afternoon your honor is and i'm it please the court yes this is the third time that we appear before this court in an effort to gain a full and fair hearing on  island claim of prosecutorial misconduct based on the intimidation i mean defense witness who then withdrew his testimony this time o contention is based on the the idea that we didn't get a full and fair hearing because mainly we were denied discovery with regard to government testable evidence which would bear that discovery would bear on the credibility of the government witnesses and the yes judge morrow found that the discovery that you were seeking was to attenuated or remote because the issue that we remain ended to her was to listen to the testimony and determine the credibility with regard to the intimidation claim so can you explain to me the nexus that the spoliation evidence has to the issue that we sent back to the district court yes your honor the nexus has to do with its potential impact upon the relative credibility of the witnesses in fact the only potential areas here that milky and fultz were government witnesses and they were our work for the government and they prosecuted the plaintiff i don't see any other thing in the air that's relevant well your honor our contention is that it could have could have asked well your honor of course we haven't had the discovery it's a mystery i understand but i guess what i'm trying to say is there i have to read a reach a standard there is a possibility of an it's not enough to say there's just a possibility of uncovering evidence you've got to do more than that that's a fishing expedition your honor so i guess i'm trying to figure out i got two people who work for the government and i know they prosecuted your client and saul i got as the only nexus if gave you ever benefit of the doubt on the foliation by suggesting that morgan was in the house and morgan was therefore could have done something there because he was there that was the foliate the fact that this would that's what she gave you what i'm saying is ok in order for get me to vote for you to have more discovery i've got to have some nexus yes your honor let me suggest the nexus first of all this evidence went missing at the particular time when this case was before the district court for the first time in proceedings which  could have were likely to have led to an evidentiary hearing with regard to these claims that which are these two witnesses would have testified since i'm johnny come lately i'm going to go through it's my understanding that you your client wanted to have d n a testing in two thousand and tan yes had nothing to do is folds and milky at the time all he wanted was the d n a testing that it was transferred late transported to the l a county to a private library laboratory and there there was discovered some evidence which was missing and then i also have my idea of the facts is that this evidence had previously gone to the california department of justice for a single day at the request of a detective dean never been let out otherwise and aren't those the honor just to be more precise about the occasion on which they were let out they were let out in two thousand and two this evidence was laid out i know when i was let out but it was it was let out to go to the california department of justice for a single day because detective dean wanted it to be happening well it was a deputy sheriff d bean your honor in being as a b i e in that fultz isn't involved in that well at that time at that very time that the evidence was let out during a period of discovery in this case not just a kind of random occasion but during this discovery and it was checked out to an investigator from the department of justice milky we're working together on the investigation and well we don't know that know what we know is that we were in a proceeding which the expectation eight and then and then in two thousand and two for reasons that apparently no one has been able to ascertain at this point the evidence was released to the california department of justice crime lab by the los angeles county sheriff's crime lab but returns from the same day and the head of that crime lab your honor said that this was done precedented in his experience of twenty five years and that laboratory that evidence and make it relevant is because the president well it's here we have it in the context of the district court proceeding with regard to this maybe as corpus and it's unprecedented and the clearly everybody involved knew that this was evidence that could be relevant everything in this proceeding but this proceeding is not even i mean we don't even know that it has any relevance to this proceeding all we know is that it went down there because being allowed it to happen well your honor it would be an extraordinary coincidence if it didn't have anything to do with the discovery proceedings that were then going on which focused specifically for one thing on this piece of requested but normally you're not supposed to get any are you your honor right now i cannot i had i cannot speak to that i have never been afraid i would have an answer brac states five twenty u s eighty eight ninety nine says plaintiff is not entitled to discovery in the ordinary course of a b as proceeding so then i went from there i said ok they're normally not  titled to discovery orders are subject to what standard of review abuse of discretion so normally not al of discretion is my review and only an abuse discretion employee but given the stats given this case law if the discovery is in the to a fair and rounded development of the facts isn't that it that's correct you are all right so at that point the best