but i'd like to start my comments today with two points of agreement because i think it puts into focus what we disagree about we agree that the notes on which mr sodo prepared his gunshot residue test those notes were never disclosed to trial coun they were never disclosed in post conviction and they were never disclosed in state post conviction one of i asked for an order from the state supreme court and they were never disclosed in a district court they have never been this close to this day they have been suppressed from day one they continue  just as far as i know they to my expert you want to call their expert he didn't say they don't exist he said get a court order so as far as i know they do this second point and it's something i have to concede is that without those notes i can't establish it can't possibly exculpate there's an alternate explanation and they get indeed they come forward with two explanations as to how trying could have got that gunshot residue and my first point is simply this the fact that there may be an alternate explanation is not sufficient think the existence of an alternate explanation does not undercut the good cause required for discovery and indeed i think that's the teaching of gracey versus grantley the supreme court papers on discovery in a b s matters gracie was somewhat of an unusual case it's a case where defendant was sentenced to death by a judge who it turned out several months later was indicted and convicted of corruption and defendants discovery in in haiti and he said i want to see some materials relating to that judge's trial because i think it will show that he was biased against defendants who didn't bribe him and the state came forth with an alternate explanation and said no no even if it shows that you can't win because we would expect the judge to actually be be consistently in favor of defend argue anything because i saw the informal request on the record and i see nothing beyond that in the sense of attempt to get a court order again i think it just didn't happen and it was later affidavit when he says one it's not in a file that probably means i never got it makes no mention of having tried to get the district court  that a little confusing exactly what the standard amounts to and how they are conflict together because at the end of the day the question is whether there's enough so that there was a this something stronger than he did are you contending that even if that those notes are going to push it into a posture where soto would have cost avoidance absolutely he fired the gun now or that even fired a gun no gunshot residue expert could say that but i will say this you really have to strengthen the argument that whatever you have on his hands is indicative that he could have been the truth while in light of the evidence to tie twan to the crime that's already in the record it wouldn't mean measurably strengthened that argument let's remember what the prosecutor did with sort of testimony again and again and again he told the jury you don't have to worry about twine and don't worry about that gunshot residue analysis it's inconclusive so he relied on that repeatedly had defense counsel been able to get this these notes and had they shown that indeed it was positive for gunshot residue then the dynamics would have been vastly different on the defense side here's what we would have had we would have had jim duncan's identification of twine we would have had the two independent witnesses that identified the clothing of the second shooter that matched one we would have had twenty car leaving the scene from the license plate had contact with contract residue either by firing or by handling we would have had something that i don't think the parties properly focused on yet and that is trying was interviewed as he was arrested and as officers often do they are insincere in some of the facts that they suggest and in the interview with twang they said hey it's the gunshot residue has come back and it's yours what do you say now i don't think they've known they don't i don't think they had the gunshot residue test yet but it's a fairly typical interrogation technique i'm sure the courts from where the and mr swan didn't say well i was i was in a car with someone who had a gun he didn't say i handled the gun he didn't say i shook hands with someone i got a gun he said it can't be it's not wasn't in it i'm sorry on one long was and was in that car i mean that isn't that is an explanation that could be advanced to just he didn't advance or correct that that's exactly right and indeed the state relies on that saying well he could have got it on in the car and relies on mr duncan can't prove it it may well be that i can't i don't think that will be the case but it may well be that i can't but like the defendant embrace the and like the defendant murdoch at least my client the forty six twenty nine years to life should have a chance to see those notes i think been suppressed from day would ask the court to in this examination of the entire record what legitimate support this you provide for his theory and i thought a question that may or may not tie in to what you're about to say but at the very beginning of codefendant nguyen i believe that's how it's pronounced and then also the individual by the name of the moral but the testimony we have both from mr duncan and from the victim's brother is that there are two shooters a shooter as well because three weapons were found it was a three thirty seven found in the dumpster there was twenty two revolver and there was also some i automatically twenty two ruger i believe but the testimony is to make sure you understand the basic was seen in the company of the other shooters ok so for him obviously when you have a gang situations like this you've got people pointing fingers every which way trying to confuse the issue and the jury however the withheld something exculpatory but he's not showing that at all but how can it i mean that's that's a problem i have how can he know what's in the notes unless he gets access to well your honor i think the more fundamental question that needs to be electron microscope and he talked about surviving that was done he received the swap results from the from the police understand why the report was made available i'm a trial the report was made it there was a report