merits of the brief the area where we think the district court erred was applying the standard for brady violation brady violation is only prevalent if it's a reasonable probability that the evidence that was not disclosed would have changed the outcome of the case the district court ruling that there was a brady violation characterize the state's evidence as weak  trial we think that is where the major error by the district court happened in this case we have a confession from petitioner buys and it's corroborated by physical evidence was that was found at the scene of the crime such as the  such as some of the bruising that was on aaron raines the hair and blood that was on some of the weapons used all were rooted with the petitioner biases confession and the confession of the districts of the confession was weak partially because the applied a standard of a general susceptibility for mentally retarded people during police questioning and the record here simply just doesn't demonstrate that any course of activity occurred and that is supported by the fact that the district court specifically found that petitioner biases statements to the police were voluntarily given when he ruled against the mount is the first ground is first three evidence in evidence and that's what they would have convicted on there is nothing in the alleged undisclosed information that has ever been made into what could have been admissible evidence and nothing that's been determined would have undermined please the court done aside i represent mr bias i don't really know if the court would want me to reserve time in as much as this is a case where we are also  appellant in the sense that we filed across appeal i'm happy to just go through my argument that would be fine thank you thank you very much your honor it's our position that the district court was correct with regard to the brady violation and frankly our position is that the brady violation that he found the district court could have found even more because what the judge focused on was one roger cordray and mr interestingly enough also confessed to this particular crime not to one person not to two but to at least three different people in addition he was at the scene he was there they found evidence that he was there and he had i believe particularized information and knowledge of the injuries sustained by the deceit place said that he had grabbed the child by the legs and swung around if you can imagine an ice skater you know when i stand steam or figure skater swinging around he was swinging around with a child smashing the child's   to the brick and that is totally consistent with the injuries that were found on the child's head and in addition to mr cordray skin fashion and again these are items that the government did  and it been propositioning young boys in the area a ray moore was found in the building looking he said they found his fingerprints he said he was looking for the victim trying to assist in finding where the victim w however he was doing is looking before the victim it ever been reported to be missing and there was also an escapee girl in who the police even were looking for phone records because he had escaped and left and then they found out that he was back in that very area at the time and they have an interest in him because of his past behavioral history as it relates to  so what did the district court say about those other people that did not believe that it that that evidence would have been usable i believe would probably be the best way to put that for there would be no way to get that evidence in to the case and i would respectfully disagree with the court and i would disagree and part for the reason that one of the things typically a defense attorney should do is point out to the jury what were the shortcomings in the investigation that the police conducted was there a rush to judgment in pointing at one particular person and in this particular case that evidence would would have been available did you not know about this person did you not know about that it would come in under a record records exception in eight zero four seven and ohio's evidence for rule and would have been appropriate cross examination material in addition and i think it's very important when it comes to any brady violation is that i suppose one speculates but you shouldn't speculate very well the competent counsel upon being told that there are other people that were in the area would have would have wanted to interview him they may or produced if nothing else witnesses to the very event that took place and when the government decides not to grant that or give that evidence and again you have to remember this was a prevalent activity unfortunately in hamilton county at the time mr bias was accused because they were using a system called a homicide book and what that mean is that the investigative agency the police department gave to the prosecutor the evidence the police officers thought the prosecutor needed this was the very same  system that was used in jamison case from this this very court in that particular case i think it was assistant prosecutor pete meyer who later testified in  deposition about that practice the prosecutor's office was not given all of the evidence they were given what the police thought the prosecutor's office needed for prosecution and so often times unfortunately and mr byass case is a prime example police decided well that wasn't going anywhere because another suspect turned out to be the deceased young man's brother who was probably the last person see the boy alive so what did the state courts say about this policy they weighed in on this policy they haven't ever waited in as i understand it on this policy ever they dodge this policy every time because it historically comes up in post conviction and in post conviction we rarely ever get a ruling on the merits ever in a