court may be thinking that's because there was no that because there was no clearly established statutory or constitutional rights all defendants are mean for a suit because they had no notice as to how they were required to act or could this really be true why shouldn't these officers and these prosecutors be on notice that withholding exculpatory information for at minimum ten years while a man was sitting in prison is wrong let's assume for the knew better you may be asking why should we hold them to have known better the d a knew better because three point eight g of the new york cans of ethics it lays out clearly a prosecutor's sponsibility when it comes to committed these murders said her husband had confessed to these murders option knew that it was got this in testimony that they knew that there was no problem up to it and certainly no none of this information was given to mr pierre and that was in two thousand and five he wasn't born in newton against city of new york in a somewhat factually distinct situation but that didn't happen until two thousand and fifteen i'm having trouble understanding why you can say it the there's a court still there yes judge i as i said i'm not going to review the lab or dispute that with you i'm here to argue that i understand what the court is position is and i anticipate that would be the court's position but i'm here to say that such a position runs counter to what we understand what we're taught as children from our mothers our grandfathers our uncles our aunts and the we hope that our history teachers in our social studies teachers and our gym teachers tell opera stars da's and judges that you have to be honest and transparent in your dealings with people in all likelihood it's very possible that their rabbis pastors their clerics told them that if someone gives you information in the notion of fairness and honesty you have to turn that information for now maybe as you say not not maybe the supreme court did not say that but can we stand here and say and honest the nd circuit say that these officers and these assistant district attorneys didn't know what was right what the right thing to do was morally not the defense will say that as you have indicated there was no clearly articulated standard that would require this and the court has indicated that information even after person is convicted if you don't do this for traffic here do it now going forward so that every other inmate who is wrongly convicted who is sitting in jail leaving no expecting that we have a system that believes in fairness i honesty and transparency every faith in our system not just because he said not just when he said at the defense table with brady but when you sit in the prison so these are the things that he or she is taught in school just like you  nice teacher preacher respectfully these are the things that you were probably top and continue to live by if you don't we will have a civil justice system that is this connected from the basic american values that we know prisoners preachers and lawyers and judges that we will be a judge lamb or stated in one versus the city of rochester which this court did consider several years ago and said it clear evidence undertaking to investigate this allegation now we can have an interesting discussion or weeks certainly could if this were a legal issue that were open to us to decide about how long it should take before that allegation needs to be disclosed or that an investigation to continue but surely you agree that by the time the disclosure was in fact made to mr pierre the disclosure was a lot more potent than what it was  that at day one in two thousand and twelve this should be or at least at the point where the investigating officers got finally got mrs boyd to disclose more than she had at the time of the two thousand and five episode if they turn that right over to defense counsel doesn't that risk compromising their investigation and they want to do things in a systematic way they want to talk to other witnesses before they talk to mr boyd if you let other people in on the investigation doesn't d that create problems i mean you know i used to be a prosecutor and i don't think that it investigation it's no longer in the hands of the authorities and they have no ability to figure out what's going to happen and i'm i'm sensitive to your argument about what the rule in theory maybe should be done just trying to figure that is certainly the kind of thing that's a call for transformation that at this stage of a trial after they've done their thorough investigation after they've brought an accusation against a defendant that it's time now to say look here's something we didn't credited at the time but it's there and go figure if you can make a defense out of it god bless you that's a little bit different than a situation where you know defect in the middle of trying to investigate a three point eight someone bought in the canons of ethics probably thought through this very scenario that you're concerned about and if you look at that rule those can address it's very clear there's no wait a nd how might this be viewed might this compromise the investigation the point is very clear prosecutor actually has to go to the go to the defendant or the convicted person or in the alternative if he can't or won't do that he or she has to go to a judge and explain why they cannot produce the information so that might get to your scenario if they were concerned that those two potential defendants were concerned that it might somehow compromise or investigation and i respectfully submit they weren't concerned about that they they they never thought and they still do not believe this guy is the murderer even though the jury acquitted my client within two hours less than two hours that wasn't their intention but if the court is legitimately concerned about that three dollars lays out the process by which you would do that if there's some legitimate interest in this information not getting out you go to a judge and you explain to a judge why you cannot disclose that they didn't do that you again whatever rule that could be fashioned there's gotta be something better than well he's been convicted so it's just constant prison and we don't hafta given th information because in the end this kind of this connectedness the thing that i hear your honor saying i understand where you're coming from is a disconnect in this that i think quite honestly is causing the destruction the despair that we see in the streets today investigation because the disclosure isn't made until sometime in two thousand and thirteen is that correct yes we do have a detail record on that but it's not really an issue on this motion because because