and i want to thank judge fitzwater for loaning us his courtroom and i want to thank pam for making the trip and carrying all the stuff that we need to put on it is more that you would think you think you're just arguing but in fact there's all this equipment that is needed and not appreciate everybody's efforts to make that happen i think you all are very familiar with our system we have the red light system and it followed followed you all the dallas so you're still stuck with it when the yellow light comes on of course you've got two more minutes when the red light comes on you need to stop unless we're asking you questions because if we're asking questions you can't avoid them by the red light so with that we'll call case number seventeen dash seven eight thompson versus davis and we will hear st from mr landers as proceedings because although there wasn't a to be writ there was only one ruling because of course we had the punishment retrial based on the previous messiah violation and they held the other waiting for that yes now so it's there really in my important for one issue and that's this that was causing prejudice and the harm from the brady claim would be if there is a messiah violation of course robin rhodes testimony and the hit list don't come into trial and so i believe if we answer the two questions is there cause for the default and if it is their messiah violation then we can also answer all the other procedural issues that come along with this with this case in its current form this court's already pointed out that in order to show a messiah violation you must show the th amendment has attached that a government agent seeks information without counsel being present and that we have deliberate elicitation the district court deny this claim based on one reason which is the idea there is not proof that a government agent specifically told robin rhodes to seek out information from mr thompson in my mind when i read the relevant supreme court cases it's not clear that there has to be a specific instruction from a government agent in all cases this court in korea over's johnson except to be the test as formulated by the district court in that case which is that an informant was reasonably led to believe or received a benefit and whether he acted pursuant to destruction from the state or otherwise submitted to state control interestingly krueger's st johnson did not d cide the issue of whether or not you have to have both of those things i can put no nine but they have been the problem with your rule is it's a little bit vague and i really think that very few people in prison are not aware that if they're in prison or they're being held pending a lower lesser charge and they can help the government convict somebody of murder or a greater charge that they want to spill and there's a lot of people that become informant simply sitting in prison never having dealt with the government before so i don't find that to be some secret that only mr rhodes knew that hey if i find something out about this guy thompson i'll get a benefit out of it so your rule would kind of blur that and make it anytime somebody has maybe had a prior contact with the government and also realizes that hey i can get a better benefit by telling on this guy that's good enough that seems to broaden the rule hugely well i would agree that a st time informant much of many of the cases that are cited by the respondent are st time informants who do not have formal agreements who whenever they're reaching out to defendants do not expect to use that information of the time i would agree that your run of the mill average st time informant st time in jail or prison gathering information is not a th amendment problem that's why i believe the government agent question is the important question the to the extent that direction is necessary i think it comes from the government agent prong according to this court case law as opposed to deliberate lis his we know that's your we know that's robin rhodes tells the trial he goes to mr thompson he makes himself a self available so we have to look at the government agent question and according to  one prior case macneil verse wisconsin you realize there's a difference in supreme court precedent when you have an informant in jail who the defendant has no idea is a police informant there's a difference between that and when you get to where you have someone who's charged for one crime even if it's related to another the police come in interrogate these are police officers in both both of those print court cases in the wisconsin case the officer show up everybody knows the they read miranda and then statements are made the supreme court seems to have dealt with these differently i would point out that in us st henry the supreme court tells us that the knowing and voluntary waiver does not apply  police to become an informant and starts recording these conversations the district court in that case according to maine version moulton found that the deal was made this deal with the government and the informant was made for the purpose of gathering information about the killing of the witness but then whenever they get together the informant and the agent they also discuss the underlying case in maine were small tin the supreme court decided that was still six a minute violation and the reason that's important for our case is even to the extent this started out as an investigation into the solicitation we know for fact from rhodes testimony and more importantly from the memorandum provided only after from the d a s office after a federal hate b s began that road specifically was speaking to thompson about the solicitation of capital murder we know that from both his testimony we also know although it's never been turned over and this is clear from the memorandum it's included in our record excerpts from the d a s