we will turn to the day calendar and first we'll hear green versus the city of new york good morning morning your honour's may it please the court my name is john shooty and i represent the plaintiff appellant site green let me begin by stating for facts that we believe were proven in the record below an innocent man named saya green was convicted of the murder of john choi because police and prosecutors committed constitutional misconduct the constitutional misconduct was committed to protect to informants at the expense of t innocent men the informants actually participated in the crime and will we believe the record reflects that police and prosecutors either fabricated or withheld vital exculpatory evidence to protect these two informants and preserve the arrest and conviction of side green both pre trial and post trial during post trial criminal proceedings mr green was unjustly incarcerated for close to twenty three years these facts were proven below by sworn testimony or reasonable inference and at a minimum factual issues of balance should have precluded the grant of summary judgment the district court turned the summary judgment standard on its head by disregarding sworn testimony by making credibility determinations and by failing to apply reasonable inferences requested by the non movement sworn testimony for example was ignored from assistant district attorney douglas callan who authenticated his pretrial notes confirming that a deal was offered to prosecution witness mark best sworn testimony was also ignored from the criminal defense attorney who said he was he had never seen before in his life detectives notebooks which contain critical exculpatory information the record is replete with couldn't remember if no books your honor early in his deposition defense counsel testified that he no longer had his file and had no general recollection of what was significant yes or presented to us that he said he never in his life saw it that he couldn't remember whether he sought them and indeed part of the problem here is that the four forty motion that was granted relied in part on defense counsel with the mission that he receive certain police reports and he did not interview any of the persons referred to in those reports that included statements about some of the individuals you now talking about which suggested that he was aware of most of the essential facts that you're talking about so i'm not sure where we get to a conclusion that notebooks were withheld i don't see where you do stand the evidence of that you help me out yes you are i will attempt to i think attorney louis koen when he was deposed was close to eighty years old he did his best to recall what he did and did not see when he was specifically presented with the the notebooks themselves he was asked a series of questions have you seen these before no i have never seen these before in my life and he went on to say that he would have used them in the criminal proceedings if he had them and i refer to the case of boy yet in the second circuit which is probably one of the most important cases for us on this appeal if the criminal record does not contain any reference to these exculpatory materials there's a reasonable inference that they weren't provided to defense counsel now the city in the defendants in this case  addressed the boy it case and it least in opposing a summary judgment motion if there's a factual issue presented if it's louis cohen says early in the deposition i don't recall but later when he's presented with a specific document to refresh his recollection he says i've never seen that before in my life and yes i would have used it if i had it as the nonmoving opposing summary judgment and inference is that he didn't get it or at least there's a factual issue on that particular item the detectives know books now on the plea deal with mark best we should get to that immediately because the city has taken a position of the defendants that we can prove that a deal was offered and i submit to you honor ok what's interesting about mark best is post trial he admitted in a several affidavits that he was a participant in the crime that he was offered a deal and that he was proport made findings on that that he wasn't credible  influenced by your client but here's what i would like to do i offer you can't ask us to accept evidence that was specifically rejected by the court is not credible i may run take you back to your impeachment argument or your failure to provide the impeachment evidence the witness didn't testify and his hearsay declaration was offered by the defense so i'm not sure how it qualifies as material that's required to be turned over your honor first of all mark best his account of the crime was first introduced by the assistant district attorney he was asked during his direct examination the detective what did mark best say it was not defense that opened that door it was the assistant district attorney i believe would make that very clear in our brief the prosecution offered mark best testimony originally through detective and judge pesh allowed that hearsay statement in once that hearsay statement came in the door was open and it was never shut mark best account of the crime was that he was then cross examined by defense attorney louis cohen and the staircase up the people running out running past getting into camp we have all this what was not disclosed thank you your honor defense it's the most important question on the subpoena and if you give me a minute i will walk you through how let me walk you through how we connect the dots what was not disclosed was the significance of the passengers in the cab seen leaving the crime scene and detectives to read oh was allowed to testify those people had nothing to do with the crime that is absolutely wrong if you trace the significant thing they had nothing to do with the crime when he testified they testified at the criminal trial when he was asked a question about the significance of those people he said they had absolutely had nothing to do with the crime and he formulated an excuse for them now let me tell you how i know that's wrong the stepper was wearing a brown chocolate brown distinctive shirt you can trace his movements through d d fives from the exit at the subway station from point a to point z the taxi cab through eyewitness accounts in fact one witness james robinson chased him to the taxi cab fact everything relating to the care driver was suppressed your client testified before forty hearing that he asked counsel to talk to the cab driver because the cab driver was saying that the people ran the people ran that's his testimony at the four forty hearing which would can only be construed to mean that they were aware of these facts iran or that's why he wanted his lawyer to to question the people there are i believe you're referring to a post conviction hearing twenty years but he's testifying to what he asked his lawyer to do this is how he secured the hake the hague b s really by arguing that he asked his lawyer to do these things and that counsel did yes your honor what think what occurred in the years two decades after mr green's conviction was that private investigators were hired who began to dig