for the morning and greer versus erie county district attorney good morning your honor is may it please the court michael burns from the re county district attorney's office representing defendant appellant jack to neary district attorney for erie county with the court's permission i'd like to reserve two minutes of rebuttal time thank you in addition of my brief i would like to make two main points obviously we're asking the court to reverse the judgment of the district court and i'd like to make two main points the first one is that with all due respect we believe that magi strate judge baxter misinterpreted judge the meter which is ruling with regard to mr greer and that her characterization of the effect of the god shut case in this the effect of the god shut case was was not accurate judge and we just respectfully disagree with that first of all gottschalk does not impose an absolute absolute bar to d n a access if there were an absolute bar the standard would be basically that you are not entitled to he would not brief yes but i disagree with whether it's an absolute or yes yes yes no the gottschalk says what that the petition for d n a access will be granted it will be granted under certain circumstances and what it basically says is yes you can have access to d n a but you have to meet certain requirements and that's what basically what what justice roberts said in the osborne case that says if you confess to the crime then you don't well we don't need to courtroom well we what gottschalk said was that you can have access to the d n a if the convict for one if the conviction was based largely on identification evidence and two if the d n a evidence  establish the defendant's innocence so there is a process there there's a procedure there's a requirement that he asked to follow that he has to say that he has to satisfy that maybe a stringent requirements but it is it does not constitute in our view an absolute bar secondly judge judge baxter said that there she suggests that there is an explicit prohibition here that you deny isn't that what you're hanging your whole argument on he has confessed to the crime he has no right to you've been convicted after you've been found guilty and you're the conviction is valid the requirements for access to d n a x d n a evidence are more stringent now the other thing is that again judge judge baxter said suggest that there's an expects list of prohibition here but again you can get the testing if you meet all the statutory requirements secondly judge demitra which had a hearing in fact she had to p c r a hearings under section ninety five forty three she said assuming argue when you know that he did make that request that he simply in his peace peace petition made the bold statement that the evidence would be exculpatory and what your meat judge the meter which suggested what he's got to do more than that he can't just say  not really an ed case but what are we to make of that i mean it does interested me that is you know i thought why didn't he get a trial and apparently he claims that he asked his lawyer to get it because there was an attempted rape but there was no rape committed and that with regard to the august incident that mr greer admitted that he had had sexual relations with the victim and therefore that identification was not an issue so the suggestion that sheets that that those the holding was that those could have been those could have been deposited by the victims was doesn't matter if it's different from the third if you have the testing as to the third where that definitely was  does not contest the third that's correct c s e admitted that they had sexual relations but the point is i believe your honour's that that judge the meter of it's although the although he did not win afforded him process and procedure she didn't just say you c therefore you automatically don't get the d n a she discussed the she went through the process that is provided in got shock and discuss the the evidence and concluded that mr greer did not meet the requirements set forth in gotcha is that the argument if you presented to the district court or was your argument to the district heart that there was a confession in the confession bar prevents him from access to d n a i argued to the district court and keep in mind your honor that the the district court the the format of that argument was that the magistrate judge baxter was asking questions rather than have we didn't we didn't really present argument with others we confession was not an automatic bar i believe and that's that's the same argument i making the same argument today that that leads to my second argument what has with which has to do with  confession be identification evidence is it not identification evidence well i think identity of the person is that at issue it's not a situation where you know who it was and so by virtue of his having confessed he has self identified is that is that really the same it could be i think that when we talk about identification evidence trichet typically we're talking about another eyewitness identifying the defendant in court well we had sex but it was consensual so you see the fact that he confessed we not bought should not have barred him and did not bar him from access to you and we don't believe it did your honor again the under god shock and that leads to my second point which has to do with process that got shot had set forth criteria if he meets the criteria he gets the evidence and we don't believe that he met the criteria and interestingly enough subsequently godschalk as we're all aware and sylvania and acted section ninety five forty three point one and those requirements are more what was the criteria that if maybe i should hear from you i know you'll tell me if you do or not but you know it seems to me that given a case of agreed but the reason but again the reason for that is judge that that once you've been convicted there requirements for getting d n a access are more stringent mr greer could have and i would ask why didn't mr greer file a petition under ninety five forty three point one he could have but he chose not to do that the old law under gottschalk i would argue is less stringent and judge baxter says that as applied to greer it is unconstitutional so if mr greer were to challenging ninety five forty three point one which is more stringent that then god shock and judge baxter's reply was that's my concern and again we still have a valid confession mr greer has made no effort to try to invalidate that confession he hasn't filed a hate this petition or any appeal in state court to try to invalidate the confession the confession still stands and mr greer says that the d n a evidence could exonerate him but he doesn't tell us how he just says that if the d n a is exculpatory that both in his words both in one of them it isn't it obvious i mean maybe i don't know