and thanks to this court and to your staff for accommodating me here as well today may please the court my name is mithun c'mon i'm here on behalf of darryl annoy who's the warden of the louisiana state penitentiary and the state material evidence was withheld at the respondents trial in violation of brady versus maryland were voices carrying a pretty well but pole the microphone just about three inches closer  actual innocence has not been established in this case the district court found five particular interrupt you let me interrupt you to ask how you can actually innocence hasn't been established offered to two plea agreements in the course of this litigation that's different from establishing a precedent that the district court did in its opinion that would that would open up mccuaig into cases like this one and the states  simply isn't comfortable with with the precedent that the district court opinion establishes so this is a very fact intensive case precedent you spoke of being worried is the macwhich and precedent not the brady precedent well the macwhich in preceden sets this evidence and again i can get into the facts here there is for those five particular items of evidence claimed to be new by the respondent and found to be new by the district court that that we believe are not new at all and if i can get into those the first is fingerprint evidence found at both crime scene so there's two crime scenes one is the murder of bill hines the the second is the murder of ronnie robinson fingerprints were lifted from both crime scenes and the respondent here claims that this fingerprint evidence is new in fact it's not new at all in response to discovery pursuant to usual practice the state turned over all incident reports and crime scene reports which are relevant to this case prior to trial the crime scene reports here specifically depicted the collection of fingerprint evidence from both this is all in the state court record volume to these reports and this is evidence that the defense knew about these fingerprints prior to trial by the trial testimony so the state court record here the record on appeal bears this out first the the detectives the two lead detectives on these crimes themselves explicitly reference the crime scene reports in their testimonies and moreover defense counsel specifically referenced the collection of  physical evidence both in his opening statement and then specifically in a motion for new trial which was filed nine days after the conclusion of trial only and in that motion the defense counsel stated no fingerprints or other physical evidence taken from the scene of the hinds homicide point in any way to the presence of john floyd at bill hines apartment this is a clear statement from defense counsel that they knew that no matching fingerprints had been taken from either crime s  one that matched the respondent in this case i wouldn't the record support they knew fingerprints items vital items the glasses or whatever had been dusted but what is there to show that there were then comparisons made and it was determined that someone other than floyd was using those glasses or vials yar it's my understanding that at least at the time that this crime was committed in hundred eighty if not now when fingerprints are collected the crime scene reports are turned over to the defense as they were in this case but if no no reference sample that is turned over to the crime lab is not matched be would be generated for either the state or the respondent and i'll note in this case the evidence here was the prosecutors themselves said we didn't know the comparison had been done that's correct and actually one of the affidavit cards being turned over but that's exactly my point mr platt nicky said yes i want to cut to the chase it seems to me it's very hard to say it's not new when judge lance relies on representations made in the pleadings here to when the prosecutors that the time said we didn't know about it and three when you read the trial record there is no evidence ever offered that somebody else's fingerprints were on the bottles or the glasses the dillman was pointing to those three things make it really seem powerful that experienced state court judge acting as a fact finder here the a d a s were experience in this case the defense counsel is very experienced in this case the comparison wasn't done at all is that your position at the time the comparison  may have been done but even if it was no no matching because if the prints didn't match the victim or the respond in this case no no report would have been generated either for the state or two to respond  that then bleeds to me directly into the brady question you answer one it sort of answers the other because i agree if you go around the house and you dust everything you find other people's fingerprints that's quote neutral as you keep saying in your brief that's worth nothing you wouldn't have to disclose  but if you're a lead witness your chief investigator says and by the way fact finder judge here the murder mr floyd told me that he was drinking with his victim at that point what might have been the hinds case theorize and it was the theory of the defense case at the time that the victim and the perpetrator of the crime shared a drink together i think there's flaws in that case and that's one of the things that flaws in that theory i should say and that's one of the things that distinguishes it from the robinson case specifically with the fingerprints here the detective dillman recollected at trial which was approximately i think a little over a year after the the incident that he recollected to whisky glasses were found on either side of the bed of the victim where the crime occurred in fact that's directly contradicted by one of these crime scene reports which was you know generated on the day of the offense of course this is the whole problem i have with both arguments you're trying to impeach dillman now yourself in your