and see things that the original criminal defense i'm not understand your client to have testified at the four forty hearing that at trial he asked his lawyer to question the cab driver who said that people ran away  with you that lewis cohn was ineffective but look how but the reason why he was ineffective was because a client asked him to do something that he didn't do that was part of his ineffectiveness right so i don't know how you can argue that this fact wasn't known when your client testified that he knew whitney asked his lawyer to act on it but your honor what wasn't known was the details provided by the cab driver that the brown shirt in stabber was five foot ten my client is five foot one quite different from your representation to us that all of this was withheld i also want to take you back to what you argued here in court about what mr what detective tamburello said during his direct examination i just looked at that i don't see anywhere where detective tamburello testified that mark best made an identification he what he testified that kim viewed the lineup and that a second witness also viewed the lineup but there was specifically no mention of best making an identification i'm i'm missing something i'm i'm looking at pages nine sixty three seventy three of the record your honor with the door was open once the government identified a second witness  best account of the crime ross examination miss the detective near rito was asked in testified that mark best picked him out that's the whole point of the government's argument that he didn't have to disclose the facts pertaining to the identification because it didn't elicit the identification well respectfully i disagree if the government says to a jury that a second witness has identified this individual counsel where dissolute the government say that all that i see is that that the men who jumped into the taxi cab where the assailants know your honor they took the position that the men who jumped in the taxicab had nothing to do with it and it was over an opinion offered by detective on the radio who confessed there was a confidential informant in the cab and that he determined in his opinion that they had nothing to do with the crime when you cobble let together with the admissions of the actual participants in the crime who unfortunately did the deceased did the w defense counsel advised that one of the people who climbed into the taxicab was wearing a trunk with coverage i think he may have been your honor but what happened at the time to the way defense counsel had his hands  admitted that he admitted did he say he told them that prosecutor he admits that they were suspects but he believes no he never told that to the prosecution he downplayed the significance of the people in the cab mr green is not panamanian no he's not your honor and he doesn't speak spanish and he's five foot one not five foot  identification by the victim's friend who was with the victim at the time the victim was murdered green's conviction was later reversed based on the green i think that's that's correct he was at the other end of the subway platform while he other people don't usually run to watched well he was running to help his friend he said right he did end up getting in a struggle with one of the with one of the assailants but he said that he was mr green is is innocent but whether he's made out his claims for more nail and fair trial liability the simplest way to deal with the claim i'll just take off at the top is that there has been no evidence presented by greene of a prior pattern of constitutional violations similar to the one that it's alleged here by the d a s office all of them one else claims have to be based on such a prior pattern under the supreme court's decision and connick that was not addressed at all in playing to i mean in the appellants papers and despite the our brief addressing it in detail and below when that issue was fully addressed plaintiff provided was a spreadsheet of cases but only two of those cases predated only two of the cases predated the date of the trial here that involved a king's county d a s office and those two cases do not involve brady violations that have anything remotely to do or are similar to what is being alleged here and in any case in conic the supreme court said that that really violations over a period of ten years was not enough to establish a pattern here we have two only two dissimilar violations of address before there's just no pattern call those witnesses at trial so i watch witnesses you speak to the witnesses who testified that they saw people running and then getting into the you know running and then getting into the  cab or the cab driver the cab driver and self who had a d d five was also not called as a witness as the defense knew if he can drive or knew how to find again that's right the d d five provided the cab driver and i believe provided the cab driver's address based on his speaking to home care cab driver yes and that was turned over to the defense well so what was turned over to the fence was we submit there's no evidence that tamburello his notebook was not turned over to the defense they argue that the notebook was not turned over certainly the d d five which to discuss is the cab driver was turned over the fence there's absolutely i believe there's no evidence that book also was not turned over to the fence i mean if we talk about did with regard to read oh no return established that's right i did not tell prosecution that's correct but the prosecution you think that that's useful i mean you have four people running pell is not well i think we have to look at this both in terms of the elements that need to be established here what was withheld and was there any intentional withholding of impeaching or expel tory evidence that's what i'm asking you right let's focus on panama right there panamanian it's very easy to establish mr greenspan in many and and it's conceded that he isn't well i think there's no basis in people jumped into the taxi short by comparison and so again some of this information obviously about the tall they already the defense already have but taking what the radio learns about the taxi cab occupants at some later later testified at deposition in two thousand and nine perhaps of that and that's where this is the only time this is mentioned that he actually did speak to these two of the two of the cab occupants he learned of them  only at some later point in the investigation after an identification had already been made i went to what to i witness before the trial before the trial that's right but at that point two eyewitnesses identifications had already been in the investigation well what he said w someone told him that they have someone told him in his office that they had some found out that what the address of these of one of the passengers in the cab was so he went to speak with them and what they told the ca driver who would have records is where he dropped them it was it does not appear there's no evidence that that was the cab driver what they told him was that they they gave him another explanation of why they were in a rush and  d they were not involved and at that point what the detective