is it fair and consistent with due process that the more successful the state is in withholding the scope of jury evidence the harder that it is for the defendant to obtain relief from the effects of the withholding the evidence said another way should the state be rewarded for successfully withholding scope torrie evidence or should the defendant's due process rights to a fair trial fade away with the passage of time because the state has successfully over a long period of time withheld exculpatory evidence such the defendant could not have found out the evidence with the exercise of due diligence are actually the same questions and the answer to each other is no it is not fair or concision were due process that the more successful the state is in withholding exculpatory evidence the harder it is for the defendant to obtain relief from the effects of not having the evidence the state should not be awarded for successfully withholding the exculpatory evidence and though the defendant's due process rights should not fade away with the am a hard time seeing where a brain climbed and far on teeth of that statue i understand that judge you're not alone with that and we start with with confidence in the verdict it has and as far as i know departed from that that's the ultimate brady standard and doesn't undermine confidence in the verdict so the question that you that you're asking your honor is how does one to avoid a due process violation and at the same time respect the language of twenty two forty four b to be small line and follow supreme court precedent and at the same time not eliminate the sole opportunity for a a litigant in this situation to get relief for a brady violation where the evidence was not discovered with the exercise a due diligence and the best explanation that i have heard is is the recent case of the eleventh circuit called scott versus united states and eight nine effed there twelve thirty nine which the that was decided on may twenty third of this year was the state cited in its twenty eight j motion they cited it for the further effect for this that the reason that what that case did is a set we have to follow our prior case present in this court but we ago and is still pending the scott case helped that the supreme court precedent that the nature of the right and the suspension clause article one section nine tossed into the constitution require conclusion that the second in time collateral claim based on a newly revealed actual brady violation is not second or six success or for purposes of it but and is condon eyes of whether or not it meets the or successive gate keeping cried terry of twenty to forty four b to be too small lies and that's the way that it why it doesn't apply in particular the eleventh circuit  he versus quarterman the supreme court had that second said that success at second or successive is a term of art it takes its beenie from par supreme court cases including opportunity to raise the claim at a par application and if not it is not success second and it is not successive because it is not yet right to raise this is actually her third claim but the second and third claim was raised in what around two thousand and fourteen the third claim was actually raised in probably two thousand and twelve it was after the province yes and it was clearly after the parlance and the state k b s court found that the exculpatory evidence that we rely on was not available with the exercise of due diligence they clearly found that way there seems to and the district court adopted that so the problem we have is that that there's clearly been exculpatory evidence that has been hidden by the state for twelve years and it could not have been found at the district court found in a state court found with the exercise of due diligence but because so much time passed and it's because so or she had to file a federal read it becomes second suggestive and it's successive and therefore the standard that she has to reach to even get the merits heard is higher than the standard has to meet in order to get relief under brady claim you might want to go back and look at a case that our court just decided within the past month or two judge parks you know rupie i think he wrote the main opinion and if there was an opinion then it was withdrawn and another opinion came out of the whole the facts in that case were that the fellow had been sentenced to life imprisonment on account of murder back in the late eighty's and it wasn't until the mid two thousand that he believed he had found some exonerating evidence that the state didn't didn't look at didn't provide to him a forensic evidence and a witness and he brought those forward and the entire day's discussion is using twenty two forty four you know deep whatever it is it is treated as a that it conflicts with but any versus quarterman and it's caught conflicts with what i think is going to be a non bought decision out of the eleventh circuit which is if in that situation when the claim is not evidence has been withheld by the state you cannot at the same time it's not right peter could you don't know how can a claim be right when you don't know that you have it and it exists so what i'm trying to advise you is that that's an argument for for an on pocket to sion but that is not that's not the law in the circuit at the present time well i'm not clerks can leave the levy leave here and go up stairs and get a citation if they want to move provided to you you have five minutes left and you might want to get to the merits of your brady claim that's where you're headed well in terms of the merits of the brady claim the the the district court at the actually the state  that there was a brady violation they found all the elements the district court found the same thing now so the quest for materiality well actually i think that the district  court found materiality but the problem was that they found that we didn't the rates clear and convincing standard required by twenty to forty four b to be the basis for that was that the defendant herself had claimed to have been the individual who dragged the witness