they indicated that there was a problem so severe maybe in their minds the case with their own certificate of appeal ability which doesn't happen that often and i'm troubled by this  sixteen years go by our man sitting in jail sentence of thirty five years and this is a clear brady violation agree maybe the group and i think the state agrees with that too my concern mr barnett is that you seem not to have been gauged in your brief with the standard under twenty two thirty forty one you've you based your argument heavily upon circuit precedent this court's precedents when what you have to show is that the state courts were unreasonable in applying controlling the supreme court precedent well i can't specifically prove that but i think it's inherent that if someone's constitutional rights were violated in this manner the supreme court has cases you know applying the brady materiality standard for example smith against kane you've got a single witness who i d d the petitioner there as the murder and the prosecution conceal the inconsistent statements that that witness a given before and the supreme court had no trouble treating that as material under brady and ordering the conviction vacated giggle you know similar key witness impeachment information not disclosed impeachment material was not made available was relevant but not sufficiently material to upset the if the results of the trial  necessarily whether or not with or without the evidence a different verdict would result testing kyles as far as i could understand was whether in that there was a fair trial fair trial meaning regardless of what happened or didn't happen if i'm going to hide my right to cross examine a witness and it without absolutely having rolling information at hand that is a violation it makes no difference if you try to figure out what's material and what isn't the theory as far as the facts that happened in the case can't convict compartmentalized the case i think that's what karl said kelso so you can't you have to look at all of that yes the brady material together but you have to evaluate how critical it was and i would have thought smith was going to your best case so sorry if i missed that but i thought i had wasn't involved in any of it he took a fee for this brief i did not very very minimal i thought it was something that i wanted to hear i did and i took a very very minimal fee i just thought that it deserved somebody stepping  violations to me that i i just felt the need to i try to represent m no account of the difference between that looks like the guy and the trial testimony after after the witness said he wanted to be more certain the prosecutor wanted him to be more certain and he goes in and says that's the guy  photographs that were then displayed and then are a second photo identification which was the day after mr keary underwent surgery for his fractured jaw and had glass removed out of eye and he himself testified that during that second line up he was rocky from having the surgery in the medication so in the second photo lineup he looked at the same group of photographs that were presented more and in a i don't i don't have any answer to that it's not in the record only that mr kerry wanted to undergo hypnosis he wanted to go back to and replay that's my question and not do you think do you think mr sims needs to show a supreme court case involving your to disclose hypnosis to be that specific i think yes your honor real especially under these