morning my name's jim boren i'm douglas barnes lawyer i was in two thousand and one when this case was tried and i have a couple of things to just to start  with i think that it is important to understand what the theory of the defense was at the time of the trial in two thousand and one that douglas was nineteen years old and he and fifteen to twenty other young people went to a park to have a fight before i was that would have been called a rumble at some point in time in my time when i was nineteen years old i wasn't looking for a fight but apparently that when i was out on a friday night but that was not the case in two thousand and one with these kids the theory was that there was a there was a fight and that that there was a consent there wasn't a battery or  prosecutable crime because people voluntarily agreed to a fight and therefore that if that if the if the injuries occurred during the consensual part of the fight then there was not a crime because mr idella died in the fight and the theory of the defense was that the fight with progressed in two different faces one was the big fight when everybody was fighting on what we call the parking lot and then on the other side of the rail landside dale who had been injured and hurt and the site in the fight was picked up by two of his friends and was taken to what we call the other side of the rail and on the other side of the rail that's where the real that's where the rubber met the road in the time of in the fight in the trial who was on the other side of the rail and what happened to  came they all came back and the question was who at that point was in gauged in the fight with idel particularly after he fell and was down on the ground and was incapable of resisting or fighting there wasn't anything at that point we all agree there's no consent you can't beat up somebody who's on the ground and the real battle was there were two people who testified as to they were there on the on the on the idel side if you will mr babineaux and mr karr so mimi and their testimony was as to who was involved in the fight was it or take go in brewer and barnes or was it just or take go and so that was the theory of the defense who did what and when the end if you just of what i have learned is that every single different lawyer who reviews this case has a really good argument as to what happened depending upon which portion of the testimony you cite in your brief it was a chaotic fight and you know the record of what happened at the trial there was a trial it was eight days long lots of witnesses testified and you can make a good was the first thing that happened and this is the second thing in my right they've even if we get to the merits which sort of collapse with the cause and prejudice on kasumi even if we can get there past the bar ultimately it turns on that last paragraph being commended for for being for telling the truth and i've seen you're a first offender so you going to get low you're probably going to look where's the material giggly on that how do you i mean you're well it depends on when that happened it depends on whether that happened before he testified or or after he testified even if it's before how do you use that to impeach because he is well because he sets the five at trial that he had no discussion with any prosecutor prior to the time of his testimony about a about a deal or a benefit of a ok maybe i'm not i'm not your understanding on the following i may be but i guess i'm looking for  what she says isn't a deal for him she's saying you're a first offender you're going to get off and she's not his prosecutor she's not in fact he disclaims the ortega affidavit which did describe the deal he says that that was a l and the answer is you know each one of these witnesses would say one thing on direct and then on cross examination they would take away from it well i didn't really see him or i didn't do this now casa mimi when he testifies there's two parts one is the recantation which is completely trial says i never had any conversation with the prosecutor about this they never gave me any help they weren't the prosecutors i was charged with an armed robbery and with a believe it was a gun charge in federal court two different charges which carried substantial time and i got a very very light sentence and i had we known that the prosecutor had said you know you're a first offender i'm going to see if i can help you get a lighter sentence or something like that we would have cross examined kasumi about that but we were not aware of it in fact we weren't aware of it until two thousand and eight be you know in a close case where the needle is right in the center one thing or another can push it through the trial one way and i did i was the trial counsel i didn't handle the appeal i got back involved in the case of pro bono for the until it got here in which which point i asked to be appointed by the c j because i was familiar with the case that i want to i want to hold that thought order because i want to tell you how i see in in two thousand and thirteen the louisiana legislature changed louisiana's law we became the fiftieth state to discover too old to require discovery of witnesses statements in advance of trial in one thousand in two thousand and one the rule was they don't you don't get to police reports you don't get witness statements you only get what the government says is brady and they turn that over to you and so they're and so what hill statement because in and the other thing i want to point out is that we raised in two thousand and four i filed the first what i what is called a louisiana shell petition i'm sure you're familiar with it and it's like we don't know anything about this case but we believe one of the paragraphs in the show petition was that the state has not provided us with brady material and giggly zero material so the very first time that we appeared we said there were and they and we said but we don't know what that is yet because we're just now discovering the only way you get discovery is you get convicted you go to prison you lose your appeal and then you get a right to file a public records request and that's when you get all of the discovery so that's when you learn all of this up until now up until two thousand and thirteen that was the rule so the position that a defendant is in is this he that he he has to say look this statement that i got had i gotten it before i would have done this that and the other with this there's a chart the only of the my me just quick on the hill statement it's in some ways it's simpler because we don't go through the procedural bar issues but that statement