we're argument first this morning in case fifteen fifteen zero three turner versus united states and the consolidated please fifteen fifteen zero for over ten versus united states mr williams thank you mr chief justice and may please the court in brady versus maryland this quarter stablished the now familiar principle that the prosecution must disclose to the defense all favorable and material information this case involves a clear violation of that principle here the prosecution suppressed information that a serial adulterer of women had been seen acting suspiciously at the crime scene before police arrived the prosecution further suppressed that this man's girlfriend was in the alley at the time if he did not speak to her and she did not speak to him if this information had been available to petitioners a trial they would have presented an alternative perpetrator theory that that centered on this incredibly violent individual they would have told the jury that during october one thousand nine hundred four in this neighborhood this man committed similar assaults against similar victims they would have then posited to the jury that the same person put a cost of a d c council woman in an alley and attack or similar yes at the trial the witness mr freeman indicated that there were two people acting suspiciously he raised an objection that those names had not been disclosed the prosecutor explained his reasons for not disclosing the name and defense counsel get them on call the witness and get the names myself and then he dropped the ball what also occurred was that these  the prosecutors said that his view was that this was not brady so he made the statement that this was not breaking information and that he had to hear to his brady obligations this court made clear in banks versus dread key that a rule that the prosecutor may hide and the defense must seek is untenable under that's essentially what happened here in so doing justice sotomayor the prosecutor went further and he made a statement that perhaps not deliberately in fact still did mislead the defense counsel about the probative value of this information because he said first that mr mcmillan had no association with the garage that's not true and the all in the information suggests that it wasn't and then further he said that mr mcmillan was only at the scene approximately ninety minutes after the crime occurred and of course the prosecution was the only entity in that colloquy that was aware of information that this crime may have happened only thirty minutes after the crime occurred the way we view this evidence your honor is that really the alternative perpetrator theory depends on five pieces of suppressed information disclosed during the trial i don't think it was ever disclosed during the trial justice ginsburg it was only disclosed in the form of the statement of james michael campbell whose trial was severed and then and then he plea guilty later james michael campbell gave a statement that the prosecutor in this case later described as the most farfetched i believe one of the detectives used a more colloquial phrase that i shouldn't repeat at the court to describe the statement involved people that nobody else put in the crime scene which by the way includes mr mcmillan nobody else no witness put him in the crime scene and people doing things with golf clubs nobody else described a golf club involving a gun nobody else described a gun it was just fantastical and so the process defense counsel had no reason to believe in this goes back justice sotomayor to i think your initial point defense counsel had no reason to believe that mcmillan had been there acting alone that he was there without any members of this purported group attack ginsburg first let me say i don't think they would have all had to do it would be enough if a substantial number did it but let me further add i think they all would have done it and the best evidence for that is that michelle roberts who is a leading criminal defense lawyer in the city at the time and was until very recently she also had one of the weakest cases against her client a case so weak that the government now says it is perfectly logical that he was acquitted and she testified in our post conviction hearing that if she had been aware of the mcmillan information she would have pursued an alternative perpetrator defense so we think the evidence in this case suggests that all of the petitioners would have developed this theory and run with it and if i may add i think one of the reasons why they would have done that is that it's not that much of a difference from the not me maybe them defense surely in any criminal case when you have an i was a purported eye witness who does not identify your client closing any defense counsel will identify that to the jury i'm sorry but i my greatest difficulty with mr mcmillan is that clearly his ninety two crime which was decades after this crime suggests a similarity that would have been very potent at a trial but the disclosure of this greedier mr beacon hill and wouldn't have led to the introduction of that later committed  crime so what we're left with as an alternative theory is robberies of two women neither of which were in any way identical to this crime all of the defendant had crimes of violence and robberies so their criminal activity was just as that if not worse in some cases than mr mcmillan why would he have been a likely source as an alternative perpetrator particularly as a so perpetrator when he was seen with at least one other person he wasn't alone when he was seeing he was seen with another man there is no suggestion that the other man was involved so how how does he become such a potent alternative in light of those facts he's just like the defendants he is with another person so being a solo a solo perpetrator is not a natural conclusion so how do we get him to be the other person will sure do to be clear our alternative perpetrator theory is an alternative one or two perpetrators theory we would not fight the notion and i don't think defense counsel or trial would have fought the notion that it was mcmillan probably with assistance of his confederate who was seen in the alley with him let me go back to the foundation of your question just to sort of my or which is what differentiates mcmillin from other people in this neighborhood and from that and from the defendant's mcmillan's to other assaults of women were incredibly violent specifically