necessarily means that the government's theory which was a deduction from the visible evidence at the scene was not a strong case we go for it that's the context that was the district judge here in the i understand your first time because the court is making its own assessment it doesn't have to be dealing with anybody else's prior system and how strong are not strong evidence was there and eleven this case look at the evidence and assess its credibility and likely reliability and what's the rest of that well that's the standard as to the evidence ok the no reasonable juror standard is this is the twenty two h standard that we're appeal it's in the evidence as a whole the evidence as a whole and that's why the first ballot isn't for that the government's evidence at trial was not strong because it's a continue if the government has presented a strong trial case we would necessarily need more evidence result of a struggle with lodged under the fingernail and it's there during her autopsy i think the i think that doesn't science tell us that you pick up stuff and you don't know where you pick it up and it could not two four so there is that issues well i'd like to talk a little bit before my time runs out about stuff and you know and it's notable that the same as the british claim it's do you think if the premise and i gather this was the promise of excluding those witnesses originally is that it was still clean herself is not credible she says she is erratic and so one cannot trust what she sa going to tell your own lawyer that you don't think when you're trying to get legal and in fact there are numerous cases the premise sort of that she's not really thinking critically and well that's the premise but again our position would be that's for the jury to decide and at some point you reach a point where the jury should hear this at some point you reach that you can't just be arguing that the jury should hear it and that maybe it would make a difference you have to be arguing that any jury no reasonable jury having heard the evidence that this here's a objections to any of their stuff and again the issue would be whether these would be admissible under the state against interest exception to the here so you have all kinds of hearsay problem which was the same issue on the direct appeal that was the same this routers testimony was that in the days after her stove police testimony at trial she came to her and said that she was present in a didn't come in on the in the trial and that's what judge ordered and was talking about if they if there's other seven witnesses  may please the court i'm john bruce i'm the united states attorney in the eastern district north carolina represent the united states in this case in two thousand and eleven this court remanded the case to the district  assessment of mcdonald's fifth and sixth section twenty two fifty five claimed using an expansive view of the evidence as a whole to see whether the claims the thanksgiving standard the district court followed this court's instructions fully it allowed macdonald to introduce literally anything he wanted to introduce just a court blocked out two weeks for an evidentiary hearing the parties used seven days forty years worth of documents were put into the record the limbless filing  court asked the district court as the wall requires to make assessments of the likely credibility and probable reliability of the proffered newly discovered the defense spends a lot of time on its view of the evidence as a whole but i think the most important thing is to look at the newly discovered evidence they got macdonald back into court in two thousand and six jimmy britt allegations and the so called unsourced hair allegations with their support with respect to the brit claim the district court found properly that in result is that the court cannot find any of brit statements to be likely credible or probably reliable course it further attributing these major inconsistency and that means inconsistency among the various statements of berea there were four or five off and also inconsistency is but what did you have anybody on that yes we had two witnesses on that we had jim blackburn is the man who was accused of doing it and we had jack crawley who was present in the room at blackburn that did it been convicted of and he indicated jim britt was having heart problems and he said that he wanted to notify the court that it now appears that mr britt's availability for any sort of course eating is that off he didn't ask for any relief he just wrote a letter when we had a status conference after the resign in september of two thousand and eleven this was discussed and judge fox pointed out you didn't ask to take any depositions credibility of brit in the abstract but the credibility in raw ability of what he claimed when macdonald filed this in two thousand and six this is what macdonald on pleading sit is said first she alina stokely confided in evidence we had of any of him being in her presence was a five minute six block ride from the lake county courthouse to the to the raleigh federal building there was also evidence from several witnesses live before judge said that he was an attention seeker the u s marshal that supervised him a little bit later in his career said that he was sure on veracity and there in the in testimony is not likely credible nor probably reliable he testified thirty three years after the events with no notes and no documents strictly from recollection here's what gerry l himself said about his testimony during his testimony he said you know what happens is you find out stuff later and then you confuse that with what you actually need at a particular time course is true that's true and in the he went on to say and what happens is you hear stuff at a later date and it all becomes part of what you know and it's hard to peel away the context you heard one thing from the other but what's wrong with that he also i think he was admitting to the poor memory really was well he was qualifying what he said it was people stating he was talking about something happened thirty three years ago well i think judge fox was quite correct to say that he had a poor memory on this  everybody was lying but i just would like to finish with jerry leonard relieved jerry leonard himself said it if he made the statement he said honestly my memory is not one hundred percent and for anything i say to be reliable as i'm trying to fill in the court not everybody has the united states attorney or their sister united states attorney or