enough about how the forensics but isn't it obvious is the how it would exculpate him i mean if a rape works i mean i thought the point of the rape kit is you've got some sort of bodily fluids or other physical evidence from the victim that was that was put on of the victim by the perpetrator is correct where you get convictions and he's correct in that there was someone other than the perpetrator who had sex with her at the time that therefore that rape kit could be inconclusive right well the point is that even if it's not mr greer's d n a that doesn't automatically exculpate him because  it could but and i think i understand what the court is saying is it doesn't matter if he confessed or not we have d n a evidence which may or may not exculpate him so why don't we just hand it over and the answer to that is  i understand your legal argument but but the practicalities of this arc curious to me to continue should some white on on you know what's the harm the laws pennsylvania in respect to this confession bar and i understand your argument this is an absolute bar if there's a way to satisfy understand that but pennsylvania was a bit of an outlier by having this in the first place since altered its its rule you know this isn't in essence a legacy case is what i'm suggesting to you is that fair i'll go along with that all right so what's the harm in turning it over it's not as if we're going to create some sort of floodgates problem for the commonwealth i mean why not i'm i'm just i'm finding a huge difference for him terms of the sentences and for what twelve thirteen years mean even my point is even if you were let's assume from your you're right on the law you know let's assume you've got technically a good argument you know the camos job is to make sure you get good convictions not bad ones why not turn this o well you found that mr greer was denied his constitutional rights and the right to due process so i i am innocence and i want my d n a and support as he had he had the opportunity to do that pretrial and he turned it down you made a conscious strategic decision to turn it down and the fact of the matter is under osborne that the right to access to d n a evidence is more limited now and you haven't contended on appeal but judge baxter  should have applied the osborne test i mean just baxter said you get the d n a that's the remedy i'm i'm hearing you know what you're saying to us now as well she probably should have made him jump through the hoops of the pennsylvania statute but you haven't said that on appeal you have not complained of her giving that the d n a is the remedy well with due respect i believe that we did state in our wrong in opening and saying you get d n a as compared to you need to jump i understand i think the issue is process and simply the right to access to grid west access to the d n a so you might get which might you might get a ruling that you really don't like here we have a farmer your targets problem might be getting a decision rather than just turning it over in this case exactly so you're are you maybe i misunderstood or your argument in the district court was he had adequate s yes and that under under osborne he the process that he that he was title to and that he got was was adequate that he is entitled to access to request access nothing more than that that's all the constitution requires he had a process he had a procedure that's the fundamental right that he has post conviction and he our position was that was given to him and under osborne he does not meet the in their brief below mr pure greer quote was not entitled to post conviction d n a testing pursuant to pennsylvania case law that prohibits constricted the fend and from gaining access to d n a evidence when the conviction is based on a voluntary confession there's appears in their brief to this court at page seven and at paragraph ten in their motion the summary judgment to the court is a shifting of the sands are indeed shifting white why is that statement inconsistent with the notion that there are exceptions if identities of issue and i don't see those as well as contradicting stated well he was he stated he stated here in oregon where this court that he believed that there was no confession or in pennsylvania law and i take serious issue with that he just said it's not absolute it was absolute at the time and that's our that's our contention i mean indeed the rule was announced in godschalk which is applied to this case it was then reaffirmed in commonwealth versus young in two thousand and four and it took a case to go to whole weight the pennsylvania supreme court just last year in commonwealth versus right to expressly overturn the confession bar under pennsylvania law and it took the pennsylvania supreme court right last year to say that's not a correct interpretation of that term but that's actually what judge demitra bitch did say she said the conviction rests not identification but on to voluntary confession so isn't the problem here that there construing identification evidence to lewd confession i think that's that's that's precisely it so when there's a confession on what the pennsylvania courts did was in construing that was they made a rule i mean absent it resulted in an absolute rule of a confession bar for individuals like mr greer who had previously confessed the crimes a conviction it is an absolute bar on receiving post conviction d n a evidence in state court and what osborne said and let's not forget the broader paradigm is evolved in the last few years osborne said quite clearly that federal courts may upset state courts post conviction relief procedures those procedures are fundamentally in adequate rights overseas was pretty much like the alaska one in an oscar and so the supreme court would have said that this there has to be identification evidence that would have had muster i'm just wondering whether the and the very issue of confessions doesn't people identification rises to the same level well in pain in the alaska in alaska law there simply was no confession for mr osborne had confessed and the  later and the the last one courts and there was other eyewitness evidence putting him at the scene of the crime this is a unique situation here the first two rapes we're talking about no one puts him at the scene of the crime in fact or alibi witnesses and he was not there the victim never saw the perpetrator so she really couldn't identify him you're arguing that in this situation when you look at the confession was identification evidence and that's what that's really the the problem here it's not that it needs to be identification evidence it's the construing of identification evidence in this specific case as not including the confession here because identity was  sure if i'm a fan but what i'm following your honor here we're saying that the pennsylvania courts construction of the bryson