whenever you're ready is the court i'm mary davis and i'm presenting arguments on behalf of the appellant troy lucas the issue i want to address today is whether the district court error when it denied the defense request in the transcripts of testimony provided in the different trial and the witness in that trial di fonzo or mr lucas was arrested and the other trial mark bartlett testified and this is in the state case and his  and it led to the conviction of demetrius for the murder of robert long the defense sought to admit the transcripts under federal rule of evidence a no seven in order to establish the guarantee of trustworthiness is offered and oh yes ms davis so the fact that smith's conviction was vacated is that some indication then that the testimony of mr bartlett is not trustworthy i don't think so i think the reason that the conviction was vacated was because the federal prosecutors decided it wasn't trustworthy and there was nothing about his testimony in the trial that crow that it was n trustworthy indeed i think that piece lot required demands that you not look at any other evidence and any other case or trial other than the statement itself also according to rule   evidence that cooperates the statement and this case and mr look assist trial there was testimony from a witness who gave a description of the assailant that was very much like the description given by  yes so i'm sorry adds i think maybe i misunderstood you there because you said on the st hand you can only consider the statement and then you say you can consider corroborating evidence according to the rule you the court looked at the statement and made the decision it wasn't credible st the court said that the attorney who did the cross examination did a very poor poor job of cross examination now i think if you look through the trans that is that i mean that's a factual finding by the district court but that that it can be considered even under the old rule eight o seven as part of the trustworthiness of the statements or the degree in nature of the judge in this case said well if this witness had come before this court and this prosecutor well then it would have been a very different right and also and based on what the government in this case is now telling me which which is assume you would argue not an appropriate consideration at this point exactly that's exactly it's not appropriate in law and in fact the judge considered not only evidence from from what from what the government was arguing but that the judge looked at looked at happened happenings that weren't even any part of any court proceeding and that was where one of the corrupt one of the considered because i read shaw and idaho which is based to the extent you think that as being limited to corroborating evidence offered in the current trial not that you can't look at other indications of trustworthiness that are not being presented in the current trial so for example you can look at the fact that the conviction was vacated by a judge on that it was a wrongful conviction that there were retractions all of that sort of indicators are not being presented in the current trial which would see what shaw suggest maybe the court can't do but instead are indicators of whether the if you agree they could be considered he just needed to do it in a better way i don't believe that they can be considered no i don't think one of the biggest problems that the judge to rely upon and the prosecutor pushed time and time again was the poll camera and the pope the poll camera the judge said what you can't overcome this the prosecutor argued he can't get beyond th over and over and over again the poll camera now the other the other problem of the poll camera is the government's own witness that it was a poor quality it was only minutes seconds long at most and the camera was moving so to rely so much on the whole camera was it was inappropriate and at the same time they judged the same time the government put on a witness who cooperated who gave a description the same description that mr bartley in this new trial and that should carry some weight so you we should consider the corroborating evidence but who said so that it was the effectiveness not not just the mere existence is a different rule like if you're if there's a different rule that such a board if you're subject to cross examination for prior testimony i thought i dos suggested that it was affective cross examination in smith's case and the government in this mess case the state basically said at the time they greed stipulated that the time on the pool camera was incorrect and that is th is the only thing that the judge found any fault in he didn't there i mean if you read her cross examination it was very effective she brought up how how why why it take you so long to come to the police why did you lie when you  were st being questions are you still using drugs because you look like you have neal marks all over your hands and arms she did a very good cross examination you know she did more bent i've seen in many other cases she worked with what she had and i think it was there for effect i don't know what more she could have done all that than maybe the whole camera evidence which i think is certainly not as strong as the government would have this  can you spend a minute addressing the difficult alternative argument that even if this qualified d under eight hundred and seven that the the side show trial it would bring to impugn the prior conviction you know was provide the defense for the benefit not to make the job easier for the government and even though the government may have had to take something just not steps i don't think that was really a reasonable and i don't think that this evidence  honour's counsel i my name is sandra wilkinson i'm an assistant u s attorney obviously i was trial counsel in the lucas case and i was also trial counsel in the related matter of united states  which was affirmed by this court by i'm published opinion back in two thousand and fourteen addressing the arguments that mr davis be i think you have to get to the core of what judge titus a very experienced district judge did in the course of that hearing as he grappled with the admittedly unusual issue that was before the court typically at least in the cases that are cited in the briefs the and seven issue comes up when the government is trying to admit testimony under the residual exception and hence the scholl opinion which governs the court's analysis i believe in connection with this case here of course we have the defendant coming forward and trying to admit with a person of proof of the proponent in an exceptional rare case to put that eight o seven evidence  and watched judge titus was trying to understand is how could there when you look at the facts of the case how could this government's cross examination of the now deceased witness that wouldn't happen be compared with the defense attorney's cross examination apart like years before and to true isn't that looking that in in the hindsight  us where not to to do well your honor i think respectfully i think we we have to look at what what all the factors are determine what the cross examination would be for the government because again this is where it's an exceptional rare case where a defendant is trying to put in hearsay evidence under the residual exceptions of the court needs to look at the factors that determine trustworthiness and so instruct us we have to look at what the prior cross examination was in fact show was all about that because the cross examination was so effective of the to declare what would mr bartlett have said to gain by lying in the smith trial is less in the record j and i believe it's in all the underlying papers but certainly at j i believe one day i have to pull it from your honor but in the course of all the briefing doesn't like it then like him because he left that it was that it when he was beaten up that's one factor the nd factor is obviously he was hoping to get out of a situation that he was in which the defense attorney did cross examine him corrected but at the end of the day mr lucas in his testimony had in his i mean what what you keep saying and you've mentioned a