good morning your honour's please the court my name is mike womp hold i represent the appellant at bradford detective certainly made sure that ted bradford was convicted of a heinous crime even though it was apparent that he was innocent in doing so detective seriously not only does the house oh was it apparent that he was innocent it was apparent that he was innocent because he didn't meet the profile of the actual rapist the profile the rapist was somebody that knew the victim they tried to disguise their voice they said they came for her mr bradford didn't know or at all he also didn't meet the physical description he was much too short he wasn't muscular he also knew none of the facts probably irrelevant to your case so don't get don't get caught up in arguing that telling tell us why they were brady violation ok well and i'm going to jump right to the brady validations but i do want to make the court aware that we have a motion pending before the court  to make a finding take judicial notice of the findings of fact in the state court action in the state court action against the state of washington it was determined that mr bradford was one hundred percent innocent and mr sellers the victim's brother in law and i assume that for the moment he he's been he's been released you won't you recovered money against the state also i think the motion is important because the findings of fact in the state court action establish that the actual rapist was the victim's brother in law who was right under detective seriously knows all the time she was and look if you want to keep arguing this i think you i think that's where you've got to spend your time fair enough thank you your honor there are two bases for the brady claim the first of which is the failure to disclose that the state's smoking gun star witness that's what i want to know why was she the smoking gun star witness and it seems to me she was quite peripheral and she didn't put the guy at she had there's she didn't say i saw this guy either committing the rape or at the house the day  there a pro coming out of the going in or coming out or anything connected to the rape she actually be proved to be critical we know that and if you look at the closing argument it's very clear that the prosecutor relies heavily on her and the reason is tha had a confession that was riddled with errors and that is why we believe if you and particularly if you construe the facts interfere here but you're not you're not suing this detective about the confession well the confession is a part of the  no wait wait wait you're not claiming that he made up the confession noted that that your client said something different and that he wrote down that you wrote down your client did it no no i'm not saying that at all but if you read the confession it shows that he's innocent i'm not sure i'm not sure for the reasons judge bers on says that's the case but let me assume that for purposes i question you were given twenty pages your side not you the defense was given twenty pages of witness statements recorrect right one of it's actually much worse than that your honor detective seriously actively tried to make it look like mr a was a new witness and the first of all he interviews her on april tenth now to tell me how  down i will i mean i understand you understand you're making you're making a jury argument i want to know the facts of the facts or simply that the fact of your brady argument is simply that put differently had he identified miss searle as the as the reporting person each time you would have no brady or he would agree ok so so the brady argument is that he failed to do so it's more complicated than that because he actively made it look like he was a new witness he told the court he if you look at the testimony from the there's a complaint from mr tate saying this is a brand new witness it's going to be dumped on me and he asks why and mr the prosecutor very strange if you look at this she says i'm not going to respond to why it was produced late all the detective certainly do it detective  but in all likelihood he actually didn't talk to no he did talk to her before we have sworn testimony i understand i know you have sworn testimony but a sworn testimony of twelve years after the fact which was elicited only after he you showed him  piece of paper and he said oh i guess maybe i did speak to her but all the other evidence seems to be that actually he didn't that she from her and everyone else is that she talked to someone else there but not to him i couldn't agree more strongly  i couldn't disagree more strongly his testimony is too specific i understand says he met with her twice before so who so his sworn testimony if i could just answer is sworn testimony in two thousand and six and two thousand and ten is that he had two meetings with her before april he had one meeting and heard now the question yes so we have several problems here one is was there actually suppression because so it tell me what the they gave her all the relevant pieces of paper there's no other conversation you're saying and talking about that should they should have given her right oh yes i mean they should have he should have disclosed he should have made it clear well first of all he actively misrepresented a church person's question i'm trying to know what she she should let me know you're not trying to your answer different question she said are there any conversations with this witness that were not disclosed yes he says that he talked to a neighbor on october fourth in his testimony he says he met with her a second time at her place of business that was not disclosed and that was no there was no no disclosure of and there's do you have her there also is not just going to wait i know you want to cut me off and i great because you have a short period of time i don't know is there is there any is there any contention in this record that on that other occasion she told him something that was force within brady yes because she said inconsistent testimony her  on the on the occasion that's not disclosed which is brand new to me that's not in your briefs and the occasion that's not disclosed there is do you have anything in the record about what she allegedly said to him on that date yes his testimony is that a there's the fact that he gave her they gave him all these pieces of paper from which which were not a lot so there were twenty pieces play pages and if you read them you know it all carefully it wasn't too hard to figure out who this person what in retrospect were at the time well whether it was harder or easier the fact of the matter is this is statement unattributed to an individual that appears to conflict with the statement attributed to  simple matter saying to the prosecutor who made the statement that the prosecutor declined to go to the courts and this is of no use to us unless we know who made the statement i don't understand this failure to disclose business you had all the information a reasonable person would need to cultivate and harvest it for propre it whatever evidentially worth there was in the statement your honor particularly construing the light most favorable to us it's much worse than that detective search slee when he gets up and testifies a trial makes it look like these are two different people in his trial testimony he refers to susan searle and this meeting he has with her where she says