office it's clear that there was also road was taking written notes after his conversation with thompson about the actual capital  er not the solicitation of capital while we're on the subject i think there is relevant information that is in these recently disclosed documents that also lean to your question or provide us with more insi one thing i would point out and i realize this last week as i was preparing for this this hit list that comes in of the nd trial it's got a fingerprint on it the belongs to thompson that is actually submitted in the original solicitation capital murder police report rowe's testimony in the nd trial is directly related to what mr johnson intended johnson spoke about the st trial and importantly by the time rhodes gets that hit list thompson is under indictment for the original solicitation but in any event but i'm sorry that assumes that you can only have one solicitation of murder i mean wasn't this solicitation with johnson arguably a seven separate crime for soliciting some other guy to do something so it's not right ok on october th we need to murder so i need help with that and then he asked two different people it's the ask this one guy tries to set that up that doesn't work then he does it with a separate guy that's a separate crime i recognize that argument your honor my response would be twofold of course number one rose involvement in this case was not just that solicitation he testified about facts from the capital murder itself the the actual capital murder of mr and and her new boyfriend mr cain he also  it's used as if there's one solicitation we have the exact same witnesses from the st trial released spoken about we have i think it's maxi cox's one of the guys that's in jail there we have  witnesses from the jail that are discussed by the police it's detective pinkins the same person that it was investigating the st solicitation case and then what they do they even ask rose do you remember this person and he shows in the picture of mr cox there they basically insert him in to detective johnson you know the da best the gators role they don't separate between two separate solicitation that's why roads testimony is so important because mrs ernie  testifies and detective pinkins testifies but they don't have a hit list and whenever you read their testimony which becomes st you have no idea what the state is trying to present the jury at this point if you know about  the st trial you don't know what they're getting out there but you know that well that's a little bit difficult to analyze because if they didn't have roads they might have been more fulsome with the other witnesses so obviously you put a trial together based on what you think you have at the time and it changes when you don't have question let me ask you this along the lines of kind of the two crimes now let me ask you about the term agent you know if i hired you to represent me in a car wreck you would be my agent in that case but you wouldn't be my agent to go sell my house or to act on my be in some other capacity so even if we were to construe that contract from one thousand nine hundred and three which is long since over as some have continuing that was a drug deal contract does that make him an agent for everything under the sun if he was an agent for drug deals only i think you have to look at all the facts that we know from the trial and from what's been disclosed post trial to answer that question if i may i would point out that this contract starts out as a drug deal contract you'll also recall that rhodes testimony is he initially approaches thompson about narcotics transactions you'll see that in some other hand written notes from the d a s office as well so his initial approach is exactly what his contract called for one hundred percent the court has already pointed out some important pieces of information from this contract number one at trial we learned about floyd winkler of course defense counsel didn't know that the same contract had been signed by floyd winkler that had been his handler for five years at that point and the way that this entire thing goes down is if it follows the way the contract work number one this court's already recognized robin rose has kind of an open culture he's kind of a roaming informant he's tasked with finding the drugs and that if they don't tell them where to go they don't tell him what to do but he does have to do one thing according to the contract he must follow we clear instructions also he must contact winkler every day or as instructed and we know from the trial testimony that he speaks with thompson he contacts winkler and then he gets this note in hand i'd like to point out a few more things that are important from the recently disclosed documents from the mike kelly the d a investigator memorandum we know that as i discussed prior to august st one thousand nine hundred and eighty rhodes and thompson are discussing narcotics transactions that's how it starts out that's in this memorandum we know that ro expecting consideration because he specifically asked for something up front says look all where wire but you've got to move me out of this jail we also have an entire paragraph in this memorandum explaining exactly how rhodes was soliciting information about the capital murder case one of the most important notes that was turned over only in two thousand and fourteen is the handwritten note it was from page two thousand one hundred and eighty four it's also in our i started thinking about that we know from the st trial that the weapon was recovered july th it doesn't make sense that at that point and this is from the record on appeal it's two thousand two hundred and one road start out with substantial narcotics transactions we know that starts that way then it appears he's working to recover the weapon counts and never disclose the location led to believe