morning your honour's amir please the court i'm lori jones appearing on behalf of petitioner jimmy moody this case is here for an argument regarding actual innocence it is our position in mr moody's position that he is actually that so i look for any supreme court case that i could find that would suggest that the actual innocence claim itself standing alone would be enough for hay vs relief and i couldn't find it in fact i found quite the opposite that the supreme court says we take no position on that i understand your honor but the position we're taking is it's not forestalled it isn't it was ok i would not be forestalled if there is no supreme court case that suggests well there has to be new there has to be a supreme court case to suggest it or or you're making the argument only to just go talk to those nine you want to go talk for those nine go for a no you're on how i'm trying to say to you is there's nothing left to say here well i'm less a supreme court tells me what to do i haven't got anything that i can do for you i disagree on i think what we have here  herrera and parkins eroded perkins don't say anything to the contrary to what i've suggested they don't but they also say the court has flexibility in discretion and i think that you know i mean i've read both and i know who wrote those opinions and i read how close they want to get to the line and those opinions but the bottom line is if you get to the supreme court there's nothing to suggest it's true but i don't think we can punish mr moody for that i don't i'm not trying to punish him i'm just trying to say is there anything i can do for hey biggest relief here i'm not punishing him if he was punished it was only on his own conduct or whether the underlyin did well i think the underlying conduct wasn't necessarily that the judge did anything wrong i just think that the jurors in that case didn't have all of the facts they didn't have all of the evidence and that is why this case has been going on for twenty seven years mr moody has time and time and time again presented his position that he did not do these things and that actual innocence is his is his last is his last hope and this court asked on prior occasions for us to discuss it the court gave us a lot of leeway with mr peters when he was here and i'm asking the court to understand that it is our position with herrera and mcteague and perkins that this court does have discretion that this court is left with a honor i think and there isn't as you said there is no case that whole set of free standing claim of actual innocence is is a basis for relief i agree honor but i don't think it doesn't have to be freestanding i think it's an issue that is there and there is no perfect slot to slip it into but that does not mean that he isn't entitle to the presentation of the evidence and that's what that's what we're asking for that's what mr moody is seeking from this court the ability to go back and have a hearing so that the test of the credibility of this witness who perjured themselves can be tested i'm worried about the hearing  verster stewart which was written by one group of our court said well we know what the supreme court is sad but we'll just assume that exists you this is the problem that i have with your argument if i go to the actual innocence and i just assume it as they did in character legal time but they're all kicking the can down the road and ok dana can all we're saying is given our standard of review how do we do it because the bottom line is if i step back and i do like character did and say ok i'm going to say it's ok even though the supreme court has said it's ok then my next standard or review is where do i get this case from the california state court what review do i owe to the california state court and part of you what does that mean they already discussed this issue and said there is no actual innocence here and there is nothing that i have to be able to go around that are you saying in this court they said there's no actual i said in the california court said that but they didn't actually test the question of actual innocence they were stuck on procedurally were ingested the similar claim that you are making that the delay in producing the evidence weighed against its credibility they said the delay in producing the evidence weighs against the credibility and understand don't but that's a way to argue it but what they really said was it's taken so long to get here we can't suggest that there's any evidence in this record to sustain this claim of actual innocence because we we can't find that because it's taken so long that it's credible and therefore we're not going to have an actual innocence claim and i understand what this court is looking at however  the door remained open for mr moody the door remained open because those cases i read in your honor i read them over and over again and i found myself in a time warp if you did if you don't do it within a certain time your first stop and your question of actual innocence is never tested and everybody is balancing this case back and forth for those issues in this court finally said look i'm going to talk to us about actual innocence and that and  hope that this court wanted to hear about his actually being in the what is the evidence of actual in a thank you your honor in this case the proof is that there were seven percipient witnesses there's two shootings over three day period of time those cases were join else in this case has recanted and there was one going to lie he has recanted that's not before this court i do have it with me go with the record ok well then the record well the court last time specifically asked about mr polite when mr peters was here and the state of the case then and i didn't want to come here today i can't lie to you we can't add to the record ok well i also i can't mr all these you have to look at the record that the california court was looking at and i understand that you are i just don't want to misrepresent the facts he testified one way but on cross he admitted to lying and so when you combine is these justices asked us to do the totality of the circumstances then in the totality of the circumstances you have mr moti presenting an alibi you have  and in this case would it jury be able to find reasonable doubt and it is our position that they would because if you look at each of the percipient witnesses recantation then you're left with mr jones who lied during his testimony a note that has no actual relevance to anything that's the sufficiency of the evidence standard in the actual in the standard is way higher than that right but you are in this case the actual innocence standard is met he  evidence and the entire record before the jury that convicted him no rational trier of fact would find proof so no reasonable jurors could have ruled against the innocence claim are you saying that based i mean i read your brief and i read their brief i cannot say that no reasonable jurors could have ruled against that innocence claim based on the briefing well your honor obviously we disagree well i know you disagree you got a point of view they've got a point of view yet and i'm supposed to based on briefing alone decide that so that's why i stepped back and said well isn't this a netbook lame didn't the california court of appeal have the opportunity to do this in this case it wasn't even the court of appeal it was the california superior court who had heard the case yes so this was the judge who had heard the case saying there's no way i can suggest that there was an actual innocence claim based upon the evidence that they're everyone keeps kicking it down the well that's and that's why mr moody is so passionate about this your honor he just wants a chance for someone to hear the evidence since send it back let the judge in the superior court listen to each of these these witnesses test their credibility way that in the totality of the circumstances and then and then make a ruling a court