generated of his findings and that was made available to us and what he's asking for now is the raw data and any lab notes that mr soto had but because experts have been known even in the o j simpson case to make m in their crime lab the f b i has been stunningly shocked to find out that his access has all of these problems with its experts that have testified so i have a little bit of trouble saying unless he can show what's in the notes with specifically impeach i have trouble saying well that's too bad because you're you know you can't you're just speculating well it's an informed speculation as i read about it in the record at least the argument they inconclusive opinion might have been stronger i also understand however that he could not have testified that klein was indeed the shooter been asked for from the beginning we wouldn't have to be here if you'd handed them over at the time of trial pretrial hit him over the last week why don't you just let him have a look the state's position is that the notes are not exposed tori information and what we would be faced i understand the state's position and i'm asking you a different question why do you let him have a look because if  end product testimony is in fact reliable whether those from flying it in methodology or the like so it isn't just somebody coming in and saying well this is a fishing expedition seems to me in this case wh gunshot residue test is done that's normally if the state had like the results were the property of the self and doesn't that sort of is not just fishing expedition seems to me it's relevant to progeny all all the real six cases say he has to and that is that even he has to show there's a likelihood that he would succeed in his playing and i submit to your honor that when he litigated the great he claim before the state court that the state court is cut was cognizant of the controlling law to what kind of litigation to do with i'm sorry what kind of litigation did he do before the state court on the brady grant the five status petition an think think you're doing that then yes you becomes a question of whether or not the district court correctly a prop applied the law on rule six discovery and i would submit that there is no have my request ok but i can't go beyond that because you're out of basically the problem is that even if a unique gunshot residue particle is somehow discovered from all these printouts and we're not conceding that that's not what these printouts and notes will ever  the best that can be said is that either mr frank or mr swan would have fired a weapon was in the vicinity of a weapon that was fired or just importantly could've picked up that gunshot residue through transfer gunshot residue something that is highly transferable the particles that are required the minute like dust and it can exist in a car for example and we know th that at best mr soto would have to say that there was a more greater probability even though there were other acts explanations for the residue being on his person why in this close you could you talked about in these gang cases and gestures you know showing how everybody's basically attacking each other and that clearly occurred in this case to recantations and so on and so forth why would  mr soto's testimony if enhanced to increase the probability that one might have been the shooter why would that not have been significant for the jury that is testimony already your honor was that she found why wouldn't that be a critical factor in the jury's wain of the evidence particularly unless the record is character that i can't i can't remember the closing arguments but to the extent the state was arguing so they could basically discovery standard the same as brady or is it something less but reasonable enough to show that if he got it and is right that then he could make a celebrated claim he's shown no performing g s r chest but he didn't questions qualifications at the time of trial although i have to say that another reason whether strong or not is the continuing refusal ever to hand over the notes it is problematic for the state yes that were we to rule discovery is proper isn't the same thing or doesn't require us to find the same thing as we would assume mean that the notes were favorable and therefore a brady violation and in fact are essentially what you and your death penalty evidentiary correction and so forth the same thing but again we're talking about the hay vs case here and whether or not he should be shown any reason this that there's something wrong with saltus done and that's our position that you haven't shown that and i see my time is up one one question and that is i think i heard you give the answer to that if we conclude that this discovery issue is not a few points your honor i'm the first point to say that appears that all of us are in violent agreement about one thing and that is your honors experience councils experience and my experience is that when you deal with experts you get the notes that's the way you do it you don't just look at the report  report says here's my conclusion you can't possibly attack a conclusion you look at the notes that's all my client sought to do and that's all he's seeking to do now that's that's the state of the art that's how you do it i can give you our little information about the codefendant and just assumed it was part of the mix i'll call the court's attention though to murdoch which is castro fortunately i guess for a petition in this case and murdoch they set forth what the certificate of appeal ability was granted on it was granted on whether appellants federal constitutional rights were violated when the trial court ruled the prosecution witnesses what it was protected by the attorney client privilege in other words the sea away in murdock was granted on the constitutional question nevertheless the murdoch decision dealt with ar entitled to discovery and there was no certificate of appeal bill any issue in iraq i don't really think there is here the matter is fully briefed before the court unless there's any other questions i'm happy to submit thank you honey for the we do often get asked for feedback from counsel critical you are in to tional it against and it's much more effective to treat this as a conversation than it is the ever sterile relationship you appreciate your fine performance and