please the court eric levin for petitioner michael corbett i'd like to reserve two minutes for rebuttal the state court decision denying the brady claim in this case is entitled to no deference because it was premised on an unreasonable determination of fact and application of law the recorded jailhouse telephone calls at issue here contradicted important aspects of two key prosecution witnesses including taylor doe's testimony that the petitioner accused her of being just as guilty as he was because she witnessed an uncharged sexual assault against the complaining witness but did not tell the authorities as well as fair and goes testimony that the petitioner offered her thirty thousand dollars not to testify about another and charged sexual assault and the retort in the recorded telephone calls petition never admitted his guilt but professed his innocence throughout but instead of contrasting the recording of these calls with the testimony of tail and farron the court unreasonably shifted focus to how tale unfair and interpreted or what they could have inferred from their conversations with the petitioner but that's not what they testified to pietschmann isn't that really an appropriate standard no what they what they inferred or how they interpreted his communication with them would not have been relevant testimony and that's not what they testified to but that by definition it's what they're testifying to mean or the old childhood game telephone where you send a rumor or something around the room and obviously changes along the way each witness is going to testify based on his or her perception and they are testifying based on their perception so why isn't it appropriate the court to say well that's not an unreasonable perception that doesn't demonstrate false testimony well because what they testified to was an admission that he made they testify that he made in mission that he had committed and on charge sexual assault against the complaining witness the fact that they interpreted it one way and furred from it something isn't important as important as the was using a three way call system or using a number so it was more difficult to track that he was the one place in the call that correct yes are you aware of any authority that says there is a brady violation or there's been suppression by the government when the defendant himself take steps to make it harder for the government to understand what he's doing well let's be clear about the timeline because even though he did make the call through a third party and it's the record is not clear whether that was an attempt to evade detection or because it was simply cheaper than making a long distance call from the jail but setting that aside your point is it's more difficult for the prosecution to get access to this material yes and what's important in that regard is that weeks before the defense asked the prosecution to produce this material they knew it existed the complaining witness i mean i'm sorry tale unfair and the  prosecution witnesses in this case were in communication with the with law enforcement in san jose telling them that they had been contacted and in fact the prosecutor in this case told the court that while there were a number of calls that she needed to sift through that a caller id had identified the phone number from which it was call i appreciate the facts again the question though with her as are any precedent you're aware of for example of a defendant in crips information that he later claims to be that the government's obligation to decrypt what the what the defendant did you are you aware of any case all it requires the government to to in a sense find what the defendant was trying to obscure in a brain context no the question ultimately the question is was it in their control and they and they clearly had access and control to it it was it was recorded within the jail house they had they knew the number i mean certainly if it was a case in which he had encrypted this information in a way that they couldn't possibly get access to it well then it would necessarily be within their control but this is not that case in this case and in fact the state court didn't find that there is a footnote in the district court opinion noting that but the fact of the matter is it was within their control area you still have to persuade or demonstrate with material that the outcome you know that they had available time of trial that there's a reasonable probability that there would have been a different result you know a reasonable jury would have had it you know the jury would have had reasonable doubt in light of this impeaching material correct i mean there was this just wasn't the only evidence th government presented well let me break that in the state presented prosecution let me respond to that in two ways the first question under ed is is is the materiality holding of the state court opinion entitle to deference and in this case it's materiality holding is wrapped up in its in its conclusion that it wasn't favorable found it fell outside of brady and therefore it wasn't material and as i've demonstrated because it in literally impeached what they said the admissions he made it was favorable so i don't believe and moreover the court didn't engage in any of the analysis about materiality that the supreme court has modeled in case after case if you look at the evidence in this case you have a so you have a lack of friends of evidence or physical evidence to corroborate the testimony of the complaining witness you have a complaining witness who is relatively young who comes in and gives conflicting inconsistent testimony about what occurred conflicts with statements she made earlier to the police and new allegations arise at the trial that were not revealed to the police so so there is it is problematic testimony but most importantly it arises the allegations arise in the context of domestic strife and dissolution of a marriage in which prior to the revelation of the allegations the petitioners wife says i'm going to destroy you i'm going to take everything you have and i'm going to make sure you go to jail and more than that you have evidence that this woman has control over manipulates and the the complaining witness so in that context when you have to complain to additional witnesses tail in fair and coming in testifying about admissions testifying about uncharged sexual assaults and the court struck in the jury that they can those instructions would have been there but the point is is that these witnesses were important witnesses they were witnesses that the prosecution return to in summation as evidence of the petitioners consciousness of killed so in  light of all that yes it