had set the fire magic video which ultimately claimed the life to people in the restaurant next door to the still well stated that he had set the fire he did not then and does not now know michael harper and he explained that his reason for setting the fire was based on the fact that he believed arthur brown was the owner of that video store and arthur brown owed him a substantial amount of money for drugs therefore when mr bell was unable to get his money from brown he burned the store and revenge now in and of itself the affidavit and that and the former testimony of james bell is sufficient at the second stage to make substantial showing the factual innocence mr bell's confession is an rebutted by the record consistent with the physical evidence and if believed taken is credible completely michael r now i have to get to just a minute or spend a little bit of time on this notion that his confession is unrebutted by the record the physical evidence in this case is actually completely consistent with james bell's confession james bell stated he used a gas can start the fire he went out the back door he dropped the gun a gas can was found in the alley or freeze way behind the store himself stated he started the fire by soaking the bars in the back of the store but he bent them up so he could kick the door open and get inside the store with those things also i'm consistent with the recent confession that group many of those things aren't are consistent of the original confession yes which means that as far as the physical evidence is concerned first of all that at this stage i believe that we have to accept james bell's confession on its face unless it is rebutted by the record and my my point right here most importantly is that it is not rebutted by the r essentially written by police and b there are other matters that we can take into account in terms of judging between those two but most importantly that's really a question of credibility in fact that needs to be put off probably to a jury at least in the third stage eviden therefore at this stage the only the only way to discount mr bell's confession would be to essentially discount as a matter of believability and that is precisely what the supreme court tells us we cannot do prior to an evidentiary hearing post invasion proceed bell says he kicked the door open and then he left out the back door now there is not a single shred of testimony or evidence anywhere in the record suggesting that a door that had been kicked open and we don't know what state the door w nobody has to fight to get in there and seen the state the door was in there's no evidence no testimony no expert explanations of any kind expressing that a girl which had simply been shot after being kicked open cannot create a reasonable enough seal that you could have a battery which doesn't require an airtight seal it requires that there be a minimal amount of oxygen reaching the point of fire such that heat builds up without oxygen so that when atherton's introduce explosion which could happen as far as all the evidence we have right now shows that could happen just as well if the door being kicked open and shut and if the doors were shut off we just don't know anything about what the state of the door was no witness testified t is there anything in the pending coast conviction petition where our defendant actually addresses the coercion issue in the right to get around his own confession but he does admit his own affidavit yes and in his affidavit he does his attorney argue the therefore there's at least reasonable for him to believe that she could be at some risk as they were both owners of the same store on that point there are some interesting facts there detective i believe it's cuff or give me if i mispronounce it to testify that in fact he did bring michael harper's mother to the police station that he told michael harper his mother was there so harper was aware the mother was a police station we know that much but up comes also testified that she left after only about fifteen minutes saying that she had other things she had i think one of the points from that mistreatment you've made is thing act the confession is a little bit unbelievable on its face because he would not in fact have gotten any insurance proceeds right fact of looking at these two confessions because michael harper's entire supposed motivation for this offense was to gain sherman's proceeds he wanted more money he wasn't making enough off the store so he was going to burn the store the tapes and  shuns the biggest problem of this is that there's never been any evidence that any insurance every existed detective cutts testified at trial that as i recall is that words where he wasn't concerned about insurance it investigated the police never found any evidence of insurance there's no evidence that anyone's ever received a cent or that there was ever a policy anyone ever could have received the money but what was put forward at the trial is the motive for the fire the trial the motive for the trial put par the motive for the fire before trial was the end charms and counsel did address a trial the absence of evidence on it but in the absence of another believable suspect the jury went ahead and convict me and who is different say petition was filed in two thousand and three to finance counsel filed an amended petition in two thousand and nine and then it was dismissed and twenty and i mean it really  pro se petition in two thousand and three he went through more than one council during post conviction proceedings and was counsel who presumably because she was continuing to investigate i believe also may have had some health issues of course the trial heard of course proceedings  requesting continuances and then of course after they did finally file their petition in two thousand and nine the state took