please the court linus being heartland assistant attorney general for the state of michigan on behalf of the respondent warden respectfully request a reversal and i've reserved three minutes of my time for about all your honors we request reversal in this case for either of two dollars issue and i note that mr clark in the state court had to meet a lesser standard only had to show that it was probable that there would be a different result on retrial and the state court held that he couldn't meet that standard the district court engage in any analysis on this point and simply sort of said in a conclusory fashion that he had met this standard the fact is this various stewart's testimony could either be believed by the jury or not be believed by the jury stewart testified that she saw this or clark and mr harrington with the victim mr martin on the night of the murder arguing with him assaulting him drag him into the woods just before three shots were fired and that's where matt michel martin was killed now she later had trouble testifying to that and there was evidence that in fact she had been threatened by mr clarke and mr harrington now a jury is perfectly capable of that there was evidence is that from her original statement as well yes  not extraneous evidence of the no no no yeah and so yeah in fact of the night of the killing she said that they came and said if you say anything we're going to kill you no jury could believe that her trial testimony i saw her preliminary exam testimony was truthful and that when she testified contrary to that it was because of these threats against her now i think mr clark could argue that a jury could believe the opposite could believe that the preliminary examination testimony was false because there were maybe threats from the police and that when she recanted that was truthful you don't have to decide what to believe it's the jury's job to decide what to believe and if any reasonable juror could conclude that it was clark's threats and harrington that equation a reasonable juror could still believe that she was taught that various stuart was telling the truth of the preliminary examination that to me was when was telling the truth when she said that mr clark or mr harrington tried to get her to change evidence that the defendant because that's what it sounds like you're you're saying it's a credibility issue the jury gets to decide we're done here yeah but he has to prove his innocence that's the standard of tw and forty four is he has to prove that he's innocent and if a jury could see i mean that's why if any reasonable juror could find him guilty and so that's that's clear at that's the standard that congress wrote the standard is the facts underlying kleine if proven if proven and viewed in light of the evidence as a whole would be sufficient to establish by clear and convincing evidence the in the rest of the standard so we have to look at what is offered and say if this is proven then and viewed in the light of all of the evidence that they are would it be sufficient and in this case if that affidavit is accurate if proven then wouldn't that undercut all of the evidence against him i think that reads too much into the if proven because i think if you're if if you take it that way then and and say you've just proven is is this what happens in the case and in this case there's really nothing left if it's proven there i think they're well i think if proven has to mean that if it can make it jackson in fact would testify that she saw these things and that she that this is what she witnessed but i think you still have to say and i'm not saying nobody wins under my standard if i had an affidavit right from a prison warden saying mr clarke was in prison during that the year that this murder had the entire year this murder happened i would say yes if proven right if that word gets up in testifies there's no reasonable dispute here you know this this is an innocent man of course we wouldn't be here because we voluntarily do it but if we were in court we'd have to say you know that gets passed twenty to forty four b two b two if we had a case where d n a evidence this this isn't one you could imagine a case where d n a evidence would be exculpatory and you have the d n a evidence from the police lab right there's no that that's a case where if proof or your bottom line is the if proven means that the suppressed evidence is her statement not the fact that it was a dark skinned man who was not george clark right that that's what her view of the way that you should read that so that we then imagine because we always have to imagine in these circumstances that at trial you have the stuart preliminary exam statement read to the jury and you have can be good jackson testify to what she puts in the affidavit in then you say could any reasonable  petition as long as you put that affidavit in there because if proven that shows here it isn't but under that circumstance wouldn't that be sufficient to have an evidentiary hearing and then the determination would have to be may i'm struggling with the idea what sounds to me like the the government is saying i've looked at this affidavit i disbelieve the government disbelief this affidavit therefore it's not appropriate but that's not what's called for is it now and gillette me be clear we are not arguing that that that any decision by the district court of this court should be based on whether i believe this affidavit or not what i think is if we get past twenty to forty four i think a hearing would have been appropriate or denial of the petition because there are reasons not based on my opinion but just reasons out there to be suspicious of the affidavit objective reasons not my subjective belief but if tw and forty four b two is going to serve a gate keeping purpose it can't let through every claim that you're right not every petitioner would get relief just because he swears out an affidavit saying he was in another country but every petitioner who was willing to do that would would get past the gate keeping them it's no good keeping it all over you say the gate keeping are you referring to the allowance of filing the petition which was done by a different panel of this court exactly right and  you can't really challenge that grant at this point and you know now we keep