misidentified that the brady violation to the notes indicating that the witness had changed her to her testimony as to what she saw but ultimately the defendant herself i believe in the in the police interview and at trial testified at trial that she was the one who had moved the victim is that correct and that it didn't matter whether there had been a misidentification by somebody and actually i think it does matter and i think it batters because they want to wear that evidence she wouldn't testify if they'd been aware that i understand you're arguing about testimony because that's a fluid thing that it develops don't try the decision is made right up to the moment the person walks up to the witness stand whether she's going to testify i saw grant you that but isn't she already claiming prior to that in speaking to the investigating officers actually there's a conflict in the testimony about that officer canalis said she did officer not good today said didn't said she didn't say anything else but i didn't do it and then there's testimony from so that wasn't going to happen is as you said a trials are fluid and our contention is as even though she makes the brady claim we also contend that she makes the clear and convincing evidence claim because what you have to consider as you have to consider how the exculpatory evidence would have changed completely the way the trial was conducted some of it that i just mentioned to you she doesn't testify or imitator doesn't testify the jury doesn't hear officer harrison say she didn't change her mind in any way when we know she changed her that the witness miss adams changed her mind twice first she changed her mind about whether she saw a first a black male and then when she talked to the police a couple hours later it became a black female and there was a statement that was written by the police officer that said it's a black female and that testimony changed over a few hours and then the testimony changed again when they often are would change again when they open because the officer s didn't change her mind and anyway well we know that that's not true she changed her mind twice and he say about the bloody socks what i say about the bloody socks is that this was a very stressful situation and i don't think that ms blackman remembered exactly what happened it was a very frightening circumstance and whether with socks on she was training to the blood or he didn't but i understand but the blood but that doesn't mean that she's the shooter she could be running around the apartment without her socks and doesn't remember that she hadn't had this chews on or didn't have them on her impossible alibi and manner you know the shell casings consistent with the gun and she brought up the gun and to the to the investigator actually i think the investigator brought it up and she confirmed it and she couldn't do it she never did it so you have the conjunction of the fact that the witness a dinner finds a black male and then they the witness changes her mind and says it's a female after having talked to the police and then in the court room she can identify or it's even better for the defendant though not only did she change her mind which of course didn't come out this counts of wasn't aware of it if it wasn't aware of it but here she has the very person in court who scans the court room and doesn't see the person she saw that night and that's and that's the jury saw that that's right that the jury didn't have the other information that we've been talking about the other misidentifications the two times she changed her mind and i say i have to midnight in my town just one quick question on the nine eleven call that that came out of the trial and that that  when one car not that one one nine one one call there was a nine one one call but what there was it what what the defense never had a copy of was the nine one one call that says it was a bell says he asked for it it was clearly a scope atory the state had it and they didn't turn it over and the state pay because trial judge found that they knew about it and didn't turn it over nancy's to court this case is about a woman convicted of murdering her roommate attempting to bypass the successive step petition statute because she cannot meet its requirements the law is clear on this issue under the second prong of the successive petitions statute a court must consider the evidence of old and new incriminating and exculpatory without regard to whether it would  satisfy the rules of evidence so blackman cannot demonstrate by clear and convincing evidence the but for constitutional error no reasonable fact finder list found her guilty of murder in deciding if blackman meets this second prong the district court gives a a rubric start with the evidence produced at trial and then you add the evidence that was allegedly kept from the jury as a result of a constitutional violation and then you determine whether it's clear and convincing you look at the evidence as a whole and you ask with no reasonable fact finder have found her guilty the blackman starts with the evidence produced at trial as the brady evidence then subtracts the evidence produced a trial as it suits her it argues that the brady violation has probably resulted in the conviction of one who is actually innocent so if you just look at the evidence related to this brady violation to reset i'm satisfied that she heard gunfire and within two to three seconds she went to her back window and she saw the cheap black woman pulling a lifeless body was half inside half outside the apartment upstairs upstairs apartment across the walkway from her first blackman testified that she pulled her roommate's lifeless body inside their apartment she also stated that she saw adams watching her while she was doing it and she identified adams in court as the person who was watching her through the window she looked at adams and she said her hair is darker now than it was then so adams may not have identified black men in court blackman i didn't find adam's there should be no question is what adam saw so about the black man she saw she called when she