one or at least two can continuances of their own i can't tell you why it always takes this long it seems to be a surprising trend in post conviction proceedings that it takes a long time for a petition to get from the pro se and it'll submission to actual completion most of that delay seems to take place after councils appointed and i don't know if that has to do with the overworked nature of counsel at that stage or simply the investigation that's necessary in some cases but i certainly agree with you that it takes a long time and mr hank stram is now i believe so yes i can how do you think he's this affidavit and now you know late confession for lack of better term satisfied well i'm first of all your honor i think that it's important to remember the stage proceedings where as not know mr harper he was there mr harper was not bad and of itself very conclusive but then when you add on a particularly in terms of the way it impacts mr harper's own confession when you add on the affidavit from take that and when you are aware that there are or there is at least allegations that police officers involved in this investigation were in fact coercing statements out of at least one witness that makes it far more possible and far more believable for a jury that must that mr harper's confession was in fact a result of coercion especially when you put it together with the absence of motive the fact that all of the evidence that supposedly corroborates mr harper's confession the police already had at the time mr harper's confession the one piece of evidence that the police didn't have the new thing that they could have gotten from the confession that could have corroborated that and confirmed it was the insurance policy but there has never been  the store i mean if he and tested the possibility and i was brought in i think respectfully and correct me if i'm wrong i would think that he would have to have an insurance policy in order to anticipate proceedings i mean i would i would not think that he would assume that there was some insurance there as one of the co authors of the story is presumably aware of what protections they have and what protections they don't have for their investment and another thing that's interesting to note about this whole insurance motivation is the fact that all the testimony we have on the record all the evidence says that the store present in any financial trouble they were current on their rent the owner of the building was not aware of any problems they were having there was no sign that the store was about to close so for an individual who had no prior criminal record and certainly no history of violent crime to decide to burn down his own business or proceeds from insurance policy that it's certainly no but again there's no evidence that there was even an insurance policy so that even if we assume for a moment that this was a motivation we assumed that he set this fire even if he convinced everyone that it wasn't  arson there's no evidence that there was ever an insurance policy he could have collected from the first place there were there simply would be no motive without the existence of some kind of policy he simply has nothing to gain other than burning down his own store which doesn't appear to be a particularly as far as motivation is concerned james bell's motivation makes a great deal more sense james bell's a violent criminal conviction of numerous armed robberies who said yet this guy obie money for drugs he didn't pay me a lot of money when you don't pay something bad happens to you so what did he do you burn down the still i would submit that an action like that coming from an individual like the person james bell was at that time is far more believable than an otherwise seemingly law abiding person deciding to burn down their own store in the absence of any sign that they needed the money and could get any money out of doing so and so just on that on that back or right there if we are going to judge these as a matter of credibility in a matter believe ability i think that on that point right there james bell's confession is significantly more believable oh i don't i also want to say that i don't think that's even a determination we need to make your quest so i would just like to conclude by saying that i do believe that when taken on its face as true as required under coleman pitts and berger rice the number of cases that can be confession of james bell foley exonerates michael har to for all practical purposes use game and ship to garner an evidentiary hearing james bell's testimony that defendant relies upon has already been determined by the division this division of this court that his testimony was neither corroborated nor believable this court should not have to put blinders on should be able to not have to use scarce judicial resources in order to determine that defendant has not it is different parties and such but it's the same testimony he is relying on the testimony that james bell gave at arthur brown's trial he is relying on the same set of facts that this court found was as i said not corroborated not believable and the physical evidence in this case does in fact rebut james bell's testimony and slash affidavit i will be going through that one point i wanted to make is that we do disagree at this point we believe that this court can find that as a matter of law they are this post conviction success of post conviction petition should not have even been filed and that under a  claim of innocence defendant has failed to prove newly discovered evidence which would allow this court to even find again that the petition was properly filed we got a list even if we find that it is  true then he started and if an jury believes that then there would be a different outcome would you do not have to take james barrels affidavit in testimony is draft