has it mean when you say hurt the evidence you mean life but the court has considered the evidence through way of declaration me please a court confirmed of any attorney general on behalf of the respondent i think that when you look at this case it is important to remember that in one capital cases the us supreme court has never clearly established that there is a free standing claim of actual innocence the difficulty i have is faith we have a case where there is absolutely no doubt that the individual is innocent d n a evidence or something that no one can challenge establishes the actual innocence is it your view that our system of justice it does not provide an avenue at this stage of the proceedings for an actual innocence person to be relieved that the conviction i and also i would like to say that even aside from the court system recently the los angeles district attorney's office established a whole unit called the conviction review unit that reviews claims of actual innocence and recently that office ordered that  petition to be released his name is raymond jennings he had been convicted of murder was a case i worked on and mr jennings is free today walking the streets he's a millionaire but but there is a valid you know meaningful opportunity for these claims i do know of another case where the district attorney's office filed the heaviest petition where they were they were convinced that the defendant was actually innocent the district attorney's office filed behaviors petition in the spirit were asking that the petitioner be released from prison immediately that gentleman's name ovando that was another case i worked on that was part of the rampart scandal so my point is i think that the prosecutors act in good faith and i think that the california state courts act in good faith in giving these claims close scrutiny so i agree if i so if the california state court does allow for this actually was claim on its own then frankly this petitioner could bring that claim in the california state court  go through the declarations the judge did go through the declarations all of them and he said i find the stepper ations insufficient to warrant either an evidence you're hearing or a new trial and so you know that claim to scrutinize closely and then the california supreme court tonight he's review as well so you look through to what the spirit were dead so the state courts didn't review that claim on the merits they obviously weren't concerned with with two to five four that wasn't the lens they were viewing the case through but the point is this  claim got close scrutiny and now that we're in this forum and two to five four it's a different it's a different analysis and and i have to say that i do think that in non capital cases until the supreme court s otherwise there's this not an avenue in this type of proceeding but there are other ways to proceed i believe that actual innocence could be a basis for a pardon request before the governor so there are there are and i certainly agree with judge wrongs and i wouldn't feel comfortable if i knew that the petitioner was innocent i wouldn't be standing here saying well too bad it took him to why you know i would certainly be concerned about that i would try to see that he got out of prison i don't think that that's shown by the decorations in this case and if the court would like me to kind of address the three that i think of the most important because to do that so in terms of the declarations that were submitted to the district court and the court was correct as to both the murder and then the attempted murders a couple of days later the record before the district court shows that there was at least testify at trial three bro were by witnesses who testified at trial and actually mr till it did not testify at trial he wasn't available there were others from the marrying transcript testimony where he had done for the petitioners the shooter in the murder but when you look at th liberations i think that the reason that the superior court found them so lacking was going to go through him and again i'm talking about the witnesses who testified at trial mr to what the witness to the murder said in his declaration i cannot say whether or not moody did or did not shoot at us so he positively identified the petitioner at the preliminary hearing reading the testimony at the trial and then this declaration he doesn't say that it wasn't a movie he doesn't say that it was somebody else it's just years after the shooting he says i can't say whether it was moody or not so i don't think that that's affirmative the evidence of innocence in herrera and the other cases they talk about if there is such a freestanding claim in capital capital cases this is an on capital case but if this is a capital case the standard is one that's extraordinarily high and truly persuasive and so when you look at the character case in character which was another capital case the key prosecution witness came interests if that wasn't enough in character how in the world can that be enough in this case and then when you look at two witnesses for the attempted murders two days later we have two different shootings the murder and then the attempted murders on new year's day  mr howard said about the second shooting i didn't see the shooter now he didn't then if i moody at trial and then it's certainly of concern that sixteen years later he says i didn't see the shooter that doesn't look good  affirmative that didn't suffer proof of innocence no injun's versus taylor which is a relatively recent decision from this court not a death penalty case was a child molestation case this court said something that i thought was interesting which is witness it would have been impeached without accorded then if occasions of the petition or the pretrial identifications that would have been a heck of a question for the jury to resolve how they have resolved that i don't know but i know that it would pass efficiency muster because we have cases like that all the time the petition at trial so the superior court can give has its declaration short shrift the last thing i wanted to say before i sat down is when you look at these cases i found it confusing when i was working on this brief but it's really important to compartment standard is lower in a case where the issues is are freestanding claim if you get by the lack of supreme court precedent on point which is a problem which is by the way is the only reason the district court ruled in this case this report never even bothered than here d n a evidence and house jackson i think had to do with new medical testimony all those cases found insufficient to meet to meet that standard and the evidence was better than it was here so if it wasn't good enough there would just address the actual innocence in the declarations mr lewis i'm sorry mary ann lewis is the most impressive of all the declarations we have she gave her statements over a period of time and she discussed the breath in the with of the fear factor in the gang influence that was going on time when you combine that with the fact that mr moody was in his twenty's i think mr hubbard was fourteen the fact that these people have grown up and i'm now thirty and thirty four and thirty six years old i think that leans to the credibility they have seen inside of a jail they know what it's like now they're no longer influenced solely by the extreme pressures of gang life they understand if you young and they were so impressed by the gang life and what was going on and if you look at it now they're grown men and they understand what they did was wrong that they understand the perjured testimony that they gave twenty seven years ago and the impact that it's had and if you take that and you combine it with the totality of everything that was going on the alibi the witnesses that came in the note the fact that till it didn't testify at the trial and now he's saying that that's because he couldn't make the identification