draw nigh and get their attention for the war is now city god save the united states and this honorable court morning video surveillance would conclusively show that he did no such thing the supreme court's on and off the mcdonald that the right to present evidence is basic to a fair hearing yet mr linear was not the right to present the single piece of hearing officer will consider the evidence before the forms and the regulations are very clear about requests for witnesses they have a number of regulations of a kind of witnesses can testify and explicitly requir that he has a constitutional right to examine this evidence or do you maintain that i do i do contend that your honor that if he and any point in the disciplinary process that he does absent the logical justification asserted but it is what you think you called it or your colleagues called a qualified constitutional right yes your honor the that based on prison needs and inmates requests for witnesses or documentary evidence the are now archaeological just cation and sorted by the prison there haven't been any asserted any point in the proceedings here limitation this this court and held on held unconstitutional virginia department of corrections policy that excluded an entire category of witnesses from testifying and when if if i mean maybe there's not enough here but if the prison said listen it's time intensive to poll and review video and you know the prison systems of large video system it's quite difficult to pull off it takes time and that takes resources that need to be spent on balance in a logical reason we can invest the time to look at every video in every case and so we've decided based on our safety and security needs that we only will review them where there's a stabbing or some sort of physical injury right so in the most serious cases we'll look at them but in other cases you know we will not what why would that satisfy walls balancing it might might not be the balance that i would choose we all disagree with it but you know wolf tells us we have an extreme deference to the prison system in evaluating whether that's a reasonable d people logical justification  regulation in a max security facility that did not allow live testimony and said that given the extreme tensions and the sort of facilities that would not have five witnesses testifying against each other so i think your honour's on it there was video would have shown that he didn't incite and i'm not trying to quote you but something to the fact that video would have shown it so i'm never been able to figure out how the video would have shown i mean you you r client and you know in his description and your brief he's never contested that he left the area and approached her and was walking away his allegation is i didn't say it right somebody said something that made her mad she wrongly assumed it was me and you know that's his description of what happens that's been quite consistent throughout and i can't figure out as a threshold matter even if there is a qualified right to talk about the justifications it seem to you get explain why it's relevant we talk about what that standard is why it's relevant and why it would matter in order to require them to credibility problem so he said very specifically that he raised his hand to go to the bathroom that other inmates were allowed to go to the bathroom and that he was not so they can also show an addition to showing that he wasn't screaming just i don't i don't i've asked for in the alternative an evidentiary hearing as to timeliness at timelessness i don't think it's necessary to go back to the district court and review the video the government could have presented it in district court to show that you want us to go you want criminal case hypothetical i understand it's not a case but the criminal case and this was the same scenario we've got i would analyze under brady this question of whether the video you know was with sale but in order to get a new trial in that context you'd have to show the video is material which is often a really hard thing for a codefendant to do because they don't have the video and we've said in a variety of cases you know speculation about what might be on the video isn't enough to get over that standard of materiality to show that a new trial is warrant understanding that you know maybe the brady standard itself has to have a  you're but even into this more qualified right you describe i why how do you get over this idea of showing some kind of materiality given that to my knowledge nobody's ever seen t an alternative argument to the law of claim i think the law of play might be more and more analogous to an evidentiary aren't trial course in the normal contacts they're both due process and i'm sorry i don't mean to run over but if i ma we can talk about the different standards but it seems like in both contacts brady and or wall you've got to show some materiality in order to get a new here and understand judge wins point is that if you're intitled to relieve the relief that is a new hearing where you get to show the video assuming it's still there three years later but in that context which is more developed we've require to put forward some evidence of materiality before we grant a new trial wow why wouldn't we to the extent we've found this qualified due process right to discovery or production maybe there's challenges in the brady context events don't know what that they don't know what they don't know but it's still there but it's hard to make a claim to lead you know they ultimately do know what they didn't know and so they can make play but you're saying that morning your honor is for me please the court this case really falls into two broad categories questions is whether the inmate has a right to the video surveillance for prison disciplinary proceedings and then the nd arc which is really different effect your honor because brady is well aside from the question of whether this was raised in the district court it doesn't apply in this case because brady is a trial this is not a trial this is a post conviction right and wolf in all the cases that have followed wolf ever creatively discuss that the more narrow framework that is applicable under wolf prison disciplinary proceedings we know for example from wolf that there is no right to confront there is no right to cross examine which are clearly rights that an individual would have and a trial there are there is a later case there is there is the ability of prison officials to use an anonymous informant in support of the disciplinary proceeding that too could never pass muster and in a trial so the case is look for the th circuit case and there is actually some conflict in the th circuit on that conduct which is rupp's or interferes with the security orderly running of the institution most like some of their hearts of their any offense the code specifically says this charge is used only when another charge of hasa verity is not accurate in other words even though this was charged as a code to ninety nine interfering  officials saying that he at the end as i remember the to their to and they say the end he was yelling at people to to also yell and why are the people treating us this way and there's respect demands respect  credit there's no question it is a serious charges no question it's in the eyes of very chart but where it gets to is the question judge richardson was asking about the worst materiality of what the video may show is it relevant does the video show evidence would be relevant i have not seen the video your honor i do not believe it's not in the record but i do not believe the video exists to show this but our position well if it doesn't what's going on but how you say that you or some time along the way one of your clients would have seen it and said there's nothing on it and we filed an affidavit saying the other guys to his if the the challenger mr before he ever got here retrospect certainly judgments of would be i mean there was a lot of opportunity you went through all of these agency reviews then the then you go to