that this happened in september and then he makes it look like there's a second neighbor t his testimony tell me where he can be the records site where he says there's a second yes i will your honor in his testimony if you look at thirteen zero three three thirteen zero six of the evidence makes something about this trial in one thousand nine hundred six right exactly that's the first trial that's where mr right i will stand diktat yeah and so he actively makes it look like these are two different people and i also want to say that i think that the court is putting in some sort of comparative fault type argument like mr tate should have figured this out that's not what brady says for brady to be meaningful it has to be clear to the defendant it and here where is the question what exactly just brady required as brady require if you give him information from which it's not only we can have a rage of difficulty but it's not particularly difficult to figure out or at least have just closed i think that they needed to disclose that this is susan searle she's the same suit that was in these other reports or they needed to be even more specific and tell mr bradford that she provided white car driving around which is critical now but but this is the reason i have a difficulty we know that at the time around the time of  through some period of time there was a guy driving around in a white truck and in my car with who was him and who was exposing himself to women in the neighborhood and you had several other people who didn't buy this person so the problem is that the person in a white car driving around in september and person in a white car driving around in april on the person in the white car driving around that later could have all been different connected i mean not really to whether she saw him directly connected to the rape but simply that she saw some suspicious guy in the neighborhood at that time and we know there was suspicious guy in the neighborhood here's why it's critical she testifies by the time she gets to trial she testified that she saw ted bradford looking in the victim's house the day before the rape that was damning testimony that's completely different to what she said before she said before that he'd been there in april or may the victim didn't even live in the tate and it needed to be and brady we can't have some sort of comparative fault idea that this is the fault of the defense attorney the prosecutor needs is not a comparative fault or give me the question for brady look every every small piece that i'm not calling this law that is not disclosed doesn't require automatic reversal right the question is whether or not that would have made a difference we can fight about the standard so it's not a matter comparative fault right the question is if if all the statements said sue and none of them said sir you wouldn't be here would you not because mr k but that would he would have been convicted because mr tate would have been able to effectively get asked again that is the real problem with this case from my perspective and i understand your difficulty he was convicted because he confessed it was a false confession you may have had a great you may have a great argument about how they improperly got the confession but very few people who c disclose and under the devereaux claim we should have the ability to get to trial because there's ok so on a devereaux claim tell me what clearly established law in nineteen ninety nine when the trial occurred  said that conducting a photo array in this way violated the constitution well the case that we have for that is the korea decision and if you look at that decisions completely on point and it says that's a devereaux violation the fact that it wasn't disclosed the the photo identification the way that it was done this was done completely against  he was it was impermissibly suggestive tell me while that was a view about one more minute the city rules required him to say hey you know it's important to prove people are innocent we don't even know that this person is in the photo lineup i mean it really the rules required and what's the constitution constitutional violation here was that he told her hey we have somebody in custody the person matches the description of who you described  driving in the neighborhood before they were in the same car and then shows the lineup which is impermissibly suggests there are a lot of prophylactic rules the courts imposed in terms of the reliability of identification they don't mean per se if if if detective tells a witness that we have somebody that we've just arrested of matches the description that it's necessarily unreliable but why wasn't the circumstances of the identification the line up and so forth all amount of pretrial exploration why does this come up so late in the game and the reason is is because it was not disclosed so again you get back what the rules disclosed  particularly construing the facts in a light most favorable to us he knew about this witness in april we think it was sooner but at least by april he sat on it and didn't disclose it at all until right before trial on the eve of the trial goes your responsibility or is it the states it's the actives well maybe let me ask your overtime and one issue is career your best case career and career as a case where where the person looking at the photo array picks out somebody other than the defendant and the detectives never tell the defendant right but i think that clearly establishes that at this time saying to somebody beforehand right we have five photos here we think one of them is the guy right away did the constitution right you were asking the question of did array doesn't know the dental plan some degree but not the better part of the devereaux claim is the decision that you joined in just recently sometimes i'm wrong no you're not this time i was right that time tell me when you're the spencer decision that recently came out we've written a twenty a j letter on it is and you joined in is directly on point and that was a chance to see it's not ok if it's helpful to you on the inconsistent statements it's incredibly thank you may please the court tom miller for detective joe sure sleep here in the courtroom as well your honor judge version you hit it right on the head there is no evidence in this record of any  suppression of material evidence that would have changed the outcome of this case what we have is a detective who on plaintiff's accepting this october four  five interview of ms searle as a contact between detective sure slee and ms sarah which we know from his testimony in the criminal trial it was not if we look at his report where he mention residence and they talked but even if we accept that somehow they met in ninety five and detective surely just neglected to include her name in that memorandum which was an inner office memo for the police department that does not had to put the puzzles you had to say that to the sioux three eight zero way to wherever the address is who said there was a peeping tom and the neighbor who said there was a peeping tom and also a white car was the same person and that person is susan searle who later on said that the white car was not and made that in october so she had a contradiction and therefore you want to cross examine her and demonstrate that she changed  existence revealed relevant to the trial because the argument