of them dead he made a substantial showing of actual innocence and the second that is post conviction attorney failed to fulfill the duties required of the supreme court rule six fifty one either ground by itself is enough to require a  fifty one c while the circuit couple of didn't really consider the merits of the actual innocence claim the issue below is really timeliness and the court found that sufficient grounds directly contradicts the state's own eyewitness mr camacho who testified that yes alvarez was one of those so if we consider that whether this would conclusively change result of a new trial consider first that just go to finish work with it at trial you know where they if they ever come forward with that it's over and there were affidavits submitted in term in with the original petition but they don't necessarily support the same is just car the time that doesn't necessarily prove accountability mere presence alone at the scene of a crime is enough to prove i believe i'll get right right but i get his brothers were acquitted at trial the court didn't think that there was enough circumstantial leather jacket there was some evidence about a leather jacket and one crime scene it was described as a long jacket and another was a struggle the fetal camacho described the offender is wearing a leather jacket he didn't say it was long i think there was at this murder trial and he refused to appear well there were a number of issues to try to find bras there were some question as to whether he was in prison for getting jail whether he was going back and forth between those so whether he was released i don't know i he certainly final yes so i think that if he was in jail at the time of the trial then he's fine the whole and he certainly you all you have to do is ask the judge for them over let's see what he has to say but there is there any indication that that was ever done it was ever checked and we you do have to show some diligence before you can come before us and say you know ten years to fifteen years out wrong we were diligent this is a newly discovered witness what was done by the defense to try to get a statement from mr brass at the time the trial held what the defense it was trying to find him and when they try he was gone from whichever institution that they went to there's some record of that i mean how do we know that that's coming from  for the last two years or so that this case was pending since his name was in the police reports what did the defense do to try to ascertain what his testimony was going to be what diligence was or done did they ever send an investigator to the jail to say will he's at some point he was there so my question is what point during the pendency of this case has they ever will try to go talk to the guy i don't know i can't give you specifics in terms of when they went there i just i can't it's not does it somehow reflect  shooting but that doesn't make him or the male a more steady does say that no amount of diligence can force someone to testify against her fifth amendment rights right but it's all because that's just saying you don't want to testify that you're a any member would be against his fifth amendment interests xtandi yes because that's not actually something we can consider he's never testified he's never sworn that the reason he didn't appear was because he didn't want  understand the argument that it could possibly change the arc the outcome poured into your summarization of the evidence but i don't know if you can meet newly discovered because he's in the police reports he's named he's and that's you know once the case go over he's now no longer has any fit in there and that's where he finally coming forward and saying here is what i would actually say and i know we can't satisfy just all more in terms of of giving you an explanation of where he was on which date state's it will use them when they step up about this but it says in the breeze that assistant state's attorney said he's in custody and the time of this trial so if he's a cousin if the time the trial he's found it's very easy to is that that is not making him unavailable i could be incorrect but i think it says that but then we are going to look at something like morse which is known out of diligence is going to be able to have a defendant get someone to testify against sit consider this on the merits our supreme court in cases like washington and ortiz have indicated a procedural hurdles shouldn't bar the consideration of an actual actually does that really well that probably justice freeman's  heard because of the vehicle limitations that most felt was there and then at some point the legislature saw fit to specifically remove any statute of i don't know actually we don't have the pretrial record in this case which is makes a lot of stuff with respect to the efforts that were made with bret haas kind of subject to call the trial record  the fact of the matter is is that the defense of self defense was raised in trial and the defendant and the state appellate vendor in its wisdom proceeded with that in the direct appeal and there's no suggestion that his lawyer amendment rights but don't they have to have some if amendment rights to exercise are clearly there do they also i think you need to take it to the next step you can't just have what essentially happened was peters was a post trial counsel he stood up and said i spoke to someone who said that we can't eat he would have to be compelled to testify against himself in order to excuse i think you need to take it to the next step and so yes i would say that and the other thing i would point out is that it kind of flies in the face of the right and we have no evidence that he ever talked about it with anyone but we had his peter's representation that he apparently spoke to a lawyer who may have represented her half the i i don't go away in any way ever exercise a right along to someone else but in any event there's no affidavit anywhere in this record where i says that i didn't testify before because i want supervised work there's nothing wrong with a lawyer talking to somebody else's client as long as you don't talk to him about that case that the other guy has a lawyer for right now so but if it comes to the point time where he's going to be called as a defense component that camacho his friends were throwing something at whoever was approaching so that's where they came from in that it just goes to show that what appears a new post trial was what ross is now saying in his affidavit which is we now know what he actually would have said contrast with what was apparently in the police rights but i know the case that's what kay says that when a witness says it helps testimony is different that that makes it newly discovered i don't know that that's the test just this king would case which you cite that i don't necessarily have a case exact point i would just suggest that the fact that he's now coming forward and saying i know it was as i thought newly discovered generally that that the person wasn't out there wasn't available it was something new like he came from somewhere else like it never the police never talked to him he was never listened to the police reports he was knew someone that no one knew about i didn't know him personally oh yes all right but i don't know that there's any case the story that says you know if  actually have specific meaning within the law and really it's the law that we must look to not our personal feelings or whether we don't like the result we have to study the pieces and the cases tell us what really discovered it it's not something that we sit up here and decide today that something is real we have to study the law we have to look at the cases we have to see what that he say discovered me precedent not something that we decide is new and actually we don't just have a distinct meaning in dictionaries but it also has a very distinct meaning in the case pre e our obligation is to interpret what those cases say we cannot make up what we want something to be know so i mean i i'm happy to see if there's cases that  that when something changes that it becomes newly discovered but you just said yourself that you're not aware of a case that actually says that but but you do agree the cases say what newly discovered of course yeah and that's where