it's the same as the murder and the reason that this might kelly or winkler might have been reaching out to rose or at this time period to help look for the weapon is investigator johnson already knew the location and weeks had passed before they found out whether it doesn't make sense that you would have these notes in august after the weapon was already found and i apologize i didn't i didn't kind of figure that out until i was preparing for this last week you know the timing so we're not clear about the timeline your honor but  it could have started before mid june we know that as soon as road gets the note we find the st in our office memorandum which says you know prior to august st we were talking about narcotics basically we moved on to the capital case and now i've got this note for solicitation of murder of weapons getting to the back to the agency question that you've discussed judge graves i would point out that in us st henry there is no evidence that the informant was instructed to gather information from anyone in particular in that case the agents federal agents contacted the informant he was in the jail who informed them i've got some guys in my cell they say with just you know keep your ears open they didn't he didn't even go as far as actually reaching out to the defendant gathering information based on what we now know in all be the st to admit it an evidentiary hearing would really filled in some blanks force here but based on what we now know based on the inner office if i still think somebody could be hired as an agent just in general and not be the agent for everything they end up doing i mean agency to me is a specific term right and if it's broader than that in this context i could point me to the that says it because it the thing about keep your ears open then does kind of make you if john is going to be in prison with jake and i say keep your ears open to anything jake says then he becomes a general agent on anything jake says i get that but if john is simply a drug agent you know go find out about drugs and then he expands that to start off on the solicitation of murder and all that how does that make him facet of investigation as i pointed out in moulton the the agent was actually looking into this solicitation of a witness allegedly according to the district court but it was still a six minute violation because they discuss capital but i think for th circuit purposes the case is cruel words johnson that gives us our agency test and i'm going to just use the relevant portions for our purposes was the informant reasonably led to believe he would receive a benefit st well we know at this point robin rhodes based on all the records before the court had been doing this for at least five years had been very successful and ways always you're getting benefits in his p cases or money and in his trial testimony he specifically said i'm sure i've received some benefit at the time so i think it's pretty clear that he either received a benefit or reasonably was led to believe  benefit in the da's memorandum that was provided after two thousand and fourteen he specifically asked for a benefit he said all wear a wire but i want to be moved out of the harris county jail now there's a nd part to that test from  which is whether the agent acted pursuant to instructions from the state or otherwise submitted to state's control the only direct evidence we have of instruction from the state is that hand written  contacted floored it but there's but i don't understand how that proves that he was told in advance to go do this i believe the problem would be still be a six minute violation rhodes contacts void weekly or his handler says hey i'm in here with charles thompson and he is hammer going tells him well let's go and see what you can figure out you know get something in hand but i sure that the get at hand is before the hit list that note i believe was written after the st trial so no we cannot be sure about that your honor i think it's the only way that that statement makes the case wouldn't get in handy if the prisoner is holding the paper go get that paper that's the more logical construction i believe the construction the state is arguing over again in hand that prisoners got it sitting in a cell somewhere and prison cells aren't a real good place to hold things so go get that in hand that hit list because that's key that would not be a messiah violation if it happened that way putting aside the agency question rose already ha it and floyd or somebody just wants to get that and he hauls in and says hey i got here at last will get it to us here's why i don't think those are the facts ok it's the it's the d a s memorandum once again you know there's been conversation prior to the st you know that but we know no memorandum was ever made we know no one ever reaches out until august th the date i'm sorry twenty six the date of the memorandum was the date or maybe the day before whenever rhodes got that note so once he gets the note and keep in mind it's the hit list it's the witness list would be your print it's used at the nd trial once he gets that all of a sudden mike kelly has now made a report detailing that this has been going on for a while so i think they get in hand statement whenever you combine it with that d a s memorandum shows us that the authorities were know in that case maybe bush maltin the informant originally started out allegedly according to the district court looking into a solicitation of a murder for a witness of course they also discussed the underlying which the supreme court didn't parse those two things the supreme court just told us there was a th amendment violation here and because there was a th amendment violation the evidence obtained from that violation cannot be used to trial and defendant in a new a new events and also investigation into the underlying offense all