could not have occurred the way the fireman testified it did occur if in fact james had easily as he said kicked in the door there would not have been sufficient seal of the building to have was close so i don't remember that in the records are you saying the door that there is something in the record that explains the condition whether the door was open or closed well the condition that was sufficient for the back draft was certainly explained and again  the building so you would assume if the back to her was open that they would not have had a difficult time and there would not have been a back draft and if james did what he said he did then allowing the credibility of this to be tested because as a matter of law he is not deserving of evidentiary hearing we have to look at james bell's affidavit we have to see that james as was brought out a versus edwards this court can examine here today without sending it back to a hearing the one point i would like to bring out the evidence in this case shows that michael harper talked to police officer brown as officer brown stood and looked at the smoke that was coming out of the mortar fire and wasn't even at the sane at that point and we can also not forget similar testimony that  in the affidavit again that was notarized by someone with a different last name however even if we take that as true it's not we're not talking about any type of police brutality and defendant has never raised on appeal ever but he was right he was subject to further cross examination if there was any possibility that he was coerced defense attorney could have brought it out at that point but again he stated i'm direct and cross he gave theory detailed facts regarding what finally have been able to secure the affidavit whether it's true or not it's not for us to determine we have to construe it is true don't we but you can look at the reliability of it as people versus edward states and i grant i would stir reiterate that uncorroborated and unbelievable based upon the sun facts that were presented at the trial by the police officers and the firemen and the forensic evidence it's the same facts it's the same  it's the same murder and our position would be that you can take judicial notice of that and it must be remembered again that there are none in many pieces that have been refuted and we would state that your honors based on unless there's any other questions based on our brief that was filed in the argument that we presented today that defendants conviction for murder and sentenced should be a listen you were within your time so it's great court i would like to address just quickly us on these issues regarding arthur brown's proceed first of all just as a matter of supreme court role this this court order this court rule twenty three order is simply not   as far as i care brown's new trial and the fact that a jury found him guilty again first of all i would say that i believe we said in our kit in our own people the night states that a petition can only be judged rebutted by the record whereas rebutted by the record in the proceedings that are under appeal not some other separate busy this was a different case it was a different defendant into our proceedings and using the testimony of mr halliday well to be to be of respectfully i think to be clear that not well michael harper presented was simply the testimony from the third stage  evidentiary hearing that took place on earth the browns post convention station and i would say that if we are looking at the proceedings in our browns case as somehow determinative of what's happening here are the brown not only received the third stage evidentiary hearing he received an entire new trial court believe that this evidence was sufficient not only to gain us third stage but to bring us all the way to a new trial and the fact that even assuming that it was relevant which we strongly maintain not even assuming that it was the fact that another jury ultimately disbelieve the defense in brown is in no way conclusive a because this is the whole reason we give a new trial and have simply exonerating the defendant that the third stage we recognize that there's a possibility that when all this new evidence put before the dryer a fact that trier of fact will ultimately reach a decision that goes against the defendant's innocence nonetheless we submit it for nonetheless at third stage we can say this deserves a new trial the fact finder should have an opportunity to determine which of these two scenarios which are at least equally plausible and we would argue that actually james those confessions more plausible but a jury a finder of fact should have the opportunity sit down here all the evidence and make that mr bell did testify again a trial yes but that was not the testimony that was included with my corpus petition so that that does i do believe that is significant to an extent and again i don't think that this court would accept and i don't think that the state would argue what are the brown go we've got to let michael harper go now to he would still have to go through the post conviction process and he would still have to get a new trial and he would still have to convince a new jury that he was innocent so are the browns trial really does not control anything in this issue i'd also like to address just briefly people the edwards is and has been since that has been raised and i would like to know the people the edwards first of all all that case answer was the question of what standard the first stage petition needs to me to get leave to file we are past the first stage we're at the second save which is a separate standards a separate proceeding and ultimately the standard that people be edwards to put forward was simply a reformulation of the washington stand it's the familiar standard that we've had for a long time they cite