see thank you your honor is good morning thank you for taking this case up on the state's application what we hear about today is some brief testimony by a fourteen year old girl her answer was no her answer was no when she was asked at trial whether she had ever had sexual relationships with anyone other than the defendant she answered no that is the testimony that where that the defense is alleging should reverse this entire conviction for aggravated rape the state had no knowledge that that know was false at the time of the trial it was not discovered until almost two years after the trial when during the course of some counseling the victim herself it made it that that was false that there was someone else sexually abusing this twelve year old child at the same time that the defendant was we can go into lots of different reasons as to why a fourteen year old girl would tell a grown man and a jury in a courtroom full of people of why the that know no one else was having sex with her we can go into multiple reasons but we don't need to do that today but we need to do is to follow the precedent of this court and the united states supreme court this court has already ruled that on collateral review if there is no state action if there is no knowledge by the state of this perjured testimony then there is no constitutional violation there is no fundamentally unfair trial in this case is even more severe because this does not have anything to do with the allegations and her testimony against mr pierre himself she has never recanted her testimony that p r sexually abused her from the time that she was six years old until the time she was twelve when she disclosed the abuse unlike other cases where there were  was directly rof reflected upon the actual innocence that's not what we hear about today we're talking about some collateral evidence the defense argues that this was essential to proving her credibility i would argue that there wasn't much more to prove or credibility at the trial other than that one no you call it collateral evidence is that when you go i call it what collateral evans meaning extra evidence credibility eviden it's really not bad she was asked a question about sexual activity at the trial that's right that's correct and the way that it came out was that this defendant mr pierre actually brought his twelve year old this twelve year old to the doctor and asked for her to be examined to determine if she was having sex with someone the doctor refused because she told the doctor that she was not this was while she was still under the control of this defendant he was her primary caretaker at that time but to get to the more legal aspects of the case the standard of review that this court must hold on all the b s put cases is that it should be highly deferential to the state court ruling the supreme court of louisiana has already found that this case does not deserve a russell because there was no constitutional violation there was no state action they applied the standard to state b conway which is the louisiana case that says that if a claim of actual innocence is actually recognized and important is the if that is still not clear in the louisiana whether we will entertain actual innocence claims on post conviction relief but if it is recognizable on collateral view that evidence must be new material non q cumulative and conclusive evidence which it meets extraordinarily high standards and undermines the state's entire case louisiana supreme court found that this evidence this testimony this no was not conclusive evidence of pierre's innocence it doesn't even go to the  the actual innocence claim it only goes to the credibility of the victim other circuit cases in the federal system one in particular the ninth circuit has held that there was there does not does not require state action if there is perjured testimony but if we look at that case very closely and that's the maxwell case out of the ninth circuit you'll see that there was some allusion the court alluded to the fact that there may have been some thoughts by the state even if they did know that the testimony was perjury they mentioned a failure of vigilance by the prosecutor to ensure that falls testimony was not introduced and in that case if you recall we had a jailhouse snitch who claimed that he heard the confession of mr maxwell committing up to ten murders this jailhouse snitch was notorious for he confessions in jail i would submit to the court that that is different from the case of our prosecutors here today prosecutors asked a simple question as to whether she had was sexually active other th pierre's actions against her and she said no in the maxwell case he gave completely false testimony regarding overhearing a confession that was proven not to be true so the state with the myth that we should not be following the ninth circuit's ruling because of the unusual circumstances of that case this court in state begins lee kessel has stated that even race rape case as well recanted her testimony the trial court determined that that recantation was somewhat questionable as to what her motivation was judge wiener in that case decided that that was not a constitutional violation and he is not entitled to a reversal of his conviction based upon that recantation on collateral review there was no case is now it was returned to the district court level mr pierre was provided with a bail application and he has satisfied that bail application and he is no longer incarcerated but we do returned to the the local parish jail and provided with the bail obligations did i think that's correct ruling no but sometimes we have to pick and choose as to which rulings we we  appeal because of time limitations and resources i'm the only appellate attorney in our our office in addition to other duties so i just did not have the the resources to be able to appeal that this isn't really yes or well i mean i believe that if you would overturn the district court's opinion federal district courts opinion then the the aggravated rape conviction stands so what we would ask is that it be reinstated and once it's reinstate that order to mean that we can't deny him bond meaning he couldn't be held without bond and that the judge would have to set a reasonable bond one other thing that i would like to address that was raised in pierre's brief was that the revelation that the which of the victim had been abused by another could have been used to explain the victim actions and what she was a friend to is the i'm assuming is the delayed disclosure which is typical in sexual abuse cases of minors and some other actions of the victim because if you were called in if you've looked over the entire record  this victim had some mental health issues too she was committed to she would had been hospitalized in between the trial all of those things were explained in court by her counselor what this revelation by the victim that there was another party sexually abusing her does not explain is the actions of mr pierre there was testimony at trial that pierre was essential grooming her from the air very early age there was a