happened with the informant there was in that case also the defendant was offering all the information he was calling this witness hey come meet with me he didn't know he was an informant he was saying come meet with me and then when he comes meets with them he tells them all kinds of incriminating information about other guns that he had other gun deals that weren't necessarily the offense that he was on indictment for and he threatens that witness i'm not sure how much precedent presidential value it has but the supreme court reversed it the fist circuits case simply siding messiah ok  st is if you just look at the trial record it's clear that the state did not cause mr thompson to default his claims in state court the nd is even looking at the new information still none of it shows a messiah violation and the because i think that's ultimately the most straightforward way to resolve the case putting aside the messiah violation itself and i think here just looking at the record that was developed at trial the state's alleged suppression  information was not the reason that thompson failed to raise and develop his claims in state court thompson not only was suspected but his trial counsel had a ledge and had every denture he support for his claims years before mr thompson came to federal court and you can just look at the messiah elements that my opponent talked about in the opening this is the right to counsel has attached the defendant solicited by a government agent for information without his lawyer present and that informant deliberately elicited incriminating statements and just look at what defense counsel got out of mr rhodes on the stand you know we know that so you are agreeing there is a messiah violation you think it's a cause of prejudice issue you know we're not agreeing there is a messiah elation we think this case fails for multiple reasons i think the easiest way is to say just looking at what mr rhodes said on the stand there was a colorable claim to raise at trial and it wasn't factories to trial just looking at the elements you know he's locked up you know mr thompson has been charged with capital murder you know that rhodes has led mr thompson to believe he could find people got incriminating info turned over to use investigators and we know that he was a full time paid informant and got up to thirty thousand dollars for his information in one case and all of that was elicited at trial and that takes the boxes were at least pursuing a messiah claim and that's why trial counsel made the objection and that's why when all the elements are there and mr thompson is still making the same argument he two and causing prejudiced set of those state behaviors counsel should have done with the federal habeas counsel did in pursue that stuff and would have found out whatever information they have now and been able to race in the state court for better or for worse so what you're saying well so the middle of trial is kind of a bad time to have to be pursuing some totally new line so i agree with them that to the extent they found out from cross examination a bunch of stuff at trial i'm not sure i mean i know they'll make the argument they do they do what they can do but i'm not sure that would win your day but of course there's a state a v s after that in many years of of stuff and so why not raise it then i think is your right point right there that's absolutely right i mean really we're not we're not really here to decide what trial counsel should have done investigated in the st instance and we were talking about years later when it's now stevie is counsels turn to say hey i'm i've done my diligence i've gone through the records i've seen this claim was raised you know  going to choose to try to develop it and present it in state court like the state rules require me to or am i going to let it slide for some reason i think we're we're in the latter category here sure there are some times when lawyer filing state h know maybe he just doesn't even know that there's a claim out there doesn't even know to suspect it but we're so far beyond that in this case based on this record and what was available and that's essentially what the state court found in implicitly i think so but also it's significant in what who and what it says that it's an abusive marriage which means this claim could and should have been presented in state court according to the state's procedural rules and that's i mean let's say rose had never saying about being a for many never the just it was completely covered up and they were like found this out just accidentally one day that would be a different fact pattern to present to the state and they would have perhaps prevailed on the subsequent havey as there may be if i can't play out all the ways that at least getting information to get at least the moment at least take what you have to state court comply with the procedural rules ask for the evidentiary hearing on that claim because after all that's we're supposed to channel the fact evolvement put it in state court give the state court your argument that because this guy had gotten thirty thousand dollars in one case and said he was a full time informant say that that makes him estate agent say that that makes messiah violation ask for that extension of the law ok but this is where the brady comes in and this is a concern that i have i realize that not every omission by a prosecutor in turning something over the defense justifies a federal hevia so i'm not suggesting that but it does seem like there was information that was held back for sixteen years why and is that something i mean does the state somehow advance wrongdoing as a basis to win we're certainly not advocating that but the elements of brady do matter and we're talking about whether the evidence is exculpatory or impeaching looking at that i mean these notes that and there's still