case on post conviction least i've never gotten one and i've done brady objection down the road your honor i know they do now and they do in part because again of this court's decision in jamison specifically finding that it was the brady violation and  know that again according to again the assistant prosecutor pete meyer that they have now that policy changed in one thousand ninety four this case occurred in one nine two and so they obviously have learned if you will their last and and they're now asking the governmental agency whatever agency that might be that was investigating to turn over the file so that they would make a determination and of course again much of these cases occur may not even occur today because we've had a change in ohio's rule with regard to criminal discovery that says the prosecutor should turn over everything they have period and again in the jurisdictions in which i commonly practice i get the entire file but if you that rule is that the prosecutor should turn over everything that they have the key problem is whether the police are weather to the prosecutor precisely in this case it is clear they didn't turn it over it didn't come to mr byass counsel's attention until they were in here because corpus and they got a chance to see everything they court or was it decided that there was procedural default procedural default specifically found again by the court of appeals so then what is what is your position is to our standard of review the noble the first time anybody said a chance to hear it should review it fully so that would be my positions on that are there other issues than the brady issue that you want well the other issue just briefly  bias has an i q somewhere between fifty and sixty as a twelve year old they tested him and it was fifty as an adult it is sixty and as a result of testimony on an atkins claim in hamilton county the death penalty portion of his sentence was removed he is in the point zero four percent tile of the population of the united states far as his  q goes he was interrogated for roughly twenty six hours and when there were discrepancies as the officers put it  machine off and on yes that that occurred during the motion to suppress ok i always do if your are i politics the it's during those times that mr discrepancies and that's what they testified to at the suppression hearing and i'm sorry again i just have difficulty with that i've done this for forty years i've been a prosecutor a been in the system the tourney general i've been a defense lawyer and i'm an acting judge and as far as i'm concerned when you tell me they're turning off the tape recorder there are reasons beyond their discrepancies and we're dealing again with mr bias mr bias really is likened to a if nothing else the youth the officer said well he had street smarts at least that was how he read it but mr bias explained that he was an explorer i guess that jock christo that he had studied police techniques for years and wanted to go to the crime scene and assist them in the investigation of the crime because of his knowledge he indicated that he would i went to the tenth grade and allen elementary school when asked to spell allen he basically told me to have to get back to him on it because he didn't know how to spell read or write that's mr bias and we have split our miranda and it's in the brief i'm not going to take up all that link the time because i think it's well briefed but there's an issue about the voluntariness then knowing intelligently waiving it's all set out and i believe there's a strong case that we should have prevailed at the district court on that again there was a certificate of ability you haven't with regard to that argument and so we would ask certainly the court to to give consideration to that and if they see that i'm there just in the minute and a half i have left i'll just briefly touch that this is the case then in august the defendant is extradited in october he is tried he has one lawyer who was a civil lawyer who will eventually we asked the court about trying if he could try a couple of cases and they were death penalty murder cases we all know the links the with ohio requires counsel to go through twenty  to keep at the cutting in both the law and all that goes on with death penalty cases they went to trial in two months at the end of  that the guilty verdict in the judge said i'll see you tomorrow for mitigation you know i just had a death penalty murder case my man was extradited in january in april we had  trial not april of that year the following year and we had already laid out the trial plan in mitigation was to occur three weeks after a guilty verdict should there be a guilty verdict muttley that the death penalty case was a plea bargain all the way to an involuntary manslaughter mr biased did not get effective representation i think you think coun to touch on a couple of things that we're discussed the first thing is as far as the police interrogation of petitioner bias and that his stature as a mentally retarded individual was found i the question that is supposed to be asked is from the perspective of the police department the police officers doing the investigation i believe it's governor that to what would they have known that he suffered mental deficiencies and as the district court found there is nothing at the time of the interrogation that would have shown that he was so mentally retarded that he didn't understand his rights that even though he did at first say that he had graduated tenth grade and had gone to al elementary he quickly corrected it and said that he meant high school he he continually would tell the officers that he understood his rights that he knew that he had a right to an  attorney they had that on tape several times they gave him his miranda warning to toys and there was no indication through any of that that he didn't understand any of those rights