please the court this is a case about prosecutors purposefully concealing evidence then an eye witness saw the victim being threatened by another man an hour after they argued to jurors that mr juniper had already killed her there's no question that this information was in the possession of the prosecutors there's no question that it was concealed despite numerous requests by mr jenner purse counsel that they turn over brady information and specific demands for the information that's issue in this appeal is have confidence in these verdicts and i think in order to assess that you need to look at the information that was concealed and the implications of it and then look at what remains of the in competing evidence and that's what i would suggest that we do unless you have before i do in a different order  so it start with first off with the evidence the jones summary as we called it is the summary of an interview done with mr roberts and ms roberts on the day she indicates in months to that in that interview that she saw the victim being our arguing with a man between one thirty and ten that morning she saw the victim arguing with that same man between twelve thirty and twelve forty five at which time she heard him threaten him that is the time of the first nine one one call so an eye witness has seen the victim alive at the same time that at trial the prosecutors are you argue to the jurors that she had already been killed that is the information that was concealed from mr jenner first counsel and then when she was shown a sixpack she passed over mr juniper spoto correct the district court found three pieces of evidence in particular persuasive and called beginning one of them was the first nine one one call because he found that it was completely unbelievable that this nine how you didn't know how to reconcile the nine one one call with the shots heard later on in the afternoon at one thirty pm by multiple witnesses and i think the best way to look and to negate that call is to look at what happened in response to that call you'll recall that officer achatz and showed up he first went up to shanti hodges apartment which was the other up stairs apartment she came down and said i haven't been here let me take you to my mother in law's apartment which is miss frazier's apartment it is the partment directly below kesha stephens apartment officer actions and goes in that apartment and talks to ms frazier now what we know from the event chronology is that she tells him she's been home all morning and she hasn't heard anything unusual she hasn't heard any gunshots she also tells him the lady there left a while ago and that's in the event chronology that's information that was not disclosed to trial that counsel did not know is the lady there left a while ago now when the second when the second officers come later on and they find the body one of the things they know is that the t v in the apartment is blaring so loud that it's well above the listening level that they can't think in the event somebody eventually turns it off officer at consist in the apartment directly below that apartment at a time when these murders are supposed to have already occurred and he hears nothing which means that somebody was alive in that apartment in between the time of the first response and the second response to the nine one one call it also turned the other piece of information that the district court found troubling was the cigarette that had mr jennifer's d n a on it he notes that it's found on top of the shard of the door if you look at the photographs that are in that are there were introduced at trial you'll see that it's a top one layer so it's not a top multiple piles and it's unclear when it gets there the first responders who actually go into the apartment the officers who respond to the second nine one one call state in their testimony that they don't look down when there are excuse me one of them testifies the other is on identify he says i don't look down at that point in time he's concerned there is a hostage situation in the apartment or possibly a shooter in the apartment he's very focused on securing that apartment he doesn't notice the cigarette butt into least leaving the apartment that means that either those officers could have kicked that cigarette butt up from the outside it could have got stuck in the you know the tread on their shoes or it could have been the person who actually kicked in the door which we can did was not mr juniper and then it just got kicked in got kicked in at that point don't have any evidence of that you're just speculating or we are speculating on that point but the point is that makes the district court found that you can when presented with the roberts account and i would also add kevin waterman's account you'll recall that kevin waterman is the witness who lives across the street from kesha stevens he reports officer said he hears gunshots at one twenty seven pm that afternoon correlates with the roberts family you cannot take those statements and believe that and credit them and also credit the statements of meaning marie and rashid both cannot be true and one of the reasons we know that is because the prosecution is definitive that this is over by one ten pm which is the time that there is a call from a neighbor she tells to ms rogers house which means that according to the prosecution's case the trial they have they have retrieved mr jenner perform the apartment she has dropped everybody off and she is gone home this is twenty seven the twenty minutes before other disinterested neutral witnesses hear these gunshots in the afternoon these things both cannot be true and the point is the question of who is telling the incredibly important and we maintain that the concealed