materiality problem and putting aside all the potential concerns about specific pieces of evidence maybe not coming into a record soon enough for mr thompson's liking but your reality is always going to be a problem in this case because looking at those handful of documents that my opponent is relying on in this contract be they do not get you to a messiah violation and certainly not any more than what mr rhodes said on the stand you agree there was a listed lasted a mere eight months and it's transactional you're going to work off this case in exchange for a drug bust that leads to three grams or more of cocaine seized it if if there's some allegation that this person was a full time open ended roving informant if anything that's going to come from him saying i was a full time informant and i got thirty thousand dollars for testimony in one case it's not going to come from that contract well in his or any other i mean other than his own testimony at the trial which is certainly not hidden is there any other evidence that he was in fact a full time informant and in other words have we learned something new in that shows something more than what he said on that so we're not again we're not to be clear we're not conceding by any means that because he said he was a full time informant he was a state agent but on the record question  record the public record in the stevens case and see mr rhodes say in his own words that he was a quote employee of this task force in the d a s office and that the taskforce work was his quote primary source of income i'm not asking the question well other than his own perception of himself which does not prove agency i am me saying i'm your agent does not make me your agent we've got to have something from you for that to happen at least that's my understanding of agency law that's ahead i hope that's right so other than his own testimony his own representations in the stevens case elsewhere what other evidence and then we have this contract that by its own terms had expired what else proves that he was an agent of the stay certainly nothing that i'm aware of if your honour's asking beyond his own statements right and because his own statements or are known to everyone so that i can't be that can't be a reason for cause and prejudice and all that what he said at the very trial that we're supposed to be reviewing for questions of  right so that seems to be the best evidence frankly of the messiah violation is his own testimony not a bunch of other people that suddenly produced other than that one contract which had expired producing contracts producing a bunch of stuff from prosecutors showing that this guy is some special informant for everything the no you know smoking gun that shows that he was put in that prison to get information from thompson i mean none of that none of that has come forward so if it exists it's still hidden it is never come forward i would i would put it back against my characterization about it being still hidden i just to my knowledge based on all the briefing in the record that i've seen the stuff about mr rhodes being a full time informant that's all the stuff that was known that's the most known part of this trial and that hasn't hit that comes from him so we're trying to figure out whether the principal who hired the agent agrees with that all we have that was not default ok but their position is that if we do get so i understand the cause and prejudice if we do get well was one of the thing this in hand thing the get it to floyd get in hand that we just discussed yes that could be evidence if in fact he didn't yet have the hitlist and he calls up the police there were calls up the prosecutor talks to people and they say go get some evidence then he would become their agent and that would not have been known without those notes so what do we know about this get in hand it's it's kind of hard to make heads or tails about this get in hand i mean it's  could before he contacted the authorities to say hey i've got this information and i've got this hit list and i think the timing matters and there's nothing from either already twenty one and eighty four or twenty two or one or the investigators memo that would say that what mr rhodes said on the stand was was untrue there's no smoking gun and that's always going to be a materiality problem ok so let me ask about that it also says wired on gone a wire dollars he was never wired was he with it's a wired on or on a wire dollars it's not clear with it i think that's probably referring to some sort of solicitation for it to send somebody dollars not right but any other words he never we have no evidence unless you consider the scan in hand to be that that he was ever directed to go and get more information having solicited the information on his own for whatever reason that week he was never asked to go back and get some more that we can find evidence of unless we construe contacted floyd get in hand that way so that they arrived ok that's correct so the wiring does not refer to him wearing a wire and going and getting information no good even if it somehow did i don't see how that would be relevant because by the time anyone's talking about wearing a wire or anything like that rhodes has already come to them with all the information in the hit list and i guess if you got the wire that stuff might have been fallen under messiah some of it we count that solicitation as one cause of action if you know and not the two causes of action that i started the original questioning with it may be i mean maybe some parts of it are closer questions but i think here and there if you can buy them you reference this a few to few times in the opening part of the argument you know this is this is clearly a distinct offense from from the capital murder from the unifil solicitation plots because there were a lot of murder solicitation