his assault of a d c council woman which took place in an alley was so violent and so ferocious that the victim yelled murder and  and that was why people came to her aid she naturally thought and she told this to the washington post she naturally thought that this person wasn't just trying to take her purse that he was trying to kill her and that would have been powerful evidence that petitioners could have used at trial they could have put this d c council woman on the stand and had her testify to her opinion about what was happening to her or lay opinion that would have been powerful evidence i'd note just in regards to the petitioners criminal histories your honor the government never suggested that those criminal histories were admissible at trial they never suggested that those crimes of any resemblance to this crime and remember the government's theory was that this was a group attack so individual crimes that individual people may have done and don't really speak to the government's theory here we have a very powerful theory based on macmillan's own prior crime alternative perpetrator theory does seem completely inconsistent with the defenses that were put on trial i i'm not sure how you can say that they could have used both but in order to convince the jury to accept the alternative perpetrator theory wouldn't have been necessary to convince the jury that also i'm barred pled guilty and were sentenced to substantial prison sentences for crimes that they didn't participate in at all and that all of the other witnesses who described this group attack including at least one who doesn't seem to have the fourteen year old boy who doesn't seem to have impeachment evidence were perjuring themselves on the stand that's a pretty substantial burden to overcome isn't it we think that there is definitely a reasonable probability that the jury would have had a reasonable doubt and that's the that's the standard whether or not this jury would have had reasonable doubt and whether or not there is a reasonable probability that it would have had it even in light of these purported eye witnesses let me start with austin and bennett that i'd like to talk about thomas and i'd like to go if i may to the beginning of your question justice alito because i think it speaks to the lack of in congress between these two defenses and i'll get to that i promise i will get to that let's start with alston and bennett the best reason that a jury would have to disbelieve calvin alston is that calvin alston himself denied participating in this crime for months he wrote letters to a judge to appeal to a d c commissioner that he had not been involved in this crime and that his initial statement was false he only pleaded guilty after he himself was sexually assaulted in jail and his motion to suppress was denied kerry bennett received a similar deal he did not go through similarly awful circumstances but harry bennett was facing multiple other charges that brought with them significant jail time and he only pleaded guilty to get rid to diminish those other charges so a jury would think relatively little about those witnesses a different different you know i think in this case the jury already did think relatively little of those witnesses the jury acquitted two defendants that these witnesses put in the case going to mr thomas i  completely agree justice alito that mr thomas unlike the other purported eye witnesses does not have an immediately obvious reason to lie no immediately obvious reason to fabricate testimony but his testimony a different from every other purported eyewitness be changed dramatically over time and see is inconsistent with the objective crime scene evidence mr thomas testifies to one of the petitioners striking mrs fuller and then seven petitioners simultaneously attacking her if you look at the forensic evidence in this case there's no reason to think that she was simultaneously attacked by seven people i would direct you to page eight eleven ninety one in the hardcopy appendix that is a diagram of the injuries to mrs fuller anybody looking at that diagram would not thing that a group attack had occurred let me then return to the beginning of your question as to you still wouldn't it still be difficult to explain how thomas came up with a theory that would be a complete fabrication of scientists would be just a question that he was mistaken about things or he might have exaggerated or something like that it would be a complete fabrication with no obvious motive would that be true well first defendant at trial did try to point to a motive that mr thomas was a relatively unpopular kid who got in picked on quite a bit but i  agree that there is no immediately obvious motive for the fabrication what i would add justice alito is two points first mr thomas came to the defendant's attack came to detectives attention in the prosecution's attention very late in the day there was a huge amount of information available at that about this case by that time all of the petitioners had already been arrested so for him to stand up there and tell police oh it was these seven or eight people thought rocket science that's saying what was already available in the community i'd like to mr thomas ever recant no mr thomas has not recanted mr thomas is not recanted if i may just as a leader i'd like to go back to the very beginning of your question because i would like to explain how we don't think there is that much difference between what a lot of what the defense counsel tried to do and also using the alternative perpetrator theory the one thing that defense counsel did in their original trial which was devastating but by the way but that they would not have done in if they had access to the suppressed information is they would not have actively bolstered the prosecution's witnesses they did that over and over again and the lead prosecutor took advantage of that in his rebuttal closing he said and i believe this is that joint appendix page one hundred five something to the effect of well look at what these defense counsel told you they told you to believe all witnesses are the ones who say that my client wasn't there and the unbelievable ones are the ones who said that my client was there that's not a defects but why wouldn't that have happened anyway i mean even if you had this alternative perpetrator theory there's still a lot of defendants with a the other witnesses the alternative perpetrator theory centered on mcmillan