undermines confidence in the in the verdict that what the court did instead and i'll just finish on that is it imagined how this information the negative information in these phone calls could have been used that's may please the court david bass kind of for the people mr beard briefly ferentz testimony about  really done something you would report it if doesn't come through her her trial testimony does it i'm sorry or if part doesn't come through in her trial testimony when the phone call suggests ok if i did it you're just as guilty i'm not sure the same thing can apply to some of the others but let's start with that why isn't that a problem the problem is that counsel is relying on this as a piece minutes and there's absolutely no indication that taylor misrepresented the conversation in fact it was a very hostile conversation she felt attacked by appellant she said in that conversation you're not going to turn this around on me so she clearly perceive this conversation as him trying to bring her in and make her seem guilty or this was somehow her fault that was the way she perceived it and that was a reasonable interpretation based on his aggression in the phone call so in a broader sense isn't it the case that the sense from the recording is substantially less damning to defendant than her testimony there did that is argue however what i hope was said why shouldn't that information useful to defendant be something defendant has the opportunity to use linkage in congress and my understanding of impeachment evidence is you're impeaching the witness and saying that she misrepresented the call and i'm saying she did not read misrepresent because i think it counts as trying to put the evidence into a box because we have case law that speaks of exoneration and of america each month and this may fall someplace in between it doesn't demonstrate any n s sense right it doesn't really demonstrate the witness is lying right but it does suggest a state of evidence that is more favorable to the defense case by and i why shouldn't we treat that as something that should be turned over under brady i'm not arguing that it should have been turned over have been made available so then we start looking at what's the impact of the evidence and in the broader picture you know the daughter's evidence testimony had to abandon pretty damning to defendant if this takes at least some of the wind out of the sails why couldn't it be concluded that it would have had an effect well again i don't i don't see that it takes any wind out of the sails of taylor's testimony i don't think it's useful as impeachment at all i mean there is a contradiction there she remembered a certain way and it's completely understandable that she remembered it that way in fact in the conversation she says you're not going to turn this on me so i don't quarrel with the notion that it doesn't show the witness to be a liar but it does at least take the edge off the testimony that seems just that he acknowledged to her that he was guilty i understand which is and i take it back the confession soever porton thing right i agree and i want to put that in context we're talking about taylor's testimony about we're talking about one sentence in her testimony and you know i don't think the jury based its decision on one sentence in a trial that took a week or two and i think in the context of all of the evidence especially taylor's testimony that you know that she saw him rub the victim's vagina that she saw him look at pictures of her in a lewd way in combination with parents testified testimony that he molested her when she was four and molested her again when she was twelve and her testimony that you know this is about this little girl she acted just like me when you did that to me and that little girl was mess with dad and then you have the victim who gave consistent incredible testimony and then you also have appellant who had two two pieces of evidence that were that undermined his credibility one was that the police gave him a ruse about finding d n a evidence on the girl's can't and he made up a story to try to cover that up so clearly he's showing consciousness of guilt and the other thing is that you know he there's no question that he was trying to entice the daughters with the sell the land that also accounts of what i thought your argument was going to be is let's assume the defense is right and the defense had copies of these recordings before the trial so would the prosecution and presumably the prosecution would have had that witness on the stand and played those recordings and then would stop record and say now why did you take that to mean when he mentioned x and she would say i thought he was trying to do whatever and it would be essentially the same test i'm misreading your argument is that we you know you're right and i mentioned some of that argument and i agree with you and thank you for saying that i think you know overall there's no question that the jail calls are you know detrimental and inculpatory so you know we're we're fighting over one sentence that you know w maybe you know if we we if we compare you know what you remember from of conversation three months earlier to one sentence in her test when we can find a little bit of not a lining perfectly but completely understandable not intentional and there was a whole slew of other evidence that show that he had molested his daughters and the victim so we're fighting over a little tiny kind of yeah well maybe she didn't remember it exactly or maybe she interpreted  one way and she probably interpreted the right way and that probably he was trying to put it on her because it was a very hostile call and he was coming after her so i think that's all there are no  questions just briefly the notion that we're fighting over one sentence i think really misses the point this was in effect a confession as to having victimized the complaining witness in this case in arizona versus fulminant a the supreme court talked about confessions as unlike any other kind of evidence the most powerful evidence there is so why i think it's unfair to talk about it as fighting over one s the notion that there were other things within these calls that could have been used it does not for the prosecution's benefit does not have a place in the brady analysis the supreme court has been clear in cases like strickler vs green and bagley that whatever the other characteristics of the brady material the operative question is could it have been used to impeach testimony and in this case the information in these recorder recorded phone calls could have been used not only join ph the witnesses and their credibility but to directly impeach the testimony that petitioner had