district court denial of petitioners petition for writ of habeas corpus to reverse his conviction and death sentence must be reversed so that in a fair and unbiased hadiths proceeding the testing that this court ordered on february ninth of two thousand and four can be done and petitioner can prove his innocence in addition however petitioners conviction and death sentence must be overturned now because i says been shown by the record established in the district court but ignored by the district court petitioners constitutional rights were violated by the prosecution's suppression of material evidence in violation of the supreme court's ruling in brady versus maryland i will first address the reasons why this court may and courts mandate with respect to testing has not been fulfilled and why the proceeding was not fair and unbiased this it should have been i'll then turn to the brady violations that we contend have been established first of all with respect to the testing the first type of testing that the court ordered was e d t a testing of the teacher and what actually happened in the district court was inconclusive botched and useless the testing e d t a testing had several flaws first at no time was petitioner or his experts allowed to examine the t shirt to determine what stain should be tested or how it should be done we were excluded from any contact with the t shirt during the testing process second the stain that was tested at the district court's choice was stain never before tested and therefore no one knows whether it was a blood stain or whether it had petitioners d n a in it therefore the testing that was done cannot possibly have any relevance to the claim of tampering that petitioner has made in this case as the court knows the claim that was made and which this court ordered to be tested was that the prior testing of the stains which showed petitioners now the next problem with the testing with respect to the e d t a was that this stain that was testing that was tested was collected without any participation from petitioner and in fact what happened was the stain which has been described and given a designation of it was not the stain which had clean the sleeve been tested and in fact the respondent suggested that the stain appear to be tested which with which we agreed was six g b and then finally when it was about to be tested respondent had to admit that that stain had disappeared as a result again without any input or consultation or examination by petitioners experts the court chose an area on the key tshirt that had not been tested before and for which there had been no proof that it was either a blood stain or that it had petitioners d n a therefore collecting the sample really was a useless task however significantly for  purposes of the district court's ruling with respect to dob or when the today testing was done petitioners expert dr ballard was able to detect which were the control samples and which were not thereby proving that the method of testing was scientifically accurate in arriving at a conclusion the last thing that happened with respect to the flawed testing was that the same sample that was tested by respondents e t s expert dr seuss dak originally showed a positive finding but when that was shown findings with respect to the findings of her e d t a was that there had been contamination in his laboratory with respect to other uses of the t s a of course i don't know exactly because all we have is that report but what he said was that his findings with respect to e t a could not be given any credence because somehow within his laboratory we don't know exactly what it was or why we asked to see that and weren't given it somehow in his laboratory th test correct yes it is quite prevalent in the environment and that is one of the reasons that the testing that dr ballard set up and that he suggested to the court have controls so that it could be time and whether or not a supports our theory because it shows that e t s thing can be done if it's done correctly and what we wanted to do was to find out why it was that he received a positive result and yet then told us we have no way because we haven't seen it that that positive result came from contamination in the laboratory we we do assert that the testing that was done by dr ballard and dr seuss back on the wrong stain cannot be something which is conclusive one way or another but we would like to know what it is that doctors use that did any that resulted in the results he got and b in point your honor dr de forest said to the district court that he wanted to have a chance to examine the t shirt before a protocol was established for the e d t a testing and as one of the most nationally well known people in this forensic field we would have expected the district court to at least listen to that unfortunately the district court rejected that and dr de forest sent a letter to the district court saying if i'm not going to be able to examine the t shirt so i can give my scientific analysis as to how the testing should be done then i don't want to participate in something that's being done this way and  district court therefore said well then you're out and we'll just have responded be the one to decide this we would have preferred the doctor to force and didn't put his point so bluntly but the fact of the matter was that was the basic problem with the way the district co proceeding that is that the district court said that the testing would be set up designed and implemented without the forensic scientists having input as to how it should be done choice but to present protocols to the district court after judge to sorry after dr de forest was eliminated because we wanted to to the best we could there was no way that we could devise a protocol that we felt was scientifically valid without his input having looked at the shirt and yes we may be faulted for doing our best to go ahead without that input but without that input we really couldn't devise a protocol but let me