would be powerful evidence to say look this is the story that we think you should consider about what happened this is the driver of reasonable doubt to you the jury hears an entirely different alternative account of this crime that differs from what the prosecution is telling it and they would use that to show look not only is this a reason to disbelieve all of the prosecution's witnesses but this is also a reason to disbelieve the specific witnesses that have identified my client lawyers are you still arguing in the alternative but other people are not and it's really hard to see how the defense argument could be this was complete this crime was committed by mcmillan other and a confederate of his but if you don't believe that it was committed by the group but i wasn't part of the group it's really hard to do that and if i gave the impression that that's what they would be arguing i apologize because that's not the argument that i think would be the argument would be mcmillan is the most likely alternative perpetrator he is the reason that you should have doubt about this prosecution's case these witnesses are flawed these witnesses had motivations to give testimony your reasons to doubt them and mcmillin is the obvious reason why they are all lying but it is still the government's burden to prove guilt beyond a reasonable doubt and if you look at this government's case if the government can only point you to depend you know for example the government can only point you to carry ellaby harry bennett and calvin alston you should doubt their testimony for the same reason that you would doubt that this crime committed the way they described it at all because of mr mcmillan's be present in the alley mr mcmillan's suspicious behavior so that's the way we think that they would all work together i would also add that the court should considered withheld evidence cumulatively we not only have the mcmillan information we not only have the statements from lucienne watts that indicate that the crime may have occurred only thirty minutes before the body was found but we further have information that undermines the investigation and this would have further diminished the credibility of the prosecution and the detectives it would have given the jury further reason to believe that these witnesses were flawed and they were the result of a flawed investigation have so much to cover i don't want to interrupt but why if mcmillan was the perpetrator would he have been hanging around the scene that that that that really concerns me why w if you commit a murder you don't hang around for an hour when we think that there would be two reasons and first he didn't hang around for an hour he was only at the crime scene for approximately five minutes according to what it was it was substantial was thirty to sixty minutes later it was most likely thirty minutes later that he came back and we would say that there are two apparent reasons why he would have come back in the first and most likely is remember mr mcmillan was hiding something under his jacket and the object used to commit the sodomy was never found defense counsel would argue to the jury that what he was trying to do was come back to the alley and deposit the object he used to commit the sodomy back in the garage the other reason he might have returned is he mistakenly believed that he had left some identifying information about himself inside that garage and he would want to remove it but the last point justice kennedy and i think this is critically important if you ask any criminal defense lawyer especially one defending a case involving a violent crime if he's happy with a defense that depends on his lawyer on his client being clever they would tell you they are not criminals are not clever and this court reasoned in calls vs whitley that you should not minimize the importance of alternative perpetrator evidence merely because it would require you to believe that the alternative perpetrator was shrewd and sophisticated mr mcmillan was not true and sophisticated and our defense does not depend on it instead our view is that mr mcmillan was the kind of person who would commit this type of crime he was an incredibly violent person his crimes at the time and even in one thousand nine hundred four depict incredible violence and that the jury would have heard about that testimony would have wondered what he was doing in the alley at that time why if he had an innocent reason for being in the alley at that time the not speak to his own girlfriend who was there that's peculiar the jury would have  really wondered why was he there in the answer would have been it wasn't for an innocent purpose it was for an illicit purpose it was for criminal purpose could i ask you a kind of a picky question that relates to what salutes the evidence part of the argument there is only one or two people could fit in the garage i assume why would that be so it's big enough for a car it's big enough for more than one or two people so it's ok with the court after i answered this question of like to reserve the balance of my time but to answer your question if you look at j a thirty in that diagram of the crime scene you'll see that there is a large amount of debris in that garage i think it's not impossible that there could only be that there could have been more than one or two people but the idea that there could be multiple people in there committing a crime at that time along with mrs fuller being on the ground that is what is unlikely and i point out that in the post conviction hearing the lead prosecutor on the stand agreed with us that it was highly unlikely that there was a large group in the garage with the doors closed if the crime was being committed at five thirty thank you thank you  counsel was rush mr chief justice and may it please the court the jury repeatedly deadlocked as to russell overton telling the court it would be impossible to reach a verdict i'm returning your conviction only after multiple assertions in past and forty to fifty additional votes in this incredibly close case the government not only wrongfully suppressed evidence of two alternative perpetrators but also withheld critical and pietschmann evidence concerning  key witness against overton kerry ellaby the case against overton was especially weak and ellaby as testimony played an especially important role in that case i'd like to begin by briefly addressing the weaknesses in the government's case here  at trial