reply brief you call it speculation and you say it's what he said to the judge the trial couldn't have been true but this fingerprint evidence would be exactly what a defense attorney chief investigator said victim told me they were drinking together and you've got a new fingerprint report that shows the drinks don't have his prints they have somebody else's all they then do is impeach and that's brady figure prints you know that were found that were found on a not on the glasses actually the fingerprints that were lifted from the heinz case were found on a whiskey bottle one of several whiskey bottles that was at the at the crime scene and part of the reason that detective dillman believed in this theory that that the vic the victim in the perpetrator drank together was because prince philip if one of those bottles but the district court and the respondent in the first instance thought thought this to be a relied heavily on the fact that this was a bottle that was out on the kitchen table the there's pictures from the crime scene that so you're right your honor exacted dillman did think that at the time of the crime it's not so much that he thought it like in the interview in his book it's that he testified under oath to it and we have no physical evidence case we have subsequent type a versus typo huge amount of difficulty you in the tandem confessions don't work this is a really difficult case to prove the chief investigator says oh yes judge the victim told me he was drinking together and again the defense attorney at trial would have known that fingerprints were collected from the crime crime type report that was turned over and would have known based on the fact that no report was generated that no prints matched the victim and the respondent and because these prints belong to a third party does not mean a nother flaw with this with this argument is that does not mean that the district court found that evidence of a third party in the victim's film because the prints were on a bottle that those prints could have been placed at any point prior to the crime at in any location at you know it at any time what's in the record as to what the defense attorney supposedly knew at the time of trial well as i mentioned no i'm talking about an affidavit or something that would be the point to whether he did or did not know about these i thought the state in fact it conceded it didn't produce these volumes to the defense the actual fingerprint cards that were found by the respondent may not have been turned over themselves statement may not have been or were not it's well it's it's likely that they were not turned over judge but the state's point here is that even if they were not turned over that's not new evidence from a quiggin and it's does again the state court record bears out based on the the statements i mentioned earlier from defense counsel in his opening statement in motion for new trial that all parties were aware that fingerprints were collected and they did not match the victim or or the in this case all parties again very experienced would have known that there was no that there was no link to the crime scene for the you know over brady case in a murder where you have a witness in cultivating a defendant saying we drank together where brady wouldn't apply because the defense didn't say oh and by the way did you actually compare them rather than just know that prints were dusted i don't know of any case i would think brady would require you to turn that an issue that we talked a lot about fingerprints there's four other piece of evidence the district court found to be new and reliable in this case i just want to go through those real briefly and explain why the state believes that none of those items are actually new and they're not reliable the after the fingerprints the second as african american hairs found at the new new hairs found and d n a tested from the robinson crime scene again the collection of american hairs were collected at both crime scenes again this is borne out in the state court record the the defense filed in fact at trial prior to trial i should say a motion for independent examination of hair sample which  evidence was conducted on these items does not make it new evidence because all parties knew at the time similar to the fingerprint evidence what what evidence was collected here the third piece of evidence claim to be new by the district court piece of evidence to be new then i can examine you know all evidence for me to do the biggest issue here is the fingerprint i think if that's new this is a difficult did you have a an alternative argument if we decide it's new hence the petitions timely do you have in three minutes sort of where do you go from there if if this court deems the fingerprints to be new again first i would argue as i have that there it's unreliable but again besides  that aside you know i think at that point turning to turning to brady relying there's a lot of overlap on these issues of course relying on the same the same arguments that i presented on the issue the this evidence was not withheld because the we agree that you conceded that issue let's just get right to how could it not be favorable or material because i think in your brief as to the printer prints you never acknowledge that impeachment evidence would be brady you keep saying it didn't exculpate dillman someone else's prints don't exploit but if the allman testifies about the bottles and that being a significant factor for him how isn't this necessarily favorable to a defense honor i think the reason that the district court considered a brady violation two to have occurred here in part is because because the defense theory of the case that  the that the perpetrator of the heinz murder and the victim bill hines drank together as a mentioned there's there's flaws in that theory according according to the state and in addition the district court ok even if it were favorable you're saying as to materiality