drug case without any drugs a murder case without a body and investigation and prosecution where the single common denominator was under an accumulating lack of reliability in the evidence in the testimony  ultimately in the verdict itself today i want to address the salient aspects of the material misrepresentations in the title three affidavit even more in the search warrant af and then address serious several of the serious evidentiary flaws that took place in the trial which create a real lack of confidence in the guilty verdict i think it would be best and i'd like to take about a minute to just give it it's of it was a very complicated case and it took place over a long period of time but if i could just take a little few seconds and give a brief time i'm between september two thousand and four as of temper two thousand and five  hernandez madeline seven days husband got out of jail on september thirtieth two thousand and four about a week later his wife madeline goes to the da to initiate becoming an informant she was already seeing and in a romantic relationship with mr burgos for months she's debriefed throughout the month of october and she signed a confidential informant agreement on october twenty second she moves in with mr berger she makes recordings in november and december she's  fed january now and now we go to two thousand and five january and february failed drug transaction and more d briefings fast forward to june two thousand and six it has been a failed investigation there are no pending charges against as burgos no grand jury investigation and her attentions as an informant switched to someone named radamisto best forward to get to the very critical weekend july first through third two thousand and five she on the first she has a horrible argument with mr burgos that night it's an argument about him being jealous about something it has nothing to do with her being an informant she leaves the next day for st croix saturday july second for some reason she returns the following day sunday july third she's picked up by mr burgos she's taken to his house she has not heard from again after slightly have to midnight on july fourth two thousand and five there is a d n a investigation in july of two thousand and five there's a police of puerto rico investigation in july of two thousand and five the title three is finally requested in september of two thousand and five and there are suits several serious problems with the title three i find them i'm more than i don't mind them in the brief the material omissions refer that she is a very unhappy cooperative informant who constantly does not follow the advice of her handlers and that's why her statements would be unreliable as to enough to leak without us very critically he's always mentioned as an actually knew these were material omissions and this title three affidavit was far from the reasonable good faith effort toward putting the judge in a position to assess reliability that is required by the circuit but i bring up the that and it's fully briefed and i certainly i'm not abandoning any of those arguments on the brief but i bring that up because the title three was issued there is a couple of records that were played a trial that came out into september of two thousand and five in december of two thousand and five death of a courthouse that same suppose it coconspirator but actually an informant has just finished testifying in the state murder trial where he's been the star witness ace the new target is arrested in texas it's a series a chain of events that leads quite alice to believe that because he's involved in this investigation he needs to go to the police he eventually is discreet former police officer with numerous felony convictions that one of the things he did as a police officer was be paid to perjure himself and it is paid by i would be criminal defendants to make their cases go away to perjure does not state that at this murder trial where he had just finished testifying in the affidavit calls it reliable because he's given reliable information and was and was a witness at the state homicide trial doesn't he was an immunised witness who was a participant in that homicide and that is why he was immunized also doesn't say that the defendant was acquitted in that trial so those are serious material misrepresentations in the search warrant purposes car at trial there were additional and very serious instances of where the jury was allowed to consider and deliberate upon and convict on entirely unreliable evidence there are six evidentiary arguments the last three referred to and implicate the improper use of expert testimony all of these instances were improper they cast the of science of scientific reliability on testimony and evidence that was nothing of the kind they were all objected to they all caused serious harm first was about the three of them of the tower information and the d n a testimony about the dogs there was testimony implying that the dog alerts are reliable despite the way these dogs were trained despite the way they were utilized and handled in this case it was a very powerful and unwarranted inference that because dogs cadaver dogs alerted mallinson it is body although it was never found nothing was ever found where the dogs alerted it must have been there at some three pieces of paper is exhibit twenty seven if the it would indicate where missing a cell phone was at any particular moment it was a completely insufficient foundation but it allowed the jury to infer about her whereabouts during that if you open up a trunk of a car what you see is the trunk line if you take out the trunk liner you see the bottom of the car the bottom of the car there was a lot of stuff that was that looked it looked like a harsh if you saw the picture it turned out that was mostly battery fluid and there were two there were fourteen samples taken two of them were blood one of them was the blood of miss a meeting that was on a battery it was on the label of a battery it was a cloth label on a battery in the bottom of that trunk that had a drop of blood that was identified as as her blood that was all tested that was that testimony the trunk liner that thing that had to be taken out that was not tested in till over a year later there were numerous irregularities there was no there were no that the trunk liner was never brought to court there were no photographs of the samples taken there was a big discrepancy between five stickers and six that were testified in the report there was no way to correlate those stickers with the areas and nevertheless roberta lopez the expert was allowed to say that his supervisor looked over his work did not have a problem with that work and was allowed and he was allowed and therefore never told him that was anything wrong with his testimony one of those samples was also positive to emily's blood allowed to bolster his own and this is my point about to bolster his own testimony with the purported representation of another expert his supervisor who never objected to his work he was about to bring in the bolstering imprimatur of another scientist who did not come to court and testify and that's the claim concerning the so those are my i just wanted to give this court a brief it has a number of other issues but  wanted to give this court a real sense of the unreliability that permeated this trial from start to finish and casts doubt on the verdict how long did it take you to agree to deliberate two days more than two days samples that were taken were very it was it was like i said it looked like a horror show and we said we presented the evidence of all the stuff that wasn't blood inside the car the battery was a battery that the battery was was the actual battery of the of the car it was not being used because