let me add something to the protocol that we proposed to the district court what we proposed to the district court would at least eliminate the problem that is here before you today what w and the stain of that the district court ended up testing did not have that so even the protocol that we were able to put together without the input of dr forrest was not followed by the district court and what happened was that after the protocols were put together and after dr to force of asked for the right to view the t shirt the court decided to test thin it is no longer there to be tested and therefore what was chosen without any of our input was a stain that was not yet proved to be a blood stain and which has never been tested to see whether or not i yes but you have to choose a stain that has a wide and petitioners d n a in order to first have a valid test as to whether or not it is present and that was not done in this case the district court chose a stain without knowing whether it was blood and without knowing whether it had d n a and now and this we pointed this out to the district court at least we were able to tell just sort this one you do and e d t a test you can no longer do a blood or a d n a test dr ballard testified to that what should have been done if we were going to be testing a stain that had not previously been tested for blood or a was to those test first not only because that would make the stain relevant but because you can't do it after you do the e d t a testing and therefore we had this basic flaw in the way in which the e d t a testing was done now what we would like to do what we what we suggest would be done if we're remain handed which we say needs to be done in order to meet this court's mandate is to go back and have dr de forest or petitioner side if the district court refused to allow doctor to force participate although there's no reason why he should not be allowed to participate in doing what he said he needed to do first go back and look at those stains and determine which sta can be tested in the prior testing in two thousand and two there were several stains that were tested that were found to have both blood and petitioners d n a in it from our examination of the t shirt it looks as if there are still areas of those stains which remain on the t shirt which were not part of what was cut out all this was something one out of the district court before the presumptive blood testing was because we set up the testing in our protocol to be done of stains that had already been tested found to have blood and found to have the petitioner's d n a but no one was expecting to  migration i would have to look at the record to see your honor but when we went we did objects strenuously to the fact that a stain was being tested that we had no input in and that as far as we knew had never been tested before for either blood or d that is the crucial part to our argument here today with respect to e t a testing that is that we have we have no conclusory no conclusion that can be drawn from the testing that was done because we don't know whether what was tested was blood and whether it had petitioners d n a in it therefore let me ask you let me ask you this even without knowing those two items if the tests showed that there claim makes logical sense is if one finds first that there is a tensioners blood therefore with his d n a in it and it has heightened e d t a if what is tested has not been established first to be a stain that contains petitioners but then a heightened e d t a is meaningless for purposes of what it shows and that's all that we're there is testimony from mr cooper himself that he was wearing these prison issue is that part of his testimony there is a question that the prosecution asks during the case to which he responds that one would take from that that he admitted it although it's not a clear admission and he did not testify on direct or in any other way that he had on but the issue with respect to the brady claim that we are raising of course would be there regardless of whether or not he admitted that he had coke heads shoes because they really didn't but you can still have  that that there was sufficient evidence under grading that hadn't been turned over as to the broader availability of these he would still have to you know benchmark that ultimately against the claim is that the prosecution failed to divulge to the defense that leads carol the warden at c i am had called during trial to tell the prosecution or the sheriff's office that he proof that they were putting on about how these shoes were only available and see i am was incorrect that had to be disclosed to the defense and it was not and as a result the prosecution was able to argue very forcefully in closing argument that the shoes the petitioner was alleged to be wearing were strictly for person use something which has now been proven to be untrue and that they were unavailable for retail stores in california something which has also been shown now to be untrue and our brady claim is that had the institutional right necessarily prison but institutional purposes the evidence that we were able to develop at the evidentiary hearing in this case for the first time was that the protests which the prosecution said were strictly for retail stores and we also showed through the testimony of gonna lock one of the executives from stride right that the fact that the shoes were in the catalog for retail stores he couldn't rule out the fact that they were available generally and in california and that evidence was something that only came to light during this latest proceeding because it wasn't until this proceeding that we were able to find out about what had been undisclosed from the from the defense during the trial and let me just add to this with respect to the unfair hearing the person who to ask questions of because we found out that he was in hong kong and therefore unavailable to subpoena and the court said that's fine both sides and said he questions to