you didn't receive even any format no no you did get it but you didn't get the synopsis in the recording but you got something else that was wrecked we got a police report no we got a we did get a report that said that a statement was made we did not get the statement it wasn't until two thousand and five after this of after our petition had been filed and was pending for a year that we finally extracted from the sheriff's office this recording of of hill and there's an important exhibit i don't think that noted it in the brief but i think that it would be helpful for you  to review in the we filed an objection to the commissioner's finding in state court and that was then two thousand and five and there's a chart that we put together showing what hill's non disclosure statement said and what his trial testimony said and i only commend that to you to tell you that those are the issues that would have been developed on cross examination and i also notice regarding the hill statement and  significance of it is that judge andersen who was the presiding trial court relied almost exclusively on the hill testimony to say that douglas barnes was a principal to do this crime so alan hill state statements  testimony were in our view critical on the whole part of it one of the challenges you face is that the state court did rule on that on the merits and said it wasn't material and so we have to view that through this deferential lens of having to find that the state court was unreasonably applying the law in saying it was not material are there any cases under ed you can point us to similarly where a breach brady materiality or lack of materiality finding was made by the state court and we said that was unreasonable i would start with call's versus whitley because that is not the analysis that was used by the state court magistrate i believe i think they a properly applied federal law and the improperly reviewed the facts  whitley says that you cannot take a prior inconsistent nondisclosure statement and view it in a vacuum that you have to look at the totality of the circumstances and so if you look at the totality of the two the two primary witnesses were hill and now that one has recanted and provided information about a deal and the other one has testimony that was inconsistent the entire the entire package should be examined rather than just the rather than just the hill statement and if the state if a state magistrate judge says this turtle is actually a frog then i don't think that that you know there is some limits to to an analysis of the facts and her written reasons magistra that nobody has ruled on the relevance or brady notion it's been ruled time barred and is not relating back which is why a point out that the two thousand and four petition says generically just for this reason because we know in louisiana you don't find out what happened until years and sometimes a decade later when you finally thanks rhi out the statements from the law enforcement agency that through public records request and search must be frustrating to you but the in the end with maybe not much reasoning anderson first circuits were all say procedural bar have you ever been able to understand what they see the basis for that well they don't give any reasons for that at all they simply say procedural bar and and you know i know that that's entitle to deference but but to me that is a conclusion and i would also say that the me that you're with your best case and i can little and this would be a new it's a de novo review it seems compelling even if you didn't ask brady to amend it sees a fairly compelling equitable taling case can you to me but can you help me with law that would support they argue to the court over the vigorous and well put arguments of they only that look this is the spot we're in your honor here's here's douglas barnes options he can pry to proceed in federal court with the most likely ruling being that you did not exhaust your remedies in cost of me or we can stay in jail for another year or two which turned out to be many more years in jail while we try to litigate it in state court and put it all together so that the cost of mimi hill case can be heard together and that's what we plan to do and they objected and the judge said i'm sending it back i'm going to let you do that they didn't appeal and say hate that circuit this is not the right way to do it if you get equitable totaling you still got i do i do it there's a lot of moving parts you know the i'll give up my five if you have more questions i want to answer them rather than spend my time on rebuttal i like to have rebuttal it's you know we don't get your you know your answer to the on the no prejudice which is going to become a natural in a minute is well there were a lot of eyewitnesses but not to the second portion the record answer that's correct and one of them has recanted and the other one is severely discredited hill  story is before that lance gets up and runs to the other side of the railing that's where that's where he saw the fight thank you different i guess you might imagine in that we have two problems here you know trying to jump ahead and talking about because the manias kind of you know put the cart before before the horse as far as i'm concerned because in this case we we in fact due diligence doesn't seem to be part of the rule in which here in the state any reversed a hearing after it came back as i recall what we were arguing there was the question of whether or not the due diligence had been sought in finding the alleged new evidence after we had that hearing before commissioner smart i don't believe it was commissioner morgan i believe was commissioner smart when we had that hearing the question on the table was did counsel act diligently and looking for that evidence or did he need that diligently for his smart wrote a recommendation and basically said that he believed to have a hearing on the merits of the cosa many claim we filed what's called a traversal basically an objection to the to the commissioner's recommendation and judge andersen sign an order saying that he found all of the claim to be repetitive and or untimely ok now and repetitive repetitive is more than just that it's been foul before it could be you know could've should've would've you know if you look at nine thirty point four in louisiana it could be repetitive if you could've raised this sooner or you should've raised it sooner there was an objection of trial and you failed to raise it sooner i mean there's like four different subsections two are repetitive or the way they could've known about the encounter with the how could that how