on the district court in the eastern district of arkansas for for many years she was so appointed by president bush and received her commission in one thousand nine hundred and ninety she served as chief judge on that court in one thousand nine hundred and ninety eight until two thousand and five she has sat with us before we are delighted to have her help us with our work and we did want to welcome to our court again two other brief observations for you before we before we begin for those of you who have not appeared in our court before eat you will notice that we have a lighting system the time basically just tells you how much time you've got how much you got laughed and there are three lights there's a green light which means of course you may proceed an amber light which is a two minute warning and a red light which says that your time is op when you see that red light come on we'd be much appreciative if you could be it and bring your  conclusion last observation as you proceed with your argument this morning you can safely assume that we've had the opportunity to review the briefs the record excerpts in some instances we've had a chance to review the record as well so feel free to go really to the heart of your argument with that we will begin with the st case scott davis versus eric sellers i got in late i'm very respectful of the fact that there was a full trial with competent counsel a direct appeal four days of jury deliberation a six day state hey b s hearing the district court noted that she sat on the case and considered it for eighteen months because she was so concerned about it yet all of those courts ruled against mr davies i'm very respectful of that process i got in the case i read everything and when i turned over the last page of the transcript i thought that's it now this is not a sufficiency of the evidence argument but my point is this is a close case this was far from a slam dunk so the errors it seems to us can be magnified so we've got these substantive due process issues and there's questions about whether they were exhausted here's how they were litigated at trial counsel made a big deal obviously about how ten years after the fact so much evidence had been lost the record speaks for itself as to what was lost and apparently how it was lost it was litigated on direct appeal and in the district court in the state hevia it was litigated as well document sixty eight in our record pages eleven through twelve are the pages where the district judge the federal district judge totenberg noted all the places where prior haiti is counsel had brought up the substantive due process issues about the lost and destruction of evidence it was brought up before during and after the state hades was brought up before in a pleading it was brought up during during arguments it was brought up after when prior haiti's counsel submitted a proposed order that had it as a standalone issue we submit it's exhaustive but now let's get to the guts of it youngblood our standards and what this court has to decide is you know where the state courts whether it's the georgia supreme court of the state habeas court whoever it was were they the deference that we owed to them did they engage in an unreasonable application of the trombetta youngblood it would be the supreme court of the state would not since there is a resolution of this question by them well it would except they didn't make that argument ever in the lower court but be that as it may whether it's the georgia supreme court or the state a b s court we owed deference to their ruling i concede that one hundred percent the bigger question is was there are reasonable application of that standard i submit i have never mr malcolm has never and this court will never see an evidentiary so they have the right standard they knew what the law was but they simply one hundred reasonably applied it to the set of facts exactly just like this or tell me why there has never been a case with this much evidence lost by this many people by five law enforcement agencies with a custodian of record st asserting then denying that she signed an affidavit that was prepared for her by the district attorney's office there will never be a case of this sort that's why we quoted twice justice stevens concurrence in youngblood where he said you know folks were enunciating the standard that there is going to be a case down the road where the defendant it cannot flat out to prove the absolute  nature of the destroyed and lost evidence also cannot prove that some officer engaged in bad faith yet that defendant will not get a fair trial we submit that's what happened here i agree it's an unusual case we haven't found a case that similar  hasn't found one either because this is i think it's sui generis is the latin phrase there will never be one like this again i am very respectful that we owe deference to the state courts that under the a have to basically affirm what the state courts do unless they engage in an unreasonable application but i think the way congress created the a t p as well as the way the courts have interpreted it it's not so strict and rigid tells me with this the georgia supreme court one addresses the issue directly says the following and basically looking at whether it's exculpatory how powerful a significant the evidence was they say and i quote other than the tassel and one of the gas cans all of the other items were found either in the victim's burned car home and would generally not suitable for forensic testing because they had been damaged by fire and doused with for them or any testing that was conducted on the items was preserved a trial by witness testimony in any event davis has failed to show that any of the items were exculpatory and then they go on to say moreover there's no evidence the state acted in bad faith to take them piece by piece ok tell me why it was so off the mark that i'm not obliged to to defer to the state supreme court determination that the evidence was not exculpatory at least on its face we don't know what the evidence was because it was lost and destroyed st nd there was evidence in the state eighty's hearings that many of the items could have been tested this thing that was the suppose it murder weapon found next to the dead man that there's a witness who said you could have tested that no problem at all instead the state g p i examiner who was kicked out for lying another thirteen percent of her results said i couldn't that that's and again that comes back to the point which is judge justice stevens concurrence and there will be cases where the last and destroyed evidence is of such a magnitude and it