the car was in the shop and another battery was being used it was down on the bottom because of that it really belonged in another place the explanation is that just finding someone's d n a says nothing about when and where and how that d n a got there and so there and there's many instances of madeline semi they using his car there could have been many reasons why she herself near the battery how long have they been in the trunk as opposed to being in the car right the the car was taken to the shop at the beginning of november two thousand and five the new battery was placed in the car in the other battery was placed where it was the search took place the car was seized december twenty ninth the search took place january fifth or sixth so two months that the battery was on the the bottom of the not where the battery should have been on and put in all of the omitted information that you're pointing to and then ask whether it was an abuse of discretion for the trial court judge to assume who to conclude that the warrant still would have been issued at that omitted information that included and with regards to the necessity requirement and her discussion about the alleged omissions with regards to information relating to the confidential informants or the confidential informant at that time agent who then approached the d a with information relating to his cell phone number which was included as part of the wiretap application relationship is irrelevant for present probable cause the warrant the sorry the wiretap application affidavit made specific very detailed  other people relating to his driver activities so as far as that goes the your government says that the specific nature of the relationship although not in not specifically issuing judge might have found more context helpful but you didn't give the district judge the opportunity to decide for himself i think it was a himself  here that that information was pertinent there does seem to be at least on defense counsel's representations a very careful tailoring of  what is presented in order to get the wiretap and in order to get the mean well let's move you on there was just a dialogue about the appropriate test for looking at a claim that material information was omitted from an application or an affidavit in support of either title three or a search warrant what do you say the appropriate made it less likely the for the district judge to have issued the warrant that the government's position is that it would happen not with regards to our council's contention that the may not include all the information provided from the investigation derived from the investigation it need only provide that information which is relevant to this to this application in this particular case are you back in here first statement that you add it to the affidavit and then you look at everything and you then determine whether probable cause is still present i would say yes i believe that allegation was just made at oral argument by defense counsel as did the search warrant as a start the use of a particular perhaps it was the title three the use of a particular individual who had been a disgraced police officer yes that's correct your honor well in this particular instance the affidavit was very particular in that but i am one hundred percent positive that it was stated that his information was corroborated by agents it wasn't and then pusing language specifically stating that he with his statements were taken  corroborating information from the investigation was the was what made the allegations credible it wasn't of a fact that his trustworthiness her credibility in terms of the evidentiary rulings it would be the government's contention that the first of all of those with regards to the canine officer testifying reverts to reliability a meaning of the canine alerts it should be noted that these dogs were not only trained but the officers themselves were trained with these dogs as well so they were part of the training they understood the the training involved of these dogs and individually and in conjunction with their officers who were in their handlers given that and the fact that these were and particularly in the instance of mr agent my son that who was a handler for a number of years and an instructor that they had the requisite knowledge of the train to show that it was in fact  reliable means of identification as to the government hearsays with regards to the cell tower the knee defense makes an issue of the fact that the person that otherwise was brought in to testify to rather will source turner certification purpose of the records was not an expert under the business exception of hearsay it's not required for the custody in of records to be an expert or otherwise have been the person that made the made the record at the moment it was done all that's required that they should be shown that they are the ones that maintain the record and the ones responsible for it in this instance the witness i was brought in by a b i think government  worked for the cell phone company for ten years before she previously worked for at sun some company which had since merged with another one and was designated as the first thirteen of records and the one responsible for the towers information and they went into their system and brought us a those that information according to the  a forensic examination these were not brought in to say that you know because a regular part of the procedure just to have it reviewed by a supervisor and you were giv with intent misled or misinformed our own method information relating to his relationship to a member member participants in the in the trial v the record shows that a first of point counsel you're you're about out of time and i have a question i want to ask if you don't mind with respect to the title three application there was a time at least when there would not be a title three application  without having involvement from the u s attorney's office anywhere in the united states so that when the application was submitted that it was clear that the u s attorney's office had gone over with the agents about minimisation that there had been a thorough review of the affidavit by an assistant u s attorney do you know what the record would show in this case with respect to whether the u s attorney's office was involved before the title three was authorized by a significant presence which were taken part well before the two thousand and five and beyond i thought that the reviewing judge said that that he was not that he the fact that the d a didn't or that the application didn't say evidence and it was brought out at the title three pretrial hearing and during trial that he was a d e a agent tried to conduct a kilo trans action with some other people since one nine hundred ninety nine that's disputed but there's evidence about that the other two are undisputed and the continuing nature is undisputed the point is he will wait wait the continuing nature is one dispute but the judge found just the opposite i don't recall that and it can't be i mean he is he is a witness in one thousand nine hundred ninety becomes an informant in this murder case he goes to jail part of the plea is that he pleads guilty to certain crimes goes to jail gets out of jail is housed in various places in the south of puerto rico by the end i he agents ok and then he's cows there because eventually there's going to be this trial which he testifies in in two thousand and five the continuing nature from one thousand ninety nine to two thousand five is not i don't mean to be disrespectful i just mean to be blunt and i guess it's just reading what the judge found it's not capable of being it was incorrect and i hope i show that can i just say about that the conclusion is that he was