any due diligence they would know what another district attorney said in the hold to a lead government witness the allegation in a close to me affidavit which i maintain is not part of our record at this point but the allegation in the in the coming close to me affidavit was that tracy barbera was the one that and she was that i was i don't see is the procedural bar what instead of saying it's both on time the repetitive tell me which is the better basis on time well repetitive i mean it depends on how you do it i mean repetitive would be the better one because repetitive one that says that you should go out and seek out your claims and try to bring all your claims in one claim for instance how can they seek out the fact that a government prosecutor talked all that would have taken what occurred in this case recantation yes but ok let me i'm not being clear where because since the court's all three levels that i looked at didn't elaborate which the bar and the basis behind the bar i'm guessing you gave the state court system the best procedural argument so in the record where do i see the underlying reasoning behind the repetitive statement bar where will i find i believe that's probably going to be in our brief sorry i guess first of all that we made to the to ok and you wrote that in so what was the reasoning we argued that these are claims that could have been brought right and they go to an independent of you they do men belatedly maybe but but you know what i did lee is what gets you bargain sam but you wouldn't have known what the government had to disclose to begin with which is we may or may not have made a promise to our lead witness the guy that gets him on the second assault but if you don't ask the question then you never get there's going to ever ask something that they're owed constitutionally or you wouldn't think i got to ask did they make a promise they didn't disclose to me apparently they did in this case i mean i don't know exactly how the evidence came up i affidavit so we haven't put any witnesses on the stand i believe the entire thing to be faults but our argument below me was on the stand you had for lack of trial yes sir and i believe the question was asked if i'm not mistaken at trial and he denied that any claim said that anybody had made him any promises if i'm not mistaken so the recantation which came later was news to everyone including the state so you're presupposing that the state must have cross examined him on the on his credibility as the recantation at all i don't remember a single question of your saying a lot of us i mean of the of the defense of i'm not mistaken but it's been a while since i've read the trial court record but again we maintain that it never happened we haven't gotten to the merits on that so we've never had any witnesses have testified on the court decision i can read that is a similar as possible to a procedural bar applying here just to give me a case most of them you don't well for until recently you haven't got a lot of supreme court decisions written on our helmets conviction cases or appellate level decisions i e you don't have a whole lot there i mean with post conviction i but there isn't a good case that you can give me now i merely wind up doing it on writ practice a lot of times a writ so you get you know the one or two were written i also you know unless you read the underlined brief you don't know what was contained in that record except for the written i'll that's one thing that both sides  the supreme court among others and mr born and i have both been on various committees recommending to the louisiana supreme court that they need to give us more information in the written dolls and post conviction actions and so we you know we've tried to do that but in this particular case though again you know the state district court found that it was repetitive it should have been raised earlier i'm assuming that's the repetitive bar that's the repetitive bar argued the district court judge did not give us a lot of reasoning whenever he did that he just found that it was repetitive as obvious as more than two years after the fact you know and the judge either didn't buy that it was newly discovered evidence or he believed that it was evidence that wasn't diligently pursued again he didn't give us any details that was my argument below and i'm assuming that's what the court found but i can't you know i can't tell you that because the court didn't say that but in the federal court when you're dealing with the heaviest petition and you're looking at what occurred in the state court what occurred here was it was procedurally bar so the whole case i mean the claim were individual that looked at  the commissioner didn't agree with that every other court said it but they never took you lead to the reasoning behind that i believe the district court's order did articulate that if i'm not mistaken states it doesn't ok it well that was a judge's ruling he didn't provide reasons for that ruling i saying right and you know again and always ana judges aren't necessarily required to give reasons for their ruling but i think if you look at all of the hay b s cases including you know the lineage that we go through all the time we talk about paul and we talk about harrington versus richter we talk about all those procedural objection the rule in federal court is if it's zero if it's a pre drill objects and it was maintained in state court all the way up then we get to federal court we have an independent adequate state law bar and that's what we maintain we have in this case and whether we amend the just report relied on the district or rely on the claim and basically this court reviewed it and said if you go back to state court you're going to be ta'en bar if your town barred its independent adequate state law bar so when you come back to federal court you're going to lose so in that case the fifth circuit basically refused to grant the stay in the bay refused  grant the certificate of appeal ability and said because if you go back you're still going to lose and we maintain that that's essentially what has happened in this case as you addressed you argued before the district court when it granted to the federal district court that  yes this was a new k o but i'm sorry that argument that it would be barred when it came back yes what we argued before the district court he was considering the stay in the bay procedure and we said well your honor basically what we have here is you have the original claims that were filed in the claim and he's going to be on timely and we said we argued then under male versus felix in other cases that you were you're