the district court then you come here all along it seems to me it was incumbent upon you and your client to if there is no video to file an affidavit so from the person's perspective your honor is that there was no to the in me you did not request this earlier but we i hear you and i'm not doubting your good faith but put look at this is the record before us he's made affidavit that he asked for it every letter yesterday every time and you say your your people say but do not there's no affidavit there's nobody testifying that no you did agree so when those kinds of cases come to us that's not summary judgment  needed you to say there is no video that that is my understanding again your honor so if there is no video is that the spot was the if there was no video report to to show anything about that despise it would be dispositive because why don't you just say you had recommended trivia or hearing on it for determination whether there's a video because there's no video another bit in a bit because the situation as it is now they're still harmless error analysis we believe that this is a harmless error situation based on the nature of the charge and based on what he says and this goes back to what judge richardson says but if one never nobody's ever seen the video how could we determine that your honor i would suggest that almost turns it round to suggest that unless you do not commit an error there can never be harmless error well let then answer that question is it or let me ask a different way under under a b s who has the burden to establish that relief there's appropriate the enemy would have the burden to right now  you are required to make the videos and didn't make them and denied him the right along the way to see them and then subsequently destroy them and that's an impossible grin that can't be the law but now that may not be so there may have never been a video then then he thought a lot but from a harmless perspective the nature of is charged nature of the infraction  he says is what it is that he who would show does not carry his burden he says for example will the video would show i just wanted to go to the bathroom i don't know how it would show that to start well it's like the sound you could hear him saying now let's well he has put forth no evidence of where you think or he could put forth evidence your honor of where the cameras are in the in the unit because he is in that you  could put forth evidence of how would he want but he can't but the evidence that he for example wanted to go to the bathroom would not change the nature of the charge because when he to your key he disregards that it takes a rd order to go back but not before he confronts the case manager in front of one hundred and seventy rogue band mates who are already voicing displeasure at the basic charge the imply success so if i try to you know raise the troops to storm the ramp are but they don't follow me that's encouraging just like if i am able to get them to fall not successful just saying if he's trying to do it and that's my point that i was going to judge when is you have these one hundred send the inmates they're already griping at the guards and he goes out to the guard after being told twice stay in your cube and he confronts or not i'm trying to you know harmless thing i'm just not really understand this video if it exists which i'm just perplexed by that whole it just makes no sense to me if there's no video it so you got to understand the people wouldn't a video show this i mean why wouldn't it show what was going on if a video was positioned to show that it made it would show what is going on in the in the us we don't know what it would show but we do know at least if we're looking at it in terms of a request of a video it's going to show what was going on which became the basis for the chalk's the prison record all you had to do was say this would have taken away guards from doing other work this was extended the hearing time this would have caused disruption this is a security problem because it would show the angles and you said any of those things and maybe even that it's irrelevant and you said you'd given those reasons be really easy right but the spring court said even if you got to give the reason right we can't speculate as to what the reason the prison and for specifically says you did not do this because we are not granting this because it's an untimely request there and understand that but the but that's a factual question put that issue aside which you didn't do is give any other away from the guards time supervising something else that like that probably would be sufficient the logical reason but there are none of those in the right honorable cases that have a line on a player to timely request the particular piece of evidence for a witness all outlined the reasons why when the prison says you didn't request this on time i don't believe that the that the due process clause would require them to go further and outlined reasons that are from the cases when they say it's not timely we have number of cases we've cited it's a timeliness or the failure of a timely request precludes a due process file ation we think that w of fish well and i suspect that we all agree that if the facts turn out to be that it was an untimely request the facts right now but if that's true you may be right but the problem is we got and to go to your point that you're just making one it might show what your person said the d h l report is that the defendant here mr liniers after you return to your cubicle you started yelling to the other inmates in the unit this is bullshit there are they all treat us bad respect deserves respect look how they are treating us we shouldn't have to put up with this these statements encouraged t to riot i don't know what you would think it is it's like inciting to riot puts it on this testimony maybe if we did have a film it would have shown something about that if that was  ting in order to time before he returns confronting the prison official in the open space with one hundred and seventy inmates around him who are already grumbling about the guards and not just say may i go to the bathroom but saying you are doing this to me because of my issue with another guard that is directly confronting that official is correct we undermine not officials farney and even mr  environment that is the type of prison background and context the courts repeatedly say we should not ignore this is what prison life is about this is what's happening thank you very to deny its existence at the very latest on the regional appeal i will note that the response was not there is no video created for this ok show and the regional the regional appeal do not ever deny the existence of the video it was never denied and b s and it was never denied in the briefing in this court i would also point to the although that's because their their position i'm advocating their position was we don't have to look right so they wouldn't naturally of denied it's existence as they say this if you don't ask for it i mean whatever it is is not costless to go get the video time place location all the video out of the system right and you know i think that i think you might i can often make alternative arguments this would seem to be an easy alternative for yesterday and i would also refer to the bureau of prisons it would also be prudent for the investigator to review and preserve the and then it would turn on whether i guess that the government had me and that it was not time and he had done nothing we wouldn't be sending it out even if he said what's wrong in other words we the evidence from the discerning disciplinary proceedings there is no statement by an official in the disciplinary proceedings the linear did not make requests for evidence the closest any mention of evidence is of the d h l level where the d h l said it did not consider any evidence other presented by either side and then the d h l also said that lennier did not have any said he did not have any evidence to present but it also sat very nearby to that he said he did not