violation we understand that the court hears many many brady case we believe they're all fact intensive but we believe that this case is different because direct appeal this case be a circuit stated that the government's evidence indicated that maston left the bar as the last person on the night of the fire through the motion hearing for the twenty two fifty five that the master has been able to show through her expert that she was not the last person to leave the bar that night her expert was able to show that there are images on the original security tape that show other people approached the bar after she left that night it is that evidence of the original security tape that was not given to miss mass counsel brady usually involves evidence it's been not disclosed to her or obscured or hidden that seems different than here here the original tape was always present and known  disclosed so how is one of the fact that a copy was supplied in the copy was described as being not a really good one a brady violation when counsel could have requested their original because the original tape is really not available to this day it has not been played the copy the d v d copy of the original tape does not include all multiplex security system which was on a v h s tape he did not have the equipment to show that at trial he was instructed to go up there and make a copy of it so that it was easily played at trial what defen government in the years first of all he was only advised of the of availability of any surveillance tape a week before trial but this didn't have the ability to know that that's what happens all the time well but if you of motions for continuance are all about it's like giving him a locked box if he has no way don't know you and he never and he never talked to the detention center diddy i don't believe so i don't know but that's that's what we're talking about of when availability but it has to be coupled with the representations of the government made to defense counsel that this was an exact copy of the original to which rep which it wasn't because because i mean we're we're we're really into the the youngblood country here not not well when the government advised defense counsel that they that he could come and pick up a d v d copy of this he was told that it was an exact copy of the original tape which it wasn't ajax or i thought he was told poor quality it's certain camera images from this multi camera surveil our security system to put onto the d v d that he made when he went up there he did not capture everything that was on the original that is why we have an adversary system because government investigators frequently do what's convenient and or helpful to the government justice shouldn't be based on just convenience the whole if but when it's that's why we have an adversary system so that the opposing advocate i mean i think probably what happened here and it's the reason we don't have an ineffective assistance appeal appeal is there was no hint anywhere else in the record that would have alerted the defense counsel that there there might be these mysterious mystic shadows that you never quality thing that might that that an expert might be able to say i think that's another person not intel debbie masters expert was able to get access to the original s tape was that so hostile there was no ineffective assistance because there were a reasonable counsel was not alerted to the need to go do what the expert did after the fact that's neither a brady violation or a young good violation just have to decide whether he could have and whether it was available to him and it was that's the decision we're reviewing and it's our position that it's not available if he can't see it counsel or what's the  evidence that someone couldn't have obtained the appropriate equipment to to view the original even at the twenty two fifty five hearing the government was unable to provide equipment to view this it's somewhat antiquated  outside of what could be done to obtain a viewing for the purposes of showing the court what's on that tape well i think that dr edwards report and in fact the government witness i believe it's it's referred to in the record as a v h s tape and i know that there were multiple cameras that were all fed into one system and that's my best recollection of it we believe that this case is complicated by the government's representation to defense counsel that this was in fact an exact copy when we believe the defendant expert says that it was not there at thirteen sac what's the quote please from from that your you keep saying exact copy and that's not my understanding of record so read it from the record it is actually what exactly what the it is the finding is that the prosecutor so i'm referring to  that what was what is the exact statement when the when the bad how the horrible tape was delivered what was the exact representation by the prosecutor who had obviously had not seen anything other than what he was that it was an exact copy but it was more about what did the prosecutor say he said what did the prosecutor say i don't have numbers twenty two fifty five did we have a hearing on this we did have a hearing on this i want to the prosecutor misrepresentation was it a misrepresentation that could be that could be linked into the brady concept that was not a misrepresentation right ok so the prosecutor clean here prosecutor didn't didn't look at the original that now would have saved the day for your client and the prosecutor accurately represented what was being delivered in discover it how where where is the brady place as opposed to young blood or something else that there are thirteen seconds which we outline and on i mean i know that the that the young you know you know young blood that's that's where that's that's a a mistake by a government investigator involved but not a prosecutor as to which there has to be a lot more rigorous showing than simply it was exculpatory and i didn't get  answer so i don't see the brady i'm so i mean i understand i understand the problem after the fact you wouldn't of this been nice but well those thirteen seconds that were not on the d that was provided by the government to the defense counsel are crucial to what mr masson could have shown could she could have shown just the original v h s tape to the jury to show that she was in fact not the last person at the at the bar that night i thought it was quite disputable whether this whether the original in fact shows someone else or will judge jackson blowing in the wind or something else judge jackson found just from the still images that she was able to see that masters expert had taken that the images on the original are much clearer than the images on the d v d provided by the government exploited been required is will to testify that that image on the original constitute the presence of another person in the room or or only a suspicion that perhaps another person was not necessarily i we believe that if she had just been able to show the jury the original v h s tape the