not to be able to come back and argue that this relates back you're not going to be able to say that you're timely to amend your petition and we argued against it and we said you shouldn't do this the two thousand and seven hey b s case so you've got you know amendment seven years after the fact and how do you say that this is time so the magistrate looked at it in a magistrate went through and basically analyzed four different ways and said that he cannot find any way that this is timely and he mentioned equitable telling he didn't go into it in great detail but the equitable telling argument is basically based on counsel's assertion that he was following quote the path laid down for him by the district court well if you look at the record this path was not laid out for by the district court counsel went to the district court he filed his motion for stay in a bay and he argued that what i need to do is to exhaust my new place a meaningful aim by going back to state court and like he said over strenuous objection we had a long argument on it you can read the argument i mean the sixty pages long we had a big long argument over whether or not it was proper to stay a case where that all the claims were exhausted and go back to state court to bring up a new claim and the propriety of then amending the petition in some future point to add in the previously on exhausted claim to end it right there in front of brady and then if it was going to be amended in not by what our get below notice of what the new i mean it's not a case of lack of notice which is what the amendment requirements for of notice in terms of actual prejudice what prejudice did you know that's not it's not only about notice your honor if you look at cases like male and some of those other cases that follow that that they they basically lay out the does not merely about a notice requirement it's about complying with the one year deadline what the claim was if you want to go get evidence at the time yourself you were able to wasn't going to get stale but the claim is still on tom i mean you're basically finding a way to go around the time bar by saying oh well you knew about felons of any way  why don't you respond to his comments on through the materiality the brady material where he says these were the two there were a number of witnesses we all know that he says these are the two most central witnesses on the second part of the interaction follow up on the one question before i go there i mean again i trying to remember the case i believe it was male and i believe it is justice ginsburg went through and did did a very fine job of explaining that it was more than notice in fact you know she she bolded in their opinion that the stuff about the and you need to bring all your claims and you bring up at one time you need to do it at the in the in she referred to rule two of the heebie as procedure articles and she said it's more than just a notice requirement because it's basically a way to get around the congress is one year tom and it's since he argued that rule fifteen allows some some expansion perhaps of the timeliness requirements but it doesn't obviate it and she says you know you can't get around congress's one year time limit by coming up with creative everything that i think you're right you  may be right these are the new separate file i don't dispute that but then you get into the timeliness for that and it's ours and as far as the equitable to get to equitable basically you have to show that that that they were pursuing the claim diligently and that basically some outside agency barred them from pursuing it the only outside agency in this case that barred them trying to him in their claim in two thousand and ten when we were in court arguing the stay in abeyance because mr bourne decided he didn't want to do that there's also a procedure where he could a follow to protect the petition in federal court and they use that to go back and do is stay in the bay i believe that's under slike the mcdaniel in london and all of those cases there is a procedure in place he could have done that he chose not to he went to the court he says this is what i'm opting to do and he's the one that made that decision in the courts have repeatedly said that attorney error doesn't get you equitable toing now had the court said this is the only way you can do it in the court had said you know i'm going to tell you this is what you need to do then he would have been under some misapprehension and perhaps you know had acted to his detriment that's what equity is all about is that old you were misled all just a little the way that he did just just whether it's merits or causing prejudice because because your time's running out the question just cros went through and analyzed how this fight occurred basically there were multiple people fighting everybody was involved in it and the question was you know who did what and when ok and the state court had no problem saying and that that barnes was an active participant and even if he wasn't an active participant he was still the principal to order goes actions or to or to go in brewer's actions and there was confusion about who was fighting at what point mr boren argues that it was a two stage fight we've always said it was a three stage fight i  mean so it depends you know the original the original fight as they're moving to the car in and we get down to the parking lot and then when they go over the rail we argue that when when they went over the rail there was some more further kicking and punching and everything else so as hill what hill said i mean basically every court this looked at it said that hill's testimony didn't materially differ from what he said in this tape statement and the time he said on a couple of occasions that he knew there were three people down there fighting but he didn't know their names or another case  that he mentioned brewer so all you know depending on which which version of the of the statement you're looking at he either knew there was three people that were doing it and named warner possibly two of them on another occasion he said there was three people that doing it i don't know their names but i could identify cory now i don't know that he was ever subsequently asked to identify them at trial or not but but basically those two statements don't materially different he's saying i saw what happened i saw who was involved and i know at least one of their names that's not a  subsequent statement was there were three people i'm not sure what their names were but i'm going to follow but i can identify and that's the difference of the two statement as far as i recall