couple times that what makes this case extraordinary is that the  is trying to get in this hearsay evidence but the defense is trying to do that based on the extraordinarily based on the extraordinary conduct of the government in this case in the case below in correcting errors including alleged in the purportedly convicting someone who wasn't guilty and i understand that was and you know took some effort in that regard and of course mr morales was convicted out of it after trial and testified in this one but getting back to the of the video the important part of that your honor not i know it's almost unfathomable to understand his trial lawyers but the defen attorney and the prosecutor in the state trial literally stipulated away the most key piece of evidence in that case and what it shows your honor is exactly whether or not what was what was that the away they stipulated to the jury that that they were going to show him the video because it was the wrong time and meaning that it did not capture the time of the murder that is unfathomable and i don't think this davis is actually arguing with that point because you can see the reaction on the tape of the people who called nine hundred and eleven when the shots were fired they all testified that it all happened at the same time and then the police arrived we know exactly when the murder happened and we know the two thousand and thirty minutes that happened before that and because the cameras circulated around and the things that mr bartlett's said he saw are not on that camera and i have no clue even to this  what how that happened in state court the thing that the defense attorney didn't do that the government would have gone show mr bartlett that video and show how it completely at least in cross examination and that makes the initial cross examination not that of is that right certainly that's one way of looking at it of course the other way of looking at it is that the government's cross example what if a witness like mr bartlett had testified that it was snowing that day and then years went by we had the same issue and we know definitively it was not snowing that it's on the camera it's in the weather reports it wasn't snowing would would we not be able to cross examine the witness about all of that if the defense attorney below had not the most key fact in the case and and i think that's what i'm saying it would it would it would go against the grain of what type of evidence is admissible in court when when that you were st your recollection about what the federal d prosecutors had to correct about the whole that he was was whether or not there was a paper man at a payphone or a payphone and what the government had indicated in part because mr lucas the statement along for comment was that there wasn't a payphone at that at that corner for a long time but we all course we all had the video is that it was a no man at the payphone not that there wasn't a payphone or that it wasn't an operating payphone at the time so mr bartlett's testimony was that he was on the payphone at the time  happened and there's no man no person no anybody at that corner and i don't think miss davis would would dispute that i mean it is clear it's in the record we put the video in the record whether you look at it in the rotating sense of it the entire time a person is just not on that street corner and the error we had to correct with whether it with a man at the payphone versus not a payphone and which we did do in the church considered and of course the fans had all that argued all that cross examination inquiry with hindsight because the question is whether cross examination today would be of marginal value right that means you know looking at it with hindsight not whether at the time it was affective and so don't those cases suggest to us by definition we're looking at them with hindsight and so that all of these developments including vacating the conviction in the light would be part of that  to the government or cross examined but i also think we have the former situation because that piece that one piece of evidence certainly was available at the time and was not made any use of for whatever reason by the defense attorney blouse so i think we have in this particular case may not have to resolve that issue but you have both but we certainly have additional evidence that in the interest of justice as we learned along as opposed to a two day murder shaw inquiry if you would it is never going to be a plot again now that seven has been amended to require consideration of corroborating evidence is that i mean this is sort of a one off case  in a in a sense because at least you are asking us to apply the law limitation and we know at least after her trials after december of two thousand and nineteen the district court isn't prohibited from looking corroborating evidence it's required to look at corroborating evidence is there anything that we do with that which makes sense right i mean i i i think that it supports the government's position in this case and then you know i do want to talk i i agree with you your honor that the amendment to the rule makes sense in the world that we shouldn't be able to put on the it's not snowing defense when we know that it's not true and it doesn't just for the credibility it's just looking at all the circumstances that exist or judge has to make those determinations all the time in deciding whether to admit a pretty pretty good particular piece of evidence and as you can see from reading judge titus's transcript he didn't make this decision lightly of course the defense was proffering it he really he had he had sat in the morale is troubling for him he had read shaw of course and he was walking that line about what whether the government and in the interest of justice whether there was a marginal effect of the government's cross examination when you compared and contrasted what went before so but you're right this is a really unique case and i'm not sure we're going to see these facts as presented the purposes in the interest of justice in this case the defendant was denied the defense the decision to deny the defense was based on the government's argument that number one mr smith or about the you know all of this meeting of the court considers it at the same time this court should consider that mr lucas is entitle to put on a defense and there was nothing in that the testimony by mr smith that it was should have kept that that testimony out the government very well could have said ok well you know he wasn't he wasn't cross examined regarding the whole camera and the poll camera shows this american but at the same time this court should also consider that the government government's own witness number one so that the pole camera was very poor quality and it only showed seconds of what happened at the same time you have as a witness and she explained that she she was there or she heard the shots she saw somebody running and the person she started running was with a black man who had pitied mr lucas is testimony by mr bartlett had come in and of together with the testimony of mr coe you then i think the jury quite likely would have found this through lucas not guilty and i think it is for a jury to decide what the truth  is not for the federal government to decide well we don't believe him we're going to you know drop these charges we're going to get him you've got convictions vacated that is not the purpose that is not what the government supposed to do the government is supposed to do is supposed to try its case but they have to try the case fairly it has to allow a defense to go forward if there is if there's any reason to believe that the defense is reliable and in this case it was reliable the government could have done w by the defendant and this case it the defendant was denied his right his constitutional right to present a defense and i'm sure the standard to review the government has to establish beyond a reasonable doubt wilkinson we are always appreciate hearing from both of you and appreciate the fact that you been we've all been able to accommodate and do this via video so thank you and have a the rest of your day and the court will stand adjourned thank you thank you