because both mr hill's argument in the district court fight district courts finding that the preliminary police report was brady material requires this requires the stacking of tenuous inferences on a flimsy foundation both both arguments that the statement to investigate why the mother ran from the police and asked her please to check the alley behind the house several times require speculation that miss that ms dudley in that statement is referring to where the bought baby's body was found and she asked b b when she asked the police to check in the alley as the wardens stated in our brief there are two alleys at issue in this case because there are two buildings when the police arrived on the in the evening hours of may thirty first in the early morning hours of june first they found ms dudley laying on the ground as officer givens testified at trial officer givens is the officer who prepared the preliminary report at issue was not provided to the defense at trial and in fact when the warden provided discovery in federal hate b s of the prosecutor's files this report was not among them appears to be an item that was not provided by the police to the prosecutor for discovery so we agree that it was suppressed material however to say that it was material for the purposes of a brady violation requires understanding requires speculating as to what his one sentence about her running from the police and asking the police to check behind the alley means it requires us to speculate that she did in fact run that she would have said she ran from the police when and when multiple witnesses including officer givens testified that she was laying on the ground bawling and crying when the police arrived ms dudley spent most of the evening following the police officers around and there is testimony in the record both from her and from other witnesses that prior to the police arriving she was all over the place she was at her house she went to mr hill's house she went looking for her mother so it's not clear what he is referring to when he says she ran from the police but it is clear from her top from his testimony at given says report that said given the opportunity or with more time he would investigate why she ran from the police that was his statement that's his statement as to why so why wouldn't that be something that able to cross examine him on they could asked granted they could have asked mr i'm sorry officer givens about the statement that shooting from the police however on the back of the report the same report that he wrote he also wrote that when he received the radio around regarding family trouble when we arrived a mother and grandmother were laying on the ground crying so most who would be impeachment asked officer givens for the inconsistent statements in his report it's not clear how that would be  substantial material to cross either undermine the credibility of either officer givens or ms dudley on when the testimony at trial was that she was laying on the ground crying not just from officer givens but from other witnesses so it doesn't raise to the level of brady material especially in light of the other evidence in this case and given the substantial cross of mistily that did occur at the trial that she lied on her direct testimony under oath at trial on a number of occasions she lied about being in a bar that night she lied about either her mother or her having sole control of the baby throughout the day she lied about being at mr hill's home earlier that day she lied about having a fight with mr hill earlier that  day she stated that she had that mr holt had never threatened the child  and they also called steps into cross into question during the defense presentation of testimony her fitness as a mother talked about the fact that one of her neighbors said she was it was often that he she would aband the child whoever would take it over should the baby in unfit living circumstances and that he was close to calling c p s this isn't the case where ms dudley was the key star witness the only person who tied mr hill to the scene of the crime there is substantial other evidence that indicates and that was sufficient for the conviction more than sufficient for the conviction of mr hell but not looking at an insufficiency of evidence issue here at least not with regard to the brady glee cracked we're seeing is what we're asking here is if the defendant had had that part of the word is there a reasonable chance the jury would have looked at this case in a different light correct and given the substantial amount of cross examination impeachment of ms dudley that occurred and the substantial damage to her credibility on the defen presentations defenses presentation that occurred there is not a reasonable probability that these two speculation speculative pieces of evidence would have undermined conviction in this case they are cumulative to the substantial impeachment of ms dudley that had already occurred and ms dudley's testimony is not the only piece of evidence that convicted mr hill there's physical evidence in this case as well as the testimony of other witnesses and mr holmes testimony himself mr hill denied initially to police that he had been in his dudley's apartment building on the night of the offense a fingerprint of his was found on the light bulb in the hallway outside the doorway where the child went missing from and in a later statement to police and then again on the stand at trial mr hill admitted that he had gone into the apartment building that night and had unscrewed the light bulb so he placed himself at the scene of the crime shortly before ms ali came out of the building crying that her child was missing the fact that he denied taking the child is not surprising it would be surprising if you've gotten up and completely incorporated himself but that's not the only evidence in this case that convicted mr hell there's going to that other evidence one thing i wondered about in connection with the statement that's in the police report about look look in the alley y i think ignore the question of which are behind which alice was she allegedly referring to as i understand the facts of this case the police ultimately found the body a day or two afterwards in a place where they had searched the prior day where the body was not located cracked so assuming that that's true it suggests the body was someplace else and then placed a day later in the  behind behind hills house act so even if you assume that she was referring to look look at his house look behind his house and even if you assume that she knew the body was there because she killed this child and she put the body there the body actually wasn't there act so so what do we make from the state's end point what do we make of that statement in light of the fact that that would not have been true had the police done what the what she was telling them to do your i think the fact that the points that you've made it point to the fact that her statement is not impeach her because it does not implicate her in the crime her directing them to look to the alley behind mr hill's house on june first when the baby's body is not behind mr hill's house means that there's no there's no link to be made between her asking them to check behind the alley or checking the alley as opposed to her having said check me out of the house and then you act yes and as you stated that question that demand from her of it they look in the alley would seem to imply at least that she knew they weren't looking for a wife that her asking them to check in the alley i mean this is what six month old baby this is a six month old child yes so probably not crawling down the alley on her own hook now and there's testimony that the child was not independently mobile yet she