he did that poor stitching on mr but this is a brady case and it's been conceded by the commonwealth that this letter which was written prior to any motive that anyone can think of for him to lie was in the possession of the commonwealth at the same time that the prosecutor accused mr austin after his testimony of to the point of how to consider that letter and really the failure to predict produce and whether it's material then we first have to figure out what our standard overview is of the supreme court decision and doesn't that us first have to determine whether the superior court articulation of brady was contrary to the supreme court's precedent and you might can we start our conversation there you pointed to statements in the superior court's opinion that you found particularly troubling so i want to read one of the two and ask you how you think they're different so one of the statements you say that the superior or articulated was that it must be shown the violation is quote so undermined the truth determining process that no region of all adjudication of guilt or innocence could have taken place that's the statement you point to and my question is how is this different from the supreme court's statement that the violation and the ferry to turn over the letter must have quote undermined the outcome of the trial they sound like they're saying the same thing undermined the truth determining process that trial so it sounds the same to me how are they different i suppose i shouldn't be gone this argument your honor with the statement that i me i'm conceding the contrary to clueless ok which and so you you know that how deferential the federal court needs to be and whether there could be fair minded disagreement about whether that letter that you just read for us would have had an undermining the competency and the outcome of this case explain why that could there couldn't be fair minded disagreement that that letter could only have one consequence your honor there were two theories of this case the prosecution's theory which was put forth by two young women who witnessed the murder was that there were two seance mr king who shot the decision and mr haskins my client who was supposedly standing nearby and according to one of the two children was sh shoot him shoot him the other theory was the result of mr alston's testimony and mr also testified that he was walking down the street testimony who was kind of viciously attacked as we said fabrication fact houston wreckage there's even a concession on the flip side is what motive did the two eyewitnesses have to identify right that's true by the jury would have to decide between those two motivations wasn't though the latter let's assume that the trial occurred with the latter available to rehabilitate and  identifications of the two individuals both out of court and in court and their decision the description of the distance between the shooter and mr giles is consistent with the medical examiner so taking all that together even  consuming up to your blow better were discussed was presented isn't it reasonable that the outcome was unaffected by the letter because were in fair minded fair minded difference of opinion think not your honor because the these statements of fact that the superior court we live upon are inaccurate they make take friend and describing the shooting described one shot that made the gentleman fall and standing over and putting  other four or five shots into him which is just as much main point when you got three pages of inconsistency is that an unreasonable finding of fact by the superior court who that is my argument exactly your honor have i would imagine and improve that the credibility of  it it removed the so called motive graham to testify so when you consider lower credibility and the inconsistency of what the girls were still saying all along i can see that an unreasonable determination of facts that the girls were consistent would perhaps meet the was decided by the the state court exactly your honor just to return to my point about mr alston the letter addressed to pop and then saying i love you dog with all my heart so he was he was willing to somebody that he cared about he wasn't writing to  that they could not conclude that had the commonwealth turned over water that there is a reasonable probability that the jury would have acquitted  not accurate so are you are you strictly hanging your hat on the second prong of twenty two fifty four d and not the first now i think they could work together and i think there have been there were certain matters that the spirit court longly stated aim only stated that they applied to the car together they left in a car together things that were subject to many many i'm not sure i understand your answer to my question my my answer is that the weight of the inconsistency is on the side of the prosecution's case it was s that having this letter to of that standard to these facts and if i understand your answer to judge the law there was an unreasonable determination of facts which is as i understood judge fisher to be referring to  has to do with you have many of the individual facts based on an unreasonable application of clearly based on reason application of the facts in light of the evidence presented in the state court proceeding yes i think i thought you also argued however there was not also a reasonable determination of fact by reaching the conclusion the two women were consistent that's correct too i think there is an overall determination of fact and material that is there's not a reasonable likelihood how the letter been disclosed to the outcome of the trial would have been different here to young disinterested what are a couple we talking about i'm sorry what outcome are we talking about what's what's the have resulted in acquittal it needed to be a reasonable likelihood that the outcome of the trial would have been different we have been different doesn't have to be an acquittal correct ok i didn't the both the district court in the superior court pennsylvania used the words that the jury would have had to acquit king in or hoskins i don't have a specific enough memory of what the superior court sad i think that is likely and my guess is it was just a theoretically or correct i think one juror could immediate prince and i think probably the superior court was inarticulate when it said acquittal when a hung jury would have also qualified but i think on these facts the likelihood that there would have been a different outcome is quite minor these were two young men who had just seen a vicious murder they lived in the neighborhood and where the gang leader repeatedly and murderously demonstrated his loading for snitches and frankly they probably wanted nothing more than to have zero to do with this to not have to say a word and yet they were brave enough to come forward and do so there were peripheral inconsistency is not a worry in these pages and consistencies there are quite significant inconsistency like how many people were there how many guns shots went off who said what to whom it is what they said to the police in the beginning what they said  only one man and tell me a trial she said she saw two men the day of the murder when the police came to after his house she said that she was terrified and she was afraid something was going to happen to her she was in common with the lights off the curtains shut she didn't want to come downstairs she admitted that she was terrified and on that day hours after seeing this murder she said there was only one person when she came back to the cookies and admitted that she had not been truthful that day because of her overwhelming fear she had done a five both of them shared in a fight came out of ninety seven pictures she identified haskins she said she knew king from the neighborhood the only difference is that remained occurred before trial as well as the trial testimony in determining how consistent how credible the two girls were and when you are contrast in their testimony with that of all stone alston's credibility is a very important factor in determining for the jury to determine what they're going to believe and alston's credibility was very much affected by the charge that that he was testifying to way he did against haskins because