good morning everyone and welcome to the th circuit judge and it and i are pleased to welcome judge ray cuff a district judge for the southern district of new york welcome it's a great pleasure to be here i saw something in the sky disporting you know it seemed very case just in purses bar is also submitted on the braves and the st case for argument is edward stevens versus trey my c good morning ma'am please the court my name is lamont anderson i represent the appellant carmen i would like to reserve three minutes of time for rebuttal for mart because both big scuse me because the idaho court of through the idaho court of appeals decision and look to the post conviction court's finding regarding those laws alternatively any argument regarding looking through has been waived by for that matter both parties because both parties agreed and the magistrate relied upon that agreement that we could look through and go directly to the post conviction court's finding now the reason that we can look through in this particular case is because this is not a situation where the idaho court of appeals expressly declined to or expressively rejected the post conviction court's finding regarding the eyes just clarify for your you're not then you're waiving the argument or you're not raising the argument that the idea i hope court of appeals holding was not an objective lay unreasonable driven that's the findings by the post conviction court if the finding by the post conviction court is correct that the eyes were taken at the time of the autopsy there can be no do you want analysis because there was nothing not an unreasonable application of brady it no your honor in fact i believe it was an unreasonable cation because if you look at the analysis of the idaho court of appeals they were basically saying well the prosecutor didn't know that it was  by clear and convincing evidence well why isn't that correct your honor the reason that's not correct is because the magistrate relied primarily upon the mortuary report in fact the magistrate said if i recall correctly that that was the most contemporaneous evidence available the evidence regarding the removal of the eyes was ambiguous the problem was is that dr slaughter testified at the motion for new trial i believe it was somewhere between eight to ten years later and could not definitively state the exact time he removed the ice so i'm having trouble why we're even concerned about that finding given the overwhelming evidence of guilt and the fact that there was plenty of evidence from the defense about the folds and all like that independent of that so it seems to me that it might be harmless error even assuming contrary to  what you're arguing even assuming that the ice for take it out later or whatever you're out of the problem that i have with a harmless error analysis is that we're talking about brady and of course there are three elements to brady and that is number one that there has to be something that's going to tory or impeaching it has to be withheld then that has to be immaterial materiality is determined based upon whether this court can have confidence in the outcome of the verdict and you haven't you explicitly richard still not been granted that is absolutely correct because of your charge rake off was saying because of what in the state's view is the overwhelming evidence irrespective of when the eyes were taken i was the position in your briefs right absolutely your honor  that was because i recognize that the magistrate reviewed the issue of materiality to no avail but the magistrate overlooked just an extraordinary amount of evidence that was presented by the state in this case particularly the evidence regarding the nine centimeter by three centimeter skull fracture while it was mentioned by the magistrate it was certainly not given a great deal of weight and when you when you stop and look at this the basis of the state's case was not the folds which is really what the magistrate relied upon because the evidence regarding removal of their eyes would have gone directly to the macular folds and whether they existed your the state's position on that is that  acceptable bone being split right down the middle the evidence was very strong that this could not have happened in the way that the defense theory claimed that is it was a huge part of the state's  very low ph level and the low temperature when casey was st brought to saint alphonsus no mention of it at all when you look at the materiality prong of this case there was an extraordinary amount of evidence in this case establishing that stevens committed this murder and that it wasn't just a fall from the stairs where he landed on a hardwood floor and that's our primary problem with the magistrate's finding  is that there was evidence that was absolutely overlooked or was not given enough weight i guess you could say now i do want to talk a little bit about the waiver issue because  of the court's order to do that and of course it is the state's position that there was if you even need to get there that there was a waiver by both parties because the look through doctrine is not a product of a e t p it should it should do judicial creation it was a belief st talked about in harris but of course it was the case that st really discussed the look through doctrine and what happens when you have a silent denial as in california and we don't have those in idaho but when can you look through an appellate court's decision and look on through to the trial court of the post conviction court's the decision and as i recall but if we get past twenty to fifty four de want or d two then we get twenty to fifty for each one and there is no case that says that you can't look through when it comes to the one i believe it was in i believe it was in a motto i'm not one hundred percent sure on that where the court talked about the williams decision and justice o'connor's decision in williams or or concurrent excuse me and talked about the actual language of two thousand two hundred and fifty four dollars d one and the two and whether it plural decisions or whether it's a singular decision but we don't have would also note that i believe that looking thought that the waiver issue was particularly well via the judicial stoppel talking is particularly consistent with the idea that the parties have waived in this case both parties said you could look through the magistrate relied upon that and certainly stevens would receive an unfair advantage particularly at this point in the litigation