ask to mr newberry so that we could get the answer to some of these questions we had to rely upon mr luck for it and instead of after we submitted our questions and the respondents a minute done the court said well we won't bother with that and we were never able to get those questions to mr newberry that's the way that the proceeding went whenever it was something that we were trying to get if it was something that we wanted we didn't get it if they responded didn't want it then they got it and that's another thing and then a question i have relates to  arguments there's reference made to white man but i'm wondering in the evidence and the statements to police is there anything that says white men as opposed to man or henri or young people yes in an exhibit which we first saw at this hearing which is exhibit you you you three use there is a report in the daily log of the police which says three young males does not say what their ethnicity is however my point of my question is very simple is there a document in which they are identified as white yes and that's what i'm going to get what is that what is that document that is in josh ryan's interviews with the observed that kevin cooper is either guilty or he has been framed by police there is no middle ground indeed there is no ground in this case and kevin cooper is guilty as sound isn't possible tampering theory relates to a piece of evidence that was never used against heaven cooper at trial it was marked into evidence by the defense it was used to make an argument attempting to engender reasonable doubt as to three barky trees that were never subsequently located it was never known that there was any connection between this garment and the ryan hughes murders in till two thousand and two when agreed upon post conviction d n a evidence yielded d n a profile been cooper and the d n a of his victims the amount of blood being referenced with respect to these various stains is less than one fiftieth of one drop of blood the allegation is that such a minute quantity of blood was planted apparently in anticipation of the development of nobel prize winning science to be discovered years after the trial and to yield d n a evidence kevin cooper was given the benefit of e d t a testing by his chosen expert and the results by his chosen apps for it did not support his implausible tampering theory he was also given the benefit of mitochondrial d n a testing which yielded the same result that was derived at trial from the examination of the hair evidence by kevin cooper's defense expert would you would you please respond to the argument by mr cooper's coun what happened was the d o j scientist did not examine the shirt and making their regular indication to judge half instead the d o j scientists relied upon their notes and photographs of the documentation that had been made at the time of the agreed upon d n a testing both kevin cooper's expert dr blake and the d o j scientist examined the short at that time fully documenting all of the testing done to the shirt unfortunately the d o j expert did not appreciate at the time that there was subsequently presumptive blood testing done in the area of the selected staying at the urging of dr blake accordingly more was consumed than was appreciated at the time the recommendation was named as judge has pointed out both sides had equal access to the documentation of the shirt and both sides had equal opportunity to know that the portion that was selected was no longer usable i let me ask you about that then if the portion was no longer usable and it seems court and i think everybody had the vision that there was going to be sort of a yes or no proposition as a result of this testing what then in your view the testing reveal basically crudes what the justice department contended from the outset the justice department scientist advised judge half at the outset this was a highly varied substrate of unknown history they did not believe there was any scientifically valid way to account for the myriad of possibilities for the presence of e d t a throughout this highly varied substrate and in fact the d o j scientist expressed a great concern about migration and dr ballard was asked about migration in the initial science tutorial conducted by judge hough he was quite dismissive of the concept at the time he said that it really wasn't much of an issue and in his mind if indeed there had been migration it should be it should be visible when the controller is are selected it was only after dr ballard's test results were adverse to the tampering theory that suddenly migration was entertaine explanation for the presence of unknown d n a in a controller area and what's ironic is if in fact d n a has migrated from the minute stain that was tested or from some other staying this only proves the justice department's contention from the outset that this is a highly varied substrate of the known history and there is no scientifically valid method to make a forensic determination as to the source of e d t a e d t a has no identifiable means of tracing it to a source the amount of e d t a in preserved blood is point one three percent i exceedingly difficult to conduct any of these tasks because laboratories throughout the country use e d t a in their testing and so the prospect of contamination was great and naturally produced results that he later realized showed the presence of e d t a in the buffer solution that was a control and should have had none he realized his results had been contaminated and counsel for m incentive for which to change his results we produced expert testimony from another independent academic scientist dr terry with the city of hope he indicated to judge hough in his professional opinion there would be no means by which to work backwards and trace the source of contamination as to needing to know how contamination occurred in order to avoid it and subsequent testing that's not something that needs to be pursued  context of a forensic setting there's only one