b three sixty three year old guy versus betty mitchell argument not to exceed fifteen minutes per side mr caster for the appe have changed the outcome of the trial and very similar to petitioner buys this case the warden would submit that the confession by mr gump again with the crop breeding evidence that was fined found at the scene we would missile because it was either hearsay or hearsay upon here city and in the course of the proceedings there's been no evidence that's been pushed forward to see show that any of the evidence would have become admissible  meaning was that the you would have to show that the evidence would have had some outcome on the trial and certainly whether or not certainly once this nanda schools evidence was found when you look at the case you'd have to see whether or not it would have affected the outcome of the trial if the evidence was inadmissible at trial or say would not have been able to affect the trial well what you have in some of their material are other potential or suspects the investigation that might have lived of the suspects that would have permitted the defense attorney to raise the issue before the jury as to whether one of these other individuals who was hanging around the location of that crime  they took his sneakers and his palm print the term of the sneakers that he had didn't match the sneaker trade at the crime scene his palm print was it was inconclusive that he found no other links possible to him as far as the the you know the defense counsel wasn't told about him and he had previously confessed right right and even if the information had been presented by  defense counsel arguably the state would've been able to put on the investigation that completely ruled him out as a suspect and again in relation to your gums confession jury it's unlikely that a suspect that had a possible suspect that had been investigated by the police found not to have any relation to the crime would have affected the outcome the trial in relation to thought that he would that the crime had to have occurred in the early evening and so the term land would have been thrown off of the events of the evening at issue if the these other witnesses  about those individuals either should shouldn't that have been turned over i think yes i think the ultimately it would have been better practice in the the state court decision and the fact that the perspective on evaluating the breeding material is that would have had it is it reasonable that the outcome of the trial would have changed and in light of the practitioner gum confession it's the position that that evidence even if presented would not have been strong enough to overpower the strong evidence of his guilt by his own confession outcome when you say i'm the only don't reason we think that the evidence would be not determinative because the police have made that determination but no one think you know a at this level review the issue isn't whether specter could it could have but rather would it have and you do have to look at the look at the review as even if all this evidence was put put in  whether or not it would have overcome the petitioners own confession to the crime which is crowded by the evidence i don't think the confidence in the jury verdict is hurt or undermined when you when you have no examples of course of effect is a confession and that's the sense of the warders position that even if this material is deemed to have been breeding material it has to be what would it have done in the course of the trial upon a deal and we don't believe the outcome would have changed in light of the confession that's what the jury would have been most focused on and that's what u well you know what you realize what we have here is three people here who have confessed in one form or another to being involved in their in the murder there is no physical evidence to tie any one of them to the crime scene i think that might have impressed the jury and i'm recalling that we heard testimony that what cordray said was that statement of someone saying that somebody that they heard that he confessed to the crime and when he was pressed on he denied it so well that's true but if the wire like yours for these two men could have gone out and talked to the witnesses that repeated not the fact that he had made a confession found out from there on exactly what he had said in the convention confronted him with that it might be an entirely different picture i think that's the scenario that we're dealing with here just real real briefly as far as the other two claims that his petition was granted are as we argue in the  language that was used to paint the petition as some sort of for lack of a better way to put it some sort of sexual pervert that was put in front of the jury doesn't that even on the epa doesn't that raise a real real problem in the fairness of the trial i mean our main argument would be that the state court found that the evidence could come in under state of an entry where something was done this outrageously outrageously in the supreme court said it was ok or at least that you wouldn't overturn the outcome of a trial based on that i mean i think it's fair to say that the statements were definitely inflammatory but in the course of the entire trial the only two spots that it was raised was with the first witness in trial and then briefly discussed in the rebuttal state evidentiary ruling if it deprives them of due process would violate so the question about the engaging in sex acts with animals isn't that sort of going to fundamental due process kinds of concerns well i mean as the state court found i think i think again whether or not it infiltrated his trial to prevent him from a fair trial it's more likely than not that the jury would have convicted him based upon the convert the confession and the  that his reasoning for pursuing questions about what happened is past that he was he had put on the record that he was trying to show that his behavior had changed significantly between getting in fights and just as general actions just have understand why anybody trying to prosecute a case where the state would think that was appropriate and i can't understand how the rules of evidence in ohio would permitted it just seems extraordinary to me and i don't i'm not telling you that i've made up my mind about the due process clanked but it certainly is really just flabbergast trial not a perfect trial and certainly your you characterize the record accurately that it did happen in both the being the beginning of the trial and he did reason near the end i mean those are the facts on the record but again you due process violation thank you good afternoon my name is kathleen mcgarry here on behalf of darryl graham and with me today is larry grieger also here on behalf of mr goh let me begin by saying judge clay i think you hit the nail on the head to there's no way we can have any confidence in the outcome of this case between the evidence that was disclosed or you know the state failed to disclose to the defense and the prejudicial evidence that was admitted against mr graham this case cannot and this is not a question of whether there was sufficient evidence when you look at the brady issue the question is whether or not it was packed in there it was prejudicial i get the sense from the attorney general that he is conceding that the evidence was favorable to the accused and it was suppressed by the state which are the first two prongs of brady and then the issue we get to is whether or not there was prejudiced and whether or not there was a trial there was worthy of confidence in this case there was not  i believe that the evidence that was contained in the one hundred seventy pages of material that was not turned over to the defense could have been used to change the feel of the trial to change to to have undermined the way that the case ended up turning out the district court i believe set forth a very plausible scenario of how this seven is could have been used he specifically latched on to the evidence as a related to roger saying that you know that he could have been called as a witness and if he had taken the fifth amendment then they could have brought in the witnesses that he had confessed to today to talk about the confession contrary to the attorney general has just said mr cordray was tied to this case there what