we've spent years literally years  assuming that we could look through to that post conviction court's finding and everybody did it magistrate did it and i would submit that if we can't if the law really is that we ca and quite frankly the other problem as i mentioned in my supplemental letter brief that i have with a motto and i don't know that this court can do anything about it is that in miles the court specifically said that the a d p a as a whole could be waived by the state at least i don't know why it couldn't be weighed by the defendant and a motto didn't overrule miles and so arguably we have a problem within the circuit because miles has not as near as i could tell from my research has not been reversed has never even been mentioned in the context of whether there's a waiver or not sort of unrelated question what was the your honor i don't know the answer to that the state was very very concerned about that because i can represent to the court it's not in the record obviously but i can represent to the court that mr stevens is going to be retried i've spent an enormous amount of time on the telephone and in person with the prosecutor that's handling that case and i can absolutely guarantee that mr stevens is going to be retried irrespective the less you win on this appeal unless we went on sorry yes if we go to that point if we were to agree with you that this case stands or falls on either de to or won what would be the need to remand this case because there are least i think i didn't bring a copy of the petition your honor but i know that there's an ineffective assistance of counsel claim that was in there or on adjudicated claims yes the magistrates entire decision was based upon a single claim that was the brady claim and there are some other claims that were not addressed by the magistrate yes thank you on bond nice th circuit authority allows him to do that within his discretion and i have another case probably about five or six years ago called group where judge when mail did the same thing i can tell you that mr stevens posted his bond in and he is in compliance with the the rules of set forth by the magistrate i was just curious what his if the magistrate gave his reasoning for that given the likelihood that the defendant would be retried given the more or less self evident risk of flight in these situations i just wondered what the well in state court of if he gets retried in he's entitled to bond in idaho in state court only capital cases are non bondable so he would be entitled to a bond even if he were retried  it's not uncommon for people to be out on bond even in serious cases like this i know it's less common you know better on prior to the st trial to the day so they set a bond he was not able to make it too high for him but they did set a bond your honour's just sort of taking a step back i want to say that this is really sort of a complicated five case factually and legally but one thing is clear she i do not believe she reached that question when you look at mr rankin is testimony he said as he says that he knew the eyes were brown because he looked at them judge just a trial judge does not make a ruling that the eyes were removed post autopsy i mean were removed at the autopsy there is no finding for this court to defer to that i thought the trial courts that or the p c r court said that the state's version of the events was more likely and found factually that the eyes were or were likely or were removed at the autopsy no the state trial court said that we had failed to meet our burden of proof in the most logical explanation was that the eyes were still in place at the time of the autopsy now she because she found that since the eyes were removed at the autopsy there was no brady evidence to turn over right she did not find that the eyes were removed the autopsy found there was no brady evidence to turn over the found there i did not prove i being mr stevens counsel i did not prove by a preponderance of the evidence which was my burden at the state p c p that the eyes were not removed  because i bore the burden of proof and that's quite a different posture then a positive finding that the i's were removed which she never makes no court has ever made that finding the jury send any notes relating to this issue at all not that i can recall your honor because as the point and i'm still having difficulty with this why this matters well there was extensive evidence that stevens had been physically and verbally abusing casey for months there was overwhelming evidence that casey's skull fracture could not have been caused by a fall down the stairs but that it was consistent with his head being struck there was evidence that stevens waited a significant period of time after casey's injury before calling died what there were there was plenty of evidence that stevens gave inconsistent statements to investigators  he was confronted about this was unusually unemotional and tach there was also evidence that you introduced that from d thiebaud who testified that macular folds are not caused by shaking there was evidence you introduced a card or testified that no one knows how so there was it would seem and this is why putting it to use so you can respond on the one hand who overwhelming evidence of guilt independent of this issue and nd that you had raised on this specific issue significant because here ial that the jury could have easily just regarded this issue altogether and not even reached it and that's why i asked whether they sent out a no well i don't think that they well i was not trial counsel so this is just my speculation based on the record but the evidence or the defense evidence at the trial regarding the macular folds was extremely weak and the state actually just makes fun of it in closing argument on the other hand the testimony from dr crawford who the state of course argues is is argues  facts in the record is is all true so far as it goes but there was a defense case also put on an important part of the defense now when you're reviewing them materiality question do no o is that they ate centimeter skull fracture is not right that is in error because we know through factual development at the post conviction petition proceedings that that skull fracture is only three dollars to four dollars centimeters long so every single state witness who testified that in eight centimeter skull fracture cannot be created by a fall down the stairs that testimony is a very limited value now because in fact according to us stanford