other case where this evidence has ever going to admit it and that wasn't a case where it was not challenged but in the pompei case in new jersey there was great concern and about the validity of the science and great concern about dr ballard nevertheless the judge half allowed mr cooper the benefit of testing despite the vigorous objection expert apparently the only one in the country who undertakes this testing yielded results that did not support the theory this court was told in the eleventh hour if there result of all this testing a wash basically doesn't prove anything at the end of the day one way or the other well it turns out slightly nothing and equally important one of the contentions that we presented to judge could tast every bit of the shirt you could spend years testing this shirt trying to determine the various levels of e d t a throughout the garment and it would show you nothing you could expand lots of money and lots of time but when you have a garment that you don't know how it's been handled how it's been treated it's been at me elements it's over twelve years old it is indeed such a highly varied substrate that you cannot account for the sources of e d t a and this was our contention at the outset this is judge has findings and so all of this testing shows nothing and it cannot show anything more the smoking at that looking at the brady claims and the claims of certain evidence that had not been turned over by the state until later  it was the trial jury aware of the of that that there had been a set of coveralls that had been destroyed yes in fact they were your honor the defense knew about the cover  received a report about the recovery of the coveralls and they had that information and showed absolutely no interest in the pair of coveralls once they discovered that they had been inadvertently destroyed by police they showed great interest and they had access to the officer who destroyed them as well as his supervisor they then worked primitive to come in before the jury and to present evidence that the police had in fact destroyed these coveralls they were able to do it without presenting the testimony of a witness who was absolutely lacking in credibility and had no credible evidence to connect the coveralls to the crimes so it was a win proposition for the defense because the jury was allowed to consider the destruction of the savants and how it affected their consideration of the evidence so this is nothing new no indeed the only new evidence of any reliability that has been presented since the time of trial is the post conviction d n a nuclear testing results from two thousand and two which indeed is damning evidence confirming all of the evidence that was presented at trial  d n a evidence i think some of the focus has been on this that's called number forty one that came from the wall yes but there is also testimony in th what he had done with that particular sample in terms of maintaining its integrity what is the state's response on that allegation that was determined in an evidentiary hearing before judge kennedy in the state trial that we look at that under ed and terms of how we're looking at everything are we looking under a little or some other standard or was it the second and successive petition with respect to the freestanding actual innocence claim t court need not reach the question of whether or not a freestanding actual innocence claim is subject to the limitations on the success of petitions pursuant to two two four four b the reason being is that an actual  eleventh hour virtually everything that has been brought forward by the defense are matters that have been litigated since the time of trial or on direct appeal or certainly in the early collateral challenges there is court from the eleventh hour in truth as a matter of law the mandate of this court reflected a preliminary determination that was made by the end bank majority after only hours of consideration the case that they had no prior familiarity with you had in excess of two days decades of problem in harry or procedural history and you had evidence that had been considered again and again and again by both state and federal court that the eleventh hour forced the end part of him it all to review in a matter of hours and they made up a limit early determination that is not binding upon the district court and indeed the united states supreme court makes clear it must be determined a new and it is not binding upon this court and that preliminary determination was limited to finding that former warden carroll had come forward with newly discovered evidence and if true kevin cooper could not have been wearing the distinct shoes well in truth we now know that that was not kevin cooper's claim he never asserted that the shoes could not be  obtained from the prison instead his claim related to whether or not those shoes were available at sears and other similar retail outlets so we have a situation where kevin cooper has relied upon a preliminary determination panel and the eleventh hour before his execution and that determination was parliamentary and it was based on misinformation and it was face time misleading information about the availability of testing that was not scientifically valid it was based on a belief that one carol had only recently been discovered by the defense in truth when judge haas took evidence she received testimony that the defense discovered one carrol misinformation as early as two thousand and one and not only did they receive former warden carroll's misinformation in two thousand and one they knew it to be false in two thousand and one it is axiomatic that you cannot have a violation based on information that is untrue certainly a rumor that bears no truth is neither material nor exculpatory these are the yes yes let me ask you this same question that i essentially acknowledged that he had this kind of shoe on what is your statement or version with respect to what the testimony said as on his actually you know wearing a set  