thank you governor may please the court overturns mr crane my name is gail johnson and i represent trial for our in this federal appeals nearly fifteen years ago the complainant in the sex abuse case came back into court while represented by counsel and slowly recanted her accusations that my client and her biological mother had supposedly sexually abused her over and over again she admitted under oath that she had of the case including the trial allegations and other evidence there is a reasonable doubt that the prosecution can prove that mr for committed these are when you take the evidence you would have to take her first testimony as well as the second to well i have limited time today to discuss them very complicated issues i know are brief discussed for alternative pathways by which the requirements of at may be met in this case any one of which is independently sufficient to get us over united states has clearly established that it violates due process for somebody convicted of a crime based on perjured testimony and the fourth pathway being the unreasonable determination of facts under section twenty two fifty four on that if i could responders really don't engage and they don't say never to address these cases at all i would direct the court's attention in giulio that it's not just about deliberate deception of the jury although certainly it is partly about that they recognize that that's a problem but they  this is three sixty us at two seventy the court in new york state case that says quote that the district attorney silence was not the result of guy or a desire to prejudice matters little for its impact was the same preventing us into the trial that because the language of the case is so clear i think the facts if i remember correctly are ambiguous but what the court is saying basically if whether it's knowing subornation of perjury or not this is a due process problem and ordinarily really matters those to hauling falls and sanderson from the second circuit all four of those cases stand for the proposition that convictions based on false evidence presented due process problem even if the prosecutor was unaware of it at the time and i'd like to direct the court's attention in particular of the testimony in question would most likely change the outcome of the trial and the state leads the conviction in place allowing the conviction to stand by elites to process the read merely pause on their that language most likely change the test more likely than not then why would you argue that was error in the call record i appreciate that question because it's such an important distinction the language and standards it's most likely would change the outcome when the colorado supreme court got wrong you know recently applied was talking about whether the recantation evidence with more persuasive than the original trial accusation and then be more likely than not but that is a different standard because changing the outcome of the trial correctly apply again the u s supreme court reasonable doubt or experience that the defendant three justices in for are new people recognize that the real problem here is the big big you're talking about a state supreme court decision argument that i'm discussing now is the right not to be convicted on false perjured testimony that's a trial right and you know one of the perceived well let me that may be your position but what is your  sure there's an issue here you've got to show more than the just be an issue don't you of course and this is what is it that you're getting what's the standard there is we're going to apply if we're going to agree with you or disagree we've got to say this is how we reviewed i just the court to adopt the analysis of the three dissenting justices and for our feet people which record rectally recognized that the standard is a reasonable probability of  do to reasonable doubt and when you certainly do look as judge you belive mentioned earlier that all of the evidence and when you look at all the evidence in this case what you have are accusations that are clearly uncorroborated no forensic evidence and wait wait wait a minute you got the evidence of a boyfriend you've got evidence even though that they were admitted i think of as for impeachment purposes and they have a dance of two stepsisters that says number one the young lady told him that she was going to change her testimony and the two thoughts as to saying that we were molested the same way as i recall but i think the court may be conflating some of the trial of this with some of the newly discovered evidence here so if we look at the trial  under the tast that had always been applied in recantation cases and newly discovered evidence cases before for every people they change the standard tonight believe so we just don't have a book at all no they go that's not what i'm saying i'm saying and has met here again t and the again the for the the majority of furry people apply this new standard that said this can only give you a new trial if it's more  actual innocence gateway which this court may determine it is but that is not a first position here and there that slight difference it's very subtle it's like talk about no well i know the difference but that's but so because i think that's a slightly higher standard that applies when you have to use actual innocence of the gateway as opposed to this claim which i don't think we need to get way because again the court only reasonably determined the fact contrary to the concessions of the prosecutors that this showing actual innocence but we're actually showing that with the words of perjured testimony that seems a higher bar that you would have to overcome and if you can even survive the slip versus deleterious it seems a for sure you wouldn't be able to survive us i don't think it's a higher bar to say that there is a reasonable probability that it juried even the recantation in the original trial evidence would have a reasonable doubt the only difference was shallow it's no reasonable jury language with which i think it's slightly higher application to get around that the one year failing to do that now as i understand what you're asking us to do you're asking us to apply that same equitable principle the word no one has gone you're pursuing that there's actual innocence to bypass and so you're saying that we can bypass it but based on the just in the actual innocence client she's not arguing actually she's going one step further and saying not only was the a innocent but that there was false evidence and that's what she will so it seems to me that you're you're pursuing bypassing head on the theory that she's not pursued and there's a disconnect i'm sure so they're  clean it is one of the pathways that she is presenting here so while there is a disconnect between her primary argument her due process violations that she is stating in her briefs are in line with the gateway arguments that you're making at some point in time we just can't assume that there is actually somewhere somehow she's got to come up or somebody has got to come up with some evidence that it's more likely than not actual innocence claim therefore couriering twenty two fifty four d are you insinuating now that it did no what i'm arguing is that i believe it's my first and third arguments in the brief which are the first one being this is really because you have no right to a constitutional right to post conviction relief we're not going to predicate the basis for haiti as relief through some irregularity in the post conviction proceedings that stand and committed false and she intentionally lied and that's what she's predicated the basis of she's not saying in a vacuum that he's actually innocent he saying that the me answer is the color of the supreme court specifically said there is no such claim like that by the u s supreme court and so we can look at this and we are looking at this under state law but the two that the portion of the colorado supreme court's opinion that  trial plan based on history it's a little let me because i think the process in the procedure here is important for me at least you have the trial and the conviction you have an appeal by the defendant and while that all of that yes ok i just want to be sure of that yes that's absolutely correct and so and the supreme court considers the issue they didn't say issues off bounds or legally it is an