haskins had accused him of doing something and if we could see the letter which was written prior to hass construing austin under the bus where the same alston's credibility would have remained poor after even if the letter had been properly handed over he demonstrated repeatedly his loyalty to these two men he said i'm going to do whatever i can to get them off to get to help them not be convicted of this crime he had his own repeated instances of criminal falsely convictions of lying about his name his social security number his birthdate he was facing several additional murder attempted murder robbery conspiracy charges so i think it's entirely possible that even had the letter been turned over earlier but he was perfectly happy to point his finger at can another one of their subordinates in lemmon's gang and say you know what this guy is kind of going away for life on these five other charges just the way i might be we're both going to do our best for our superior for the guy who runs our gang trying to get him an a i think his testimony i'm sorry his credibility was in particularly poor shape no matter what if it but that think judge because judge rough point in part was this letter would have helped bolster this battered credibility and so could have been quite helpful because maybe he was not truthful or maybe he had this criminal record you're right in saying what i meant to day i got a little tired he was but that's that's what that's why this letter is so critical don't you sick i think that this letter would have taken the wind out of the sails to one of the many arguments the was can end when in fact the letter again showed that he wasn't just saying it now my point is that the prosecutor had many modes of attack on alston's credibility this was merely one of them and never got even the one that's the one  six and he discussed the identification of the girls their fear their lack of motivation to lie the motivation can haskins had the physical evidence that was consistent with the girl's story as opposed to all sins and he didn't mention a motivation often all the canon until peach to twenty one and then spent only three pages discussing it and then he wrapped up on page two twenty eight so if you have let's say of a forty page closing argument where only three or four of those pages are spent on this particular mode and this particular mode of discrediting often story i don't think it's fair to say that the letter made a large difference in in what or that the letter played a large component of what the prosecutor was trying to do let's assume that the transcript when you read the cross examination equally attacked his credibility for each one of the little buckets that the prosecutor had their arsenal for attacking the credibility chart they're all equal but then there's the one piece that identified the shooter of mr giles the victim in this very trial with that one piece been very helpful to rehabilitate the otherwise attacked credibility on a core of the core issue in the case and hence would have had to have a reasonable likelihood of us that the outcome could have been different judge fisher's point maybe a juror would have home i don't think you would have i honestly think that alston was standing up there is a guy who worked london's gang who committed a vicious crimes right your hooey and i just think he was an unbelievable character from the get go and my personal feeling and i think this was demonstrated by the fact that the jury you know they went out for to liberations for less than six hours on two separate man promotes the crimes they came back very quickly and when there was a lot of question here i think also just a bad guy who works in a bad guy and he does a lot of bad things to a lot of people and they just weren't going to believe him no matter what and you respond to your adversaries point that this letter she represents was used at all since trial to implicate him in the shooting described in the letter so for one matter the letter was embraced as being a truth telling source and for this case it's something that we shouldn't pay any mind to well i think it was used differently in each and i think you're allowed to argue the evidence the in fact the entire prosecutor full to argue the evidence to the best of your ability in the circumstances required by each individual case and that is what would explain some of the discrepancy between though letter could play  completely separate trials street fled in that car i mean that that set of facts was not necessarily borne out because of the inconsistency is similarly whether they fled on foot or whether they fled by the car was an inconsistency and that there was an inconsistency about i guess if it was just the coming and going in the car and i think that that's rather immaterial to the core facts the girls presented repeatedly which was that they were standing in the store ordering their food they saw alst and giles outside they saw haskins and king approach king then shot them both from a distance of no more than one to two feet per boe shots there was gunpowder residue at both and showing that the gun was within one two  both bullets not just the first and i think that the sort of peripheral facts that the girls got inconsistent demonstrates that you don't pay a lot of attention to cars that are driving by when you're just ordering food in those cars have no significance and then when you're literally running away from your life paying attention whether cars backing up were driving down cambria also not something you're terribly concerned with but the from your point of view that to the extent that the spirit core was in cracked in some it's fact finding tasked with findings of credibility which cannot be reassessed and he views review found that these minor inconsistencies were not enough and they did so rather quickly i want to go back to my first point on the first prong of twenty to fifty four days is it ok for the superior court to misquote the u s supreme court by quoting depends if a supreme court on what standard is for determining a reasonable application of clearly established federal law i'm fact we can do no where does it get it correct once so the superior court says about brady on page twenty that there is a reasonable probability of a different result in terms of the materiality standard on page ten that they say the omission caused prejudice and the supreme court has held that brady prejudice is similar to strict on prejudice so the use of the word prejudice is perfectly appropriate there on page fourteen the superior court said a reasonable probability that the result of the trial would have been different they cited so in multiple instances the superior court echoed exactly the materiality standard put forth and pre and the fact that they may have misstated it or not used slate we inconsistent wording as pointed out by defense counsel the supreme court told us it would prove that that really is of no moment so i can just quickly conclude in order for this court to grant a new trial i would have to find a reasonable probability that the jury would have believed the uncorroborated testimony then it's very important to realize that the inconsistences were not merely the minor and consistencies we have questions about who had guns we have questions about how many shots were fired we have questions about how many persons were there that the number of persons for after a change between her first statement on the day of the occurrence she may have been afraid but it was the day of the occurrence she would think her memory would be good she came down with s t and her mother to make her second statement  counsel mike might have a quotation but i don't recall mr alston stating that he would do anything at all to help mr haskins and mr k indicated that they were his friends and that he was loyal to that he also indicated that he was friends with canon and loyal to him up until the time matter and i keep coming back to the fact that also may have been a very bad man and he committed murders and he's away for that he lied to police when he was arrested and he gave false identifications and so forth but in this document that was suppressed he is not talking to anybody he would want to lie to you but he's also only talking