the government presented three key witnesses against overton who placed him in the alley during the attack the two cooperators alston and bennett and kerry ellaby all of those witnesses had serious credibility problems and their stories in several significant respects including among other things about who was involved and what role they supposedly played at the same time another purported eyewitness who the government later emphasized as the key to its case affirmatively denied seeing overt in the alley during the attack even though overton is exceptionally tall and the witness knew him personally which one was that that was maurice thomas that is not taken together a strong case and the jury acquitted a defendant alfonzo harris who the two cooperators squarely implicated in the crime confirming that the jury had serious questions about their testimony even without the suppressed evidence indeed even the lead attack as the center of the government's case against overton and the government wrongfully withheld evidence that kerry ellaby had persuaded another witness to lie to investigators to implicate someone in the crime by falsely claiming to have heard him confess that suppressed impeachment evidence is distinct from any impeachment to which all of us object to trial because of what it indicates about her motives lying to protect someone is understandable but lying to implicate someone in a horrific crime is malicious and elevate his willingness to encourage someone else to lie strongly suggests she would have been willing to lie to implicate someone herself and that she may have been doing and the defense cross examined her on some inconsistency between that testimony and her testimony at trial but the government didn't turn over this piece of impeachment evidence about her having persuaded another witness to lie and the investigate it wasn't redacted but it was note it was in the prosecutor's notes yes in the press and the prosecutor at the post conviction hearing and knowledge that he had this information and that it's the kind of thing he normally would have brought out probably in the grand jury testimony and that it is what the government says about that and i just wondered whether what your reaction was to it the government responds to libby was not fabricating evidence rather he was created for corroboration for something that was true well two points on the first there's a substantial question at least as the as it was before the jury about whether this conversation she claimed to have had with alston which the other witness falsely corroborate investigators actually happen she was asked about this on cross examination so frankly her testimony on this is quite confusing and self contradictory the prosecution later said well we had other confirmation that that conversation happen d but none of that was before the jury that was what the prosecutor himself knew from having spoken with the witnesses about it but what is absolutely clear on the record here is that the other witness kay porter had absolutely no knowledge of this supposed conversation she had no independent basis for knowing any of the facts that she claimed to have heard in that conversation and it was completely false both kay porter and carrie ellaby acknowledged as much to investigators and  disagreement mr chief justice and may it please the court this court can have confidence in the integrity of these verdicts the evidence of a group attack was strong and was corroborated by multiple sources who personally witnessed the planning carrying out and combination of the attack the evidence of the third party perpetrator that petitioners have now put before this court is weak and speculative there is no reasonable probability that even if petitioners joined hands and put on this evidence that a jury would have occurred that no group attack happened at all now the centerpiece of the government's evidence of the group attack consist of six witnesses two of them austin and bennett are participants in the crime they came before the jury they pleaded guilty to murder and attempted manslaughter they described their roles in the attacked they described the roles of the petitioners their testimony was not one hundred percent in accordance with each other i think the court would be quite surprised if it was this was a fast moving chaotic event with most teenagers and people in their young twenty's and the fact that memories diverged is a sign that they were telling the truth as they were called it not that they were fabricating evidence the group attack was further supported by the testimony of two witnesses who as was described in closing by alfonso harris his lawyer had no motive to lie no skin in the game and we go back to you first to that you who confessed  only raise any question about the verdict if they have a viable theory that no group attack occurred at all their theory is that it's the guy who was never seen with the victim never seen in the garage it's mcmillan not a group now the question of who was in the group is a different matter altogether and the defendant who was acquitted alfonso harris monk harris had a variety of things going for him that the other defendants did not she presented alternative arguments but to the extent that they depend on saying no event happened in any event if you believe the government's witnesses my guy wasn't one of them is weaker but i don't even think that that's the issue for the court to decide the issue for the court to decide is whether the undisclosed evidence about mcmillan if it had been disclosed would create a reasonable probability that the jury would have said no group attack at all these defendants were really you know there's a reasonable doubt whether any group attack occurred it really was this one guy doing it and i want to see you driven so hard case about whether it was one or more perpetrators more than likely more than one question is which ones we know they equipped to that you're and on two of them they deliberate longer and they i believe report not being able to reach a verdict on overture and turner so something was holding them up with respect to those to defend us if that's the case why would it take very little to say that at least with those two defendants all the cumulative of the withheld evidence reasonably would have  are let me start first with what actually happened in the deliberations because you can't understand what's going on with turner christian or