i've got on relevance you told me and you're saying i'm supposed to say that the district court abused its discretion well a couple of points first of all it has been found that there was spoliation here and  nothing to do with this i don't have any way to make those two get together i don't have any way to link them i know there's full there was foliation so there was you also because of that f you have in your record morgan is in the house yes before that before the foliation morgan wasn't in the house morgan was there he was in the house or whether he wasn't it was subject to who was talking but the district court because a foliation said no problem margan is in the house and further your honor said that that was relevant to credibility i understand and i was it was not satisfied that it contains the that's the problem i'm having this with the district court said it's not relevant to credibility i'm trying to determine whether or not folds and melky are telling the truth or dozier is that how it's pronounced notion you know sure are telling the truth yes that's what we sent back yes to the district court so i was still having a hard time with the nexus or the link spoliation evidence as it impacts the district court's credibility determination as to the state's witnesses for your honor milky your honor the district court did say that it was relevant to credibility considered its significance for purposes of the credibility of mr taylor and said well it does boost his credibility but not enough to get over the difficulties i have with believing him well with and to be yes here and to be fair even i was trying to go along with you about that but the district court held a hearing this record liste all evidence yet the witnesses even giving craig taylor some credit the district court says taylor testimony is discredited because of several things one he had a prior conviction for a crime involving his honesty two he had used why twelve prior aliases three there were major inconsistency that is testimony and  implausibility and for the recantation was credible so the court said hey at this point i don't think that taylor is at all credible and he and the yes your honor but the district court also considered the relevance of the spoliation to the credibility of folds in milwaukee and said that it would substantially undermine their credibility if they were affiliated with the department of justice but they are not it's our contention that she was correct in saying that it would significantly undermined their credibility and that she made an error of war up in saying that they were not affiliated with the department of justice in this context but i think the problem that we're struggling with is she gave you the adverse inference with this which essentially establishes that morgan was present in the house on the day that the murder was committed and that was suggested to the jury that heard the original criminal case and had to because that was herb's testimony that it was the other guy borgen who did it so i'm still having a hard time understanding how this somehow overturns the adverse credibility ruling that judge morell made in citing a number of factors which judge smith recounted as to why she didn't believe taylor and  well your honor she did not consider and she specifically says that if if folson milky had been affiliated with the department of justice it would have significantly undermined their credibility but she doesn't consider that where does she i mean i'm looking for example at page forty two of her order yes at one fourteen where she says the court has read and consider the evidence or past proffered concerning the loss of the fluid soaked napkin yes and possibility of the stained pillow case and has drawn the adverse influence sought yes specifically the court accept as true for purposes of herbs petition that the napkin would have shown morgan was present at amanda's home on the date of or death yes this fact however does not alter the court's conclusion respecting erps prosecutorial misconduct claim which is the only thing that remains to be adjudicated yes i read that passage just saying i've given you your adverse spoliation but for all the reasons that i cited i find the defense witnesses to be not credible and this evidence to be unpersuasive in altering that conclusion and i find the state's witnesses to to have told stories that are plausible internally consistent and believable now applying the deferential standards of review to both the discovery ruling and the adverse credibility finding how can you say that you have met the high bar that would warrant reversal here your honor if you go into page forty three you will see the discussion a brief discussion of the potential impact the impact that this only ation fine you could have on the credibility of milky unfolds and she describes it as something that would significantly undermine their test their credibility except that they aren't affiliated with the department of justice the implication very clearly is if they were affiliated with apartment of justice it would substantially undermine their testimony and their credibility just state i am looking at a line three on page forty three and she says i quote finally because the inference is that the california department of justice destroyed the evidence or allowed it to be lost not fultz or milky way of whom is affiliated with that organization it does not undermine their credibility concerning what transpired during the interview with taylor yes and the one thing that she found most significant about the interview with taylor at the jail was that she listened to the recording of at least a portion of that