the prosecutor i understand you're out of lawyers have to take on popular class and do the best they can i understand that your honor his testimony just did not fit the contemporaneous record of what happened east for instance he said that he did not talk to wade smith counsel for jeffrey macdonald during the trial he said that in fact the i feel sure i didn't talk t recall and they chose not to recall so i submit that and there are other things he told this story about taking her to his house and letting her sleep on the couch because he was memory but didn't he also say at the end of the day i don't really care whether it's credible or not because stokely was not credible and so even if everything happened as leonard says it happened i don't think it makes any difference because stokely is not credible and tails wrong but the thing you are most likely to remember is oh my god my client just confessed mass murder i mean isn't that seems to me like something that might stick for thirty three years whereas who exactly told  lawyers normally also don't end up testifying as to what their clients told them there's a thing called the attorney client privilege in here it was taken away from him and i  about everybody else that if you want to look at the most reliable evidence look at what was said the contemporary district and not agree with you on that the district courts are not saying the mother is not reliable i'm saying stokely was reliable when she talked to her mother so you want us to reverse report's understanding about the credibility of the mother the i think the issue again is not the credibility of the person is the credibility of the evidence that the statements the most credible do i have time to address the hair or to professionals that with all types you know the presence of a hair they gathered fingernail scrapings from the left hand christa mcdonald they put it in a paper receptacle and put it inside a fall that looks like a pill box they also put in a rule piece of lady named janice glisson she noted no presence of the hair she tested for blood it was positive it was too small sample for type that was the end of the scrapings that was the end of the paper  going with a lot of others it wasn't seeing some kind of central piece of the case in july when it was open for at least the second time all that's in there is a piece of real paper and the hair and the hair ladies being conscientious she doesn't know well custody or all of it potentially when a piece of evidence is introduced is that piece of evidence is provenance in chain of custody not everything else that's crucial no there was no discussion or testimony about this hair at the trial none whatsoever only when it became significant well let's look at it let's look where it came from and it was not bloody if he did been in the fingernail scrapings it would have been bloody the district court properly found that all three of the exculpatory scientific evidence in that they were just as like more likely to be debris than left by the intruders just like all the other material this was a busy apartment with a young family living with these hairs were bloody forcibly removed and in the case of the one nine when they came from one of the fingernail and he didn't prove any of it and in fact we proved to the contrary there was a dog they are on krista's been spread along with the other h nobody could microscopically compare at the time of the trial and it was in the left hand of collette macdonald and the defense argued that was evidence of intruders the government said is just to bring turned out in the d n a test to be jeffrey macdonald that record is replete with the problems with the crime scene in this case jury knew that the jury knew some of that yes we now have more evidence of that apparently apparently this is the government's position that they can time i was a big issue to trial the judge even commented on it consider as part of the evidence as a whole without any deference to the jury's verdict because that's not the standard on this appeal i'd like to talk a little bit about mr britt oh we heard the government talk about all these things that mr britt got wrong about what are citing for twenty five years ago when mr britt was very consistent on was i was present when blackburn threatened still that's what he's consistent on there is no doubt from the material in the record that and the records replete with that for the for the court to make an assessment but i think i think it's unfair to mr brit to say well we throw everything out because he's got details of what happened twenty five years was brit's wife who testified at the evidence you're hearing below now she had divorced from from ridge by the time of the hearing and they were strange she says that mr britt told her about this trip in one thousand nine hundred seventy nine when it happened and then he early eighty's by this time they were living apart but they had interaction and it was during the time that the t v movie was on about this case and britt said to mary britt of talking about this meeting between the prosecut that's not how it happened i was there that's what he told his wife then in one nine hundred eighty two which why in the world would he make that up why in the world would brit make any of this up was she discredited was one there was one trip it was a trip that was a trip down and back stokely was taken from according to the government's evidence from south carolina to charlotte's to rally according to documentary evidence offered it was a straight trip from pickens written witness free or leave that's when she went into the hotel and that's where what is it she released after her testimony in court on board after her testimony in court then she was retained as a potential defense witness but was released from custody that's when she  of the first time that he had a right firstly that the first time that he had her and then mr leonard talks about the statements that she made missed one and that again is or where it comes in the last thing i'd asked her to consider is which would submit district court didn't consider is the interlocking nature of all of that of what rich says with what router says he's one of the most important witnesses because the district court said well there's no explanation for would say to router those quote unquote damn prosecutors well there is it's the threat that brett just published logical threat though i mean is that why would the prosecutor i'm talk about him threaten or let somebody comes it comes t