is so pervasive in the case that the defendants in ability that your argument is i can't really show you how it's six scope atory but they can show you that it's not and the corpus of evidence is so big that i shouldn't have to go beyond saying it's pretty much too large to to bypass that way if that was all i had i would agree that you would owe deference but we have more we have the entire corpus to use the courts word of evidence in this case from the state he is hearings and what else has happened concerning bad faith don samuel is a friend of mine he was the lawyer who did the direct appeal for we get to bad faith i just want to drill down a little bit into the question of the character of the evidence was not the supreme court of georgia right in saying that other than the tassel and one of the gas cans all of the other items were burned in  not suitable for forensic testing whether they maintain them or not they were wrong about that judge they were wrong in that the gas can and the makeup of the olympic bag found in the victim's burn porsche were not burned they were available they were for some reason suld on the open market after the investigation was originally closed those were crucial because the defendant's ex wife testified those were his gas can his a limp big bag there was direct evidence that those items were available the serial can on the gas can by itself would have been very valuable so in that way the georgia supreme court was unfortunately dead wrong good faith is a component bad faith is an even worse component as i was starting to say that kind of morphs into this issue on the nd tape and in my friend don samuel was testifying at the state haiti's hearing and he was asked about the lost and or destruction of this nd tape and what would happen if the state if that the agents that officer had created to tape but had only given one to the da and then got up and testified that no there was only one tape and done mate said it very clear he said that's the quintet that is bad fa that's why these two issues when we look at them want you to see about that nd tape didn't your client know about that tape at the time of his trial he was there when they were recording his interview he was there when they were tape recording an interview he was not aware there is no evidence that he was aware that there was a nd recorder now again i'm respectful that my record is what i'm supposed to argue from there's other evidence that's not part of the record but there is no evidence that mr davis was aware that there was nd recorder but  that if he were aware that that would be that would be precluded i would agree with you judge i'd be in a much tougher spot if there was evidence of that yes ma'am so we've got this nd tape and as mr samuel said that's quintessence of bad faith and again this is all we're asking for as i said we are respectful of the fact that federal courts are supposed to be creating evidence in twenty to fifty four cases were supposed to be assessing as judge marcus mentioned whether the state courts got it right or whether they engaged in on a reasonable application of binding law we're asking what the district judge to do is to consider sending this case back to the state court for a hearing about this nd tape we submit again this is very  don't know that we have the power to tell the state court what to do perhaps the district court could conduct a hearing on its own but i'm not sure that we would have the power that the district court would have the power to go back to the state court and say we don't think you did it right co host hero i think that's state court to conduct a hearing i don't think we should says not to i don't think as a federal judge a you or any other federal judge can tell a state judge you must conduct a hearing i think what a federal judge can do is to in the words of ryan's versus weber hold in a five where the back court that appellate court had something similar where they had a claim that was already maybe exhausted not quite in new evidence that related either to the original exhausted claim or to a new claim came up and they basically the th circuit said you know underpin holster facts are supposed to be found in the state court and they said you know the best thing to do is to send it to the state court for them to consider whether they'll have hearings on this so i think that the question of whether the claim was fully or completely or partially exhausted is really not the end of it the end of it is which court system should have the opportunity i think it was up currently thank you good morning may please the court my name is clint malcom i represent the apple in this matter on behalf of the georgia attorney general's office i respectfully ask this court to affirm the district court's denial of federal habeas corpus relief as this court is away or the district  granted a certificate of appeal ability on two separate issues i believe that those issues are addressed and pellets argument i'll start with the last evidence due process issue judge marcus you are correct the georgia supreme court is the state court decision we must look at  and that is the decision that should be afforded deference based on their reasonable application of trombetta and youngblood based on that decision the state court record that the georgia supreme court had on direct appeal is what is what must be examined that's what columbia pin holster says so this case is a little unusual in that those issues surrounding the last evidence were fully developed at the pretrial hearing stage at trial on direct appeal and decided adversely to appellant and then in state hey vs a few years later those issues are sort of brought back up all through the context of six amendment ineffective assistance of counsel claims so you did have some additional evidence that appellant tried to get in through state vs through a very lengthy evidentiary hearing but in regards to the georgia supreme court's decision on the merits it is based on the state court record that that court had before it time and we're looking at the deference applied to that decision  trombetta and youngblood at the georgia supreme court discuss or apparent exculpatory value of the evidence that clearly was applied by the georgia supreme court reasonably as this court has already made note of the evidence in question that was a numerated on direct appeal and counsel believe was the most noteworthy to bring to light was all either destroyed or severely damaged by fire either to the victim's porsche or to the victim's course  that so much of the evidence had been destroyed in the manner that was not consonant