evidence he had been living in the abandoned building in which erin was found his coat was found in the building there was a palm print that matched points on his palm print in addition to the fact that he had confessed to at least four people concerning you know the fact that he was the one who had killed the little boy and described in detail how he did his knuckles and his hands were scraped up as if he had ben and and some sort of a confrontation that would have been explained by the fact that he had had beaten up this child so i think that when the attorney general says there's nothing to tie him to the case i think that's not true there was a lot to tie him to this case and then the other evidence that was mentioned about people who had been you know just by i think you mentioned people who had been milling about around the abandoned building around the time all of the defense knew was that his that mr gum had been seen three hours before the child disappeared if he had known that there were all these other people who had been milling about the abandoned building he could have investigated that as well so i think that the fact that they failed to turn over this evidence really does put this case in a whole different light at a minimum a lot of the police records that were involved in the brady evidence could have been admitted against you know could have been used during the course of the police officers questioning on during the trial to say well didn't you know weren't there other people didn't you have other witnesses that were you were investigating and again those records could have come in those would have been admissible under  four so i think that for for the brady issue that that indeed that that issue alone would have been enough for this court to have determined that the district court was correct but we actually have two other issues also that played into this case i think that you know and i don't want to offend the court but when the first witness in the case gets up and says that mister wanted to fuck a horse or had fucked a horse i think that really does kind of set the tone for the whole trial that i think that at that point the case was was lost in there was it was going to be hard to get it back and if you read the questioning by the prosecuting attorney it was clear that he was out there trying to elicit that information a lot that questioning of the the witness i fill us back or she kept moving back and backing off from that testimony and he kept at her and kept at her and kept at her until she finally said it and then he moved on so i mean i you know while the counsel counsel was there an objection to that at the time and if so under what his deviant behavior and how he changed and the defense counsel objected and and they had a side bar and and the prosecutors didn't tell the court what was coming but told the court that this is all background leading up to the to the trial and you know it's going to it's up to what happened that night that aaron was killed and so the the court allowed it in thinking that it was going to somehow relate but it never did and then yes there was  all along by the defense counsel in this case concerning the evidence of this that are and how it really fits saying it's not relevant your honor it's you know what does that have to do this this this incident happened in january you know the area the victim was instruction and and when the when the magistrate judge and the district court judge looked at this evidence they found both of them that this was one of those rare cases and that's where the used the word that they used rare cases that meets the constitutional requirement that due process was violated and he cited as reason supporting it that you know there was no limiting instruction that the you know the confession in this case was under suspicion  mr guy like mr bias was also found to be mentally retarded in actions proceedings back you know there frankly frankly counsel i can't imagine what kind of limiting instruction the judge would  i can imagine what the limiting instruction would be i agree and then when you add on to that i think judge judge should you pointed this out that one of the thought last things the state or the jury heard before they went in to deliberate was all of this other evidence the prosecutor went on for ten pages the transcript talking about how mr gum threw a raccoon into a bucket of paint he kicked a dog to death he threw his sister's dog into a space heater and it died he tried to rape his sister's friend he put a spoon and stove and then put it against his nephew's arm none of that has to do with with whether or not mr gun committed this crime but that was all evidence that was admitted it in our view to address were there requests for limiting instructions for each of these things and were there objections for each of these things well your honor the problem that happened in this case was the evidence that i just listed there was all in the score psychiatric  report that had been admitted and defense counsel was placed in the position of saying he had he had a witness that was going to testify and started leland who actually did testify concerning the fact that his confession should not be believed this confession that the a g s said is the one piece of evidence that can't be overcome but anyway that he had looked at the the psychiatric report before he entered you know came to court to testify and so then the  g or the prosecuting attorney or sued up and said well we need to put in that whole report because he looked at it not that he relied on it but he looked at it because he looked at it because he didn't have an opportunity to do his own testing  the mr gone before he actually was going to testify so he was relying on some of the previous i q to resting that had been done in the case he wasn't relying on this information that i just read to you and so he said well you're right you know defense counsel said to the trucker your honor please the you know this is not this is hearsay this is not admissible evidence you know if the reports going to come in you have to redact all of that information because it's hearsay evidence there's nothing supporting it know these witnesses didn't testify in the trial court said no under ohio roll seven to three that it has to command but you know so he did yes to answer your long answer to your question judge but yes he did object to the was there trying to make the decision and you could see his frustration up where your honor you need to read deck this and then the court that he wasn't going to redact it and he's like well then i have to make the decision do i allow do i ask you know allowed my only witness to be struck the testimony to be struck when that was the only evidence that was going to be against his client should i have that struck so that this other stuff doesn't come in or in so when you could see that he was and a lot of turmoil over that and you know finally said you know what is the can i ask one question or one that rip or was offered into evidence was any part of it for much you said i gather none of it was read into the record at that time so did the jury not know what was in the appendix to that psychological report until it got until the information got put across in closing argument that's corroded it is the only the only thing that  the expert referred to from the report was the i q testing and some of the other testing that had been done because his the focus of his testimony was that this confession was not should not be believed because his client was mentally retarded and was so susceptible to suggestion and had all sorts of problems like that and so that's what's that was the focus of his testimony is the only things he relied on from the report related to that not to to all of this other evidence and then the prosecutor pops up at the very last minute when there is no comeback and starts spouting off what was in the appendix is that ron is exactly what happened you honor so for those reasons you know i again we were in a position where that the district court has has found three issues in our favor and and we would ask that this court those two issues the last one is far as the psychiatric report the only thing i would dispute is that on cross examination the prosecutor asked a few relied on the report in coming up with his decision on