would dispute that she told a lie it is not indisputable false and also did a good job of this is oral argument glossing over the actual questions the question to angela jackson was when you were the first question that was asked when the f b i approached you in  ninety seven for your initial statement to them did you ask for your reward money her answer was no she was then asked did you receive reward money the answer was no at petitioner's federal trial she was asked by defense counsel it true that you're interested in the possibility of receiving reward money for what you're doing in this case she answered no the next question was in other words you're not interested in any reward from the armored car company she answered  there in her deposition she answered that she understood any question with regard to reward to being something from the armored car company she truthfully answered no we can also look at i didn't stop i may not have been a reward prosecution supposed to correct an imprecise question imprecise answer but the prosecution is stipulated though that there was that this information should have gone to defense counsel they should have had an opportunity to challenge this they couldn't challenge it through their cross examination because they didn't know but that's that's not where the korean ship at the inquiry has to include the what even if the defense counsel had an opportunity to question  the witness about that answer and the jury heard that answer what would the jury have heard and what effect would that it had on the jury the answer to that is the jury would have heard that three years prior to the state trial angela jackson was paid seven hundred fifty dollars by federal u s marshals through her cooperation as a witness in the petitioner's federal case they also would have heard that there was no nexus between her testimony at state trial and that pain and they also would have heard capital case is from any other case in the standard is did this would be inclusion of this evidence have affected the outcome of the trial because it was just all let's say that we accept this proposition was asked in the answer that was given that compound the the falsity about mission no you out of the question being asked was with regard to hurt testimony at the state trial she was asked are you receiving one red cent for this if this court were to ask me and i receiving payment for the fish that would be understood what was the seven hundred fifty dollars for list it was for her cooperation as a witness in petitioners federal trial for her corporation as it would and how does she copyright other than testify she provided this when the f b i first approached her in her home she provided a statement about all the facts that she knew with regard to the robbery that initial questioning period took several to believe that when the government goes out to question that witness an eighth of an investigation that the government is going to compensate them for their loss of income loss of time and inconvenience for taking time to talk to officers about  any any expense with regard to her testimony at a federal trial was being compensated for her cooperation that's what the federal payment was for scott sanders tells us in his declaration that the seven hundred fifty dollars payment that was subsequently given to miss jackson was not anticipated planned or discussed with her at all in every case that the petitioner cites to support his allegation of a brady violation we're looking at a situation where there was either a sole witness to the crime or that the witness was being paid for their testimony and just just curious what was her weekly income she wasn't sure she was asked at the deposition several years afterwards how do you compensate for loss of income when you don't know what the income is how do you know you're not overcompensating under compensating we don't know your i did there wasn't enough questioning with regard to the specific facts of payment scott sanders was asked for his testimony about what the payment was for and  that was do you know whether mr jackson was ever paid anything in the former world or anything else in connection with her testimony yes she was after the conclusion of the case after the sentencing i believe she was given the sum of seven hundred fifty dollars we have that statement from scott sanders and we have the state that worships scott standards saying that the pain it was in no way connected to her testimony for any it illusion of fabrication or alteration or modification or anything like that which is calculation so we really don't have all of the metrics to be able to tailor this to what you say is compensation for her time in answering questions and loss of income of which we don't know what i mean come was we don't know which time she spent with them so we just know that seven hundred fifty dollars is a fair representation of fair compensation for her love and common things that that that's the evidence that we have your honor and i think that's important to recognize because it is the petitioners bird to demonstrate that a constitutional violation occurred and you're exactly right there's been no proof or evidence presented that would demonstrate that this payment was in any way cause the fabrication modification alteration of the petitioners testimony and that is what the gag leo standard is trying to protect against is trying to protect against the idea that a witness is going to stand up there and be used as a tool for the government in the petitioner has to show that and we don't we don't have that here we simply don't have that here but i like to go back a little bit to the other evidence in the record that we can look at and ask ourselves how important is angel jackson's testimony in this we have richard fisher juror to decide for themselves what that videotape showed and what it didn't show we had lisa know that the videotape showed that the surveillance video matched thomas rather than the taller bond because that's what this court found so we at least know the videotape could have done that but we also have w know we're not using it against defending your honor we knew we was introduced for the purpose of the codefendant saying this is what happened at the crime because angela jackson wasn't at the crime scene so the evidence we haven't actually  of part of the evidence that was introduced at trial we also have eyewitness identification that angela jackson's car was parked around the corner that the two gunmen the getaway driver and the shooter entered into a white car drove around the corner and person who sold angela jackson the petitioner the car from angela jackson opening up a bank account with over two thousand dollars the day after the crime we have testimony from the pawn shop owner saying that he sold angela jackson and the petitioner a shotgun the day after the crime to the testimony the other eye witnesses and tell for yourself what they testify to they testify to these two people entering into their establishments and using stolen