trial the identity of the color this hair evidence was extremely powerful for the government's case the forensic hair a testimony time mr butler directly into the crown in a case in which the bulk of the government's evidence came from at least four neighbors had walked through the crime scene before the police even arrived and of course talk about what the scene with others but sure we also heard that the police who apply pressure to the two alleged confession witnesses had been through the crime scene and even heard evidence that one of them may have had more of an involvement in the murder than he'd let on in contrast the forensic hair testimony stood on its own scientifically linking mr butler to the murder in a criminal trial in which false print sick evidence was developed by the government presented during that expert's direct examination h redirect examination are going explicitly during closing arguments and greta emphasized again on the bottle there is at the very least a reasonable possibility or likelihood that it may have affected the judg how it could have been somebody other than the like say for example either that either hill robinson was involved was that ever put to the jury the entrance was argued to the jury that they didn't specifically identify one person who it could have been but several questions were raised to identify you know to make it clear that other people could have committed this crime and but they haven't instead then was for calls that possibility that it was someone other than  you mention his car that you refer to the government's hair evidence as intentionally designed does it matter whether it was knowingly false or evidence to identify mr butler as the person who committed the crime he was an expert witness will testify nine times there was no question as to what his testimony was going to be and the fact that it was known and intentionally used just goes to show how the prosecutor thought of the evidence and how the prosecutor was using and are using it for the jury to rely on in order to identify possible could we go through with could we go through it  in some more detail because i have to say my reaction to it is much much of it seems unobjectionable and the characterization of not knowingly false as opposed to vic there are there's maybe one garbled exchange where years of degree overstatement my reaction to it on reading so the first exchange on  he says the here's could have come from the head of the defendant and he says this is not a positive identification i don't have enough information to do that that seems like a  measured and appropriate statement of what the science does or doesn't allow you agree with that in one breath he said it's not a cause that identification which was the traditional kind of limitation limiting language that consistent with the government's view and with the innocence project view that this is legitimate science to identify the defendant as a potential  potential person as long as you don't overstate the reliability of the sign that statement along ok so then we come to the next one which is that the and of the direct in which  he says it's only four or five times he's previously sadies looked at ten thousand samples right and you take this as effectively saying that to  near certainty this hair can be the hair that they found can be attributed to but it that's not what he said what he said is that to a near certain the hair of the victim and the hair of defendant can be shown to be different right it's not it's not that the eviden put it to you but i think it's fair point and let me just put my cards on the table that strikes me as an instance where there's a little bit of garbling and arguable mismatch between the question and the answer the kind of thing that happens all the time when people are speaking under stress it just reads more like a little bit of garbling than like a deliberate conspiracy to mislead the effective job underscoring the limits of the science right her testimony is you can't say positively the hair is from mr butler could have originated from someone else had i have no statistics to illustrate how likely it is  experience he only had ten thousand examinations where didn't even come close right at that if if if all the characteristics are the same and in context this means be sixteen traits or however many traits that they're looking for and there's a match on each of them and then the question is how likely is status a positive id of the defendant and the me you're in you're in quite good shape until we get to redirect which is what you want to jump ahead to because i think it's the best statement for your case here where at i'm now on three fifty seven this strikes me as the one and perhaps only area where there's over statement where he says the question is are these similar and he says these hairs are the same they're  out all the limits of the science and that's been confirmed by ineffective cross and then right after this comes out it's confirmed again on an ineffective recross where defense counsel says we have no idea how many people have all of the same characteristics so it seems like they are there's an overstatement no doubt but in the grand scheme of this exchange doesn't seem like it's a center the prosecutor use it in trial that's what they added to the jury repeatedly repeatedly and the fact that it takes up relatively little space in the context of the entire trial i think just because of the power of the evidence there was a lot that had to be said about this you said that there's an identical right here that's like you know all microscopic characteristics and it would be very seldom that you know there would be a false match and so similar to if there was a d n a match that exceeded the limits of science by overstating the conclusions that may appropriately be drawn from positive associations between evidence or hear an unknown sample and they the department has stated that the witness stated or implied that the hair could be associated with a specific individual to the exclusion of all others and that the witness assigned to the positive association a statistical weight or probability that could lead to a jury to believe that dallas  weight can be assigned so all of those things on the record as we have it are conceded by the government on the other hand the government does not take a position about materiality and i just wonder if you can help us in light of the line of questioning there that we've just been through how do we distinguish how to treat those concessions from the question of materiality well i think for the purpose of because of the concessions is just t false and it's we're not arguing that whether it's false or not but it seems like some of the back and bring was arguing about that and that's where i'm trying to get your position and our position that my position first is that the government should be bound b arguments on july fourteenth that page seven sixty three the defense counsel in fact said this isn't going to be we're not going to try to be perry mason and bring in the person who did it so there was no alternate theory for who committed th evidence basically said this is interact evidence no the time no one's saying time this defendant specifically this piece of evidence doesn't say this defendant did it so basically it was a one by one and the circumstantial evidence so what testimony within the context of the actual self who made it quite clear that he was not identifying the defendant as the perpetrator that he could not say that and then within the broader scheme of the overwhelming evidence circumstantial evidence coupled with the confession evidence confessions to two two witnesses those confessions were corroborated by physical evidence we also have to look at in the context of where the prosecutor used it are so similar and so life that you'd be unable to tell out of ten thousand examinations he said he recalls that happily approximately four times so whatever confusion there might have been about the nature of the testimony given that mr potential mismatch between the question  the different ways in which it came up that's how the government capsulated the significance of it and i don't dispute that