interview where he recanted their testimony for the affidavits that he'd given to the defense investigator and she and she had had taylor on the witness stand and his words spoken at the jail on tape and found him not credible i read this as saying this evidence the spoliation evidence of just doesn't influence well the ability to understand it doesn't influence because they're not affiliated with the department of justice that's not how i read that passage i read that passage to say when i weigh all of that against what i heard on the tape and what i saw in the courtroom when i watched the beady eyes in the sweaty palms of the witness that spoliation evidence doesn't change my conclusion that taylor was a liar well your honor all i can say is i would ask you again to look at that that that an affiliated finding and we regard that as significant because we do believe that as a matter of law we have shown that as a matter of law they were affiliated and us we must conclude in affiliation means their lives not necessarily your honor but that it could impact first of all that it would impact their credibility secondly she in talking about discovery how would it impact it could ability well it would impact their greater credibility specifically and especially if we got the discovery and determined that there was bad faith involved here if if the discovery showed that they were in any way ok to take we have to go further i think you your position is understand it maybe i don't understand it if you put somebody who's connected with law enforcement on the witness stand don't believe them because they're going to lie oh absolutely not your honor but if we know from various authorities that we have cited in our brief that if what we're dealing with is an agency of government or for that matter a corporation which has been found guilty of spoliation that that tends to undermine their credibility the fact that they leads to a reasonable inference that the district judge took that the evidence probably would have redounded against them and secondly affects their general credibility doesn't say they're liars but does it really is a question you have to make the best argument you can make so go ahead well that's your honour's i would like to  the second issue in the weighing the evidence presented to it what is my standard for view that i have in evaluating the district court decision well when it's a question of erred you're suggesting that after all you've said that means the district court who made this decision with a good hearing and trying to wade through all of this with you being there giving your best effort you may not have been but your best counsel was and they said no and i say to myself ok he argues facts that are different from other facts but that doesn't take care of clear air clear error of you is pretty tough to overcome yes your understanding i don't think i'm trying to figure out how you got there i don't think you do with all the arguments you make you don't be clear because i can give the district court could have erred could have done other all kinds of things but that's not clear air well your honor as to clear or the principle point would be that point about finding no affiliation when in fact is a matter of law we believe there was affiliation secondly with regard we've made the case in our princip department of justice so they are i don't know how that overcomes clear error because you got the benefit of the doubt that there was fully ation and that the government did it wrong and they put  morgan right there in the place and they took that into effect the district court in this hearing in trying to evaluate who to believe they took that in effect and i read to you what she said after all is said and done i can't get there because that nothing to do nothing to do with not giving morgan every benefit of the doubt that he was there well your honor what i would say is that the district court took the spoliation took the adverse influence into account in judging taylor's credibility but not judging the credibility of and did not take it into account in any respect and that failure results in a fundamental question about discovery because our contention is that discovery could well show and we have we have a blue we believe we've shown a nexus here that it could well show that there was implication of those two witnesses in this process that or and or that there was bad faith involved before you think down yes i know there was an eleventh hour or motion filed earlier this week yes could you explain to us i realize the south side the record but what's going on with regard to the los angeles county superior court well at the moment your honor the los angeles county superior court has issued an order to show cause with regard to have no the loss of this evidence could be the basis for we contend it is the basis for a new claim of actual innocence based on newly discovered evidence so if we deny relief and the issue that we sent to judge morrow to try then you're confident that you're going to get another shot in the state court a claim of actual innocence well right now we have we have cleared the first and very significant barrier establishing as the the superior court said a prime  claim of factual innocence that's that's absolutely correct your honor our motion was for the purpose of making the point simply that we want to let this court know that there is another proceeding going on that ma effect moot what's going on here in the sense that we could get a result which will make this court's decision unnecessary well that's true on the other hand let's take the other side of the coin if you don't get the result that you