plots here but hard to to keep straight but this time remember on this this most recent time the rd time now investigator gary johnson is now on the list of people to be eliminated this is the investigator who testified at the st trial do we know that ok  i'm a contact of floyd get in hand tell me your conclusion what does this mean for the most natural reading to me is this is that this is a note that would say mr rhodes has contacted floyd and i the author of this note need to get fat information in my hand and i mean i think my point is asking the court to look at then gave me this hit list and i took that information to the authorities so i think that's the most natural reading to certainly nothing in it that would just be overwhelmingly obvious that that's not the right way to read it and so there's always a materiality problem especially when you're talking about why did state he is counsel not develop and pursue this claim because if that's all that state t v is counsel could really add to it you really can't fault state havey as counsel for maybe thinking that's not the strongest argument to be to be making but still if you want to make it make it in state court there's no reason to to wait until to federal court now there's a nd part of it that i haven't had a chance to talk to yet is if you look at the opening brief there's some suggestion that there was an open record an open file in the case and if you look at volume two of the reporters record page five that's the citation they give the prosecutor says i have an open file but it's not going to include my notes and it's not going to include work product so as far as the we're just not in a situation where trust were different state t v is counsel could could reasonably say well i just had no idea that there might be prosecutors notes that i don't that i don't know about we don't certainly don't think that they are material but i think that's an additional problem for where the trial court tells the prosecutor and defense counsel what's going to happen with the with the rude situation the defense counsel is told there's another prosecutor in my office he's got the information you're looking for you can have a discussion with him and defense counsel objects to that and i think she has no obligation to confer with anybody under breeze teacher just hand over information to him and a court says ok make your prosecutor available for him to have a talk and everyone seems to have left it at that so it again if there are a need possible concern about about brady or  the messiah violation yes because i think everyone agrees that under creel and bates it's this two part test where it's not enough to show that somebody was led to believe or actually receive benefits in exchange for soliciting information from the defendant but you have to also have acted pursuant to instructions from the state or otherwise submitted to the state's control and we're not saying that mr rhodes had to be specifically instructed to go get information from mr thompson but i think the case law shows that there are there has to be at least some level of state involvement ante and that the the scope of agency absolutely does matter we cited a case in our brief it's it's got it's what is your rule for that what what involvement does the state have to have to purposes i think the best reading of the cases would be something like the state has to at least at a minimum have created the situation that led a quote full time informant to get information from the defendant and that's completely missing in this case you mean put him in the same cell or something like that maybe something like that but you know if you look at the federal hate this petition titian are still conversations and and they they lead to thompson asking roads to commit capital murder by by killing witnesses and giving this hit list but again nothing nothing on the face of any of these documents is remotely inconsistent with what rhodes said on the stand which was nobody directed me toward thompson you know i did not do any of this at the state's behest and that has mattered in these cases so that's a that's a key factor because regardless of prior involvement with the state about being an informant the courts have just treated these sort of lay informants differently than than cops or undercover cops and there is that that understanding that sometimes of these informants will act entrepreneurially and they will understand that information is valuable it will try to get as much information as they can and then we try to hand it over and that's why the piece that's missing is some level of instruction and when you have an undercover cop i mean that's that's the easiest part because a cop doesn't just find himself among invades me there's going to be undercover cop in going to be able to say oh well i just was happened  for two years and then some new information falls into his lap that's outside the scope of that agency and he's found to be acting on his own initiative notwithstanding his history in the court  you know and said we're not going to extend the rule of messiah and henry to a situation where there is no indication that that ex ante this person was either was told or put in the same environment or the state did something to make the situation happen again since we're in this federal hate is posture immune there is some concern about some plausible messiah violation that's not a basis for federal havey is relieved because that would require extending the law and under t that argument which may have been a fine argument to make in state court to ask the court to extend the law will not justify relief here and even on top of that the thing about mr rhodes  mr rhodes being being estate agent again i think is fierce if anything that's the word most of their argument is based on his his prior history and all of that was either