inappropriate argument they considered it is simply a played a standard that it doesn't rise factually to a level sufficient for us to grant relief because we can't say that it's more likely than not yes and is is that more likely than not standard because we in court adopted is that with a articulating what they thought was a u s constitutional standard or they articulating something that they thought was uniquely a colorado standard they understood it to be a colorado state standard is that proper i mean they were applying u s constitutional challenges and so was it proper to restrict a constitutional challenge according to restriction is that a state would impose i mean it seems a little bit off well it wasn't a it wasn't a constitutional challenge before that court i mean that the question that the petition of readiness and proceeding and on which service granted it didn't  e the constitution or due process what it said is the state district court abused its discretion and failing to grant a new trial based on this post trial ends and that's the facts but what was the legal argument they didn't to rely on us constitutional peaceful it didn't purport to be no and in fact in this and for our people the color us for court opinion that the court specifically said this is not a question of federal constitutional law the federal constitution doesn't require prosecutors and knowingly presenting perjury those claims were rejected by the colorado district court and the post conviction proceedings and i'm confused just one last question that probably will remain confused even after the answer but i might that up at all but co wrote a springboard applied colorado law as to when they were going to grant post conviction relief yes i understand that and that's unique to colorado this is where we're going to run our courts in colorado but the underlying challenge not not the standard for a b s purposes that you have to meet but once you've met those purposes wasn't the underlying challenge if there was a u constitutional violation you're saying no no you're saying the underlying challenge was they meet this bar whatever it is whether it's more likely than not or probable or anything else once they meet that you're saying that the the defendant is arguing that i've met this standard i'm now at the table i'm in the room according to hamilton and i want to make an argument what is my argument my argument is that some state violation occurred or that some us constitutional violation o why am i getting a new trial now that you're going to hear my argument i've got you're going to consider it on the merits what was the merits argument why get a new trial was the state right gives me a new trial or was that a federal right it was i agree it was a state right that was doing the gatekeeper monitoring but once we get past that i thought it was a constant us constitutional claim that gives me the new trial am i wrong i would like to go back and reread it and make sure  colorado issue through and through from beginning to end and it doesn't have the import of of any president from us about about federal isn't color are pretty able to make its own determinations yes and that's exactly what the car is record saying here that said look there is no due process right free standing right to a new trial based solely on post trial evidence if you're not alleging that the prosecutors knowingly suborn perjury or withheld evidence his argument was only ever it wasn't constitution or due process has his briefs didn't even invoke those terms so he was just making this argument based on the state's standard had been this applied by the state post conviction and the colorado supreme court here said there is no federal standard like this and we're going to clarify here what our state standard is because the u s supreme court you know in the federal constitution allows states to draw this line and to strike this balance between finality and fairness and each state almost every state provides for some form of post conviction really based solely on new newly discovered evidence after trial we are and then see it here clarifying what that standard is for our state we correct on that point and the color our supreme court was applying federal law and but does apply and petition we need to show a u s supreme court case that the colorado supreme court was contradicting or under reasonably applying to the facts of this case which brings us then to what judge made did that we have before us yes our and he for that reason that i believe i want to know that the colorado supreme court's standard that they apply for granting a new trial can't violate due process or be contrary to federal law if for no other reason that it is the verbatim standard that this court applies to claims for newly discovered evidence seeking a new trial and the colorado supreme court cited united states versus mccullough on page seven zero eight of the colorado supreme court's opinion the color of supreme court standard that it noted here of requiring veto this court standard notably the united states versus macof which the colorado supreme court noted in its opinion credibility credibility determinations do apply at this court the first of them that's the state court judge that heard both the trial and puts conviction testimony observe the victim in person and also consider things like the boyfriend saying if she actually told me that she's recanted just because she wants to get the family together again and she and she actually was molested  the u s supreme court in the few cases where it has stated that what is assumed for argument purposes that there could be such a thing as a freestanding actual innocence claim the supreme court has noted to face that i want to point out that i don't think there came through as clearly as i would like in the brief first of all in house the bell the u s supreme court said that standard would be even higher than the schlub standard the schlub standard is the gateway standard to getting past a procedural bar and considering the merits of the underlying constitutional trial ation which petitioners are not asserting here so he would have to meet not only the shut up standard of new reliable evidence trustworthy eyewitness accounts which is essentially impossible because the state court said is not a trustworthy eyewitness she actually testified falsely about telling the prosecutors in the guardian ad litum the social workers that i recanted prior to trial so that's almost an impossible standard to meet i also want to know that when the u s supreme court every tolerance the court noted that would be assuming something like that could exist in a capital case and there's no state procedure available to vindicate that right that might violate the constitution to execute someone who is clearly meets the standard of he's actually innocent and that would be the appropriate time for this court to take up a claim like that or like this i mean i don't fault petitioners for raising this claim but this would not be the right case for this court to take up and consider a claim like this would have to be one where you could really what the colorado supreme court said is whether the grant a new trial of on the discovery of new evidence undermining confidence of the law bill a day of criminal conviction is largely a matter of policy requiring a balance between the need for finality and state's interest in assuring the fairness and accuracy of its proceeding in the sights of people versus lighter then a judge made specifically says surprisingly there is no mention of the protections of individual liberties for violated by the fourteenth amendment that judge makes you read it the same way that colorado would looking at a constitutional issue right  think just to quibble with one point you made there i think the congress supreme court was acknowledging individual liberty and those rights when it referred to fairness and accuracy of proceedings and states balancing out versus finality what do you want to the state appellate counsel who presented the issue to the colorado supreme court did not couch it in federal constitution i think i just appreciate that straightforward answer but that doesn't up in the briefing certainly that she was a rebellious teenager acting out in response to some discipline from my client isn't there and i think my time is right we ask the court to read