these prison issues he was asked if he was wearing the shoes that he had from prison in the hideout house he indicated yes he was wearing those shoes twenty we came solely whether some other number of people could be wearing the shoes it was a question of availability not that he didn't have prison issues correct and also over time judge half has conducted two separate evidence in this matter and the first evidence rehearing she conducted the defense trial file was received into evidence before judge tough and once again it was received into evidence in the most recent hearings and in those materials there is a transcript of an interview by a defense investigator of kevin cooper and frankly mr cooper's complaint was he felt he got the prison issued sneakers elsewhere not that he never got them it's quite clear that he received this particular model one brand of shoe from the prison so it really has it has no bearing on truth to suggest that mr cooper didn't have these shoes and as the majority of the three judge panel pointed out in the eleventh hour the significance of the shoe evidence is what ties kevin cooper to the shoes not whether they were in fact available at sears which in fact they were not and counsel suggest that they have proven that the shoes were available for retail sale well the catalog that counsel has told this court was recently discovered to them that's not accurate at all in the trial record the catalog is referenced by mr newberry defense trial counsel has known about it since the time of trial because it's referenced right there in the trial testimony and mr locke it was amazing from his own personal knowledge he was able to refute that there were any sales to major retails because mr locke was indeed in charge of all of these sales and has an extensive knowledge and so he was able to testify and explain to judge half that under no circumstances w retailer so mr cooper has not even proven that such sales occurred well under the state when compelled to produce this evidence over twenty three years later could not affirmatively disprove sales but can it begs the question and overlooks the issue which is all of the litigation strategy of mr hoover is how could someone come into this hideout house close in time to when this tri weapons including a hatchet to go next door and slaughter a family and leave footprints with a distinctive diamond pattern matching the same shoe that mr cooper was issued by the prison in the same sho glass door and inside the rind master bedroom a partial print in blood this is the weight of the evidence not whether it was available to some other individual as mr locke explained this was not a popular shoe and he made that quite clear in comparison in comparing the various sales of large manufacturers compared to the relatively inexpensive unpopular coke head do chew and again i ask you about two other pieces of evidence that mr cooper counsel has asked us to consider in the second haziest one has to do with the blue t shirt that also was destroyed was that was evidence of that team sure before the jury or of the able to the defense at the time of trial this particular contention by mr cooper underscores why we have years that  my question and try and i don't want an argument i just want to understand what the evidence shows was that available was in police possession and turned over in terms of its existence to mr cooper counsel at the time the trial your honor the log of the police department that reflects the collection they received a telephone call and it indicates the telephone call described in a blue shirt the shirt was then collected by the same officer who collected the ten shirts that we have been discussing earlier it is our belief that the reference to a blue shirt in the log was in the st there was never a blue shirt logged into evidence instead the same officer who retrieve the shirt that was logged into evidence who is now deceased put that into evidence but the key point is the dispensed was in possession of all these logs at the time of trial the time to explore the custody of the supposed a blue shirt was at the time of trial counsel mentioned that they had just learned of evidence relating to a report of three white males that was again from the sheriff's logs that were turned over at the time of trial we have expansive jurisprudence that controls what we enquire into twenty twenty two years after the fact and as your honor noted this is a successive petition there are very steep leonard's and they did testify at trial and they had seen the station wagon occupied by three white males they reported it to police they came in testified at trial as to their observations because they themselves thought they had seen something relevant and that was the law was simply are we fraction of that report that they testified to a trial without the correct it related to it yes this is this is a log of all the incoming calls to the police  h it does not suggest that in fact particular evidence ever materialized they were collecting evidence around the clock it's our belief that the date on the report for the tan t shirt was in error this is something the defense trial counsel could have focused on a trial he chose not to know it's not something that can be raised twenty three years after the fact and there's no basis upon which to believe that there's any material evidence involved again looking at the totality of the evidence in this case the sheer volume and consistency of the evidence that was presented at trial remains overwhelming it has only been reaffirmed through agreed upon post conviction nuclear d n a testing there is no doubt as to kevin cooper's guilt these proceedings in a successive petition are not permitted to delve into things that were not raised at the time of trial that must have been raised at the time of trial and again i would only urge this court affirm each and every ruling of judge hough she has ruled that none of these claims come properly before the federal court because