that in the statute says we can't challenge ok kloet you went forward and you know it's true there was the judge seemed to believe everything on paper and you didn't have an evidentiary hearing directly so is the appropriate thing to have an evidentiary hearing the judge makes credibility determinations at that point  because if somebody doesn't make some credibility determinations then judge tranches question is right that the prisoner can't ever win or can rarely win i mean if you assume that it's that the affidavit is not just felonious then somebody has to make some kind of determination of what would a reasonable juror believe with the with the hopefully the fact finder having before all of the evidence that's available you have some of the didn't get in they might have some that didn't get in i disagree with that one thing of the twenty to forty four question i think the record as it stands is sufficient the district judge so i disagree with this my sister will tell you that the district judge made a finding on this nd prong of be to and i think this court should also make a finding on that nd problem be to which it  take this take this affidavit in the light most favorable say say she would testify say she testified clearly consistently coherently and with the study in a strong tone could a jury could a reasonable juror even assuming all of that could a reasonable juror still say you know what i think i believe that clarke threatened stewart i believe that clerk threatened tammy wiseman i believe that stewart was telling the truth at the prelim and that she waver later because of the threats i don't believe connected jackson despite her testimony you don't need a you don't need an evidentiary hearing to find that a reasonable juror could believe that now if you want to find what a reasonable juror would believe that's different that's not the standard a reasonable juror could still believe beriah stewart's prelim testimony could still believe me wisemen and could still think that i'm very low on time so i haven't gotten to sort of the if you get past two thousand two hundred and forty four and the only argument i think that i'm going to try to make in my limited time is that we have not we are not arguing now we're not switching it up and saying well don't hold a hearing now to hold a hearing on what we're saying is to grant without a hearing was error so that was consistent with what we said in the district court i think there are two  options open to the district court deny without a hearing assuming you get past twenty to forty four deny without a hearing or hold a hearing and and we were hoping for the former but either of those would have been a legitimate affidavit credible and it would have been inappropriate to give that any weight if it had and that is the only thing external to the affidavit the district court relied on to bolster its credibility that was an abuse of discretion so even if you get past twenty to forty four to grant without a hearing was an abuse of discretion that's not inconsistent with what we argued in the district court there are any other questions i see back on please the court when this court granted george clark leave to file his success if he is petition it recognized that there was no physical evidence linking him to the murder of michel martin and it recognized that there was no witness who observed the actual shooting and this court also recognized that he could jackson statements if true potentially exculpate clark the district court then found can he could jackson statements credible and granted george clark a conditional refuse corpus ordering the state to give mr clark trial that decision should be affirmed for two main reasons st the petition beats the gate we standard for success if he is petition nd the district court did not abuse its discretion when it decided not to hold an evidentiary hearing under the circumstances of this case and indeed the state's request for an evidentiary hearing is now moot because the district court held a hearing and subsequently found mr jackson's testimony credible this question affirmed the district court's decision and allow clarke the opportunity for a new and fair trial and consider what occurred at that you're talking about the bond hearing yes when we consider that isn't the record usually closed at the time of the judge's an initial decision and then at the close of that hearing the district court issued an opinion in which it found miss jackson credible that credibility determination i think it is serves to underscore the original credibility determination that the court made in this case patricia little who appeared at the hearing did testify about those those call recordings it became evident that the calls happened before the petition was of a granted in this case the state never brought that evidence before the district court and any event i thought they had submitted it in there seemed to be some indication of whether the judge should had listened to them but the the the sort of the best evidence of what they are never appears in the record as near as i could read it they were submitted to the district court i don't think they were ever actually played in open court your honor but but the point i'm making is that the state had those calls available to it at the time it filed  answer to the heaviest petition and it never referred to those calls it never submitted any kind of an affidavit describing it had those calls so it had the opportunity to present that evidence to the district court it failed to do so but the substance of the calls really is is of no matter it's sort of here here nor there the calls took place after the affidavit had been submitted so you don't think that if the if at least a reasonable person listening to them might find them impeaching of her you know there's this discussion back and forth that is in the record of well did you know him well i knew him but i didn't know him you know did you know him well enough to have these phone conversations that would seem to be  arguably impeaching of her credibility well i mean certainly she knew him i mean even based on her affidavit we can tell that she knew him but she testified at the hearing that you know he lived adjacent to her stepmother so she did know him and know his face that's