standard resulted in an absolute rule being applied so the pennsylvania procedures right even if we asking you what principle it's so rooted in art this is the test right well they're all agree there's an or tests in medina it's principles rooted in the principle historical principles here and judge baxter didn't really look at that simply because d n a has only been and the point here this what's that fundamental difference that the state has provided a post conviction really for siege or and then denied access to certain individuals on an unreasonable basis simply stated the supreme court has said recently that a frightening high number of people confess to crimes they don't commit and how do we know that that's fundamentally unfair were what's the history or case law or i mean or is your argument that there are naturally wouldn't be any because we're in new scientific territory i don't think there's any physical evidence if you want the physical evidence you get it at trial you know what you don't do because there's something finally unfair the commonwealth what you don't do is make a strategic or other decision not to get it right up and we especially cannot deem him to have been weighing the system invited him to bypasses opportunity to get it at the most meaningful time namely what had jury was looking at the rules of of pennsylvania at that time were only two prong that liberty interest by virtue of making a decision at trial that he was allowed to make this is herring versus proceed that's fine fine maybe he didn't wave it but what makes it if he has a plenary opportunity to get it at the most meaningful time  he bypass what's fundamentally unfair about narrowing his window for getting it at a less important namely after all the work has been done in the jury rendered i take your point i think that we have to look at this  also historic context this was one nine hundred ninety nine in two thousand when he was tried and convicted and at that time d n a of the evidence was just in its infancy today maybe that's why they don't want to turn it over maybe they're concerned about the quality of their in that may be the case that we have the science now to determine what is an inconclusive test in what is a conclusive test and the simply also no floodgates are here i mean this is as your honor said was and is a lazy case there's this this is she says as in god shock defendant conviction rests not on identification evidence but on the two voluntary confessions that he gave so she was permitting of the notion  that there could be a if it were identification evidence that would be permissible but she's construing it as not including a confession are you saying that is a confession bar we're saying that is the concern that is that is a statement of the confession bar that when a confession is on or is it a construction well to be sure this is a judge made rule this wasn't a statutory rule and there also goes to the federalism points we're not asking a school district honorable that was created by the pencil and legislature we're asking him to to declare unconstitutional rule that kind of just didn't even did yeah i developed and ran away under pennsylvania state law and it took eleven or how many years until last year to correct indeed eight years after mr griffith of this action in this court seeking to vindicate his constitutional rights that he lost in two thousand and four and that's a significant inequity of this case he's been seeking for almost a decade to vindicate the liberty interest that he had in meaningfully accessing the states post conviction relief procedures that were provided to him for almost for over a decade sex with the day before that alleged rape well there's certainly nothing in the trial record i would assume that would it came out another point that mr missed the victim was married but her husband was out of town for the entire week that that r is done and it's courts when a state rule is intransigent and indifferent to that cell you tory and several due process has a role to play simply stated that all due process demands more  have no argument you say he's guilty plea and if mr find that hard to believe because putting on my criminal defense lawyer hat in too much of that work but i did a little i think my argument is not that my client's guilty it's well his d n a is there but you know he's had sex with a woman on other occasions it was consensual he so testified and you know i don't think it was any custom probative but it's not in debatable proof that he raped her on the first occasion is it well pretty soon you would line that up with with a there was human error in the collection of the rape did either in time location process etc well that human error would have to be that they took we know the rape kit was taken that night the night of the rape and you know what's in the  have you know nothing about it's a black box that it's missed and that's part of the point i would have is i mean practically if if if we do agree that the he should have access to the d n a and the d n a let's say is somewhat with the charges are dropped failing that it's a state p c r a petition challenging the conviction under the under actual innocence failing that it's clemency failing that you have a federal hevia slam under actual innocence which is a it's a very murky area but that's how it proceeds it would go out of federal court it does go back to the state with significant evidence to show that we got the wrong guy here jones days taken this pro bono we were appointed counsel by the court when answer is clearly no as i've said before and then their response to that was you know how can how can it prove his innocence well it can show if he was the perpetrator and again as as has been stated the d n a evidence even if it kit just does not match mr greer that the commonwealth then is going to take the position oh no this there's something i mean is that what happens here that that it is think for the magistrate to make the logical or the the the leap that because the because it's not unheard of for innocent people to confess that the automatic confession bar is unfair i think that was a a flaw in her logic what it what about would you address what mr q to be said about this being a one off case and he seemed pretty confident that you know when you combine the statute of limitations how do you respond when we don't believe so because if the court rules and mr greer favor again with the provisions of ninety five forty three point one which are currently in fact and that's that's a more stringent standard if this court finds that the gottschalk standard was unconstitutional then again i think that it's quite possible that young mr mr greer had a process under god shock he had a procedure that's all that the constitution requires that is what is fundamental at this point i counsel with your permission we've asked you