an over ten unless you understand that the jury deliberated carefully convicted six defendants and acquitted two defendants after going through an elaborate process of considering the evidence in a six week trial sending out a variety of notes that all required consideration of evidence and common aiding in a request videotaped statement which he gave early on in the investigation it which he describes the group attack as a pincer movement with two groups of people moving out of the park surrounding the alley eighth street and ninth street and commencing the attack so by the time that the jury had convicted after watching the over to the yarborough video again they had concluded that a group attack occurred they had found evidence sufficient to convict beyond a reasonable doubt on six of the defendants two of them lisa ruff and monk harris they said there's not enough evidence to tie them in i think the evidence against least a rough and was particularly attenuated and the evidence against alfonso harris was just different as we described in our brief so by the time the jury is deliberating about over ten and chris turner they've already decided beyond a reasonable doubt that a group attack exists well mr freeman of course that's right because that was the only theory in the case and the question is what would have happened if the prosecutors had given over this evidence such that an alternative theory of the case could have been proposed i mean one of the things that you can't when you read these briefs and when you read the transcripts is this was kind of guaranteed to be bad for the defendants in the sense that without any alternative theory it was it was a circular firing squad and it was you know you should believe the guy doesn't incriminate me but of course you should believe i missed everybody else and all ten of these people saying this it created the worst of all possible worlds for the defendants and i think what they are saying now is as compared to that of course we would have run with this alternative theory and it would have been a completely different trial justice kagan it's not actually accurate that they had no alternative theory rouse who is the defendant who committed the culminating act and has four separate people testifying that he did it when the most obvious alternative perpetrator defense the one that was readily available to all of the petitioners alston and bennett are getting up on the stand and saying i participated in this attack so did all these other people that's a classic defense strategy is to say they've admitted their guilt now they're trying to spread the blame in order to diminish their culpability and rouse his counsel got up at closing argument and said the way the crime unfolded is that harry bennett calvin alston and darryl murchison did this on their own they throw throwing my client in order to mitigate their own culpability so they had the most obvious alternative perpetrator defense what they're now talking about is one that would require the jury to disbelieve melvin montgomery about the way that the attack originated in the park maurice thomas a fourteen year old which they admit today had no reason to lie about what he saw one of the defense counsel described  walking by looking in the alley and seeing the beginning of a murder in progress counsel stated today that maurice thomas has to change his testimony from the grand jury to trial about where he stood that is not true if you look at the record he always described the group that was attacking the victim who he did not know until he heard her call out help somebody help me when the petitioners attacked her there was a group standing behind it in the alley further back who he could not see and this  one of the reasons why i think to return to just a sort of my oars question about over ten and chris turner chris turner is not making any individual ised argument here at all for him it's alternative perpetrator mcmillan or nothing now over ten is making a separate argument that i wouldn't have been convicted because maurice thomas who knows me didn't see me in the alley and i'm six six and he surely would have seen me but maurice thomas is describing a seventh grader walking by an alley and seeing seven people begin to beat on someone who's screaming for help is that i looked at it my attention was drawn his credibility i think is enhanced by the fact that he says i identified four of them positively three of them chris turner smith hollywood and dirk harry bennett i think that was them but i'm not sure he stuck to that testimony throughout he didn't embellish he didn't inhance he described what he saw and he was there for only a short period of time so naturally he was not able to recognize everybody that possibly was on the scene so i think justice kagan what you have here is a case where the yes the defendants did point the finger at each other they really had no choice  a videotaped confession that's going to come in in which he tries to distance himself from the events that occur in the alley but he describes the same unfolding of the attack that alston and bennett and montgomery described their standing in the park there singing the chuck brown song catlett is singing it steve webb is banging out the beat they're talking about getting paid which is a euphemism for robbery someone points across the street alston testifies it's him montgomery isn't able to say who it was says let's go get that one montgomery who by the way is kind of connected to overton because over ten is the godparent of his daughter montgomery testifies i saw overton point across the street and i looked in the direction that he was pointing and i saw a woman there he doesn't say doesn't exaggerate and say i know who i overton was pointing out but he describes what happen consistent with the testimony about the way that the crime unfolded of alston and bennett so i think for over ten to say that there is no other evidence besides kerry ellaby against whom the incremental impeachment was not significant is wrong there is melvin montgomery describing how he's there in the park now over ten also offered an alibi that was completely discredited at trial he testified that a woman named maria michaels was with him in the park at around two thirty that he got very drunk and he decided to go home with her and he went home and at home his grandmother and his sister saw him his grandmother's testimony at trial was basically rated by the fact