is no longer practicing so i have substituted for him you'll forgive me if i'm not as conversant with the record as he would have would have been this is a case involving a bank robbery that i won't go into the facts and i would like to reserve  gilbert suburb one in tempe another suburb and one in chandler these these were september twentieth of two thousand october eleventh of two thousand and october twenty fifth two thousand  arrested on november tenth of two thousand the second third and fourth if we could go to the fourth nine twenty eleven ten eleven and ten twenty five ten twenty eight ten thirty eleven twenty eight eleven thirty and twelve eleven is not twelve eleven two thousand one that's right those are the ones that became known to the defendant subsequent to the defendant's trial or innocence and that's what the issue that was presented before the district court in the motion for new trial was should the evidence have been disclosed of the two bank robberies which were then known prior to mr journey going to trial the one on november twenty eighth of two what the defendant was unable to do a trial was to point the finger so to speak get someone else who may have committed this robbery the striking similarity in the physical descriptions in the but the problem is when you look at the two people involved they're different people of course and you had a witness that was robbed her she was present with both rob which occurred and said they were different people and then you get t that's that's correct your honor and and obviously there's in the in the briefs or some disagreement concerning whether the judge should have just made a determination of whether these were there was sufficient similarity to grant relief the tendency  eyewitness identification however is always to try to identify somebody who most closely resembles the person that you saw and to try to make that identification  victim the other teller the one who the government has sided with someone who didn't have as much mis gallaher i believe her name is she saw profilers if that's correct she didn't have quite as good a view of it and i and that's the person that the government has come forward with who has  about five percent six percent something around their bank robberies are the perpetrators are identified as women so that's that's something fairly unique in and of itself the robbery on november  twenty eighth i believe the twenty eight's robbery occurs across the street from the robbery in gilbert arizona curse across the street from the robbery that occurred on september twenty  show is something that would undermine confidence in the outcome because the nondisclosure of the two bank robberies and it should be for the jury to decide whether mr jernigan was the one who committed those robberies and part of that that she was can go i understand all that but i really would be very interested if there was these and he handled all of them so he he was the person who had seen both the september and november was right well that's correct but what happened here all reserve the rest of my time but what happened of course was the f b i had concluded that the first three bank robberies were done by the same person they arrested mr jernigan they had their person and unfortunately the bank robberies continue to happen in the in the vicinity of gilbert chandler tempe arizona and the f b i obviously couldn't conclude that mr jernigan was involved in those so they had to develop another suspect and conclude those were committed by somebody else i'll reserve the remainder of my time government judge flexure actually this court entered in order for a meeting both parties to sustain the original exhibits to this court so you have the original videotape court to play the gregory gives interview which again is a motion for new trial if there were fourteen rodriguez interview yes she was interviewed on december eleventh two thousand and one when she got caught red handed and invoked but it's her better two or three minute interview and you can see here on the tape if you would look at that and then you would go to the government's motion for true new trial exhibits eight nine and fifteen you can exactly see for yourself how different these women are and let me also point out that the defense in its brief says that the judge abused his discretion by opining that these were two different women and their spot resemble the person in the robbery that was being trial so the court did not behave badly or incorrectly by making that comparison i would also note that in doing so the court was reacting to defense counsel's statement that these two women one for using a gun to commit a bank robbery all of that could have been disclosed to her was that two of the banks one close by literally cross the street and one ten miles away which is not two thousand and one the unknown robber had not used a gun and had zero east spoken jernigan spoke one at a three times and she did not speak in the robbery for which she was convicted so the concept that there were reference let me also state that the concept that this trial could somehow have been different in any way is flawed because the theory the defense entire theory was that there was witness so i would love to say no no jernigan always described as unattractive and pockmarked and acne and not rigorous always described as attractive i cannot do that because there is one teller who said that one thing about within a five mile radius and clearly could have done it contrast that with this case they can't even put her in that country and her first robbery is sixty nine days later after after jernigan zero well we're not those are two different things they don't say whether it's blue they don't say whether it's dark green they don't say whether it's black and you have to go trim in one and not go trim in the other so even that doesn't totally line up and even that would be for robberies that she was never convicted for and the focus here is whether the government committed a brady violation for the crime of conviction and that evidence is just there's no possibility that this would have changed  outcome of the trial to result in a probable acquittal or that it wouldn't even have come in under a brady standard as somehow having been material and the district court was in a very strong position and especially across me to make that determination that would have let that in and perkins says it would not have been an abuse of discretion but no one not to let that in and so they got exactly the trial they would have had they held up a picture of the woman the jury found to be jernigan and they said this is a picture of a bank robber but it's not jernigan they got exactly to blame it on someone else and they could have put a name to it at the trial because she was unknown or robbery at that time so there is no evidence just briefly of the gross couple of issues you know you're asked about the the evidence that there wasn't any evidence that rodriguez was in the in the phoenix area at the time of the robberies that were attributed to jernigan there was no evidence jernigan was there either  arguably she was there in november the defense never had an opportunity had the defense had an opportunity to know about those other bank robberies obviously some further investigation could have been done and what my point is that the evidence of his drinking was there either and in fact the there was at the trial what may have been very very different because mr smith's journey going to course and asked to have a polygraph examination that she had passed admitted in the in the trial that really might have been different had there been more evidence to suggest somebody else was was involved in these particular roberts thank you very much time just one question have you seen the had videos i just looked at the still pictures