jury could have made an assessment of whether or not mr master was the last person at the bar or not i mean obviously experts would have helped in this case mismatched and but if the government had just played the original security system tape as opposed to trying to make it convenient we believe that it would have shown that she was not the last person at the bar copy of what was on the original take a judge jackson did find that the the information that we cited on in our in the twenty two fifty five was in fact it's called the tory again we are appealing her ruling that it was not withheld we believe that it was withhe because it was not given to the defense in a way that it could be so therefore we are asking that her decision be reversed with instructions to grant appellant a new trial think you please the court system but let me at the outset indicate that we have an a in our brief indicated that we think that there is a procedural default based on the new trial than i was and incorporated in the twenty to fifty five decision right yes that's very different than the procedure that i'll fall if cases you cite the knowledge that i'll move on while i'm not saying i know it is an issue but that seems to me to be a serious the it's a serious difference in this case well it is this court and i want to discuss a couple of things but is this court has indicated there is no brady violation of there was no newly discovered evidence as judge jackson correctly pointed out it's just newly examined evidence there was no deliberate inadvertent or otherwise attempt to hide or secrete or withdraw that tape from mr forsyth and the defense the tape was made available he knew it was available that's why he made the best evidence objection at trial saying the best evidence is the tape why that equipment wasn't used is because it's not portable  jail and you can't take it out and bring it with you it's built into the a dare county sheriff's department so we had to make a copy now could we of gotten another machine to do it that's possible s system which it contains sixteen cameras that operated in four sec for second intervals there were sixteen cameras but for this purpose and  to answer what what she's talking about zorn's only selected certain ones where there were only two cameras the sally port camera and a poll camera that depicted the side of the street and  the restaurant itself and the streets involved which was missouri avenue and else an avenue and the parking lot next to it those are the only two cameras so he didn't keep the other body how was the expertise to view the original detention center no we made it we originally took the original exhibit we put it into evidence along with the d v d copy and had testimony the tests for an accurate copy of the original my agent and my experts both looked at both of them and said those are fair and accurate representations and i represented to doug forsyth that it's a copy of it but it's not very good it's a very poor quality which is what i told him i said yes and at the time i wasn't even thinking about using it it was only as i got prepared for trial that i said well i might be able to use it for the timeline ok to show when people are coming out because although you can't see but they're pretty shadowy figures you can see movement ok you can see the cars leaving and there was a time stamp all right that you could then fix as to who was leaving w that tape that they should have had would be exculpatory well it's not exculpatory and it's not what dr edwards said what he said and what he provided is completely different from what the masks and walking from the back of the resident the back of the restaurant to the parking lot well they offered no evidence of that they offered none but kate they said that the photographs enhanced photographs would show that trooper barry drove down elson and went in front of the restaurant well the photos don't show turning on the missouri avenue when he saw trooper barry parked at that location there's two workers who were jailers claybrook and rogers who were out having a smoke at the sound of the sally port and they observed the trooper go down missouri avenue and not down else and as alleged in there they have when they offered a offered like three enhanced mints and to which you just talked about which it which i want to talk about and show you how irania sit is one of those is seven ninety three image seven ninety three se n and the allegation is that madsen left the parking lot let me just at the minute on this argument i don't i didn't see a finding one way or another the it's one thing to impeach barry and so forth but but the real haft of this evidence as alleged to us is that we have chad and we figure he figures coming to the about to be burned restaurant that would that would be of a real stamp wish a real real defense and that would require finding wouldn't yes as to whether as to whether that was a a does it show that well and if it agree but it seems to me you are you are maybe putting the cart before the horse if you want to convince us that was what he spoke a sculptor you're probably right but what what what is important is on the record ok my agent my expert examined the doctor's findings and what he said and i said on the record look i'm not going to be able to cut the thing short and said i don't mean the expert to and we went on the record saying look we by no means concede that what the doctor says is what is shown on the video because it doesn't so i'm not going to go any further i just want to make for the record or thirteen second i'm that i won't go through that this was a circumstantial evidence case as you know all arson cases for them to ensure it's almost impossible to get somebody on the match and  in this case even though the court of appeals when you talk about maybe there's a possibility that someone else did it if you look at all the circumstances her financial situation the restaurant situation and you add all that up you know that first of all the doors were locked when they arrived so if someone else did it how did they get in and how did they get out without he and and that six to seven minute period time from the time she left to the time that the car of the fire was found by brandon wat effective assistance and the brady violations but they were substantially identical to the brady violation allegations in the criminal case in the first on the newly discovered evidence in br thank you judge we want the record to be clear we are not trying to disparage mr hogue and the representations that he made to defense counsel he believed he was giving exactly true and accurate copy to defense counsel but the evidence that maston was able to present in the twenty two fifty five shows that that was in fact not the case because of the technology involved in this matter and the degradation that happens when you switch from one medium to another we believe that the government bore a greater burden under brady to make it truly available this was not notes that might have been available