convicted felon and in my view that's not even enough for probable cause for a search warrant for arrest warrant for anything if a judge were presented with information from somebody like raiford under those circumstances hearsay five years later i mean i know of no nobody in his right mind or her right mind who would issue a warrant on based on the basis of something like that and yet you tell us that's enough to us to get over the high hat threshold for actual innocence restore your honor i don't think that i need to ask you a question just for context on all of this because my old criminal mind from the old days scios that obviously mr bell's dad cracked and how long where someone was charged for well but in it i mean generally the statute of limitations on murder it doesn't exist but in order to be charged with murder if you don't die right away in california you have to die within a certain period of time so my understanding on that would be that no one can be prosecuted for murder on this so if someone could be prosecuted on this case now you know that it would go by the statute of limitations of attempted murder correct well your hon wait you know i would well if people come forward and say hey i did it but nothing can be done that that kind of takes away from the credibility of someone saying they did it the person  according to the feds in this case stronger is mr smith and he isn't saying he did it now he said he did it that for that spread that mr smith is going to spend the rest of his life in prison for crimes that he's committed in other cases so nothing more can happen to constitute any kind of reliable information or evidence your honor we're looking at all of the evidence or ever and every time i look at either a single piece or all of the evidence i don't see enough to get you anywhere let's start at smith who he said were in the group that approached him that day ok but i guess the point therefore going to be accurately same with the state of the evidence is if like i identify my husband it's my color you know the likelihood of me misidentifying my husband isn't great i'm likelihood of identifying someone that you know is maybe not your husband but isn't as great as if this were a stranger identification document that he identified mr monk as the shooter and you have a lot of problems and then as in this case you have multiple witnesses coming forward after trial casting further doubt on the condition and indicating that the person confessed actually is the culprit you have a serious problem a serious question about whether the right person is spending the rest of his life but but only if there is an additional reliability with regard to any of preventing future under there's been the evaluation of that mr monk asked for evidence here twice in the district court and it was denied there's been no valuation in this cour was rejected and wrongly so you're right the district court said i'm not going to consider this evidence because i consider it an additional hideous petition that was there mr monk was not raising a new claim the claim he had raised when the dude with a badge said i'm going to dismiss  about i know who is it he's a fellow gang member of another gang member indeed but if your orders unsatisfied with the fact they're gang members we now have monica tucker she's a schoolteacher now tell us more about the gang member what did he say he said this had been telling people the neighborhood that he had been the shooter and the police never investigated and what was the different what was the time differential between supposedly the admission and when marshall came forward marshall in forward two thousand and eleven or are and how examination out of the bench you're hearing why was there a delay but there's been no evaluation this opposition is there there's a delay because mr monk is in prison he's pro se and the people who come forward to support at least the first two are rival gang members and have a natural reluctance to want to help by two thousand and six sound it had been so it had to have the conversations says had to have happened back when he was alive if they happened at all right this river as it was in the hospital and what explanation do we have in any of the declarations has to why it took so long white ever to come forward as i just alluded to there is no solution to the declarations i think well if there was an explanation couldn't that be nice to have right here the one that i've offered to the court is that when he's told that someone else has confessed to the killing and is telling people in the neighborhood that he did so he interviews none of those people he doesn't ask mr bell anything about mr smith he basically takes mr bell's word at it and ignores all the other evidence and they proceed this was not you know meaningful interview so what are smith's all these was i was innocent i did it and then i'm no i didn't know what mr smith said his confession was that he was in this group that encountered mr bell and he either track plan trickly man i mean there was one in front of that district or court was right that was considered and another one comes up on when they're trying to reconsider and then there's another one that comes up in front of us right yes if i the first declaration probably before the district court was mr ravers declaration the secular declaration was submitted with the will sixty emotion more than a year after the judgment was injured in this case the district court rejected that finding that it was excessive petition there has been no appeal from the order denying the will sixty be motion so the marshall declaration is not properly part of the record on appeal and should be considered third exploration is the  recently submitted while the people have been pending and of course that was never before the district were and it would be highly improper for this court to consider that mr tuck i ask you this question mr larson keeps referring to the all the evidence standard and as i understand that standard you tell me if i'm wrong that we first to admissible evidence not all the possible items out there that one could consider then aren't that message absolutely admissible evidence that was before the fact that was before the cases are assuming the general proposition that that the development of facts is in the district court and it is improper to develop new facts in the public or hold orders reviewing with the district court it's not so your position is declaration without any detail whatsoever there's no context to the statement but the explanation the way we do know that he's also an inmate bert one time was an inmate with mr monk at the same california correctional institution isn't there perhaps yes what we do know are a few facts that show he's not credible that he wasn't fact in prison he was with mr monk he's a convicted felon and so there are those are reasons to reject the declaration but and the declaration is inconsistent with many of the facts that already exist in the record that's right cuckoo but he says the games were not rivals who took who took the declaration from him to reno with the circumstances when i'm going i don't know the circumstance i mean did it does he just pop up one sunday morning and say i'd like to make a declaration