it's been very thoroughly presented in the briefing and i know of course from this court's previous review of this matter it's got an intimate knowledge already of the details i have no further presentation but i would welcome an opportunity to answer any questions the court ma enigma i wish that i knew what it really told us i don't think we can know certainly with regard to norman thomas and what we should be attached to his testimony it is particularly puzzling that if the jury found this witness to be credible that they could nevertheless return a guilty verdict on one of the counts while they return the not guilty on the other on the other hand the puzzle remains even if they found the witness to be on for incredible so i don't see parking lot forms testimony that is correct your honor and you had to do with what they found in red with regards to her remains that were recovered if you recall after there had been what was termed animal deprivation in other words of animals for the even the charges sodomy against that particular individual and the charge the only evidence in the record that might have initially supported such a charge was based on norman thomas testimony but then as he later change that we would look at  namely the norm thomas was to forego psychiatric evaluation i've been put in front of the jury none of what has by others not by us is counsel to the petitioner being considered as corroborating evidence none of that evidence would have any weight and the reason i say that we don't adopt that characterization your honor we certainly recognize and i have no dispute with the fact that there is forensic evidence that these horrific crimes occurred be that these three men including our client were at the scene where these crimes occurred either before during or after the time but who actually committed the individual crimes and in particular now of course we're concerned with kevin thorpe who was killed that remains an open question so all of what might cause or are legitimate pause as forensic evidence will remain unchallenged she will not be changed those events occurred but the question still comes down to this can we rely on norman thomas his word for the premises that it was petitioner who certainly had a great deal of now and she was there and he he would say i don't know or i don't want to answer that sometimes he would answer our how would the jury view that testimony together with the forensic evidence and possible although thomas would still only be seriously discredited his testimony would still be is knowing that he had ingested a huge amount of methamphetamines for a substantial period of time prior to his rescue knowing that he had been on trial and convicted in federal court for the manufacture of methamphetamine so completely independent of the crimes that issue in this matter he already had if you will a guilty state of mind at the time of his arrest we know from all the medical evidence that has been presented to this court in our previous time here that the doctors were evaluated found that at the time of these events that is what the time he was making that statement to the undersheriff he was not other such a state of mind that he could make no one statements so could the jury statements consider them to be inculpatory statements and questionable with hey i don't think that's so easy to answer and i think it should give this court serious pause and indeed i respectfully suggest to the court in light of everything that we good afternoon your honors please the court deputy attorney general theresa tore a blank on behalf of the respondent it's our positions that this agreement absolutely should have been turned over and that it was favorable but it was not material because it's not reasonably probable that a different result would have been sued if that information had been turned over the jury was given a great deal of information about norman thomas credibility they had reached of you right there i don't think the standard used that the that in this case the cut there should be competence in this in disparate there was so much information before this jury about norman thomas his credibility they knew about the plea bargain that he had gotten they knew it was a very very favorable plea bargain they knew that shelton had threatened thomas and told him to place all of the blame onto petitioner they knew about his previous arrest record but more importantly they knew the information that caused the prosecutor to have some concern about norman  thomas state of mind they knew about his motorcycle accident they knew about his brain damage they knew about his claimed trouble remembering things they knew about his speech problems not only did he mention that i'm assuming that that was before them they were able to observe his mannerisms his tone of voice his ability to focus on the questions being asked and they knew that he was at least crazy enough to have committed these crimes he cut kevin up into several tiny pieces and buried him and he also claims that the rape was consensual in light of the fact that she was being held i mean obviously these are the things that caused the prosecutor some concerns so the fact that the jury may not have known that the prosecutor was actually  wouldn't have changed the outcome here because they knew the things that were causing him concern except that they didn't know the state had an agreement are sufficiently concerned that they need a side deal so that psychological examination would occur until after a trial that fact that they're willing to go to that length to suppress information from the jury fairly powerful how do you how do you respond to the addition of that when something like that occurs when the jury or the judge believes that one side has not been truthful or one side has been trying to keep information out they tend to discredit the entire case it's not just you know it's like not like we tr want to feel saying ok if this if this happened this might be prejudice might be not might have come in anyway in the sense that in the crucible of the courtroom it has a profound effect how do you respond to that or well i think that the jury what if obviously given some pasta that to that fact but and i don't know exactly why the prosecutor did what he did it's possible that he just didn't want to muddy up all the issue mean it's obviously had some concern but if you read his testimony he's very very seems very credible and we know that he was a value weighted later and came across as being saying not having to lucian's his memory was intact and his even his own attorney felt that his testimony was consistent if you read the transcript you can tell that those answers are consistent all that information was before the jury absolutely they should have been turned over absolutely no doubt and you know why the prosecutor did it you know i can't explain obviously he was a leader he was overreaching and he had and it seems calculated on his part  absolutely wrong there's no doubt about that i think that everyone agrees that this should have been turned over but i just don't see this as being material evidence was exactly how norman thomas said