it deals with the facts but i believe that the second important witness who  attorneys made a judgment call that they did and this case this lawsuit is not just important here mr boyd lived in the same building that he is alleged to have set fire to an apartment at the time of the crime is that right yes you  pierre we wouldn't even be here if they hadn't disclosed eventually the results of the investigation they got involved with in two thousand and twelve right that's right here they're the ones who presented this just a question of when it got done they disclose the information and then they made their decision about whether that information warranted them to drop the case or whether they were still going to prosecute the case and let  here on ars patrick beat for the city of rochester on the rochester police department this case really begins and ends with the supreme court's os going to sit on the supreme court made very clear that there is no brady type and title meant exculpatory evidence that's encountered post conviction that's plainly what the plaintiff of this matter is claiming he was entitled to a great deal like disclosure this information post conviction as early as two thousand  provides for that sort of disclosure of evidence and counterpose conviction is something that the legislature of new york state needs to implement not the courts it's the legislature that can assess what materiality of evidence would give rise to some sort of disclosure obligation whether that disclosure obligation would pertain to prosecutors alone it would pertain to prosecutors and police and police would have an obligation as a plain to see it's here to disclose directly to the convicted defendant or to disclose to prosecutors and a brady type fashion there's a lot of questions that really need to be waded through to decide what an appropriate rule is to get to the justice that plaintiff's counsel is arguing if there's another remedy though is to isn't there mr bates which is internal to the police department and also to some degree to district attorneys if they become aware of this information or they're made aware of this information i would think that any one with law enforcement experience would agree that if a disclosure like that made by mrs boyd in two thousand came up in a boyd and it seems to me that a lot of what police reform advocates are arguing for is that that obligation and that professional obligation on the part of the police to figure out what where the truth really lies does not end after they've convinced themselves that they've got the right guy and that they remain as open to new information after a case has been closed as they were at the start and that's something that a police department can certainly do on its own without waiting for the state legislature is to pay attention to something like this and raise the question of you know my god what if we were wrong  at the time you know to bury this in the file we all know that would not have happened if they said here's a break now we can pursue this investigation and see whether boyd is the guy  and i don't know that so then about the constitutional role or any of the arguments that you're making but i would hope that something that's happened since two thousand and five is that police departments and prosecutors more alert to the possibility of wrongful convictions and understand that there is a professional whether or not it's a constitutional or a legislatively enacted obligation to follow up on information that suggests that they may have been wrong in the  place your honor i hear you loud and clear and i would say based on the facts of this case that even in two thousand and five when this information was st encountered there was some attempt to conduct an investigation the officer recorded what in transpired said i don't want to talk about it anymore there was no further follow up and i think we have to remember that this was a case where there was a person already convicted after a fair trial and serving time so he had gotten this hearsay allegation in the heat of this domestic dispute as ms boyd was trying to get her out of the apartment hit her husband out of the apartment and as soon as he left she wouldn't say anymore there's limited means for our police officer to continue to investigate that and there are different constraints on the police  hearsay she told him that he did it right she told him he said he did it right so she was reporting what her husband had told her there are a lot of different administrative constraints on a police department and certainly it's best to get an unsolved crimes take priority over investigating crimes where somebody has been convicted after a fair trial so i think again yes there can be procedures in place to make sure that there's a robust process in a police department for making sure people are honestly convicted but it's also the state legislature if there's going to be safeguards to make sure people are sitting in jail they need to be the ones to pass those laws to require some sort of investigation thank you that mr boyd was subsequent convicted what was not mentioned i think it is in the record he was convicted of murdering a woman beating her in the same way today the same way he murdered those two people on st street and set a fire a building on fire just as he did on st three and escape out a window just as we maintain and apparently the jury believed that he did and the priest read homicide let me just say part of the reason why i think we're struggling with this as a community is because it's not clear the supreme we talk today about the supreme court we talk about the legislature we talk about the bar the can do best expresses the new york rule i think one of your honors i'm sure i don't have my the camera so i can see someone said well the police can do it should can't they couldn't have aggressively found up on this well it's obvious given what happened in this case and the countless other cases that we're looking at in the news that's not going to happen so this court i don't know to be quite honest i don't know what rule it is that you would fashion whether it would be adjusting the three point eight rule and making that into some kind of doctrine taking the new york rule but this court can can and should try to articulate what the standard is even if it may not affect mr peer but this confusion is going to cause a level of disconnect in this people are living in two different worlds this court can reconcile those were morals by being clear about what the standard is peer every prisoner every prosecutor every citizen in the circuit that the concept of fairness and honesty that we learned as children well apply with equal force when we