nieto said at his deposition was that he believed that that lead was a dead end and he didn't he didn't make a note of it he had already had the  two eyewitness identifications and so he didn't pass it on what we have here is no evidence of an intentional withholding of of material that the reid own knew to be  rico knew the conclusion he knew that the that mr green had done it well that's based on the question is that there's no there's no evidence to there's no evidence besides speculation to say that that he intentionally withheld he intentionally withheld evidence that he knew to be exculpatory or impeaching that there's just there's not a basis i mean he's he's being told evidence that that seems to actually told to redo and that he didn't know down and thus didn't and didn't pass on was was that they that the people in the cab that he spoke to said that they that they were rushing to go to one of one of them had a girlfriend was having a miscarriage they were rushing to go to be with her and that he stands somebody in a cop asks where we were you going you know usually say i was i was running like hell just to get out of the scene you come up with a reason why you ran away while you were no rush well i think he's a detective well again one might question whether he was doing good detective work but that doesn't translate into an intentional withholding of known just it was it was that statement just before we get off this point it was that statement that was not disclosed but the fact that the cab picked up these folks yes and the cab driver and everything else was to school that's right and in fact what was disclosed was that the that their that their heights were you know that their height that they were tall that was that was disclosed all the evidence of that would suggest that there were people who were running from the scene to the cab and that they were in a rush that they told the cab driver that they were in a rush was disclosed and in fact you know the the defense counsel criminal defense counsel was aware that fingerprints had been taken of the cab but all of this you know is there's all there's no evidence that anything so a i believe that there's no evidence that this was that a rational jury could believe that this was change his theory of the case or somehow argue argue this case differently i don't think that there's evidence that this would have materially changed the outcome of the trial you there so that's another factor of the element of the claim that not here just with regard to the issue of the notebooks and the idea that cohen said he never saw that he he never saw the notebooks immediately after he said he never saw this notes books he clarified a i don't really know that he said i absolutely have no relic recollection and then he even went so far as to say everything i said before about not having seen these notebooks that was told i'm just repeating what was told to me post conviction counsel myron ebell doc i have no basis myself for saying so so and in fact elsewhere in the record bell doc admits that he doesn't have complete records of what defense counsel had so there's no basis for any assumption that these notebooks weren't turned over you will hear about thank your judge reggie just to answer your question quickly in  uttal i direct you to the appendix nine six six three nine six seven and actually begins a nine six five question during a direct detective tamburello was asked how far away was mr kim from the line up approximately eight feet and how far away was mr best from the line up eight feet and they were both of them viewed the line up from a different room from where the defendant and the fillers kim reid always on cross examination when he says that you elicited it otherwise there wouldn't have been any any evidence that best made an identification yes you're right that's assuming that everything your honor says is correct it was a prosecution witness for whom a proffer of a deal was made and it was not disclosed black letter law says that's a constitutional violation of the taxicab with the people running into it would you know it was deemed to be an important matter at the time by the defense why wasn't that the defense theory one of the problems the defense counsel had is that the d d five's provided by the by the people were all but the names and addresses were all blacked out we've submitted that as part of the if the if the defense wasn't going to run with that what difference would it have made if they were panamanian the difference would have been if if the rain old glory or the taxi drivers full statement had been produced  intentionally well there was a complete lack of disclosure by detective in the radio once you know the significance and that you know constituted what to judge to make of his needs any help but what evidence was in that that was not turned on that they were that would have been helpful to the defense at the cabdriver got a good enough look at them to know that the brown shirted man was five foot ten that he spoke spanish and that would have led to more evidence then if you cobble that together with other things in the reader fabricated on the arrest worksheet instead of listing side greens actual height he listed his height as five foot five if you then consider that detecting the reed oh conveniently dismisses lenny best as someone who was identified as a suspect by one of the eyewitnesses and substitutes a third party's name and that in the mix and then if you add certain other things that never read oh didn't you know they may have been left out of one report but it was in another report of another detect it was in detective tamburello as no book which was not produced so lennie best was not known as a suspect in fact lenny best was brought in to the police precinct the day after the incident as a suspect escaped from a police car and that wasn't disclosed to the defense it was an absolute plethora of information that was not disclosed to the defense and it was vital exculpatory information if lenny best was a suspect that would seriously impugn mark best and mark best was held out as a trial trial witness with a deal in immunity and that wasn't disclose now kabul that together with the confessions we subsequently have with the five people who are now deceased confessed to family and friends that they were involved in the crime their confessions absolutely fit like a glove to this crime when you go through the eyewitness accounts when you go through the fact that two thousand and nine detective the real for the first time admits they were panamanian will mark best admitted in his confession that they were panamanian so did william patterson and a panamanian witness who judged pesher did not credit in two thousand mr best and i mean he was part of a pickpocket crew with them and in fact reader knew there was a panamanian crew pickpocketing using that train station in that area to pick pocket what you have here is to informants who were protected mark best is protected and as st we only know one street name fool always protected and detective no real fully admits in a civil rights deposition fool low was an n y p d confidential informant thank you thank you the reserve decision