mr cooper has not satisfy his burden indeed many of these claims are made under torah lee bart and those that are not mandatorily barred because they in fact have been litigated before they can only be heard if they are newly discovered and none of them are newly discovered addressed each and every concern of the ninth circuit expressed in the eleventh hour none of mr cooper's allegations have any validity whatsoever there is absolutely no evidence to support any of his nearly ad of implausible tampering theories mr cooper is suggesting that every person who has come into play in this case all the scientists all the experts all the attorneys all the officers are either incompetent or corrupt and all the many judges who have repeatedly rejected his claims are blind to the injustice of it all in truth mr cooper secured  eleventh hour state of execution in this matter based on misinformation and misleading this court and he has obtained a three year reprieve at this point that should go no further we ask this court to a listening to respond to argument in let me just start with that list the new evidence that this position report is something which has not been part of evidence and we put on a lot of evidence relating to the fact that it was it shows completely different from what the prosecution said they said that detective actually destroyed the coveralls without approval of anybody else but in fact the disposition report shows that his supervisor kenn hooved the destruction entrecote cost testified at this hearing for the first time that it was a procedure that it had to be approved and that he would not have allowed it to be destroyed without testing because that was the guidelines that he was there for that's the first piece of evidence the next one is the evidence from mitch carroll which we've talked about quite a bit that shows that in fact she did the prosecution and that to essential facts that these shoes were only prison issued and were not available at retail are untrue the next evidence which was not heard before was the testimony of christine slot of her and mary mellon wolf two women who saw three white men in the canyon corral bar the night of the her testified at this hearing and this is all the first time it's ever been heard and stark testified not only that he saw the men with blood on him that night in the bar but that after he contacted our people during this proceeding he was the subject of an attempt to intimidate him from testifying next we have exhibit you you you which was the police log in which we found t essential things that have not been brought forward at trial back in one thousand nine hundred five the first of those two things was that there were three young males who were seen in the ryan station wagon leaving the scene of the crime it's new evidence to support that angle and it isn't new evidence when it's exactly the same that well it may be cumulative evidence but it's evidence from the police themselves that says that the suspects are three young males leaving the scene in the ryan station wagon something which the prosecution said was stolen by petitioner the next thing that came out of that was the blue shirt we have of course have a law that says that the blue shirt with blood on it was turned over to the police on laurel epler the woman who found it testified at this hearing this none of this came before the jury back in one thousand nine hundred five that she did see that shirt and report it to the police and turn it over to the police now the prosecution would like the court to believe that that's the same shirt as the tan t shirt which is been tested here there is a separate log entry for that for that shirt on a different day in a different location it cannot be the same shirt not only are they both in separate dates in different places at different times or different colors that shirt went missing just like so much of the evidence in this case and it has never been turned over no wonder we couldn't have put it into evidence before the jury in one thousand nine hundred five the next fact we have is that james taylor the inmate who testified at trial that he had given the petitioner the pro ca it's testified in a declaration that in fact what he gave them was p k flyers and what now has been shown is that virtually anything mr taylor says cannot go but believe on either side and yet he was the key person in the prosecution's case in one thousand nine hundred five to testify that he'd given protests to the petitioner the fact of the matter is that the catalogue that we just talked about is different the catalog that was introduced at trial in one thousand nine hundred five for stride right was a catalogue that was shown by the prosecution of course that showed only sales to tional customers the one that we showed for the first time evidence was not shown in one thousand nine hundred five and in fact any place we pushed we found new evidence that questioned the conclusions that have been found and all we're asking for with respect to this proceeding is to have a shot at getting the proper testing done that will actually be conclusive one way or another and the ability to prove that the petitioner w had been tampered with when the jury didn't rely on that well we'll be able to show through that judge pool which also relates to a forty one and some of the other evidence that was used the trial is that the police were effort i guess correct we are challenging the evidence at trial with respect to what the prosecution's criminalist proponents did not only at the time of trial with respect to the ten issues but also with respect to a forty one and we now have evidence of course in the hearings that came out during two thousand and two that mr going to say that actually lied under oath with respect to having taken eighty eight forty one out and panel has additional questions i do not it appears not so we thank you for your argument would like to actually think both counsel for very helpful and careful arguments