the most known or knowable to drop coun  brotherhood member with maxie humphrey and thompson who had had paid the girlfriend of humphrey some money who was a plot set up you know that led to the investigation that led to mr johnson i think there's some overlap there but there are clearly different people being solicited to kill witnesses and then the rd time with mr rhodes and you've got even more witnesses added to the list so we were talking about future dangerousness and you've got somebody who's clearly from jail trying to reach out and have witnesses killed and i don't think the jury needs to necessarily hear every detail of the plot and see every piece of paper and there's really no you in one of the what the constitutional violation is our whole plea bargaining process is geared toward trying to get all kind of bar is a bargaining process and we have  original officer what's attorney gaze it's certainly powerful evidence but i think all of these solicitation parts are powerful evidence the prejudice standard for this mr i claim is is brecht and he's got to show the substantial get even without roads if you're putting aside roads we're in this problem of why was this claim not raised and developed in state court none of the arguments my points made really answer that question you're focused on the underlying but that's the natural result of state procedural rules that require these claims to be developed in state court you have a finding here that trial counsel effectively cross examined mr rhodes about his history with the state you have ro his own statements on the stand which go far beyond the contract and certainly go far beyond any of the handful of prosecutor notes that my opponent relies on and the the  the missing piece at the end of the day is that level of instruction and without that i think you're left with a rule where if informants understand that they can go get information and they do it once or twice they have a  crimes that may be relevant and would be highly relevant for a jury to understand is the condo in other words other conduct which happens to be other criminal conduct but if it's for the purpose of the same cause prejudice related to cause and prejudice banks verstraete keon stickler verse green are the two main supreme court cases and what both of those cases teach us are it's reasonable for trial counsel to rely on the d a s turning over brady evidence and if it's reasonable for the trial counsel to rely on them that it's reasonable for state hey b s counsel to rely on the can to become a reasonable at some point and so if you don't have any information about this guy being a full time informant and he says i am a full time of i'm essentially an employee of the harris county whatever then can you keep relying on oh gosh i guess they would tell us if he was a full time informant out my goodness i would he says it himself and again i'm not agreeing that he is but he says it himself on the stand under how can you all think oh well  would like to think that yes you defense counsel can rely on d h to turn over all the scope tory evidence also we have to look at the way this progressed so from that maybe as counsel's point of view before the road to trial i'm sorry retrial four days before testimony trial counsel overhears the conversation with rhodes if you read the cross examination it appears he discovered a few things number one i think he discovered the publish stevens opinion he seems to cross on those four points mentioned there i believe that the government when mcclellan the other day disclosed information about the benefits trial where the thirty thousand dollars came from because the stevens opinion doesn't mention the name of that defendant that seems to be the extent of everything but it's not clear on the record where that came from i know it because i've read the steven's opinion and i put it all together but it's reasonable for a state as attorney to think to himself ok they must have turned that much over and surely there's not more there because keep in mind the state was or the ouse of the state his counsel doesn't have to talk to trial counsel is the thing he should does state hey vias counsel don't have to go through and i realize that i found this information but the question is the state heaviest counsel have to go through all public records related to this person and they also have was what was described yes you're on the thing i believe they're all included in our opinions but one thing i would point out is in both banks and in stickler there would have been the state made the same argument in banks there is a witness who's coaching there is a witness to kind of an undisclosed informant in banks the defendant had a police officer from arkansas come testify that person was an informant for him and have lied during his duties the same standard could have applied what we know is informant now you need to figure out is there more there in stickler there was mentions ok so it stickler the witness had this faulty memory it's never disclosed that shirt up before trial testimony and according to the state there's public records there's newspaper accounts of her getting multiple statements and the army was well state pay vs counsel should have found that and and i'll point out a although it's all three of those cases tell us whenever the state says they have an open file policy which we have here whenever there is withholding a favorable evidence and whenever the state asserts and state he is to fit it has received everything then we have cause and i would point out and state hey b s related to a different claim but only if these examination they knew right then that within their file maybe not the contract but the notes related to rose were right in there and of course the information within the d a s office file should be imputed to the other prosecutors in the case ok