evidence puts all right what time was it when the police officers first got these are things we know what time was the first officers responded the first officers responded police spoke to her again because they've never turned over a statement from her so you don't know what was the rest of it and then we have there's a lot of evidence yet that we believe is still outstanding we don't know what she said as it happened we don't know what was pressed we don't know what w the correct that's correct what time was that they they arrived at the second apartment at two thirty seven so all you know what you have is that we know they were there at two thirty seven  in the jones timeline which is where this information come from she doesn't say where she was standing she says that she sees them arguing it's seems like they're arguing in the parking lot is what i'm understanding from the jones summary so she sees them then that's the time that the first nine one one call is being made so at that point in time we have an eyewitness who sees her alive they time twelve between twelve thirty and twelve forty five and the first nine one one call is made at twelve forty fo r the officer shows up as i mention he doesn't hear the blaring television which is found when the second response for the officers come later on that afternoon according to the jones summary ms roberts says that she hears a series of three or four pops at about one thirty kevin waterman who is the witness who lives across the street again unconnected any of this says that he's coming home from work he looks at the clock in his car it says one twenty seven p he gets out and on the way to his a walk into his apartment he hears three shots and then a pause and then a fourth gunshot that's when we contend these murders happen that's correct all the prosecution's witnesses for two reasons all the prosecution's witnesses and the prosecutors committed themselves to this trial that all of this was done and completed by one ten pm because that was the time that we're neighbors she was back at her home and called ms rogers and her testimony was that she didn't go back home again until they had retrieved mr juniper from the apartment and she had dropped off juniper jones and martin and how do we know that that's precisely because they have tamed the phone records and introduced them at trial the prosecutors did let me get you back to the question i asked earlier about the d n a evidence on the what what's your best argument as to what because that's pretty damning evidence i think are evidence on i mean our argument on that is that again mr this is an apartment that mr juniper was in quite a bit he helped to take care of these kids it's a knife that can the position of the thumb print on the knife is not consistent with somebody stabbing this consistent with somebody holding the knife and putting it away in the drawer and there was there evidence of what are you testifying was that of evidence  the position of the knife it was entered into evidence that the fingerprint examiner has drawn sort of a red arch and we included that in our briefs of the direction of the fingerprint so you can see in which way that it's being held at the pumps your argument as to why it's impractical or impossible to stab somebody in that are well in the evidence about the shape of the wound is not that there's a thumb like that there's a fingerprint going to the wound that the evidence is that it's sort of like trying go with the blunt side the top of the there were two witnesses and both of those have since recanted and explained why they testified falsely ran his scheme in was mr juniper's case he said that a drug defendant had was a confidential informant this case and given information and in fact he had not given any information he had given ford money as a part of the the prosecutor's case against mr ford they introduced the invest part of the investigation notes from mr jennifer's trial in those investigations where we first found the mention of ms roberts there was noted that she gave there was a note that she gave an interview that was consistent with what she had said to  detectives earlier and there was a note that she'd been shown a six pack and picked up the lower left that was that came to light after we had filed the suit he was petition i think three or four years prior so the statue of limitations in state court had long passed at that point in time that's when it first came to light based on that information that's how we then tracked down ms roberts learned of the existence of her son and obtained the apathy of it at that point in time we requested the state court give us discovery the petition had been denied but our petition for a hearing was still pending and the court tonight it's over the tell me got to federal court this was the very first time we've been able to raise this claim and then of course we got discovery and federal court i would note also that we asked for an eviden hearing and the reason that the district court denied is an evidentiary hearing is he found that we not satisfied twenty to fifty four to be and that was the incorrect standard because that standard only applies when somebody has failed to develop the claim in state court failed within the meaning of michael williams mr juniper didn't fail to develop this the reason it wasn't developed in state court is because this evidence was concealed until after his state habeas petition was due to long after at the very least mr ever ask about other aspects of the investigation what we filed a disk after this information was disclosed we filed a discovery motion that requested multiple things we had questions about some of the stuff that had come up here  and we also know that there are statements out