that that's correct i would point out that this was that several lines within a twenty four page closing argument and it is not was not what the government highlighted the government described certain evidence is that all this is that this is where the door opens or cracks a case open i can't remember exactly the prosecutor said but the evidence that the prosecutor focused on starting with the confessions and that was that that was a big chunk of it but the government highlighted this important and how those concussions were highlighted were rubber it and the and what the government characterizes pivotal was the belt these these confession witnesses know knew both the bell used and then broken in the process of the strangling and that belt was not i'm just not within the scene it was in the kitchen in a drawer where these civilian witnesses have not been and the prosecutor highlighted the paint and the prosecutor highlighted the fact that ellen johnson couldn't have known several of the sings it because she did not go anywhere past the bathroom confession witnesses also knew that a stocking had been used again that he really having to correct this trial and there was no evidence of that and of course i would point out that that theory was although there was no alternative fence theory of the case are going to trial by the defense they did throw out this notion that other people were you know this information could come from other people literally rejected that you can know details of the crime scene that are consistent with the statements by hill and robinson and still not necessarily conclude that knowledge of the details of the crime scene that there's no doubt that there's evidence that indicates i mean that's i think i doubt that the cause of it was over disagree with that the question is where do we where are we in terms of materiality given the standard and the most difficult standard of materiality that the government is correct correct ok yes but we still do not think that appellant has met his burden here of demonstrating a reasonable likelihood of an effect on the verdict given there's sorts of court evidence that corroborates the veracity of the confession with and sells i'm a little concerned about the opinion that we wrote on direct appeal which what the direct appeal issue it as you'll recall was should there have been an expert evaluation of the credibility of these two witnesses helen robinson who were admittedly drug addicts and our court says yeah we know there  serious concern about the addict turned informer who may have a special and very powerful motive to fabricate a case for his own benefit but we say again and again here there's and when i read that i think the panel at that time is thinking of hair evidence which the prosecution emphasized these hairs of the same in every microscopic characteristic every one you evidence here it's true we're not disputing that these were drug users people are convicted in court houses around the country based on the testimony of drug users every single day and so that can't be the answer right there but these they were corroborated both by the physical evidence that i'm not disputing that the hair evidence was one piece of evidence that the government used and suggested corroborate is corroborative evidence that that's that's a fact but we have other foren extent to which a particular piece of evidence affected the overall picture and part of that is informed by the extent to which the other pieces of evidence could have been called into question and with a peep which is obviously probative evidence that supports the government pain i think that's a much weaker argument because neither of them were painting on saturday and it just so happens that the pain is on the inside of his pepsi bottle that's used in the murder that also has paint on it and i may be wrong but i think the painting was actually and her testify this week that he cannot be sure that he cannot say you got to work and then now this is it if this evidence failed then the government has failed that's right so we see perceive that evidence as wobbly and try to convince the jury don't look over here at all this other evidence you prosecutor's closing argument does use it to identify i guess i guess i understand what you're saying which is that the defense might have been been successful in trying to impugn the hair testimony but what one can also glean from that statement is the d thought that her testimony was particularly significant i think at the end of the day it's not fair to characterize the hair evidence as argued by the prosecutor is this overwhelming significant piece of evidence what the prosecutor found significant and around two thirty in the defendant's girlfriend can't put that in home but he does say that he left to go to hills house at three thirty and hill says the defendant came over around three thirty where he made this confessions you've got jr who then has the coming back around five o'clock consistent with the confession witnesses saying that's when they separated place you've got mary dean saying that the pill is a very good friend of the defendant there's no reason on the day of the murder there is no reason for helen robinson to falsely frame their very good friend the defendant in fact when hill went in to talk to the police initially he didn't even want to tell them he was trying to protect the defendant and so there was no theory for why they would do this on that day and mary he was with the defendant after the over and over is look at everything together it's not just one thing look at all the stuff together and one of the things that is among the things that you're supposed to look at together is there is one of them that's right there's definitely a lot of other thing that  were we to find that there is not harm us and what happens as a practical matter if this court were to find the defendant that it's his burden of showing that to reality in this case we have not made a harmless error argument discussed so i don't have anything to offer that i have no idea whether these witnesses are even alive at this point and this is an individual who was sentenced to twenty or twenty years to life and then i think five to fifteen on the robbery  positive that's the case and i'm going to look at it from the perspective of whether you have the reasonable possibility slosh beyond reasonable doubt or chapman satisfied as to wonder i mean trying to soften tough and i had a can't honestly say first to answer the court's question and yes we will look at this question from the perspective of one juror because that is the effect on the jury if one juror was moved from a position guilty to one decided that is in effect on the jury in a counter the fact that you have twelve lay people who are looking at this evidence from different perspectives and what would that one juror have thought here because they're the your best case scenario is that the hair evidence was especially critical in putting the defendant and the victim together at the relevant time but one one juror is looking at it or the jury is looking at it what's the alternate scenario  done so i just want to circle back for a second on the question of who is burned and i think our case was not entirely clear about that and we're not really talking here about burden of proof in the sense of marshalling evidence is it i maybe it's a burden of persuasion but it is the defendants in this posture to persuade the court that the error is material now or do you do you dispute that and if so how and why well there are a couple things i would say about that and post it on my position that the reading here doesn't matter because we're not talking about marshalling evidence and there's an established record that the court is reviewing and asking you know is there any reasonable why because i thought we're in agreement that the appropriate way of thinking about the question of whether any of this matters is under the rubric of materiality a supposed  harmless error in the black letter law is the defendant challenger has to prove materiality the government would have to prove sir and our position is that because nate who is equal to chapman we cannot be comfortable that the jury