with the normal procedures that they employ and that sets this case apart arguably from trombetta in cases like that that they violated their own internal rules across the board involving multiple pieces of evidence involving multiple agencies of the state involving an extensive period of time and that he says is different that may be unique in that there were that would be a fair statement would it not i don't disagree that judge marcus i think there's not a dispute that certain standard operating procedures would have been violated by this various law enforcement agencies either losing or discarding certain pieces of evidence in advance of a trial that occurred yet this this case was somewhat unusual also in that there was i think about a decade between the time of the murder and the actual trial in fulton county i won't go into speculation as to why that evidence may have been lost or destroyed however i would go back to the additional prong under youngblood concerning bad faith which is another element that they did not meet at the georgia supreme court address that they had to show that law enforcement when they lost or discarded this evidence did so in bad faith and they just cannot meet that burden i was concerned about that the georgia supreme court said there was no evidence of bad  for record here the consistent placement of every procedure in the book church so how can you say there's no evidence of that faith that is the georgia supreme court saying that as opposed to  was no evidence of bad right and i think when you look at the definition of bad faith what they had to show was that there was some sort of conscious effort by these law enforcement agencies to suppress or get rid of this evidence and that's what would constitute bad faith and judge will i would submit to this court there was no evidence of that there was certainly evidence that evidence was lost or destroyed when it should have been but there was no but i think the point that's being raised is the inference of bad faith flows not because somebody said they did it intentionally but because of the pervasive nature of the destruction that's the that's right kind of the issue do they they don't really acknowledge that do they and say but in any event we far and there's no bad face i think if you look at the decision they do talk about sort of what's necessary to establish bad faith and they they enumerate the specific pieces of evidence that are raised on direct appeal and they talk about the fact that they were lost or destroyed and that they that may have been negligent that may have been oversight that may have been even gross negligence but however that is not enough to establish bad faith so while there were multiple pieces of evidence that were lost or destroyed in advance of trial even looking at all of that there was still not evidence of bad faith that it would take the loss of the fingerprint card in two thousand and five perhaps that's the most suggestive to me it's odd indeed the state possessed and was testing the card in january but no longer had them when davis requested them later that here i would st go why would you destroy the the fingerprint carts i mean it's different from something that's bulky and it's difficult to retain and you don't have room and storage is a problem and safety is a problem if you ha contraband or something like that but the fingerprint card struck me as odd indeed it and i don't i don't have a good answer as to why that may have happened judge marcus as the record reflect why it was that that was destroyed because we know as of january of five the fulton county investigator had the original fingerprints card it was conducting further testing and they were lost by the time davis was indicted in november if i have that right that's my understanding as well judge marcus i don't know as far as further details there was some testimony from the g fingerprint examiner that was offered in state hey b s about whether those prints were retained in or last i should say in violation of their standard operating procedures and and whether they were at this quality he could not say that they were so that even if they had been preserved they could have been tested however i would say any of that evidence and state hey b s i go back to my previous argument it is not what has to be considered because the fingerprint issue was raised at the trial court excuse me was raised on direct appeal however as the georgia supreme court noted it was not preserved at the trial court level and i would like to briefly address that issue specifically in regards to the fingerprint card is procedurally defaulted in that's what the georgia supreme court found and that was correct the the specific pieces of evidence that were addressed on the merits in the youngblood trombetta analysis on direct appeal those pieces were  analysis was conducted on those those pieces had been laid out extensively in appellants pretrial motion to dismiss the indictment however the fingerprint card and other pieces of evidence were not enumerated they are they were  numerated at the motion for a new trial level and on direct appeal there's been some mention i think in appellants briefing as to a continuing objection or a motion in limine in regards to the fingerprint card or other lost items but if you look specifically to the  record in the case he will see that that motion in limine e and then once it's denied the continuing objection was specific to four pieces of evidence that direct the court to the record document sixteen to twenty nine this is the record for the district court pages  and fifty two that is the pretrial proceedings right before this case was going to trial where four pieces of evidence i believe the two gas cans he had tassel in the plastic olympic bag those were items that trial counsel after they had lost their motion to dismiss the indictment those are items they specifically wanted the court to address and they asked the court to preclude the state from even mentioning anything about them in their motion in limine that motion in limine was denied they asked for a continuing objection to be granted as to those four specific items which did not include the fingerprint card the court gave them the continuing objection and that issue was addressed wh  i just didn't understand ice quote serial number on a gas can my understanding of that argument is just like there possibly be a serial number on more expensive items but my understanding of these items were they were cheap gas cans there was one found in the victim's burn portion one found on the side of milperra road the relevance of the gas can on