that she admitted that her daughter had to tell her what to say and  over to his sister didn't back up the alibi but she's a family member and the testimony that they offered is directly contradictory to the way that montgomery describes overton's behavior in the park overton also  put in a jail cell with chris turner and the two of them are talking and a detective testified about what they are saying chris turner later took the stand and cooperated treated why did it well i think that this is a this was a six week trial with ten defendants as your honor pointed out the evidence was extremely compelling against defendants like rouse catlett and yarborough even still the jury did what you want a jury to do they asked to see the court has made clear in eggers and in strickler that it's not might have reached a different verdict it's not that low of a standard it's also not a preponderance of the evidence it's not that high of the standard but if you read strickler very carefully because of the best case that really illustrates it shore various pieces of exculpatory evidence had they been offered by the defendants i submit they never would have offered the mcmillan theory and i'll explain why but had they offered that you can speculate that perhaps some german have had a reasonable doubt but that is not the same thing as having your confidence undermined that the jury still would have concluded that a group attack occurred i've talked about for the witness who saw the two cooperat pleaded guilty describe their own acts i've talked about maurice thomas the seventh grader who walks by sees the beginning of the crime unfolding in the alley that's what overton's counsel said to the jury at closing and i've talked about melvin montgomery who's in the park who describes how this pincer movement unfolded and began to carry ellaby linda jacobs to girls who are looking for smith hollywood because kerry  seeing smith go into the alley they see the attack they describe can i ask about the facts of this and it's a similar question on the other side to the one that justice alito asked about the garage this one i sort of think of the fact that it's five o'clock on a monday it's on h street a busy thoroughfare there it is in the prosecution's view of this there were fifteen or twenty people carrying out this concern movement as you describe it there's an alleyway but it's backed up by houses on both sides why is it that in the end the government's witnesses were two people who were charged and were making a deal with the government and who had reasons to make a deal with the government a couple really drug addled people and a fourteen year old boy i mean you would think that in this community there would be so many people who would see that kind of attack that the government suggests happened here and why wasn't that the case so first of all the justice kagan the government looked as hard as it could for witnesses not all of the buildings that back up on this alley are residential buildings there's a bank that doesn't have windows  walls but i think that probably the best explanation of why nobody came forward or saw it or heard it is community fear there was a gang that existed in the park at eighth and age street engaged in a fair amount of crime if you look at the petitioner's criminal histories you'll see that for many of them this was not their only robbery in the area and the government worked as hard as they could to try to get witnesses the way that the government actually found out that a group attack occurred is because a woman anonymously approached a police officer on the night of the crime and said she saw clifton yarborough standing by the alley on ninth street turning his head back and forth like a lookout and the police picked up  and they interviewed him then you can see this is on october fourth this is the very first time that the government gets any inkling that this is a group attack with a large number of people the crime scene doesn't tell you that they learned for the first time yarborough who's distancing himself naturally and saying i wasn't really part of it but he's describing the same thing we want to get paid let's go get that when she's got big money and then later when he gives his videotaped confession he says the same thing now he is attempting to extricate himself of course saying he wasn't really involved in any of the violence but he's describing the same group attack so i think the community here was basically under siege this was a crisis and witnesses don't come forward necessarily when they may have fewer about it or they just don't want to get involved remember maurice thomas he's the seventh grader no motive to lie no skin in the game no deals with the government his family doesn't really want him involved in this he goes home and he tells his aunt i just saw beating in the alley she says don't tell anybody else about what you saw his family doesn't bring him forward when he knows that the prosecution is evidence that seeking evidence about the crime of eventually the prosecution has heard that there's a kid named maurice who knows something about this crime they're interviewing other members of the family and they discover one of the people who lives in the house is maurice they bring him down he tells the same story that he told at trial so it is more gravel i think that the government doesn't have civilian witnesses but in criminal activity it's frequently the case that the only people who can really tell you what happened are those who participate and so they make deals and those deals are exposed in cross examination at trial the of preposterous he examined carefully the way that the evidence that they are currently saying matched against the evidence that they gave in the videotapes and the videotapes are in the record and i would urge the court to look at the videotape of alston statement to the police in late november look at the videotape of bennett's statement to the police in february bennett when he's describing this crime and he gets to the commentating act breaks down he can't even talk about it alston similarly has an emotional reaction to it they do not think that they're implicating themselves in the crime by describing the way that it unfolded and the commentated in the alley because they're not admitting what they actually did they eventually realize that in the face of evidence that would be overwhelmingly likely to result in a conviction and a very long