that the defense didn't know this fact and in fact if by the time mr walter testified the fact of the perjury was out in open court i had two responses to that prosecution in the rebuttal speculated as to why it happened right because there was no basis in the record for the reasoning that the prosecution gave in closing argument exactly oh no the prosecution didn't even enter a train reject the prosecution  supreme court's cases of perjury was unknown to the defense and unknown to the jury and not exposed in front of the jury and that's just not what we have here but the project was not to the about the possibility of a perjury both conflict will testify it cannot be said to her counsel then leads to the question where did the supreme court clearly establish that if both the defense and the jury  ely know the truth prosecutors still house strong remaining duty twenty two thirty four d says that on collateral review we can enforce only those rules with the supreme court is clearly established it's let me just be sure i understand you're not saying there is any other case in your view not the way itself clearly establishes that if the jury deliberates knowing the a reasonable advocation a clearly established law but i guess i have a similar question to judge easterbrook in that if you get to that third point and i'm just wondering to what extent you're trying to push the own rule here because surely it must have something to do with prejudice if the jury either does or does not know that there's at least a possibility that the witness was lying i understand your point of just putting in impeaching evidence still leaves it up to the jury to decide who's telling the truth the witness with the impeachment evidence or the original witness but nonetheless it's quite a different situation than one where that you're just saying you know in case number one the witness projects herself and then later on some witness comes along and says it wasn't that way it was the other way she's lying in case number two the prosecution itself says every stage when the only appellate court got to this case had basically acknowledged that this was not a particularly strong moral prosecution terms of the various credibility issues that the key witnesses had contradicted themselves and were not there throughout the course the investment i'm saying there is no other evidence connecting the stolen there and it's not the second trial when ur being lied to defense didn't impeach or with the transcript from the first trial first and then in addition in the rebuttal did the prosecutor then speculate as to why her testimony changed i mean to me that really ratchets it up to a different level that's correct chairs and i think just at first there was people recant because they realize they've lied and now they're going to get in trouble and so on and how often do they recant recant just because they don't want to be they want to get in far they start thinking about it  time she's in the courtroom she sang mr long did it so there's but there are the two possibilities of recantation one when you get understand you say i don't remember anything or it was somebody else i got it it was sort of fifty or sixty people floating around th while she like to get out of this business she finds that she can't she can't get out because the government wants her testimony government starts to pressure her so you are delphi the sky now you're part that worries me because and i'll just make a brief comment that the trick is always to know how close just the supreme court precedent have to be a supreme court has told us it doesn't have to be a carbon copy but on the other hand of course it needs to be close looking at and so we're not supposed to be prisoners of labels so that's one point and the point of the other side is on the merits of the new claim then the difference between the prosecution acknowledging that there is perjury and simply the back and forth of competing witnesses seems to be quite important and under your rule it seems that the prosecutor could introduce all the perjur don't i'm not challenging that but when it whether it's an embedded claim or whether or not it's been done to preserve it as its own claim is is not always apparent because the same discussion is going to be taking perjury that nat poole allows the prosecution to introduce all the perjury at once and just make sure that you tell the defense by the way we're going to use is witness who's going to perjure herself had fun finding a rebuttal witness is the same thing that new lied to the jury instead we get in closing and in essence she said i wasn't telling the police the truth earlier but quote well she came in here and raised her head and told you it happened and you saw her testimony and so george hamilton just read isn't limited to the identification she raised her hand and then she testified about a lot of things including the identification but it's not limited when he goes edited later back to the most give your most specific indication that the prosecution acknowledged to the jury that she lied to the same jury of court she told the truth when she was under oath when the prosecutor testimony the prosecution used it to its advantage by causing the jury to believe that unfortunately there's all too much you know gun shooting around in i don't think we have to assume mr long saying to wonder whether somebody else could have shot it the other witnesses are all over the block in terms of their stor you've got it somehow get everybody flying in the same direction some out and i that's why it's so sensitive that if this one witness was perjuring herself on the stand about her recantation what else she perjured herself on and then i'm still trying to find in the transcript where she says she didn't want to talk to the police that night because she was afraid or she had problems i see there is a page more and thirty she's asked if you talk in a police office at night to tell certainly there's conflicting testimony but if the jury instructions tell the jury it's up to you to decide which witnesses to believe in which witnesses not to believe then the possibility exists that the jury would have thought that investigator walter was not telling the truth maybe he had a faulty memory maybe he had all the same problems that plague human beings so i guess that's what we're trying to get out whether just offering different alternative to the jury is enough of a correction or whether there really has to be some more direct correction from whoever it was was put in the witness on this is the prosecution from prosecution and that's why that attempt to limit map or way to cases in which the perjury has not been disclosed to the defense but the problem i have with that is that it's a logic would seem to suggest the disclosure is enough and that it's enough to to to tell the defense about those perjury and basically display underside of all the defense tries to rebut it and it's hard for me to reconcile that with the actual text of the opinion in napa  between facts that are as clear and certain as a piece of crystal or small diamond and facts that are in the trial lawyers usual mixtures of say i'm going to collide and i think to at least to me that captures pretty well the problem that we face here and if the jury faced here with conflicting evidence from irby and walters on the one hand versus getting an explicit concession from the state to correct this p well you have three minutes left