reynolds you mr reynolds you're making me think we need a different kind of podium that will accommodate laptops better i'm doing my best i think i'll survive but it may please the court this is a case not about a legal that positively i d d the other two group home members as both the shooter and as the getaway driver are we sure that this group home keeps such accurate tabs on its residents to use the term realize they keep such accurate records of where its residents are at the moment that we can rely on that i mean that's the obvious explanation that if if  without anybody noticing then he could have been where eventually mr salvador gomez says he was sure as a note this is background for the case it's not the basis for of statement kept in this in this business record would have been wrong and this logbook was kept under lock and key away from the the group members whose testimony throughout the trial that but they couldn't leave there was alarm in the back door the attendant always watch the front door the bars on the windows these guys couldn't leave life without the record so what i've been here's what concerns me about your theory to be extent that you're looking at of it's really teaching evidence that's fine for brady but that i'm having trouble figure out what exactly it is you think that he didn't know about that didn't come in at the trial because the prosecution failed its brady obligations that should have come in two pieces the two pieces one information what happened at the lineup the fact that before the lineup occurred a photo a large zoomed in step which is located nowhere in the record has never been produced not used any other reason it was just there on the night of line happened to be within clear view of the victim and home and who was going to testify to this that was not known to the defense i mean how are we going to find out about this photo of the matching ok now new perfect trial is happening you know what what happens the state discloses the but a second that seems like the version of the facts that's most favorable to mr tab in this case but nellie gomez's testimony about those points and i assume she's the one who would have to testify about these matters both the photo and the supposed confirmation when she's asked about it you know to the post conviction testimony it's not nearly as were affected for  response on response there is no evidence that he never saw or strong circumstantial evidence that he did especially with the test deposition testimony knowledge of gomez he was standing right behind her when she saw the photo and she could see every detail of it she went from the collarbones up she was sitting in a chair he was behind that's uncontested she's never recanted that testimony that that the position talks all about these cubicles and everything i mean it's not it like you're trying to get this brady point across based on something that requires a couple of layers of speculation and that's what worries me about well that it's like my  know that kind of thing that gets my second point my first point there is strong circumstantial evidence he sought this court has said when you analyze the strength of case circumstantial evidence is no different than direct evidence second point the impeachment you cannot reconcile the failure to turn over this photo with this court's opinion and use the mckay this court analyzed one the fact that i witness testimony is not always reliable and but then once a conviction is formed even if it's incorrect it's impossible to shake and that was the same issue was there in justice easterbrook i believe that the opinion said look the problem here is not with the suggestibility of the lineup the problem here is you didn't tell anybody about that's the problem this photo up and then there's a trial and i we we all are quite familiar with the literature you mean once somebody is settled on something they tend to stick with that but that you can't do much about that  i saw your assertion that the detective confirmed his choice and you know alarm bells go off ok that would be outrageous if it happened and what's the evidence that it happened particularly in light of mrs go testimony of the post conviction hearing at the post conviction hearing and in her deposition she says i was standing there with my husband he was in shock mode he wasn't really saying anything i asked the detective can you show me who hurt my husband and he goes oh here's this  op and he shows it that doesn't say you got the right guy and if she asked the detective who heard my husband and he grabs the photo and shows it to her well if the if the detective says this is the guy he just identified that simply tells her she's not going to be a witness but do tells her what the results were it's very different from a police officer telling the victim witness you got the right guy so up our identification seven weeks after the guy got shot three times and spent the night in the hospital the problem the jury has is how in the world what a coincidence there's reason to believe it might not be reliable  identified the guy who happen to live in the group home with these with these other kids the mere existence of this photo gives the jury another reasonable inference there's no way they could have drawn without it and that is exactly the brady standard make these eyewitness identifications and i cannot stress enough that the jury juries make decisions by stories they analyze cases under all the facts and that's what the stripper standard says it says here's this new inference here's the new light you cast on this case how did this guy happen identify mr tel i agree with you