on something that somebody said to me five years ago that could very well be is very suspect there anything on the record that anybody went to raiford after this declaration and said hey what's going on here now there isn't we just have a naked declaration with a hearsay but what if what would a free for dr made it seem to be that law enforcement might follow that u to meet the actual innercity innocence the there has to be compelling scope atory evidence scientific evidence compelling eyewitness identification a single hearsay declaration without any explanation for the delay in presenting it would never under any circumstances meet that standard is it your position that the three items of evidence that shows up discusses are exclusive where were they just given those as examples well that they were i don't know whether they are i'm sure there are circumstances where perhaps there could be other compelling evidence shirts like the supreme court's recent decision on who you're in execute they said why q is not the only thing you could look at anything else that weighs on it i think  bennett is right about that that it's not exclusive other things could could weigh on the scales i would i would agree but i would also these affidavits don't rise to that type of evidence exactly there has to be there's no question you have to be credible reliable evidence that's what  unhappy if i were the judge thing there that would be something that i mean i think that's something that that you can know if you look at you know i don't think anyone can be prosecuted for murder and i think that's why no because obviously if he had died within the year and they could show connection then that's exact what monk would have been prosecuted for but that being said and then if there's no statute for murtha statute of limitations for murder doesn't exist someone else could be but in this case the statute has to do with attempted murder and it's been this long now i suspect that it doesn't matter what anyone says they can't be they can't be prosecuted so isn't that if if if i come in and can pass but nothing can happen to me doesn't that as opposed to if i come in and can pass and something can happen to me isn't that a different declaration absolutely kind of a declaration against people interest at that point yes might be yeah that's and that's another reason to doubt but if we if let's say if we considered all three declarations do they slap through they do not show up but you don't miss the idea of this mr argued during an argument but mr smith was actually brought before the victim in this case mr bell or mr bell looked at him and said that's not the person who shot him he said that petition was he knew petitioner he went to camp with him again these declarations which are very thin no explanation for the delay based on hearsay submitted years later through the desperations submitted by individuals w questionable credibility the liability the answer to that is no will the jury knew then that mr smith had taken responsibility at one point that did come out in the trial that came out of the trial that he confessed and then he were chaotic and he explained in his interview to the detective that mr monk was his friend and he didn't want to see him go to jail and that's why he confessed and then he explained he wasn't perpetrator and then mr bell looked at mr smith and in court and said that's not that's not the person but the defense didn't have any evidence to corroborate their theory and arguably the new evidence does this and they have a difference well but again looking at this new evidence theoretically maybe any of this could have could have possibly made a difference but again we're talking about the the mannish love standard and it is not sufficient to simply go to the district court and present hearsay declaration or even if he ha committed the others and be able to meet that standard there has to be more than that and what's more i'd also point out in this case that are basically innocent it is in his motion to the court submitted this declaration to mr ray for but didn't provide any other argument or facts in support of his actually does quite innocence claim in disgust the facts at trial all of the issues that there is now bring up on appeal about the things that happened in trial the evidence that was produced the context of it that was never argued in the district court monk was process yes he was close a but all again he was he submitted a motion that had lots of all of the side of the appropriate law for actual innocence he was any did he tender about the circumstances under which the strafer declaration was was made he did he simply said he was incarcerated with mr ray for some five years later and and that's when he there were two dates on it which is also a little suspect quite aside twice and there was no there there was really no contest to this declaration essentially a petition just submitted this this hand written hearsay declaration to the core without slap you have to do you have to be you have to know that all twelve jurors would have changed their heart that's right that's a very difficult standard is not it's a very difficult standard there's no possible way you can the record in this admissible at trial or not must be considered well but how it's going to be so you can show up today and tell me guess what you see that guy in the fourth row he just told me that he was in prison and the same thing happened that's not evidence what we're saying you it could you do that if you're right you could just tell us today somebody told you yesterday there's something here on is that that should be remanded to the district judge who never considered all the supposed trial but isn't that what you're arguing that you can just come in today and tell us guess what i have a new declaration restartable your honor that's what the law provides when someone says so that's what you're telling us yes wrong when someone's you can stay you can stand there right now and say there's a new declaration and we have to consider it when no your honor i'm saying that the law provides when someone larson are you open the possibility of bit you're wrong on the we standard of what admissible a trial or not means i don't think it means any conceivable evidence whether it meets the rules of it could equally and makes more sense that it might need evidence not admitted at trial the children or because it was properly messel because the notion that a court can consider evidence that isn't properly admissible here a person serving life in prison for shooting which someone else confessed and we have three people coming forward after trial corroborating that other person as being the culprit and indicating that the verdict  conviction where three people have come forward and indicated that he's not guilty would be a miscarriage of justice shockers we have at least merit an inquiry into whether he's witnesses are credible including the school teacher who works with mentally impaired people and you also also corroborates the position of evidence none of this has been looked at what have you tracked rafer doubt or any of these people down since to find out any additional information about them and the circumstances under which these declarations were made