there of witnesses that we know get a favorable statements to the police that have never been given to us that would support an alternative timeline which we contend is the correct timeline your theory would be that he wasn't there at all respons contention is that the district courts now as of this on the materiality question is is thorough and correct the evidence he found and he indulged a series of assumptions affidavit and the jones summary differed he gave the credit to the later in time were removed affidavit and still correctly found that there was no materiality from this principal where we're trying to stay away from sufficiency determine if this meets the standards by which we will all while this we will consider this evidence is so significant that is material could bring about a different result why or why why would it not at least give the defendant an opportunity that did not exist without this evidence to present and other suspects if he couldn't do there was no credible evidence that had a noticed was picked and our position is there is now no credible evidence there is another suspect giving full credit to to whichever pieces of the two robbers statements are most in juniper's favor the most we have is she there's no evidence tying other men to the park and there's no evidence identifying who this other person arguing with stephens was taking at at full blush if there's evidence that someone else argued with keisha stephens at some point that doesn't voters says that you guys committed yourself to a one ten time of death if i remember her statement correctly that is that right i think even her statement was simply that the prosecutions that you don't know what was their theory but that's important was to look at materiality of this witness what did you argue clearly was that way this murder these murders clearly had looking at ok go ahead had been found and driven away from the apartment by the time of the call yes so then the one twenty seven report rob ms roberts was that's inconsistent correct her report that there were later gunshots yeah that's inconsistent with those gunshots being that if they were gunshots there were some testimony that they were a noise that sounded like pickups or pops or something else but assuming they were gun shops that would be after the ton so it's hard to get around it is certainly throws in question step was that you know what materials not material because of the overwhelming objective evidence like d n a yes but he lived there right he stayed there frequently he  was still he she thought behind him and then returned she didn't look back didn't look back but she heard the crash of something being came to me ok and the only thing we know that was kicked in that vicinity was the front door and the cigarette butt was found in the front door as counsel has explained to that that was not the focus of the officers investigation as they tried to secure the scene that they thought might still be dangerous but they did secure the s he was there was that day that day now and we know the basis of which why this evidence just wasn't turned over extent that prosecutors knew about this evidence  or do we only know that this lead investigator who's been convicted of taking bribes and drug cases was the only one who just with able to do we know we know that we don't know what decision was made about just turn over this evidence that you now say it would change the result i mean it doesn't change the result clearly why not just tell the other side make sure you don't have this problem but don't you think yes it would be helpful at least in the not t anybody in the process not the prosecutors anyone else but we just don't know we what we do know is this is some period of some this is some pretty serious information that has indicated could be helpful to a defendant in preparing for trout whether he would prevail or not is another question and the choice is made not to give it to him but all we know is we've got a lot of a better term criminal criminally convicted lead investigator who did turn adult but we don't know who else knew about it we don't know why wouldn't it be helpful to know have been turned over everybody agrees on that i agree i wouldn't be here today if it had been turned over but as regards point out it's not afraid like that perp not just you would be here if they had we all agree on that er points out it oh you think you have evidence before you as a prosecutor in a case where not even on appeal you need an investigator brings this evidence you think it's not unconstitutional to not give that evidence to the other side because you make the assessment i have evidence that even if it comes up later it will show it's not material prejudicial it will cause in fact puts the burden on the  would make sure we were informed the practice at the prosecutorial level when these cases come up trying to determine how do we have for what it is but if the mindset of the prosecutor is yes there is some evidence out there that othe side absolutely has it could help the defense but from our perspective it even if it later comes up as a brady about lation is not material you think that's a that's just  if the prosecutor in this case knew this evidence that is in this case not yet in this case and made a conscious decision not to give it on a belief that this ultimately appeal it would be determined not to be material you think that's ok it's we're using terms here that are not always the same and i want to be clear that i'm not i'm not trying to practice law and i think this is a simple question it seems to me that you could answer this very simple i'm not trying to box me in one way to other  i'm trying to determine is what is the mindset of the of the prosecutor in the