on one thing which is that the identification by mr gomes of tab as the assailant is critical to the case enough here to say that the state courts are wrong that there's no brady problem but it's first of all the stake wrong because this issue is not a race before because the state of the did district please the court and as an attorney general on behalf of the respondent i'd like to start where cousin counsel left off and that is that this brady claim in addition to being meritless is clearly procedurally defaulted the district judge found that the to salt was excused and so maybe that's where you really should start yes and this court review is to know on the issue of whether he has shown cause of prejudice to overcome the default the district court seemed to be mistaken about the timing of his discovery of the issue that point as he could have moved to amend his post conviction petition to add a brady claim he only relied on nellie gomez to support his state law claim of actual innocence so that was his first of all but he didn't raise appellate court level either he waited until his p l a in the illinois supreme court to even mention the word brady and the district court's finding of cause was that this was basically something he basically correct and that would explain his failure to raise it in his original post conviction because what it doesn't explain is his failure to attempt to amend the petition in the in the trial court to raise the issue and it doesn't explain his failure to raise it to the intermediate appellate court on his appeal and the post conviction proceeding so that the cause has to refer to some external impediment that prevented him from raising his claim in the appropriate manner his inability to know the facts supposedly of this tainted line have were known to him earlier than he first attempted to raise it in the state court and it's a little bit unclear even from his reply brief as to what he's relying on in this court correct so my and i don't see that is a lack of diligence unless you think there's some duty to just go scour the world every time there's a problem now and i believe that that would explain his failure to raise it until he spoke to natalie gomez there was reason for him to think that she had information pertaining to the lineup and my understanding of the way things unfolded is that he didn't specifically approach nellie gomez and ask about the line of he was trying to contact salvatore gomez and nellie gomez with the g between and she at one point talked about this moment that she had with seeing a picture of the titian or after the line up or in the room while her husband with you in the line or it was he she volunteered that information to at that point he began to pursue it but he could at that point have raised it at two levels of state of state review and he made no attempt to do that and just to come back to the issue of whether he's al clear he can raise his claim now and he raised it in the district court and he's raising a tear whatever factors he's citing do not explain why he didn't raise it as he was required to in a state court to give the state courts the first opportunity to resolve the brady claim and another fact i'd like to mention on the brady claim is not going as provides very indirect information about this suppose it teetering on the line of now of course at one point she it's more helpful than later her first account which she backs off from is so the couple are standing there and they can see this big picture and of course we know how suggestive  lineups can be and people are you know capable of being influenced by things like that it's it's a real problem that he certainly could have used to impeach the lineup whether the jury bought it so it's hearsay now lee has twice now in both state court evidentiary hearing and discovery here deny that she told the investigator that her husband could have seen the picture from where he was but if there had been the proper disclosure to  mr tab he could have dug down below those levels of hearsay and found out you know whether she was being influenced by the state you know she could have could have got to the bottom of it and come up with a non hearsay version that's correct and i have a couple of responses to that the first is that to dig down to the bottom of this issue he needed to approx al gore garments who's the only person that can state for definitively whether he saw the picture before the lineup and whether it influenced his identification well nellie could say we were both standing there and a picture was in front of us i mean you know you can get circumstantial evidence in that he must have seen it  i wouldn't necessarily dispute that it would be admissible the question is whether this information is material and exculpatory for purposes of brady oh i wouldn't push on that i mean i can see it seems to me it's quite good if it come in if we knew that salvador gomez had seen this you know eight and a half by eleven headshot of mr tab in the context of the lineup it seems to me most defense attorneys would surely want to use that is as no your honor and that was another point i'd like to get to which is that his identification is reliable now we're standing any exposure that you may have had to this photo as the court noted in neil versus bigger is suggestive lineups are a and he's never been asked that's another person who would know direct information and he hasn't been approached even considering that nellie gomez gave on helpful information in the state evidentiary hearing when he sought discovery in information that gomes identification was based on several minutes of face to