and that's a finding the district court as far as the  aaron raines was found to be discredited by the officers the went and found roger cordray he denied knowing aaron raines they took a sneakers and determine that the tread on his sneakers did not match the sneaker trade at the crime scene about that entire procedure it is in fact a very easily easy terror to engender suggestibility in somebody who's who has mental facilities are no better than so that he then came out with what he thought they wanted him to say i mean there were no would that that the central park jogger case in new york the wound in case they had five of those young men confess and it turns out not a single one of them was guilty now i don't know to what extent those young men were retarded but the record shows beyond any doubt that this would agree that in general that just bill it would be a problem just that in this particular case there are no facts in the record that demonstrate that petitioner brought out that he was coerced into his confession that that there was any acts by the officers that show any form of pressure i also pose i say to you that there's no evidence of that in the record because they turned the temper quarter off and we don't know what happened while it was off i think in that case we'd be spec we would be denying what we do know from what was placed on the tape what he said when he did his video walkthrough at the crime scene the statements that he taking a two an unsworn statement a mitigation so i think all those things in the record help to support that he knew about what was going on in the case and that it would be improper to try to police and gage in this sort of practice they are the ones that turn off the machine and the presumption ought to be that they have something less than a really good motive for doing that and it may be that we can't do anything but speculate here but it would certainly strike me that not only would judges be a little i would a little skeptical about this practice but it could it could affect your jury verdicts to you and it seems i hope that's not a practice that they're still engaging in i mean the tape recorder is there for a reason and the reason is to know exactly what goes on in the interrogation room not half of what goes on that's starman for today and did the state courts make a finding on this were and what standard of review do we use on the on the brady claim it was a procedur fact that's from the perspective the police he was able to answer questions he said he understood his rights the officers read it line by line to him the ranter waiver form after the first during the first interrogation during the second interrogation put it back on the record that he stated he understood his rights and that he didn't want an attorney filled out a form the third time and it was only the last interrogation th t ended up happening not off the record and that would let me ask you this just one more question is this the defendant there prompted the only prosecuting attorney who tried to case to refer to as retarded on several occasions during the trial and as i recall he then wanted to claim that it would be double jeopardy to have another hearing to determine whether or not he was mentally retarded they knew that he had some that he was a little bit slower he had some educational problems but i don't believe the counselor referred to him as mentally retarded and if they knew that during the trial don't you think they knew that while they were interrogating him well how did they find out between the time the attack interrogated him and the time they testified that he was mentally retarded well there was no it's more snow or there was no duty whatever that during trial during trial that he was a mental retard even his own expert test and some kind of objective and accurate test to find out whether he's retarded or not they seem to know that at the time of trial and my question is if they understood that at the time of trial why didn't think understand that while they were interrogating him that's my question i mean you told me there was nothing in the record to indicate to them that he had any problem any problem with his intellect and obviously people  even without objective psychological testing i think there's a significant difference from the officers having a witness or offended that they describe as nervous and of they knew that he had only gotten to tenth grade so they're basing it off of his lack of education and knowing that you have someone that is a source of supple and it is officially mental retard i think there's a difference in the and what that there's a difference from that he was being charged and what the trial of the trial was so i don't think there's an issue of competency where you are an understanding what was going on of course you have a severely mentally retarded person and the possibility of of  the death penalty and you would have and the issue of whether the factually the defendant was being misled or later on in the interrogation you would you would think with all their going on the judge or his lawyer someone would have asked for a competency examination and again i think it's from the people that were interacting with them that nobody at the time saw such a severe  deficit that they thought competency to stand trial well it was an issue i mean his lawyer interact with them daily like i said you have the expert report that says he's understanding the understanding the charges against them and crime i don't know i know i think he was an ok what if we can look at all apologise but just for your information let me just say that the difference between manuel retarded and borderline retarded can be as much as twenty points an i q but a line is seventy and above as i recall and my old lady is seventy down to sixty so we're we're not talking about somebody who just had learning problems we're