it would be he told the police exactly where stuart's body would be found and that's where it was found she described the use of the spotlight with the lens they found the lens and shelton's cabin the the autopsy showed that he was that's true it could have been but i think the jury thought that there was a motivation for thomas to lie and they believed him to the extent that the evidence backs it up i think that might be one explanation for why they didn't convict him on her her body was eaten by animals and therefore they couldn't tell the exact cause of death with her whereas with haven't thought spidey it was exactly the way norman thomas said it would be and he didn't make himself out to be a golden boy here i mean he admitted that he was chopping up kevin thorpe and that he had consensual sex with craig but yet admitted having sex with her while she was being held captive during these several days so i mean i think the jury had all this information before them and decided that norman thomas was credible and the prosecutor's opinion based on everything that the prosecutor had that the jury had before it i don't think would have changed their opinion about his credibility and i think that that that's the part that norman thomas just credibility has to be believed by the trier of fact but i think this trier of fact had enough information before it to make that decision such that this would not they were able to force him to be psychologically evaluated they would have seen that he was completely sane and that is memory was intact because that's what the report showed so basically all we're dealing with was this prosecutor's fear that maybe he wouldn't powerful i agree that that definitely would have i mean it would have told the jury be careful with his testimony but the jury had before it all this information about his brain damage and his motorcycle accident and the fact that he these horrible crimes before it so i think that that was enough to to assess his credibility in light of everything else that he was given all the the other the other sweet deal that he got in exchange first just money part of your honor that's where i did not understand your question correctly earlier because if it was going to that point i agree there is no legal barrier to mr silver being retried and it kills trial again if this court rooms think it is conviction oh we don't take their own course where is subject to being tried for all the fences again if i may there is a critical point about the psychiatric evaluation that counsel mentions that needs attention now and that is that  describes as innocuous if you will was done for a very different reason it was done by mr thomas's counsel for his sentencing and i'm sure this court has seen countless evaluations and the way they vary depending upon the purpose of the evaluation and it doesn't mean that the evaluating expert would apply different standards it's just there are different filters through which facts are presented it was presented for mr thomas the sentencing it was done by his counsel so of course it's a favor opinion at that point and it doesn't take much speculation for any season ticket practitioner to know that that's a very different type of evaluation i have to differ also with what counsel characterizes as consistency if you will between the evidence that was a deuced and how the jury and that if this additional term were presented to the jury there would be no different version castle is quite understandably focusing on the actual trial that happened  s very inconsistent points that didn't come out only because mr buchalter didn't use them they didn't bring out for example that initially norman thomas said he wasn't even there when  four were apprehended he wasn't there that is dramatically different from what he testifies to later at trial saying that he was actually in the truck when they were there he says early on in one of his initial statement one hundred eighty degrees different and critical information from what actually was presented at trial so council can stand here now and say there's no difference if we focus on that which occurred in the actual trial of this matter but this court is bound by the ongoing decision in cooper to review all the evidence that it has before it and that evidence as you know from our previous go around including the claims and the factual record which is in the excerpt now before the court with those dramatically inconsistent statements that norman thomas made during those initial weeks when these events were first coming to light and that's the point in time when the d a realize he had a huge problem with norman thomas and i accept with all due respect this court's ruling that we did not to savage the strickland level error but i'm not and i'm not in any way challenging that ruling what i'm saying is that that ruling is irrelevant to this court to the statement in cooper contradicted record this witness gave a uniquely inconsistent statements on all of these operative points it's tragic that those statements weren't used to challenge mr thomas and by mr saltus trial counsel it should have happened that was a different failing but now i'm talking strictly in the brady context your honour's are duty bound to go back and look at those things also in this context and i can't predict how the court may come out on the question but i suggest those are very serious reasons the court can't have any confidence in this verdict when it considers all of that evidence norman thomas testified the way he did only because he wasn't challenging but in this additional proviso in the had come out and if additional had effective trial counsel this would have been a dramatically different trial and just how mr i agree i can stand here if you'd like and go through all the examination and how if i were the counsel from the minute we started everything would have shifted into a completely different configuration knowing that not only do we bring out immediately from norman thomas himself that he has an undertone of proviso that he's not to be psychiatric evaluated we also bring out that that was pursuant to his negotiations we bring out that at the crime types that he was talking to law enforcement and to the district attorney and the district attorney was watching him through all of this and i don't make the i don't make the conclusion right then during the evidence or effects of the trial but in closing arguments i certainly have everything i need to argue to my jury how this man this d a who sat there who stood there who walked with him who talked with him with all the police officers knew he had a seriously mentally deficient man and then he struck this deal that this man should not be psychiatrically evaluated and i  court most respectfully it would be a dramatically different trial i can't say with any i cannot say with total certainty the results would be different but i don't think we can have any confidence in the results here given the way the proceedings were conducted  been through a number of times so we spent a long time in this case it's a very troublesome and difficult case and we will take an underclassman thank you very much