face contact with petitioner in broad daylight seconds minutes we don't know right and there's some dispute but the officer and there was holding the gun otherwise we would have been killed correct and that's why it must have been only know a foot or so away right that's what he testified and again the officer confirmed all of that too including that he had a much better that salvatore had a much better view whereas the officer saw only the profile obviously they were face to face at the time they were struggling over the gun so it's you know my understanding is that mr chavis arguing that cross racial  tabb i think the statistics show that was a racist rhetorical hispanic and african american correct i think that there is research that shows that an misidentification is more likely under those circumstances but it doesn't show that a person is unable to positively id someone of the opposite no no i don't i don't understand to say it is absolutely unable but the reliability goes down somewhat and here  officer again and here petitioners are lying as the most reliable witness who provided evidence of his innocence was also making across racial identification and again from a much greater distance of one hundred feet over multiple lanes of traffic so to the extent that the cross racial identification is an issue that affects both of these you know what in the state do with these logs showing the actually tap is in the house the whole time that this is all happening so we know that the locks are on reliable because they fail to note on the very day of the shooting when to target return to the group home so in the record eight twenty six to twenty seven it reflects that the individual came on shift at four o'clock pm and noted at that time that the target was and in the residence there was no entry from the individual who had been keeping the records that were supposedly reliable that the target ever returned and we also have reason to suspect that it was inaccurate the way to each of these individuals was leaving fifteen minutes apart because both brown and pataki have testified at various points at three boys left together so that appears to occurs in connection with the post fiction proceeding correct i've got to say i'm very troubled by that argument and let me just ask you the the extreme case let's suppose which has happened on occasion new  blood or other d n a evidence is discovered that clearly has potential to exculpate a defendant who's challenging his conviction and the police decide oh we think we've got the wrong guy so we're just going to destroy this clear that under some circumstances there is a constitutional right to pursue post conviction relief at least if you're free for true challenging is a constitutional violation in your original trial where you need additional they but they recognize that you should have at least one opportunity to pursue an issue that route which is a long way from saying that there is no right at all because of the rights in federal court i mean if your position means that you get to destroy that inconvenient but i would remember you have to your theory has to accommodate that it does and i think those would present more difficult issues but why don't you just say there is a right there is a right to d process when a state court makes a conviction remedy available it does have to comply with procedural due process i think that's been established absolutely true the question is where the petitioner can pursue the remedy and again the position we take in is that this is under the circumstances here it nine behavior is not the remedy but i would take a step back in this case and note that because the claim was adjudicated the real issue before the four is whether this was clearly established that's the argument to its weight and of course the court does have to very specifically not identical circumstances but address the issue for the purposes of twenty to fifty four d but the court more importantly even assuming that youngblood applies to notes created in the post conviction context the court reasonably held both the state appellate court reasonably how that there was no bad faith in the destruction of the notes and that there was nothing ex know the different races different species or what but i think you've seen a foot away person trying to kill you and then a shoots you i don't think you ever forget that face absolutely detail what itself i don't remember about that day didn't remember what he was wearing he didn't remember whether the incident lasted and that he said ten seconds to three minutes maybe five minutes or even been ten minutes in there that's around don't remember he was wearing thirty nine thirty five day the face would've been on the photos you know remember anything the seven weeks after you should of you didn't remember the day of the show whether he saw photos the day of the shooting yet houseboy i don't remember be surprised by that at all but i don't find it surprising at all ok so that he doesn't remember whether police came to show him photos he doesn't remember what he was wearing he does remember the saying lasted ten seconds survive minutes and but he remembers how to distinguish to the two individuals that record shows  there too terrified they don't remember anything or maybe as i think somewhat more plausible they never forget and i would think it would help help on a trial like this if there was evidence one very very brief point on the default point now we told the story and she recanted the whole thing when she talked to the investigators she gave it back when she was testified at the post conviction hearing so we didn't have a