hope to get in the state court and there's no reason not to resolve the witness intimidation claim now since we've spent all this time studying the record for the third time at least for some of us and and resolve this claim that's that is certainly true there are two so its sides to the coin your honor but we wanted to put it before this court to give this  reveal that big claim of a six b of whether or not petitioner produced substantial evidence in support of that claim is is pretty well settled on this record he did not the evidence that was presented was was not credible the district court found it to be so that finding was for the reasons i've laid out in my brief and as you've echoed in your questions to mr gerson mean it was a pretty well supportable under the under the very very high standard of clear error and so again i think i think that that issue is is is frankly the the least interesting issue albeit the only issue of merit left before this  conclude the judge morrow abused her discretion because the allegations made that that were supporting the request for discovery at the end of the day would have supported in its most favorable light to the petitioner the conclusion that morgan was at the house that's that's the best conceivable outcome from that evidence we're a long way from there's many many presumptions we have to go through not all of which may end up being fa but putting that broader question aside they got the best possible inference from from judge moore on that which is they would have placed morgan in the house and she said and i think quite rightly that even if you place morgan in the house that doesn't really have a profound effect on the credibility particularly most importantly of course of michael taylor who was really the only essential witness on the question raised by a claim for b before b being the denomination of the one  when you put all of that together there's really nothing left to talk about in this case we have a complete absence of reliable credible evidence in support of the claim the cindy dozer evidence she she was also  found not being accurate in her testimony as well she was a collateral witness and i would say substantially less important to the just resolution of this case not not to diminish the fact that this court sent us back down for the specific purpose of taking her testimony but at the end of the day michael taylor is the show in this case and michael taylor was not being truthful in his testimony and we know he wasn't being truthful in a testimony for a bunch of reasons that i won't go over again because the court articulated him pretty pretty sound y the one i will emphasize to the court and if the court hasn't taken the opportunity do this for itself and encourage you to do so is go ahead and listen to that tape listen to the to the contemporaneous statements the statements taken that are audio recorded  conversation between folds milking taylor on the day of this this purported coercion to conduct and it's perfectly clear to any rational listener that that they just never happened it's a very calm very conversational very spontaneous discussion the notion that he was being coached or was parroting responses that were prepared for him he is not such an enormously sophisticated actor that i think that he tricked us into believing something that was so flatly untrue and given given petitioner's sort of pattern of practice in this case of trying to find witnesses to testify falsely on his behalf there was just the next one in line he tried to do the same thing with morgan previously so it's it's not at all surprising or unusual that that's what happened in this case it's unfortunate of course it's always unfortunate when people try to suborn perjury but michael taylor at least for a period of time was unwilling  unwilling to go along with it and that was the determination that judge moore made a completely supportable determination based upon all of those factors we've discussed and especially because as i pointed out to the court not only is it clear air but when as in this case what we're talking about is competing versions of events from two testifying witnesses that are irreconcilable and a judge has to make an election between those two not only is it clear it's virtually never clear as the u s supreme court has instructed us so we're not in that that tiny tiny slender minority of cases where we're going to throw out a factual determination based upon anything that happened during the hearing or anything that didn't happen during a hearing such such as this this excess discovery and i want to i want to talk about one other thing and it was only because the court invited mr gerstein to discuss it that i'm going to proffer these statements some of the things i'm about to say are outside the record so if you want to live with i mean i open the door so exactly give you an opportunity to attend respond to my coffee or free to put the brakes on me if i go too far off the reservation i appreciate that you misspeak or asked me to be what they were we were conducting discovery this was back in two thousand and one before pinholes tr it was the wild west wing in terms of discovery in federal habeas especially in capital cases and there was a lot of informal discovery informal discovery and they had they had propounded this is a request for formal discovery specifically the question of whether there was a testable amount of material left and they asked me to informally go and take a look and see if i could get in because i have a better relationship with the a county sheriff's department in the office of the federal public defender does and so they asked me if i could send