the side of mt paran road was never really even established and linked to the case the gas can inside the burned porsche was burned so whether or not there was a serial number on it to begin with or whether or not that serial number would have remained after it was burned was never established in from what i can ask a question is who testified these can't have serial numbers i don't know that anybody did ok at this stage not a match to the think right card is that correct it's absolutely correct that was established at trial so that it's called with or a nature of that evidence was before the jury and their contention is well we should have her on the card against the system south side to speak make sure i understand the record in that regard yes your honor but that's mine and i'm not saying this solves that they sell lost it's indicative of how they lost other things but at least i don't know how was it except for the fingerprints the on the twelve items i believe there were twelve that were numerated on direct appeal if we're talking about due process by a lation surrounding the state's failure to preserve those twelve items we don't contest exhaust some reason the exhaustion issue just went off the rails at some point in the district court i think you can attribute some of that to the manner in which the issues were raised in the federal pleadings by appellant the district court noted this that it was very hard to decipher what specific constitutional claims they were raising in there is not uncommon i might add i would agree with that as well your honor it's not as common in counsel pleadings but what we we argued every alternative argument we could to give them every benefit of the doubt as to sort of your view just so we're clear it's the district court in fact the errored in determining that due process claim had been procedurally defaulted in regard say for say for the fingerprints in regards to those twelve pieces of s on direct appeal yes your honor let me ask you this question of the evidence that was destroyed you've already started to reference this but i want to ask it directly of the evidence that was destroyed  in some other way but no your honor i don't think any of the evidence that was destroyed in that evidence would be i don't know why not focused on the evidence that it kept fire department took and in regards to the burned vehicle the evidence in that burned vehicle was burned and severely damaged by water so it the it's this isn't a brady case where the evidence was never disclosed to appellant or his counsel they fully knew about it and then in the interim period between the time of disclosure in the time of was lost and that is separate from the evidence that was in the victim's burn car which was obviously burned and water damaged how it would help me with a firearm before you sit down i don't understand then you may not have been able to match the bullet from the victim's body to the firearm because of the fire and water damage but why would just the firearm on its face to follow up on judge marcus have some value to try to trace the car to argue i guess we know it was the victim disputed i mean it there was no ballistic evidence to link it directly that that was the murder weapon but it was found right there and it was the victim so that was what is going to sound right there by the victim it was it was it was located at the crime scene apparent before it was destroyed and would be of such nature the defendant would otherwise be unable to obtain comparable evidence can we tell that any of that haddix coppa terry value or is all we can say is it seems to me with the state's argument is that whenever there is a case where evidence is destroyed by the crime itself the defendant can never win ever doesn't hullo require you to show more than bad fa the inability to otherwise find some surrogate method of establishing it you still loose if this was a closer case not right on a b if something collateral attack it is it is correct but as guzmn case the materiality analysis looks at the whole picture and when you look at the whole picture of this case something right happened in this case and that's what greatly what we're talking about there the weapon that the guy was found next to the dead man's body the state argued at length that that was the murder weapon but there's no evidence of that and the reason the defense can't test that to see if it's the victim's gun is that the defendant's gun is that a local guy who's been known to kill people as gun is that a gun that was stolen for is because it's destroyed and then coming back to judge judge marcus this point whenever there is a case where there is from the law in this case and depart from your interim better and hold that even assume that it's enough to establish bad faith here and doesn't matter that it's six cope  character was not at all evident i'm not it's because of the pervasive nature of the destruction i'm not asking the court to depart i'm asking the court to hold that it would be an unreasonable application of the trombetta and youngblood standard that under these facts and in this type of crime that going to say why i asked the question this way because you've got to hurdles that you've got to navigate i do understand that judge i recognize that coming back to the testing of a gas can there was a witness i'm sorry i've forgotten his name he said state hey b s hearing he's an investigator he said yet gas cans we test these things all the time they have serial numbers just like most products are he said to have serial numbers i could ask for it comes from the fingerprints true the fingerprints are not scott davis  a they're also not the victims whose are they that's what you want to know because somebody stole that portion put it on fire and if it's not scott davis is that would be real helpful to know who it belongs to because then the defen car on the car door i don't know where the fingerprints are think they were on the car door but i'm not entirely sure but you are absolutely right all of fingerprint does is it shows that somebody touched their grubby little fingers on the car door but in a case of this you can't run through the system that is disputed that witness did say that he thought that they weren't but there was other evidence indicating that the witness who was a man named elfrida the prior i believe the g b i latent print examiner who said that he basically wasn't even comporting with his own standards went to term and whether or not it had enough of those points of comparison to put into the system i see that my time's up thank you very much thank you both we will move on to the