smith you proposed an instruction at some point to the court that the court struck to the jury that you can only assert the fifth amendment if you have a reasonable belief that an honest answer might criminal prosecution and there's a reference to the judge rejecting that but i couldn't find in the appendix or in the record where specifically the judge did that was he were lying on his prior motion in l a separate jury instruction conference that didn't make it into the record there was a separate jury instruction conference where everything was expressed off the record but we did make an objection on the record and the record is is essentially in the motions in limine the in our summary judgment motion on how to treat the film and in our instruction in our belief that you can't just say that we can take the fifth because it's a would only suggest that you can fail to properly give the actual meaning of things and we have to look at what the meaning of the fifth amendment is that the council realm is in a lot of hot water to his liability his criminal liability extended client well they certainly were part of the overall scheme where our case involving your performance and the officer who were convicted of conspiracy together each specific question you can't say this is tending to incriminate me because of something completely else there has to be an honest belief that the questions that you're answering prior records on the fifth amendment from the beginning to the end stated that you need a much more complete fashion and than anything else and i will just go ahead and say for the record that the practice of having the substantive discussion about your instructions off the record and then trying to make a quick clean record of objections and rulings on them you know this very dangerous for everybody  in your case maybe you wound up with the short end of the stick mr smith but i mean you're entitled to have those disrupting discussions on the record so that the full discussion is available to review in court and we would we kept cocaine at his house but this case and the due process claim it was about a charge where the evidence the central evidence was that he had cocaine in the parking lot dropped it and a police officer recovered it and i think we understand they're entitled but the my i guess my my problems we're looking at a defense verdict from the jury trial use the unreasonable view for the jury to take on reasonable to view that it was not a brady violation and unreasonable to view that if it wasn't material to whether they would have gone forward on a case against mr wheat or you  correctly it would have been clear however in light of it when you're asking for a judgment as a matter of law the brady issues are more clear because much of that evidence was not even in in any form that would have tended just to show that llewellyn and rodriguez had a bias towards each other in a bias towards protecting that even that golden goose of an informant but how do you get around on the j n o only timing issue with whether they were selling drugs actively together a certain time but that the tiny of the conspirators tauriel relationship was throughout from day one to day  were criminals so therefore they shouldn't be believed it when in reality though he knew from day one that they were criminals and throughout this process and those are the basis for for brady in and of itself in that he was in a position where he had a desire for a lie to protect his golden goose informant even if he didn't join in the drug selling itself even if he didn't join in the through this use of the fifth amendment and throughout the case i mean this too is turning into an identity case this was turning into up you know your client and well and was ongoing at the time of his conviction well it starts from the fact that luella knew he was a criminal when he made the deal becomes in with sixty five words of major boss where we know he's in the middle of to avoid having to explain how the partner bankrolled and protected somebody they worked with on sixty five occasions who was actively involved and heading into the drug syndicate while murdering people and at that time actually said oh i don't care i like narcotics handle that i mean so you have to two prongs of where the main players in those paraplegic department were directly involved over and over and over again commanders had to approve the over repeat hundred thousand dollars in payments to rodriguez and you're coming back again to write requests your theory is that there was some widespread failure to supervise informants and handlers and my question to you is what is your evidence that that was the moving force behind the injury or the moving fourth day or that day i guess even taking a step back other than right recast what was your evidence that you provide situation to run around completely unsurprised and trusted that they wouldn't do anything wrong and they had a system where they just basically generated papers and put them in a state and essentially hid  nobody would even you know just think oh we're working with criminals and that's exactly what they were doing here and you know and in terms of the movie in force and you look at the result when you work with a criminal you know live and their active crimes are civil rights violations of the byproduct of crime are brady violations you have to write for your informant if you know and you have to hide their criminal actions and if you're working with them and part of their drug dealer of course police officers aren't going to come forward and admit that they're committing crimes with their informant so it was a direct byproduct of allowing the narcotics agents and the report pacifically said hate this is the exact situation we need you to plate extra attention to set up every system in place to make sure you're watching these narcotics guys because they're out there with these well i don't know how you start to rate crime by police officer with brady violation because the two absolutely go hand in hand but was there and i think not specific i see my time is coming down so i would like to that the conspiracy was happening in one thousand nine hundred ninety what about the under the new trial standard under rule fifty nine where not it's different standards and rules fifty correct reasonable jury could have concluded both that evidence was undisclosed but even had that evidence then made available at the time that it didn't rise to the materi against you and you don't know the fact that he's a dirty cat and he's been conspiring with the person who put the drugs there i don't think it would be reasonable inference to drop how he could have used that evidence and that certainly is an argument the mysteries course that's next and in fact that's the only argument prosecution when even the brought this case isn't there some support for that in light of what the prosecutor said to the district court when they came into of his innocence and he hasn't explained to you the district court ordered this court heard that he would have done that he hasn't explained whether he would have persisted with the same perjury that he committed at the time of the criminal trial assert the fifth amendment and refused to answer merely on the basis that there might be inconsistent statements not taking it to the next step that those inconsistent statements might tend to incriminate him you know i don't have a you made the statement i'm asserting first amendment on the basis of my criminal attorney because my criminal cases under appeal and then he went on to say i would love to testify here at which point there was and then the court does not instruct the jury that the only reason you can testify or that the only way you can assert your fifth amendment right is if you believe that a truthful answer might tend to incriminate you amendment privilege that the witness's testimony in response to those questions would have been at first to them but he the jury could have believed he didn't want to testify or didn't want to based on the whole scenario it was not a situation where the jury's going to look at this guy they were not instructed that they can look for that the answers would be incriminating they were instructed that they could infer that that  evidence to support that implication so i'm trying to trying to bottom twenty five top of twenty you would have been reasonable for the jury to infer the prosecution had the information about a llewellyn's corruption did llewellyn tell you that he was in a corrupt conspiracy mentioned this to the united states attorney for the northern district of illinois now you think they might be interested to know that you might think that you suspect look there are prosecutors you really have a dirty cop involved in the trial without there being any evidence to support  three you know the words i would love to testify are extremely powerful instead specially in this setting where that was the center of their defense and where we only allow chaos five questions cross it was a very scenario all together of the well and in addition to that you hear even in this argument that essentially their defense was due the cation they're changing brady from being about whether there was a fair trial to whether our client never committed a crime our client didn't correct crime it's about whether our client had the right to will rely on them not being able to prove a plan also we have the it's not about fifteen years later  prove that your story is true it's about proving that they withheld evidence and that was against manifest way to the evidence and all the subterfuge including the bring in the city and showing that is was a good thing the city should have been involved to see the big picture