one of my agents over to take a look at this material and see if there was a testable amount because if there isn't a testable amount then this was shortly after california hadn't act five motion which is in fact what they ultimately did and they ultimately did because my agent went out there and he took a look at it and said yes there is a testable amount of material there i reported that back to  gates and and that was basically it that that's what happened back in two thousand and two so this notion that something mysterious aren't words or sinister was going on and why in the world was a d o j agent going to look at this material it's because the defen smaller law enforcement agencies in california california department of justice normally serves as the state crime lab for agencies that don't have their own but live the sheriff's department in los angeles county is big enough that they do have a scientific investigation branch that can do a lot that other agencies would have to send to d o j yes that's exactly right your honor and in fact this stuff was in the custody and control of the l a county shot crime lab which i just want to push back a little bit the fact a spoliation has not yet been competently established it's been alleged and i think i think she was clear in order to say i'm assuming for the sake of resolving this petition that he's entitled to the well i have just a couple of minutes one point i certainly want to make with regard to what counsel just said newman for a very long time i know him to be an honest man however what he said was not in the record and the fact is that for whatever reason the government has not offered no explanation of what happened at that time and what happened to that evidence on the record but secondly aren't you going to get into that  your los angeles appear well we certainly will your honor but we'd like to get we we do believe but if you don't you don't want us opining on that do you if it's if we don't have a supportable basis in the record well we would like to your honor we would like to get a supportable basis in the record only come back before you again perhaps with the discovery that would tell us what happened but the it would resolve this mystery issue before us now is whether or not judge mauro abuse discretion yes your honor in denying your discovery request vsa v the issue that it took us two appeals to finally get to hearing and a reassignment to judge morrow yes ok so if you've got a basis to establish actual innocence through d n a testing or an inference from spoliation you you can make that pitch to the state court morrow's order she considers the the inference that morgan was there for purposes of taylor's credibility she does not consider any respect with regard to fulton milky credibility and it's our contention that doesn't discovery could discovery could give raw images i mean we have to make a huge inferring or i shouldn't use the word inference since we're talking about adverse inferences she has to make a huge leap of faith that if there was a deliberate effort made to lose this evidence between the county and the state crime labs that milky and folds somehow had a hand in telling the custodian of the evidence or the analyst at the crime lab lose this material so that erp will never be able to get its hands on it and have it privately tested well and that isn't that where you hope the evidence well that's one possibility your honor could also be that they were implicated  know somewhat less directly somewhat less severely but that still they were implicated somehow in their power that there was some sort of overarching grand conspiracy well your honor we don't know the answer an innocent man and guys that is that the theory not to convey necessarily we have a conviction here to defend the conviction that they worked so hard the conviction and the sentence that they worked so hard to get some years earlier and which they have faithfully defended so they were on the same team and that's our contention that it's complicated cases i think you would hope it would be how many people were in the house under this wreckage well your honor that's of course the question we are asking now that the courts that will assume that that was the person who was who was who was who was with of course with regard to our claim are currently in the state courts for actual innocence that certainly had because the the basis there was no physical evidence here the basis for this conviction is  that the petitioner was alone with the baby there was physical evidence a baby was certainly sexually assaulted yes that's physical evidence isn't it if there was no physical evidence that the petitioner was the person who flight after yes there is a very being was really there was is that again is circumstantial evidence but it was evidence that the jury considered in deciding whether or not he ran because he was the perpetrator of the crime certainly was your honor but i would of course here we are we are again focused on the question of impact on credibility and mainly the possible impact of credibility on credibility of resolving this mystery as to what happened to that evidence no there may be nothing there but there are contention is that we have shown that there is a significant nexus in the fact that it disappeared during those proceedings at a time when fulton milky were involved at a time when there was a focus on whether that evidence could be a basis for overturning this conviction i think mr bernstein we have your argument well in hand i thank you very much for your argument and for your continuing representation of mr and we'll see in five years thank you and i look forward to