today seems to be a little bit different than i understood it you are going to as i understood it was that there was a non disclosure in these papers but i the argument here today and i've criminal defense attorney never requested more time so that he could do anything with respect to ms searle and he absolutely could have done that judge rice noted that his order i mean there were there were many prophylactic measures that could have been taken to handle this  to say well yes it was in detective sure sleeze report any had an inner transcribe statement that was attached to that report that he had turned over everything in this case was turned over and that gets us back to that milky case where they say if the court has enough if the detectives or the prosecutor turns over anough information to be able to ascertain the supposedly brady material on your own there is no brady violation and i think we can go back to these statements least when he interviewed her she said i already talked to officer yes but he also i mean the problem is that he did say in two thousand and six and ten even though it may well not be true that not he did but that not necessarily he didn't see any about that being in october you're so let's assume that he had meetings with miss or all put aside leaving off the names on the statements that were not disclosed ours is that a brady violation and if so why shouldn't we reverse based on it's not a pretty violation there every meeting that he had with so then you look at whether these pieces of the puzzle were there to be put together such that there was no brady violation because they had all of this information i mean so you're correct answer to just for once was no he never did reveal that he met with her but it doesn't matter but not that he did it because he did say that he did he didn't travails that i think you lost me on that one ok but if you would judge person i'm saying is the defense did not know at the was they were not told at the time of trial that this other meeting had occurred well we don't anybody ranked her ok meeting any meetings other than the ones disclosed in the in the in the in the documents right ok so my question is still is that nondisclosure brady violation there is no evidence of that there was any substance of anything discussed with her at all even if we assume that there was some mystery meeting that occurred was there then and we get to brady prejudice which is a sort of odd kind of prejudice in that case law it seems to be to my mind to sort of confuse the question of what should have been revealed it requires that there be a reasonable probability that the jury would have reached a different conclusion had the evidence from the fed says that the original brady i mean but you also have to figure out what should have been revealed prospect of lay and if you're changed anything this is a case about a confession he confessed to this crime why one of appeals has upheld that confession he had i guess that's the problem with his case there collaterally stopped from challenging it and that's it is that true and that's part of i don't  seems now well there's no evidence in this record that it's a false confession all we have is that he was acquitted in two thousand and ten there is no evidence we should be just sort of like your colleague i suggest you not go  there you've got to find being in a state court they may have it on appeal and other things like that but you you've got to you know this is a case where a reasonable person could assume that the confession was false well and it brings us having secured a confession from a gentleman that had very consistent aspects about the rape that i'd say also had a lot of thanks just an absolutely but that's a subject for cross examination for the defense counsel that's and told him some of the stuff that turned out he testified jim no there's now i think you're talking about rugs the guy who did the polygraph but during the polygraph he asked about handcuffs that was about what handcuffs i thought also about the ma guys described is the photo montage you agree that telling somebody before hand that the person you that the person you have in custody is among the five and you're pretty you know and  implying you're pretty sure it's the person who did it is not the appropriate way to conduct a photo i don't know about appropriate i wouldn't say it's ideal just as judge rice did however the case law requires for that for anything about this photo array to have the defendant and they never tell anybody that he identified somebody else i understand that but i'm trying to figure out where where evidentiary problems lapse over into constitutional problems here with this with photo for a case closely on point right so the question is is this fabrication of that it's not a lie at the first trial was the fact that there was a p course they have made an inquiry about circumstances but they didn't just that what happened and it was there anything given them about anything surrounding the array anything that occurred at the time of the right they knew if you look at your own night oh five nine six detective certainly then when the when the court is asking him why didn't you disclose this witness earlier he says in doing up the investigation on april tenth i was able to report as a possible witness at that time i had not had time to contact my point is the at that time i could have been at the original report couldn't read then he makes it look like he had never met with her that was the answer to the judges what is the i mean honestly i read through the mature i the report if you look back at the report from april which i can give you that side as well that's zero six five two and if you look at zero six five two it makes it look like it's a brand new witness as well and then could i go on and talk about the trial testimony very briefly ok the trial testimony if you look at page five thirteen zero six he starts talking about susan searle so he makes it look like these are two different people and he knows it's the same person he actively is trying to misrepresent and make it look like these are two people so he's pr hitting the defense lawyer from knowing that this is the same person who's giving completely inconsistent statements and it's he counsel says it's not prejudicial it's incredibly prejudicial because her first statement was completely unhelpful to them  home and she's given i really think you could have done better by this case if you don't overstate things that i that just doesn't seem ok plausible reading it as your own i'm doing the best i can do the tennyson decision i'd like to mention quickly that decision says exactly what we're saying problem which is you have to prove for the brady violation that it's deliberately and different for summaries right and there's case law that makes it clear you don't have to prove intent after tennis and but the tennis in the part i want to talk about is the fact that the tennis in decision seventy five seventy a third ten seventy eight says very clearly that it's not it doesn't brady is not meaningfully kept if you just bury something in a police file you have active have to actively tell the prosecutor so that's what the tennyson case is on all fours here and except that the bearing was fairly different all right thank you very much the case of brain for a verse or share slip is submitted will go on to