there's overwhelming proof that's not what you're arguing now that even if it were favorable it would be immaterial yes your honor i think even if it's evident the fingerprint evidence make you know personally observe these witnesses of course make these credibility credibility determinations and found of course that there was enough evidence to convict or spawn to be on a reasonable doubt hin think that the confession is obviously made and besides that there is also a an admission made by the respondent to a a bar owner in the french quarter is a mr stephen edwards that's right shortly after the incident at which he basically says to mr edwards i'm paraphrasing but says mr edwards i just wasted a guy over on governor nicholls which is the location of a bill hines apartment ungovernable street  that that admission it on top of the confession made two to detect a development that that was the primary evidence provided at trial by the state again that was was enough for for the state court judge to that someone else's fingerprints were on this crucial crime scene evidence each side of course puts a legitimate atmos adversarial spin on on on the record and  that's that's acceptable you heard posing counsel and what he has said about what what the what defense counsel knew and what the circumstances were with the fingerprints is there anything that he told us that you think was inaccurate or incomplete that you'd like to elaborate on in terms of what what the record shows about what what people knew and what evidence was there ok so you're on fingerprint comparison results and they believe anything they knew about would have been contained in the districts had his father looked and that was a concession by the prosecutor during state to place conviction proceedings that the fingerprint comparison results  certainly no mention of someone else's fingerprints of a crime scene in the courtesy all if they existed one of the two of you would have made sure they came to us because as to a brady analysis and materiality it would be really important to see what was said  that just based on edwards that a reasonable juror could have thought well he told a totally neutral person in the street i wasted him and that alone judge ransom consider viet wood's evidence and made several findings to why it was innocent his alibi he testified for testified yes and the alibi was good for both days it was the exact same defense i wasn't even in the city or something he testified he wasn't in the innocent of these crimes so a new print to somebody else in the room you wouldn't say you accept are sites decision that type of thing broadly is inconclusive but does it truly depend on  provided the same information and he's very clear on this point he provided the same information that is provided now do we need to actually i'm sorry to interrupt but he later says he gave this information but i don't see anything in the state in the record that shows that at the time they to the fact findings of the state courts there's the presumed correct the factual findings of state courts and the respondent has a burden of rebutting that presumption by clear and convincing evidence and what the state believes occurred in this case is that the district court did not properly defer to the fact find in fact findings of the state court so the first the first point on the brady claim is that the state court fact finding  court's germination was reasonable and is not worthy of relief we talked about the fingerprints at length but to go back to what opposing counsel was discussing with the court let's take let's take that his name was included in the supplemental report created by detective gilman that was turned over to the defense the state believes it is not it is it doesn't go beyond brady to say that it's within the due diligence of defense counsel to have figured out in real time into thirty years ago what john roux clegg meant to say if he meant to say anything different than what detected dillman report brady more specifically there's case law in this court that says yes well there was no maybe not not a a reporter a document for say just the information itself for mr clegg if that information is not necessarily inconsistent with what was presented at trial that's not withheld under brady versus maryland and that case as i believe calends versus sarkis d o versus johnson is not necessarily inconsistent with what was reported by detective dillman so mr clegg said that that's a straw man clegg i'm just looking at your clock on the fingerprints it's the opposite because dillman says he told me we were drinking together so what's your best brady case on favor ability in materiality your honor of the what would you tell us to look to to conclude that fingerprint comparison is not favorable again i judge the it's not favorable in this case because case i'm asking you for your best brady case anywhere that would say fingerprint with somebody else at a murder scene isn't favorable don't have to disclose couldn't go on i don't have a specific case on that point what's your best case that it wouldn't be material again you know this is mostly comes back to the facts ok let's find go ahead and the facts are pretty clear as borne out by the state court record that all parties again going past the fact that that state believes that the evidence wasn't withheld it's not favorable or material because despite what detective dillman thought at the time the state record shows the court record shows that it's not necessarily true that the perpetrator of the heinz murder and bill hines were drinking together and it's not necessarily true that just because the fingerprints were found on a whiskey bottle that that necessarily means the third party was in the home of bill hines the victim that those fingerprints could have been left again by anyone anywhere at any location maybe at the store where that whiskey was bought ok and i think that's you might have point couple times