funds to open a bank account to buy a car to bias shotgun and other trial and you have the eyewitness who was not at the crime scene you can't say that that would this was the sole or key witness to the case when you end when you have an eyewitness to the crime when you have a videotape of the crime when you have numerous other witnesses talking about what happened with the proceeds the day after the crime when you have independent witnesses saying that they saw angela jackson's car parked at the scene and that the getaway driver and the shooter got into that car and drove away when you have testimony exhibit twenty four was the victim's testimony from the federal trying saying that he knew andrew thomas and that he could identify and to thomas in court when you have these other facts it is not reasonable to say that angela jackson's testimony was the only or the testimony in this case you also have to look at whether or not angela jackson's credibility was attacked in this case it was significantly attacked in this case regardless of the payment angela jackson was accused of being cruel to the petition and that's the reason she was testified angela jackson was accused of trying to get back at the petitioner because she was angry that the petitioner went out late at night during their marriage or had other girlfriends during our marriage think those things are comparable to a showing of bias because one has received a significant payment absolutely wrong because there is no showing of bias first of all the petitioner cannot show that there's any nexus between the angela jackson's testimony at the state trial and the payment and it's not there's no showing that the petitioner admits it does really testimony or her testimony or modify testimony because of the payment he's saying that she testified that way because a perfect she was scared she was going to be perjured but there's no there's no bias with regard to whether there was financial gain expected because of this payment and she was not there is there is no connection between that payment and her stay trial testimony she was asked whether or not she was receiving a word or whether she asked the f b i for reward she didn't and she never received a reward saying testimony she gave it to the playing the wording of her statement should we go beyond those plane of that plane statement said thing whether that was true a truthful statement or false statement i think it's important to look at the actual question and the actual statement because the standard is indisputable falsity you can ask yourself whether or not if you interpreted the question differently whether someone else would have interpret the question differently that's why the standard is indisputable falsity so you have to look at the actual question that was asked and the actual answer that was given all of the cases that the petitioner cites to with regard to this have to do with statutory construction or cases that that talk about whether or not the issue of false testimony is is with regard to the culpability of the prosecutor but that's not the standard that's not what we want to know when we're asking about the glue versus you know we're not talking about the question and answer we're not talking about the couple believe the prosecutor we're talking about the fundamental fairness of the trial the fundamental fairness of this trial did not turn on whether or not mr jackson received a payment three years prior by federal u s marshals her cooperation in the petitioners federal case in the push your state trial for felony murder there's no connection between those two doesn't it that there's no rule there's no probability of the outcome might may have been different if the jury had heard that three years prior she received this payment this evidence the exclusion of this evidence was the question and the answer that was given indisputably false and is there any reasonable probability that the outcome of this case would have been different had the jury heard that there is no nexus between angela jackson state trial testimony and her payment three years prior by federal u s marshals and the answer to all those questions is no thank you thank you still still how do you have your five minutes  because it's important what mr fisher testified when he's being directed he's asked to see the person he saw in the getaway car and he says it's anthony body points up anthony bond not my client this caused a big consternation the court they had a sidebar and it's a time ago it's been when mr bines lawyer on cross examination trying to hide his client make him get off the stand go instead sit in front of my client take off his glasses now do you see you did it that he changed his testimony so to say that that is a real sure identification after the trial judge himself had already called into question his ability to make an identification and create under oath already identified somebody else and previously out of court identified a third person makes absolutely  the one that said it was my car that was used by thomas angela jackson that opened the bank account is edward jackson said he admitted to me that he did this particular crime now the other interesting thing about this is it's the same safe streets task force which keeps on coming this joint task force did both particular cases now my colleague said oh this was money for her expenses but that's why they paid her the money if you were the government that after the trial gave her money for her services that payment of two weeks payment for this trial and not to disclose that is absolutely and to say ok i was for her time or something they're not allowed to pay for time nor the government has said they can pay forty dollars a day and that comes from the marshals no statutory authority for the government to pay seven hundred fifty dollars to a fact witness for statutory authority for the government through the marshal service to pay forty dollars a day and age that is not what this particular payment was this payment was the night under oath i missed miss jackson she could expect she's going to get another good does that make sense your honor did after the trial for no reason they just come with a christmas gift and sort of give her seven hundred fifty dollars this was a them and while there was one witness that witness was paid seven hundred fifty dollars that was said and you didn't get one red cent that's correct that's what was said to imply she didn't get any money why did they ask those an evidentiary hearing and that's the final point i like to make with risp we were going to try to get into what people knew but when the government conceded in their brief or the false testimony claim knowledge then that rendered that moot we didn't get our hearing because they stipulated that sh task force and the f b i she could have gotten that too and she probably did we don't know we don't know but what we do know is she was paid and your honor justice demands that mr clinton and my client get a new trial thank you mr hadden the matter is submitted