the way she was able to identify that it was not him who actually committed the crime that i want to see not part of the question of the standard itself if proven and viewed in light of the evidence as a whole so if those if if you have ten calls and only three of them were put into this evidentiary hearing and we don't know anything about the rest it seems you've got a question of needing an evidentiary hearing on the evidence as a whole not just on a bond issue but on the evidence as a whole why would we not need to have to remain on for here your hon evidence as a whole there is overwhelming evidence here that the district court's decision was right and really these calls are sort of a blip on the radar in terms of the overall evidentiary package as a whole and i would like to speak to that for a moment if i can you know to begin with the state's case here was never open and shut you know there was no physical evidence tying george clark to the murder of michael morton there were no fingerprints no d n a no blood evidence there was never any evidence tying him to the gun used in the crime the state's case was entirely circumstantial and it was built on this single witness beriah stewart now that's a good jury argument but we have to have some discussion of what a reasonable jury could believe and what about the i mean it's not definitive but the outcome in mr harrington's case who would have made exactly the same argument and i'll be at that took four trials but ultimately  unanimous jury found him guilty and there are a lot of people would think that was unreasonable but the difference there is that here we have an additional witness a credible i would have a witness who the district court has now found credible who points to someone else as having committed this crime that evidence was never considered a harrington's trial and indeed the fact that there was a hung jury those st couple of times just points to exactly how difficult this case really was even without from ontologically if the statement is true and the other man was a tall dark skinned man then clarke that's it the affidavit ends the whole case and that seems a little too strong isn't it more likely that you read that as if it's proven that she would have said that she did say that to her father and her father suppressed it not that it is that it is itself absolutely true rendition of what happened i think that your honour's hit on it when you when you really highlighted the point that this requires credibility just terminations and the state would have you believe that the proper test under two thousand two hundred and forty four be a some sort of a sufficiency of the evidence type of tests but the supreme court has record has but the very standard in schlep is the trial record plus the new evidence absolutely then has to be such that no reasonable jury could believe in it let me put it to you this way obviously you've arguably she's subject even now to the same kinds of things that cause stewart to incredibly recant i'm not saying that's right or that's wrong but a reasonable juror looking at her in the  same way that they they had stewart statement will say hey you know i think she would i think stewart was right the st time and everybody else is being coerced but again again you're the standard no reasonable juror could think that trial three months later she comes forward and she recants her testimony and over the course of a decade she has consistently stood by that recantation and i would urge the court to go and look at record eleven and page id one hundred and twenty two which is her most recent affidavit from march and thirty in it's not cursory it is detailed it's lengthy she specifically disavows her prior statements she explains her motivations in coming forward that she's getting older and how she wants to make things right before she leaves this earth and she even states that she's willing to take a polygraph test to determine to determine that she is now telling the truth and you know against this we're now asked to consider whether this new witness who says she saw someone else commit this crime if that is it is enough to create reasonable doubt in the minds of a juror and i submit that it is a juror or every juror every reasonable juror that the standard your honor the standard looks   no reasonable juror would believe something and there was a struggle with the right standard in the court in the law is that not correct and in the district  she applied the right standard and she found under that standard that no reasonable juror would have found clark guilty and hope that that decision was correct i mean we've got absolutely no physical evidence in this case whatsoever we have a single witness who has since recanted her testimony over the course of you know a decade and those recantations where they the subject of a b s petition in state court or otherwise the basis of your honor i believe that the recantation may have been submitted in connection with clark's i think it was his two thousand and eight petition along with a litany of other claims but that does not prevent this court from considering the district court did make a statement as to credibility really more after the bond hearing than before did she not i mean originally she just says well there's nothing against her so she's got to be credible which is a little bit of a stretch well you know there are a number of reasons why this affidavit has should be considered credible it has several markers of credibility and you know as mr byrne when indicated this is this is not just a case where anybody could write some crazy affidavit and then have their claim submitted this affidavit didn't just come from any witness it came from someone who knew george clerk at the time who had reason to be and was routinely at the parkside apartments because her mother in law lived there and she was or i'm sorry her mother lived there and and how it came from someone who had a connection to the police such that the claim of the conversation that she described is a credible claim so so there are several reasons to believe the credibility of this affidavit and in fact the district court after hearing this witness testify live and after the state had an opportunity to submit additional evidence and cross examine that witness