peters in state court in his trial for sexual abuse the main detective in the case tonya gardner who leaked information about about a cold homicide case her boyfriend one of the chief suspects and then lied about it during the interval investigation the failure of the state to disclose this history to the defense was harmful to mr peters and we're asking that you reverse vehemently denied credibility was central because there was no forensic evidence the great test kits had been destroyed in part because detective gardner failed to secure it and have it  tested there was also an allegation by j p that vaseline had been used and even though mr peters says finger nails were clipped when he was arrested and the bed sheets were taken into evidence nothing was ever submitted for testing but what happened in this case is that the state puffed up detective detective gardner in addition to think those things would have been excluded well what we do know is that the defense one of those things tested i think the who negligently didn't secure the evidence and therefore in fact i think defense counsel argued that bad faith requires more venal motive i think there was a terminology that he used he had the defense been told abo detective gardner's background we know that the fence counsel would have been peached her and brought out in front of the trial judge an argument that she did act in bad faith when she failed to secure the evidence was not a persistent witness she was just handling  the materials the materials and end up not being tested thrown away lost or whatever but she's not she's not a witness to any of the events that are critical in the trial you know but she gave opinions to the jury about expert opinions i would submit as to the lack of the you a forensic testing so the state put iran puffed up her credentials talked about the five or six hundred case sexual assault cases that she had engaged in and then and direct not even waiting for cross but on direct asked questions about well why didn't you test the sheets for instance and she gave opinions that it wouldn't have mattered on cross examination defense counsel went down the path of arguing with her about the significance of that of testing and she gave opinions that in her opinion as an expert police officer it went to the matter i submit that when you when the state presents a police officer as an expert pops up their credentials talks about training and experience and then not to disclose what the true training and experience is this is a police officer who can't be trusted everyone assumes at trial that this was just a normal police officer but she had just a few i mean they should have this close a know about about it but it's not like she fabricated evidence in the sexual abuse case i mean she did where there was misconduct related to fifth amendment issues there was also an allegation that the detective had sexually assaulted a woman that she that he had stopped in a traffic stop and the court found that was significant br wrong not to reveal it so my question really goes to how big an impact that had how strong was the evidence i know would not have forensic evidence we had a fair amount of testimonial evidence from the victim who was fairly old by now is not one of these you know four year old children so what am i supposed to do well sometimes i mean there's no expert testimony in this case but sometimes children who are fifteen or sixteen years old they're better liars than the young ones but you have a situation where where mr peters did night committing the crime and i'm and i'm thinking about you know citrus is also where they're from what i can tell mr olson never testified at the trial so he argued that he didn't have the intent to hear you actually had testimony from mr peters where he vehemently denied the allegations against kind of a funny denial it's various forms of activity that are in his view innocent and we have the mother coming home sort of catching them or so you do have that and then also j p initially said nothing happened sure so you have that then you have on the way to the scales you have detected gardener making far reaching opinions about the lack of value of forensic testing and they go on for pages in the transcript between her and the fence attorney about that and so she put basically her thumb on the on the scales and it tilted in favor of the state had this evidence been disclosed the told tone and tenor of the cross examination the been completely different the whole tone and tenor of the entire case with have been different from from the youngblood motion before trial the cross examination to the closing arguments and that this have been more generalized impeachment of her character or expertise in the past as opposed to showing that she lost evidence or destroy evidence or anything that was more directly related to the evidence in this case was well your honor a police officer who is willing to leak information about a homicide to her boyfriends and then lie about it and then only get three hours of of suspension it really completely changes everything that this officer is going to say in court and everything that the brains of police department  may please the court john sampson assistant attorney general for the apple e the district court correctly denied relief in this case because the state court adjudication of the brady claim was not an unreasonable optician is supreme court precedent and there are two ways that petitioner claims that this evidence was brady material that could have affected the outcome of the trial one is going to the untested rape kit and petitioner claims that that evidence regarding detective gardner's misbehavior an unrelated case could have shown bad faith but the record shows that the rape kit was destroyed in a virtually by the hospital staff because of miscommunication dr the kind of thing that digital penetration would would leave and that's my understanding your how about vaseline there was a there was a discussion about us or you may not know the answer to this soon which case  wish you had a many more such cases than i and i do so you're honor all i can say is that the petitioner's argument is that if the kit was tested they could have tested it for vaseline but i'm not sure there's anything in the record that shows that the tests that would have been conducted would have been to determine whether vaseline was present there or there was only a little bit of discussion in the record about what is tested and i believe the doctor click in dr sure both to testify that th come back to that when was it known to the state that detective gardner had this just when i record it was known certainly to the police so if it is evidence it was the meat of it it's two plus two makes for that that evidence was relevant to cross examination and somebody didn't reveal it and somebody knew it who knew they had a duty to reveal it i don't know how you define bad faith but the sounds like it to me while you're on of the bad faith in the prosecutor necessarily but if people in the police force know this case is going forward no this record of this detective and refused and failed to reveal it to the prosecutor that strikes me as bad faith on the part of the police you're out of the bad faith though has to go to the actual destruction of the evidence so i'm not talking about destruction of the evidence i'm talking about the failure to reveal the information with which the detective could have been impeached i agree in a question of brain he whether the prosecution or state court denied the brady claim itself because of a lack of materiality they found that the impeachment evidence would not have affected either the and there were two ways petitioner argued in state court one it would have showed bad faith and destruction of the rape let me ask you this then are you telling me that there was no obligation to turn over that information no your honor well then what are you saying when there is no materiality and no brady violation but to say you're saying that there was a duty to do it the duty was violated but there's no brady violation because to further impeach detective gardner but just what he was a law enforcement officer who leaked information critical information about a murder investigation why would that have impacted the jury's consideration of her testimony your honor for a couple  reasons one is she was extensively impeached because of her conduct in this case in fact defense counsel page six eighty of that the excerpt the record brought out the fact that she collected  but then submitted none of it for any testing but that's sloppiness not intentional conduct like was the case with her boyfriend but your honor in that case with her boyfriend it was not first of all was it was it not this case so your simming that because she did one bad action is going to do a bad act in every case then just as i'm just assuming that a jury would want to know that in assessing her credit realty if she was impeached on other issues she surely would have been impeached on this issue and i would agree she could be impeach on this issue but then you have to look at what was her role in this case and she was really simply a person went out and collected forensic evidence that was never tested and this was not and if you view the entire trial the impeachment evidence that should i agree should have been disclosed to the fence and could have been used by the defense it would not have affected the jury's verdict there's not a reasonable probability and again this is a case under the state court record has an affidavit in it at one thirty nine from dr philip welch who testified in his affidavit that vaseline is detectable by forensic means for at least a few days after application and certainly for six hours between the alleged events in the exam so the materiality of the rape test kit is that it could have been tested for the presence of vaseline i mean there's no doubt i mean i'm convinced that it could have been detected but the question is whether a standard rape kit tests or vaseline well it doesn't test for everything well it's a swab and i think there was the testimony from thing is is the story well maybe not so a standard stand the test kits would test for certain things and that would be the end of it but maybe it wouldn't be destroyed they would say with keep the parts of the sample in it could be tested but it's not