a condition precedent to edmond's plea deal was that he passed a polygraph test indicating answering that he did not strike or personally participate in the killing they are just merely strictly here to strictly asking for this great material well they asked for it and it's clear that within a week of the polygraph examination being given the prosecutors communicated to the defense counsel he passed we're going forward i need it passed or failed at that point we amended our petition in the federal his face in november of two thousand as want to include a due process brady claim still the information isn't disclosed for another sixteen months until february of two thousand and three the implication up until that time always continues to be that edmonds did pass the test and that adds a great deal of weight to what happens and it leads to mr smith pleading no actual killer the physical evidence the blood evidence the surviving victims account both show that the killer is edmunds that is the piece that makes the pants council who does a very poor job in evaluating the evidence due process you are and certainly where the prosecution has to clean misrepresents the outcome of it and is aware that it is an operative fact you know taining the plea you are entitled to it think i'm a burning car well i think of the great time i think this court can reach that because i don't think there is a fault because the state until late in the course of this litigation kept that information hidden well that's a question  thought that because well i mean you could reason to know that he had a crowbar even though they're going in to burglarize the home at night carrying the rope that they knew that they might have to tie of the occupants of the home with your correct yes to satisfy the element i believe i laid out that it was really only of the last two that there was a second room for disagreement and i attempted to do that but let me make the core point here first of all the men the evidence was not that they entered the house together they entered the garage together the evidence was not a fair process and so there is no procedural bar under that portion of the haiti especially right and just pan or look that knowledge the lawyer did absolutely nothing he said unfortunately continuance to get the witnesses he needed to get the evidence needed and not giving him a new lawyer i would like to have more questions i just conclude by saying behavior is an equitable remedy there is a palpable injustice in th state hands are not clean here not only did they conceal the how difficult for thirteen years they then exacted mr edmund silence by threatening him with the death penalty i'm certainly it may be appropriate for them to pay the consequences if you breach lately i call it finished in the first instance because the state has been complicit in it for fifteen years in him having gone into a plea agreement that would never the conditions precedent for which we're important is that both are weighing the brady claim and then what can happen on remand in the district court i think it is fair on these circumstances and given the complicity of the state for so long in letting this reach plea agreement where th and whether he was in fact a stablished actual innocence or causing prejudice or anything else to allow the federal court to review those claims on their merits it's our position that all of those claims were  was probably right i probably didn't address that directly in the read three but the it's defaulted because contrition or once he finally discovered or believed that the prosecutor had withheld the evidence of the polygraph results of the codefendant he could have gone back to the state court and raised as if that's a petition alleging this and arguing that i could not have raised it previously because i only found out testify either testified to that at the bail hearing or or it's in a police report i think you testified to it in the bail hearing which i was just rereading this morning unfortunately i didn't take down the page number  if you want to get through this you might say well you know we could subject you to capital punishment if you say this but we really want to truth come around so is a factual statement this is an incorrect statement that keeps being made over and over again that everyone's got forty three months he might have served forty three months of his twenty year sentence before he was paroled or he was sentenced to twenty years in prison for robbery in the first degree which is motion for a continuance if you read the transcript of the post conviction hearing it actually goes on for pages and pages where the judge is trying to find out from mr smith well what exactly did you want your lawyer to do what is he not done that you want him to do are there more claims that you want to have raised here and the thing that comes up at that hearing when it's actually being discussed is i wanted my lawyer to take these depositions and the lawyers i don't think they would have helped and i can tell you from personal experience on out that that's true i think i would have been delighted to go and have these people have their depositions taken because if they're preparing an affidavit when i send them the petition is that you're these claims and they send you back a letter that says that's not true that's not true that's not true which is what happened here i just can't imagine that a deposition is going to make the case any better for the petition itself and judge miller the post conviction judge also knows that and the court of appeals the from and the supreme court