progression of the sexual abuse there was a showering of attention by pierre upon her there was a possessiveness of the victim he wouldn't allow her to visit other relatives these are all very typical of sexual abuse perpetrators and victim relationships and edition he was giving the victim lavish gifts and one hundred dollars in cash whenever she asked for it and they were all if she testified they were always related to a time when he had raped her so the revelation that c c was being used by another man might explain some of her actions but they don't explain pierre's actions themselves another factor is and has been addressed in court in the various courts that this court this case has come through and in witnesses to a rape case in order to convict someone of aggravated rape that is not where we are as a society we rely on single witnesses all the time but in this case we also had additional evidence of other factors for a for be evidence other sexual that showed mr pierre's lustful disposition towards young children we had corroborating evidence of how he would isolate her and not allow her to see her family so although this was the only direct evidence that is the case in every aggravated rape and that's bizarre my last two minutes for rebuttal thank you fourteenth amendment specifically the right to a fundamentally fair trial which each defendant is guaranteed under the constitution the state would like to characterize the victim's testimony at trial when she said no when asked by the prosecutor were you sexually active with anyone else aside from what mr p r allegedly did to you and she said no she would they would like to characterize that as i guess you could say not a big deal unfortunately the state's entire case which has been recognized by the trial court who heard the post conviction evidentiary hearing and saw the witness's testimony the magistrate judge who is very troubled by the nature of this case and thought that knowledge of the falsity of her testimony would probably reproduce an acquittal at trial as well as recognized by the district judge in this matter agreed that the state's entire case rested yet i'm sorry go that's not true because she was read by somebody else at the same time there was another perpetrator of similar abuse was rape sexual activity ye ok i understand your question but i think that when she said it came out and later said that the state has understood that to be a false testimony in each stage of the proceeding that has been labeled the false testimony and it's material to in that case it facially it appears very similar to this case it was one victim who was alleging aggravated rape against the defendant get mr kendall he was his stepdaughter and she was the sole evidence that the state put forth direct evidence however that cases distinction will for a few reasons first that victim came out and recanted her testimony many many years later and at that a finding of fact that her testimony was false in the original proceeding and i think every court that has examined this case has found that hurdle we can't say since if he didn't do in this case all we have is someone else which could mean someone else in the dish and to this defendant was molested that's correct but i think when she was the only her testimony was the only evidence in this case and her credibility was so severely e that's you have is that correct i'm sorry but being the only direct evidence and that each the trial court louisiana trial court the magistrate judge and the district judge all determined that if this if the falsity of her testimony was known and it was allowed to be cross examined on those issues about allegations of abuse against another person who keep in mind that mr pierre was also a father figure to her and so was the other alleged abuser and thirdly her own father was a convicted sex offender so these are terrible facts but there is a lot of confounding issues of perhaps mr pearl a was the only abuser at that time and it was telling to me that the detective detective rhodes one of the reasons that her testimony seemed credible to the trial court in the original trial was because her testimony was consistent with that of a child sex abuse victim well if another person is abusing you in this way that you're alleging against mr pierre that could explain an alternative basis for why your testimony would be convict consistent with a child sex abuse victim because you w that that makes him innocent which i'll get to as well the actual innocence standard that was what was considered on a state law basis but also touching on federal law  the second and ninth circuit's have recognized that the state's knowledge of material false testimony is not necessarily required to reach a due process violation or supreme courts of the supreme court has not specifically held that and i understand the highly deferential standard of review under the age d p a however in any case that the fifth circuit has held that i'm aware of that the state was citing for example black v collins these issues were raised but and the fifth circuit has held that the states did not have knowledge however those cases are very factually different from this case where the entire direct evidence was soley this victim's testimony you agree that the supreme court has said that for perjury leaders covered perjury to be actual due process the state must have said don't i agree that the well i think this is a narrow set of facts under which the due process violation here based on the supreme court's holdings even enough who they did hold that under the three if the the testimony is false material and there's state's knowledge that was an affirmative holding but they also said that the jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence and it is upon such subtle factors as the possible interest of the witness and testifying falsely that a defense life or liberty may depend and i think that from a due process of stand of due process is one of the more amorphous constitutional rights but when you see it here that the entire conviction against mr pierre rests on testimony that has been proven to be false has proven to be material because material means whether or not it had a likelihood to affect the jury's verdict and i would say that  her credibility if he hadn't done that you'd be one thing but the fact that he did it becomes he said to you and if she's got no credibility not credible in her in at least that specific part of her testimony that that is why he would be entitled for a jury to know that information and then that would be something for the jury to work out which as i said each judge has determined would probably produce an acquittal in the pierre further she had also raised allegations of sexual assault by a peer during a similar time and then she recanted those her father is a convicted sex offender she later raised these allegations against another father figure in her life and i think these very specific facts show that mr peer at his trial was not given due process is your point that your theory of due process  case which i think this case actually can be