the ruler flipped  hill the difference for the individuals that were looking at the evidence were there any other eye witnesses that testified to barnes being involved in the over the rail punching but i can't state that within a certain day i'd have to go back  look at the record to be absolutely sure i know i know a brief that i gave i gave you excerpts from the you know that was helpful for me to hear the hill can you go ahead and do it with a cost to me on that last paragraph where i asked some questions about syria well this is a recall and again you know we record excerpts it says at the time of lance's death i was being dealt with by the courts i was facing an armed robbery charge during one of my trips to the courthouse i was approached by assistant district attorney tracey barbera she told me she was grateful for my cooperation with the murder case and i was doing the right thing she said she wasn't prosecuting my case but because i was a first time of offender she could see that i got a lighter sentence that's what it reads he could see he already gotten a lighter sentence and i do not know that for a fact like that was handled by different section of court you know and again we had to go in off record there for me to speculate what he got and i hate to speculate and i do not in the record it's not it is certainly not in the state court record or in the federal court record so how does that differ from what was said at the trial it's been a while since i read the trial transcript because i mean he had himself but i thought that he had been asked at any deals been made for him i'm not sure if that was actually ask or not i seem to recall that but i could be totally wrong and he said probably should if it was after you probably should know right ok that was my recollection your honor but again i didn't try the case and it's been a long time since i did the appeal in this instance we haven't actually you know litigat scenario is nobody asked that question a trial and now he's saying in that event that it happens and then the question is what how is that material i mean under case law if a deal has been made i mean you know that would be something i mean i'll be honest with this be something that should be disclosed if a deal has been made you know now promising to help somebody out i don't know if that's a deal or not we i guess then we have to get at the what the expectation is you know and that i but again i say i maintain that this affidavit is not before the court at this time because this claim has been procedur hill statement if the primary thing is that at trial mr hill says he saw doug fighting with with lance and he can identify the other guy's other two guys but not by name in his previous statement that we did not get he says three or four people jumped on this guy from what i would from what he was told it was jake and douglas barnes at first and he thinks david brewer so the cross examination is obvious well who told you that amanda did ok amanda bring amanda in amanda did you tell him that an officer norton is this what happened in this statement did you do any follow up on that all of that didn't happen because we were not aware of the existence of that statement and and it's to me it's just beyond belief if a prosecutor says to a person hey i'd likely to help me out on this case thank you for your assistance and by the way when it's time for your sentence since you're a first offender and you've helped us out i'll see if i can get ice i'll see what you think the chronology exists in the record that he had been sent oh absolutely that's my belief and that and the i don't remember the exact sentence he got it was in his cross examination of kasumi i believe he got seven years on an armed robbery which carries ninety nine and he also got  sentences my recollection from the state court from the federal prosecution for being a felon in possession of a firearm which means that he had another yet another present he was in serious trouble and it wasn't until years later that he said after he's no longer under the thumb and he's wanted to talk to us i did not want to go because or that ortega had tried to get to him yes and we're going to have approaches gives him a food affidavit he says that's a big lie the government didn't do it but then you get wind of that and you go to a woman at it and wrote procedural bar the only explanation for that procedural bar is what the government filed and yes and i don't think that and basically you know on my memory and i didn't read that part again last night but my memory is that it near the end of the hearing is that the state said well ok you know we're really not making much of an argument on the diligence here it's obvious that it was you know that's what i think i think they conceded the point i was stunned when we found you know you had a chance to go up on it and yes and then we went to the first circuit which said denied and then we went to the supreme court which said denied as they did in you know half a dozen other cases of innocent people who are ultimately brought up to this court to say  would you please look at this this is an inconvenient mess for the state that they created by not giving statements to people for decades and now that they're people are finally extracting numbers will vote really technically it's going to cost me me that is there was no statement they withheld the affidavit he comes up with later right right and we expected that kasumi would you know say what was in the affidavit if we ever had it but the affidavit was submitted in support of the motion to show that we had a good faith basis for what about would you disagree that there were a lot of other eyewitnesses as to that second or third stage yes there were three eyewitnesses babineaux said he wasn't sure who hit him cause i mean he said that barnes was there but didn't hit him and now recanted that completely and that was it hill wasn't on the other side of the rail there were only two witnesses and brewer who was there said that he did not see david hit or kick or strike anybody so the only witness who said that david hit anybody on the other side of the rails is kasumi that's my memory which is pretty clear from the trial the case haunts me you know a life sentence for a one thousand year old who was involved in a get in a big fight and my co counsel charles say dizzy is a wise man he said you know the rule is whoever wins the fight goes to jail appointed down on the trial court level i love what i call it accidentally pro bono lawyer at the trial court level ok thank you very much that concludes the court hearings for this week and we'll be