sentence it was in their interest to cooperate defendants are perfectly able to and they did cross examine at length to attempt to show that these motives to lie resulted in  false testimony but what they had incredible difficulty in doing is explaining why is it that all these people are telling stories from their own perspective of a group attack if it didn't happen and that's what they would be confronted with if they tried to say it's this mcmillen guy he ran into the alley later he has to snatch and grab a person at these crimes were nothing like the murder of mrs fuller that occurred in the garage yes he hit people but there they are a light years different from the crime that actually occurred they're so different that if the government had attempted to introduce those criminals convictions as for zero four be evidence we would have been shut down and they are they would come in only as propensity evidence under a very generous interpretation of third party perpetrator defense in a case called winfield by the d c court of appeals that lay a decade in the future at the time of trial there was no reason to think that those criminal convictions even would have come into evidence what about the attack to mr williams described the attack on the council on the cancer yes i mean she certainly was terrified as i would be too if somebody came up and hit me in the face and grabbed you know a briefcase and ran off with it but they were snatch and grab person actions they did involve violence but they didn't involve somebody sticking around to beat somebody the way that mrs fuller was being and this is for evidence the prosecutors didn't know this but in the end mcmillan commits a crime very much like this but i think the crime is actually quite different yes there are some similarities it's the neighborhood he does drag somebody into the alley but that crime unlike this one which involved an act with a pole that crime resulted in mcmillan being convicted of murder and sodomy sodomy defined as a crime involving use of the sexual organ to commit the act and he was seen running away from the victim pulling up his pants so i don't think that these are both horrible crimes and horrific acts but they are very different in nature i mean what what levi rouse was witnessed doing by four different people to mrs fuller is more accurately described as torture and therefore i don't think that the court should reach the conclusion that because mcmillan's crime was some house signature crime he actually is the one even if the evidence of the time wouldn't show that even the defense expert at the post conviction hearing conceded that these were not signature crimes so what you really have here is speculative evidence that could have deployed by a defendant i doubt it would have been deployed by a defendant because they had such an obvious small group fury of the crime austin and bennett and only one of them argued it and that was rouse and you can see why rouse would do it he had four eye witnesses that are putting him right there in the scene committing the act what else was he supposed to do he also got on the stand and testified to an alibi that directly contradicted charles turner's alibi rouse has him being with him with turner at a time when turner says he's not with wow why does michelle roberts who has a client who evidence is quite weak against say that she certainly would have run with this evidence and she is you know when you read some aspects of this transcript again you see that although the ten layers had ten different sets of interests to the extent that there is a lead lawyer in this case it's michelle roberts who is the p d s lawyer who was a woman incredible skill and experience and says she's clearly would have gone with this evidence well her client was acquitted she's not before the court as a petitioner and i agree with you that michelle roberts is a superb lawyer and perhaps she would have tried to deploy it but it would have been a very difficult sell to the rest of the defendants and i think that that if the defense would have had considerably less force than the even very diminished force that i think it would have had anyway if somebody like  yarborough is not going along with that how is yarbrough supposed to say to a jury yes i you know said to the police in a videotaped interview that there was a group of people in the park and i was one of them and then many of the petitioners are among them and they left the park in order to follow a woman saying let's get paid that one she's got big money how is she supposed to do that defense and you also would be asking the jury to say it's basically this mystery guy no one has seen her we had mrs faller no one has seen her seen him with any of her property and to answer justice kennedy's question what is he doing back there in the alley he lives on the alley on a street this is a short cut to his house he's  from the alley on one street that what people have referred to as the cut in the alley is a north through it so he takes the east west alley he goes up the cut of the alley that's where he lives what was he doing in the alley and the time i think the prosecutor a trial said was all we will ever know we don't know no one will ever know why he was running back and forth there but his name not given at the time justice ginsburg the policy of the department of justice was that we comply with our obligations under brady we comply with our obligations under the rules of discovery and if it is not required to disclose information we will not provide it i think that as justice sotomayor mentioned this was raised by michele roberts  h the court she said that she would pursue it later when she was interested in determining was that a two guys that were seen by freeman in the alley freeman the being the one who discovered the body were not her client and she later argued that to the jury because there was no evidence that they were her client now today the department of justice has adopted a different discovery policy that exceeds what's required under brady and this court's cases interprete ing it that was adopted in the united states tourn 's manual in two thousand and six and the department devotes considerable resources to giving guidance training and supervision to prosecutors to go above and beyond brady and disclose information that a defendant might wish to use even if it's not  given him because unless the government has a good countervailing reason