called nine one one so there was an evidentiary hearing and it black i mean adams was questioned about that and she said she didn't remember saying that on nine one on the nine one one call but she listened to the tape and she said yeah that's me i guess i said that but it was a woman i'm absolutely sure it was female and she gave a very specific description of the woman and the description that the t prosecutor's note that was supposed to be exculpatory evidence so with that that evidence had been admitted to trial it certainly probably would have been used to impeach her testimony but it also could have strengthened her testimony because the description that she gave the prosecutor was exactly the description that she provided at trial and at the hearing and young gentleman here key witness right adams is an important witness i would say that's true they put the gun where they tested for a tick way to see if they in fact came out of that particular weapon that sort did not have the information because the gun was not found all those shell casings and bullets and all of those things would have  bachmann's gun that she said she had then she said she lost or it was stolen then she couldn't remember when it was stolen she gave two different stories on the stand first it was two months after she claimed it from the property room then it was two months before this happened i believe it was confusing i would argue that that her story is not very convincing but there's something else that i wanted to besides the that the two officers they already mentioned george  along with officer canalis said that that's all she said was i didn't do it i didn't do it but officer kind of alice that gave the story that she's apparently she talked to officer canalis and not integrate they also they got to have a different partner so i rights so if you add the brady evidence it's impeachment evidence and that's really important because newly discovered impeachment evidence as you probably already know and seldom if ever be sufficient to establish actual innocence so  need new reliable evidence like critical physical evidence d n a something like that trustworthy eyewitness accounts she has none of that as impeachment evidence of already mentioned as  we know how adams would have been impeached for this because she said and she was strong in her testimony one that yeah that was me and i'm one cop but i'm sure of what i saw and the other thing is i picked the person i saw moving the body that's and i didn't pick someone else and she was clear on that the only thing that's extremely important i think is this new evidence would not be impeachable as to when adams and in response i would say well blackman was able to pick her out and there should be no question as to identity when so many other people testify that that evidence as to what adam sa or whatever and before you answer and i want to hear your answer the judge davis question assume that the defendant had several times you've relied on the fact that while the defendant said such and so i like what you just said she picked miss adams out assume the defendant doesn't testify so he's it is question is what else did you have the bloody socks her head well first i like to respond that i don't believe you can she said she didn't have soon to the said she was going to the store and then she said she wasn't didn't ever make it to the store she left her roommate after being with her all day and she  returned at five minutes later to get her gate key and she couldn't explain why she just couldn't just call her roommate to buzz her in so she said i don't know she might be going someplace i don't know i was so if it was an actual innocence  blood in the bedroom i think this is important that there was a a used shell tasing in the bedroom suggesting that the first shot occurred in the bedroom and then there were other shell casings in the living room the blood was on the underside of her socks and she was traipsing around with shoes on and isn't that what the detective saw was particularly incriminating it is particularly incriminating and especially so when blackman testified on the stand that she didn't take off her shoes and detective harding who interviewed her said she asked her several times you sure you didn't take off her shoes and she was insistent that she didn't yet there was blood on her socks so it wasn't just a casual mistake and then how much time elapsed between when the nine one one call was made and when the police arrived at the scene i've just seven minutes ok so mr blackman if he did it i mean he's convicted of doing it would have had to think pretty fast to try to extract the body from from the balcony and then presumably go wash your hands and put on some shoes or something like that ye the murder weapon it's suggested it tomorrow because adams said that she saw black men two times once dragging the body and then maybe five minutes later leaving the apartment and going downstairs locking up so the person said but i would assume that that's when she got rid of the gun i know we've been bonafide the first but in the in the position of a in the set the same as a first petition right and it would have been under the one year it wouldn't have because  received the prosecutors know on august twenty seventh two thousand and nine when we go back first blackman's attorney states that he received the case or was hired for this case in october of two thousand and eight and as a district attorney craig watkins changed the file policy in the dallas county d a s office in two thousand and seven so he there was also you know nine she called nine one one and when she called nine one one that was there again she but he didn't receive the rose the dime went tape until preparation for the discovered evidence means the date of petitioner is on notice of the facts which would support a claim not the date in which a petitioner has in his possession evidence to support a claim and i would i don't know if you have a client  a new we had a brady violation gather all of these avid affidavits and in my research i couldn't find any a lawyer with