and determined that she is credible this is not just any run of bit i'd like to make one more point about derrius two testimony though and that is that you know her testimony was also inconsistent with the physical evidence that was presented in this case she claims that the that george clark and harrington approached michel martin and beat him up and then dragged him across of reporters and through field but when the state's medical examiner testified in this trial she claimed that there were no injuries that were consistent with  actually consistent with what little physical evidence the state presented at trial here although she knows all of that at the time she makes the affidavit that is the st argument was presented to the jury right the argument that the  medical examiner's report was inconsistent with stewart's testimony yes i mean the jury would have heard all of that evidence sure and that axa now has the ability to know about that discrepancy and take a side of it when she makes her  affidavit it's not independent of well there's no meeting separately not independent there's no indication that jackson knew any of that and in fact i don't think the materiality of that fact was ever effectively really raised i mean if you look at the state court's opinion here  court actually misstates jackson's testimony and says that she testified that michael martin was dragged so there's really no indication no we don't know because that was not brought out of the evidence here hearing in terms of of you know half she took about a year and a half to come forward with her with her statement out of respect for her stepfather i mean this is a police officer who's had previous troubles with concealing evidence and things of that nature in the past and you know this is someone who raised her from as as his own daughter so i mean there's a reason why someone would be hesitant to come forward with that type of evidence i see the time and i see that my time is up to summarize and authentic i absolutely think you in some in some the state court case the state's case rather against george clark was never open and shut to begin with there was no physical evidence that linked him to this crime a single eyewitness is the only witness tying him to this crime and she since recanted her testimony several times over the course of a decade on the other hand can you could jackson is a witness who the district court has found credible and whose testimony clearly establishes a brady violation and places a different gunman at the scene of the crime clark is only seeking a new trial here a fair trial where he can have a chance to present all of the relevant evidence fairly and it can be considered without the constitutional infirmities that his st trial suffered i respectfully request that the court should affirm the district court's opinion and grant i think you're on a st i do need to correct something we did not have the jail calls at the time we filed the answer i believe and i don't have the record set in front of me i don't know how much help prop or it is for this court to consider what went on at the bond hearing i know judge strain she mentioned that the record is typically close to the time the decision is made but i believe that mr clarke's attorney not mr engine but it a different of his district court attorney made a point at the hearing of putting on the record that all of the jail calls occurred after the district court granted he b s relief i can check the record and i apologize is that right because my my my my notes timeline here is that those calls were from fifteen dollars sixteen cents which was after release some of them were after we permitted the the hey b s but not after the grant ok that terms of the occurrence of the calls when they when you got them in the sense of listening to them or bringing them up i don't know yeah i'm not sure i i think i thought the record will be we can look we can record will show it i just i just i guess what i want to say is that my impression is different and i think the record should be checked on that what is true is that we didn't have them at the time we filed our answer so the argument is that we should have gotten them well that's what we rely on the district court to say hey i think there's something here we need to develop the record we don't expect the district court to take a piece of paper that you know and say well this is this is enough without exploring the record further if that if if the district court had said i think there's something here and that's what the district court generally does in these cases where there's an affidavit that the district court thinks might be credible is that they order a hearing the order discovery i don't know of a single case and i haven't read one in the police brief and i haven't heard one refer to today a single case other than this case where an affidavit comes forward there is facts that might be true or might be false and the district court goes ahead and says on the basis of this affidavit alone and a letter from to last two months you add that in or not  it doesn't happen the record has to be developed but in any event i'm not sure when the jail calls occurred but we didn't have them at the time we filed the answer the again i just have to dispute the strength of the evidence this was not a weak case i know that we that my posing counsel says well we didn't bring in all the circumstantial evidence which would have been physical evidence that we only but says we only had circumstantial evidence when we actually had an eyewitness who if believed is about the strongest evidence you could have i mean you could make a jackson doesn't say she saw the murderer either so neither one of them claims to have seen the murder but the evidence that she saw these two men arguing with an assaulting with the marching him into the woods seconds later shots fired if believed that's a very strong case the only question is when to believe it i see my time's expired i thank the court we respectfully request reversal we thank you for your arguments in your briefing and we notice that you are representing mr clarke pro bono the court appreciates all your work on this and your assistance with someone who needed assistance without pay thank you thank you so much you may call the next case