pediatric radiology is who we found in post conviction  size so what that does is that that corroborate in supports the defense case the defense case because we put on expert witnesses we put on a biomechanical engineer apparently but but that's not the truth the truth is that this skull fracture is only three to four centimeters long so the crux of this state's argument and in fact why mr stevens received a fixed life sentence was because everyone thought that this injury was was inflicted intentionally because of the skull fracture was so large so i'm sorry sir are you saying that the evidence that it was three or four  presented to the post conviction court judge yes and what was her comment on that did she have any she comment was that it was not an effective assistance of trial counsel to fail to find a forensic but i clear to me why the idaho court of appeals decision on the merits was inconsistent with kyle's v whitley which i think stands for the proposition that a prosecutor's duty to disclose arises when the prosecutor knows that the evidence is at a material level of importance so i understand the waiver issue in your counsel as candidly said he has waived that in the court of appeals was wrong but i'd like you to briefly address for me i putting the waiver issue aside exactly the idaho court of appeals decision was wrong and why it's inconsistent with kyle's well it's wrong because we know that state actors have knowledge if we assume that the eyes were removed postum bomb when we know that state actors a knew about them because joe miller and jim miller recalled at the at the hearing years later he says he didn't he didn't leave home ehlers report that was in jim miller's report which was introduced without objection but to return to your point so we know state actors have this and we know that the prosecutor from her notes is concerned about the chain of custody of the ice so the chain of custody is a traditional way to impeach what is happening integrity of the evidence right we have experts who say dr plunkett says well we don't really know anything about macular fault so it's a pretty weak argument that the defense is putting up at trial so if we can show that there is some sort of break in the in the cause and the chain of custody that's quite a powerful argument for us because they can even prove that the odds that dr crawford examined were the eyes that were removed because they have they have no chain of custody showing that so the that not only affects the macular folds but it affects all of dr crawford's testimony because now there is a question about what he is actually examining because we don't know one whether they're even the eyes into we now know that the emb argument in this i mean the case in this goes to the metairie ality question your honor the we have this it was a hotly contested case you know we have evidence that other injuries could be you know c w is not the only person who has care i mean ed is not the only person who care of c w right there are other people in the family there is a biological father there is a biological father's family there's a biological mother there are a lot of people to talk about that so and we have expert testimony that the fall could have caused these injuries that we see so we we have a case that is very close from the because we put on counterevidence to everything that the state puts on except really the macular folding now remember dr crawford in the macular folding said that this is there's only been two cases in the history of the world where macular folding was found in a non slam case so st some unknown reason unexplained reason goes into a rage even though there's testimony that he's a good father he goes into a rage and shakes the baby and that's why the shaking is so important he shakes the baby in a rage and he hits the baby's head against the side of the bathtub i'm sorry this is gruesome i know but my point is without the shaking the shaking is w this state's whole theory of the case is is that he had to or shaken the baby and then slam the baby and that's how the injuries were caused so without the macular folding where d crawford says to a ninety nine percent certainty this is a shaken baby case trust your did novo review of the mit materiality question because this is quite a close case when you consider the entirety of the evidence dr crawford say ninety nine percent no your honor and in fact my recollection of the testimony was dr crawford kind of equivocated on it and the problem that i have with counsel's argument is that if i heard him correctly he said the evidence regarding the macular folds was quote extremely weak well it certainly wasn't the focal point of the state's case but the point just an extraordinary amount of evidence now i realize that council mentioned some of the evidence that they put on i believe a post conviction regarding whether the skull fracture was three dollars to five dollars scuse me forty five whatever it was versus ninety nine centimeters the problem that i have with that is that when you look at brady you certainly look at the cumulative evidence that was presented at trial but then you look at the evidence that should not should have been included which would have been that the eyes allegedly were post embalm we don't look at this other evidence that was presented on the i a c claim that's not part of the materiality finding we'll look at what was  trial and we look at what was excluded and how those cumulatively whether those cumulatively would still this court have confidence in the outcome of the verdict  regarding the issue of the morticians testimony the problem that i have with that testimony your honor is that he wouldn't say it like dr slaughter did but he didn't have an independent recollection of anything he was relying upon his report and there are a number of mistakes in that report that we detailed out in our in our briefing and in fact there's another report that was from  who review examined the body right after it was taken from st luke's to i don't remember if it was the morgue but he examined the body prior to the autopsy and his report says that the eyes were hazel  and now that's a real problem because he says in his report very specifically that he opened the eyes and saw that they were hazel you won't find that in the march or what report all you see is  brown and the mortician could not explain how he knew that he assumed that he knew that by opening the eyes but he didn't have an independent recollection of that your hon