any cases that would say that you get all this investigate investigation time into to for the statute of limitations the point is if he had been and if he had read the trial transcript to begin preparing to do some post conviction after he read the trial transcript he would have seen all the business about adam side and if occasion and then he would have found the call log and the and the prosecutor no oh my gosh you know this isn't all come out i mean it would  position should be dismissed as excessive it's a brady violation cases and the district court sided support of her due diligence finding under twenty two forty four d or b statute of limitations or success of this i said under her twenty two forty four statute of limitations a  the statute of limitations so the definition of diligence may be the same not that the statute of limitations i'm asking the court to abide by its prior decisions and and said we will follow our binding precedent so i'm asking you again to follow binding precedent and find the button failed to meet to follow to meet the success of petition statute and also the particular apartment so there was there was anywhere from eighteen to twenty three minutes of time from the time that that those nine one one call was made until the officers came up the stairs and went into the apartment many things could have happened since then i've been in the queen that time there was discussion about what about the blood what about the guns that's a crime scene there's no question that bullets a gun it's a crime scene but the fact that it's a crime scene doesn't show that ms blackman was the perpetrator of the crime she and her roommate had been the subject of break ins before at another apartment complex and there and there were so they officer i mean them the witness person said she saw a black male you can put those two things together and that that's evidence of be somebody else and this is something we developed in the  repairing and so the court should take that consideration the other thing the court could take should take into consideration in the term and did we did we meet the standard is all of the evidence from the eyewitness expert to show that the testimony about the nine one one call testimony about she didn't change her mind all of that was not just impeachment evidence it is direct evidence the fact that she saw black males ereka evidence that there and there was somebody else who was the shooter and besides that impeachment evidence and there's lots of cases can be plenty plenty in order to get to the point where you reach the standard for a brady violation  in regard to the limitations issue what happened there is that i was hired as by his blackness family to look into her case the very last thing that i did well first i did a lot of things i read the record i asked the d a s office can i look at your file an initially they said no we're going to sit to the attorney general the attorney general sent back and said well you're not entitle to a bunch of stuff in the file and then they just allowed me to look at the file the very last thing that i did was to go look at that file and i saw the note from the prosecutor that said the witness miss adams picked out one witness i one person i lined up and then change your mind and picked out another and that's the first thing anything the first time anything like that had been made known to anybody who is representing the defendant so what i had to do was to make sure that that evidence had not been provided to in the other lawyers who prove se me a trial lawyer a written lawyer and a penalty lawyer did not have that information none of them had that information the trial lawyer never got the information and until we had that information so that we knew that the information  had been withheld from counsel that we didn't have a brady fine and it took a little while to do that and the district court found that there we exercised reasonable diligence in getting to that point and once we got to the point that we timely filed the writ applications and the district court found that it was timely what do you say about the plan again claim the planet in case are you familiar when you discovered the facts underlying the claim and it's the by the facts it's the vital facts cases what is the problem with the we fit within flanagan because the mere fact that there was evidence is just one element of what we have to show we have to show that there's a soap atory evidence we've got to show that it was withheld we had to show its material until we could do it show a promise face a case of all of those things th we don't have a claim and and the magistrate in the district judge agreed that until such time as we had a case a prime a face a case that that we could file that would not be subject to a eight eighty eight bed third one seventy nine decided april twenty third of this year eight eighty eight said third month seventy nine april of this year apologies to my law clerks i had it in my bench book but anyway it applies this sort of successive petition standard to a brady claim i actually read the and i didn't find that it was on point with this case and i can't remember why the one other thing that i would like to say is that what ms blackman wants is simply i hearing and decision on the merits with that that the the the ford claim is similar to the brady claim because they don't ripen until a certain point in time and so brady it's just like for versus quarterman didn't say they were just one exception to ford claim what they said was there were a number there they used the word exceptions and brady would be certainly an exception because it deprives somebody of a fair trial and if you eliminate this class of of of litigants from having federal review then what you do is you suspend the writ under article one section not of the constitution and that's a very serious matter and i don't think the supreme court i think underpin any verses quarterman that they would do that so we asked a court of reverse the decision of the district judge and send this back so we can have a decision on the merits of the