which it often does such as witness safety or concerns about obstruction of justice providing that information to a defendant about the crime scene about the the general timeframe in which it occurred would be good practice and it's the practice today the question for this court is whether there is a reason probability that the jury would have reached a different verdict if it had turned over the mcmillan evidence and the defendants had presented that mcmill evidence to the court that is the same legal question that occurs both ex ante and ex post ex ante it's harder for the government to know what the defense will do with information and that's why a generous policy of discovery is good for the finality of criminal convictions as well as the fairness of the process this court encouraged it in kyle's vs whitley in one thousand nine hundred five it specifically said prosecutor anxious against about tacking too close to the wind will turn things over in close cases that is the better advice that's the department of justice whose advice today but at the time the prosecutor looking at the tenuous connection of mcmillan to the crime the only evidence that we had were some statements from witnesses which were not enough to prosecute that mcmillan was actually involved in the group attack wasn't enough to prosecute him but there was certainly nothing that suggested that he alone see created in the garage was somehow engaging in the crime that six different witnesses told the jury had occurred as a group attack and that was what he said to the judge michele roberts could challenge that and ask for a ruling on it it wouldn't resolve the brady question because the brady obligation is the prosecutors it's not the responsibility  judge but the fact that the defendants didn't press forward on that shows that they had very little interest i think in trying to identify a mystery man as they can the person who had committed this crime alone rather than taking the government's evidence as it seemed to be which was a strong case of a group attack and the question was which defendants were incorporated in it and if the court has no further questions we submit legal layers of the court made below first it emphasized the reasons why a juror might disregard the evidence while ignoring reasons why the jury might not disregard the suppressed evidence i think the best way place to find that in the court's record is petition appendix pages forty hundred fifty four a second the court below criticised the evidence here because it goes to the basic structure of how the crime occurred that's at page fifty four a i'm sorry go through that would have been sure the court criticised the suppressed evidence because it goes to quote the basic structure of how the crime occurred our responses exactly and that makes it particularly probative it shows how this whole case would have been cast in a different light if petitioners had had access to that information would  presented alternative theory and third there is an assumption running through the court decision below that the jury found the government's witnesses credible well that's because the jury only heard half of the evidence and even then the jury deliberated for a week before returned any verdict and it was a split verdict was that is an illegal or it sounds like a factual error well no i think it is a legal area your honor if you look at parker versus gladden which is a case from this court in one thousand nine hundred sixty six it's a opinion but this court held in that case that the length of jury deliberations suggests that the jurors have doubts about the guilt of the accused so yes we would submit that that is in fact a legal error but if you want to consider it an error of analysis so be it we think that those are the three principle errors in the decision below if i may i'd like to make for quick points before i step down first in answer to your question justice kagan there was a civilian witness it was william freeman and he was standing at the corner of ethan each all day he said that there was no group attack he did not see any group cross the alley he did not hear any screams from the alley he had no reason to think that this group attack had occurred that was testimony in the record from the only civilian witness the only person who did not have reason to fabricate testimony as a young inarticulate witness who was being through was being pressured by police to improve inculpate himself or his friends second the government focused a great deal on mr montgomery is a perfect example of these types of witnesses mr montgomery was a drug dealer who spoke to police only after being threatened with arrest and then admitted on the stand that he only named people who had already been arrested that would weigh on the mind of a jury they would think that that is a that all of that testimony is a reason why he might fabricate fabricate evidence third the government focused on mr yarbrough statement i remind the court that the jury would instructed to weigh that evidence with caution that's at page eight five nine of the hard copy appendix eight eight five nine and the fact that after deliberating for seven days the jury asks to look at that information shows that the prosecution's theory here that there was clear evidence of guilt against some people is untrue because they keep on pointing to mr yarborough but after seven days of deliberation the jury wants to look at evidence regarding mr garber and that's the last thing they do before they return any verdict last overall the one thing you did not hear mr grieve in mention very much was the object of crime scene evidence the objective crime scene evidence in addition to the alternative perpetrator theory would have presented an overwhelmingly powerful case of innocence it's certainly would have been enough to be a reasonable probability of the jury finding reasonable doubt and that's all the information needs to establish as we pointed out in our brief the purported eyewitnesses got the injuries to the victim wrong if you look at  page eleven ninety one as i asked you to look at before you make that clear they got the location of the sodomy in the garage wrong the government's theory a trial and that was wrong the government has never sought thank you let me just finish  sentence yes the government has never sought to explain how it has it can correctly explain where the sodomy occurred thank you thank you counsel face is submitted