case for evidence like this and we don't know at this point but we could have it ever dettori hearing to determine and it would be important to me if i knew that the prosecutor not material i think that's a constitutional choice by prosecutor if he judges that not material not disclosing like this case like this some are following up a little bit terms of whether or not it would be a probability of a different outcome yes but don't we also really have to look at and this is two of sentencing a lot of times the difference between you know him and you know then defense work for when i was on the bench even though it's guilt if you can get a question of whether or not i use a certain that he did it for example when you have you have time at which we don't know since you don't know what your kill this man and use certain that it was because i think it would have been who is the it would be the empty chair they would have to do it who was that person we know was in juber who walked across that we know it could have been because it's something independently to punishment i don't think there was any argument offer below or on brief that this was material to punishment in this case i mean that's all they would really have one of the circumstances of the sense because you said you have that power being d n a type stuff you had people who said he said this but they would say that an independent person says timeline is wrong and that there is somebody else out there who we don't know who he is response in these things that i know you have to weigh what's relevant but in the best case you would say somebody you have a witness that you don't turn over that that clearly contradicts your theory of timeline and you could make  as opposed to an impeachment evidence or just a number of thoughts out there that the pill that you don't disagree with you that the robbers you know let me know to put the cases you're talking about that that that evidence showing take it to be as true and her statement was she saw another man not fitting juniper's build or heard in the other statement arguing with someone we assume to be cation there's no evidence placing another man breaking down the door picking up the knife stabbing a show or shooting the other victims there's like there's nothing of the man arguing with with him with her that she placed what is doing she saw someone leaving but didn't describe him in the police notes she saw the argument and gave a physical description although she picked someone out from the photo array they didn't fit that physical description but she didn't take yes question about the witnesses who the government said the junior juniper confessed to your opponent says that they subsequently recanted and my question is so what are we to make of that is that evidence still relevant i wanted to clear up the timeline question a little bit for you so there's we contend that there are two times that you can depend on that are reliable in this case that you can know what the prosecution's timeline was at trial the first was the time of the first nine one one call which was placed at twelve forty four and we know that because of the event chronology from the nine one one dispatcher the significance of that is that the prosecution's evidence at trial was that mr mings who they contend it was his girlfriend who made this call had already seen mr juniper mr jones mr murray and ms rashid leave that apartment which means that all of this had to be done the murders had been committed before twelve forty four pm when that call was made the one ten p is the time that rasheed arrived back at her own home and placed the call from her home to ms rogers house so the prosecution's timeline fixes these murders at trial before twelve forty four pm and there's no dispute about that  prosecution play for the correctness of the twelve forty four coal and continent yes i also want to go back to the question of the standard and remind the court here as you as you have noted judge when that we didn't get an evidentiary hearing and the district court and we also didn't get full discovery as we've noted this was before the district court on a motion to dismiss he was supposed to take all of our allegations and credit the mistruth and drug background she's not given inconsistent statements to officers on the day of these homicides she tells the detectives that she saw stevens who she identifies as the woman who just moved in with young children there's nobody else in the building who fits that description arguing and being threatened by a man at twelve thirty between twelve thirty and twelve forty five that's the time when the prosecution contends these murders had already happened and in fact the substance of the nine one one call that first went so that the gun shot was an hour before she says she sees keisha stevenson alive that's the evidence and then later on they and they talk to the people in the apartment below they haven't heard any gunshots they haven't heard any unusual noises at that point in time nothing has happened the team there's no delay airing t v upstairs then later that afternoon to her her son and another disinterested witness who has no criminal background who does has not given multiple inconsistent statements t the only person that we know of that was shown a six pack was ms roberts and she picked out somebody else and i also want to note the fact there was a lot of question about why was this not turned over at the district court found that this was the common most entrenched resistance to transparency not just a trial but in post conviction proceedings there were multiple representations made by the attorney general's office that everything had been turned over that brady had been completely complied with that w