likened to in that case in the maxwell case there actually was some physical evidence as well which this case is lacking it was very slight and minor it was a handprint on a bench near the area where the murders had been committed but there was still a handprint and in this case i understand the difficulty with sexual and aggravated rape cases that as the state said there's often only one witness and i had there's no problem with convicting someone on a credible witness but when that one witness has been now completely undermined that becomes a problem it's not that you expect the state to have five witnesses for an aggravated rape case it's just that whether or not the state regardless of its knowledge can rest on the conviction that now the only direct evidence has been undermined and in kinsell became the actual innocence standard was required to be met as a gateway to another constitutional claim as a success of habeas petition and this court found that he had not met that standard which requires clear and  and in in that case i think that this court did not need to go further but it did and the facts of this case are also different because in that case the state and  not found that the victim's testimony was actually false and here we have uncontested falsehood and uncontested materiality of the perjured testimony  said that the ninth circuit had done precisely what federal courts should do and examining due process justice scalia of course dissented but i also think that even that dissent is distinguishable from the facts here because similar doing kensal in maxwell the ninth circuit actually found that the facts found by the state court were unreasonable in light of the factual determination was unreasonable in light of the  yes so there is no holding this is speculation about a future supreme court yes well i do think that the supreme court should make this affirmative hold though that's hard in your life and i mean if ruling of this court does go that way but you've got to just as a facts where in each of these other cases including in black columns there was which was the fifth circuit case that is often cited from the early ninety's for this proposition the fifth circuit you know the state needs to have knowledge of the false material testimony that case involved i think the perpetrator had spoken to many other witnesses about the murder had taken in churns policy out on the victim eight days before the murder there was a plethora of other evidence in that case  similarly in the united states the lawrence which is a southern district case specifically in that opinion although that rule was once again mentioned the court stated that the it would not have affected the court's opinion and i think that's directly contrary to what we've seen here both from the very very thorough and reasoned opinion by the magistrate judge who felt duty bound to follow this fifth circuit's precedent but i think of you as the fifth circuit have the power to do as the second circuit and that circus has done which is to recognize that when the entire case rests on now false material testimony it doesn't always  the state has knowledge the inquiry then becomes what it more likely or not not have resulted in a conviction which for me you say that we have the power i would i would have all the congress specifically so that we don't write i understand that in i guess as the magistrate judge said that the supreme court tacitly allowed the ninth circuit decision to be upheld and i know it was on a denial of cert but then i respectfully submit that this case could be the one for the supreme court yes well i know that that creates problems of retroactivity which is a little more complicated than i prepared to discuss today but i personally see this case as representing at least an opportunity for progress to be made in this area of due process because once again it doesn't have to do with the innocence or guilt of mr pierre but it has to do with what fundamentally his conviction stands on and whether or not that evidence you know to mr pierre whether that evidence was put forth in good faith or not really makes no difference if it was false  what's that clearly established federal law i think it has to once again go back to those more amorphous principles that have been established under nafta and also gagliano where there is not a clear nice easy sentence that i can quote to you from the supreme court that has held this but i feel that it's implicit absent that then don't we have to give differences the i would respectfully request that you affirm the conviction of mr and i'm sorry to affirm the district court's decision because i think it's a reasoned decision of constitutional law thank supreme court precedent or this fits circuits precedence which clearly states that you have to have some state action or state knowledge in order to find a constitution a violation of due process the next thing i want to just simply address is some of the fact that she cites aren't relevant to this case she cites the fact that the victim's father was a sex offender well why don't we put not upon her credibility she has nothing to do with that he was convicted of being a sex offender against another victim she never made out she he was never convicted of committing sexual abuse against her so why are we even talking about that and i think that's to destroy her credibility even more there was another incident and all of this came out at the post conviction relief hearing that she did make a false allegation against a boy i call it riding around in cars with boys my mother never let me ride around in cars with boys because of this issue she made a false accusation but two days later she recanted that and said no i did that to cover for my friend she was fifteen that occurred after this trial so that has nothing to do with her credibility at trial so that we shouldn't even be addressed either so at off finally the entire conviction does not rest on her answer of no she had much more testimony other than that one false statement and the state does admit that it is a false statement at this point in time but we had no knowledge that that was a false statement at that time and the state does not believe that that answer destroyed her whole credibility regarding the allegations the acts that pierre did to her at that time i would even argue that that is not so material now that's another question that's sort of nebulous and this arena as to what is material evidence of course credibility is always important for all cases all witnesses but it's whether that fact that might be a false hood was material to prove an element of the case and in this case that folks the statement was not material to the essential elements of this case of proving that mr pierre raped her repeatedly from the time that she was six years old do you think rape or sexual activity i do not believe so because it's sexual activity in the common sense and we don't even have that term in the law but in a social sociological standpoint sexual activities consensual sexual activity and we don't use sexual activity in the term of rape we use