was not crawling at this point at six months old so i think she would know you know  probably can like any mother would be concerned that the child was not mobile on its own she hasn't heard it crying she didn't wake up to it crying when it was taken from her so she's concerned that they are that they need to be looking for a child somewhere where the child could not be heard whether it's whether it's dead or alive she's concerned that the child is somewhere that it can't be heard or isn't being found on its own such as behind her house she knows that there is a large wall and drop behind her house and at this point she knows that she's been told by others that mr hill was seen entering her house and not leaving so that the next logical conclusion is that he took the child over the wall behind the house which is also now you say the record supports the fact that she made that statement after she was told that the witnesses didn't see him come out when she her friends say that when she came out screaming and looking for the child they said you know  been here so you also do did these witnesses also tell her at that point that he hadn't come out that they saw him going but they hadn't seen him come out i believe so your honor we can check that  that's true that's why she was saying look behind the house because he didn't come out the front right and she was there or she in addition she was there when they searched she goes with the police when they search mr hill's house and knows that no child she knows no child is found in the house despite the fact that there's multiple people multiple family members in the house and they conduct a complete search of his house so knowing the neighborhood she's asking them to check areas where she can think of her child having ended up you know as judge batchelder pointed out this is not a this is not a mobile child she's six months old she would have to be carried or placed somewhere and if she's not in the house she's not being heard from in the concern is that she's outside somewhere she's not in the check the a lot where the baby is actually found and as you pointed out your honor the baby is not in the law and is not in the alley officer givens testifies that he searched ms dudley's house when he arrived at the scene as well as the alley behind her house then went to mr hill's house and conducted a search of mr hill's house in cooperation with the residents there and then officer beaver testifies that early in the morning of june first he comes out he searches the alley behind mr hill's house as well as the vacant lot where the baby is eventually found he's present again the following day june second when officers sign her conduct the search and finds the formula box with jimmy carr wrapped up inside of it and maybe this was is my recollection right that there was no evidentiary hearing line you know the two pieces of it one of which is contradicted by his report itself in the second piece which is ambiguous to say that that leads to substantial material impeachment of ms dudley require stacking and inference that she's referring to the alley that she's that that would have impeached her credibility more than the evidence that was already provided to the jury and that would have led them to create a different result testimony as to who was with her when she when the corrupt was discovered you know inside the garage outside the garage you know that sort of stuff those are issues that have been raised by the stated that this was inconsistent with her testimony before the jury which was to quote her or her put a jury testimony me barbie and pam went down there and ruby was standing outside and denise denise gave me her shirt and said it i said it out there and they had to stop pushing they said that they would help her look and so she and denise and ron nasa went up to the park where we live where i live and came back down and started looking in the garage as i went down mr hill's house that the garage was attached to the property and so law enforcement had searched the garage the night before the denise and when they testify during the defense's presentation they testified that they had been through the garage that when they were looking for the child they went in there but there's no indication that law enforcement had been in there before june first when officer beavers comes back on june first to do a search is when teresa approaches him and says this is the brett that was found in the garage  so a trial to reset is slightly confusing both on direct and cross but her testimony is that she went and is consistent with denise and ron s's testimony as well she went back to mr hill's house on june first she's clearly shaking and denise offers to get her a sweatshirt she puts on her and then the three of them go and search the garage they all disagree as to how exactly the barrette was found because denise and  adamant that it was not there the night before one of them even testifies there was not there when she walked in the garage and all the sudden appeared winterreise the pointed out and then one of them picked it up and handed it to her and she put it in her pocket to hand it over to the police later that day but denise testifies that the bread provided at trial is the bread that she handed to theresa from the floor of the garage the question about who was with her and the question about whether she was standing inside or outside which seems to be the focus of this case is at least arguably slightly different from the question about was the brett there the day before when the women went in the garage did that point was the breath there when the women when in the garage the night before i did the mother plant the next day did that come out during the trial yes that's the so the question on the brett is just who was with her c found because how they describe how they each describe the garage set up is different so when they're referring to the front and the back and the door and the side and this is open and not open it's confusing who's talking about who is talking about where this bread exactly was found i'm just trying to figure out whether there's any significance to the question assuming there's a discrepancy whether she was inside or outside if the bread was found next to a door whatever door that was because if she's inside and it's inside you she can see it if it's if it's next to the door and she's outside and can see through the door then she can see it so i'm just having trouble figuring out what difference that makes and i would agree that i'm also having trouble figuring out w bread was not there all of a sudden teresa says hey look at there it is and it's there and denise testifies the trees that had been walking around i believe it's true with her hands in her pockets and it did cast suspicion to the point that on cross examination the prosecutor asked directly are you implying that she planted the brat and their response to something like i can't say that but she was walking around with her pockets and all the sudden the barrette was there so there's significant questioning and indirect testimony to imply that she planted the spirit and that there's also testimony from denise that there are other children in the household who would similar breaths although tere testifies that this is a breath that she had placed in to meet us here that night that she placed three breaths in that there were two when to make his body is found that the bread again is not the only physical evidence in this case the formula boxes tied to his house the garbage bags are tied to the outermost violation of brady in this case the state suppressed evidence which judge starr has correctly noted would have prevailed the state's case against genesis hill because the state suppressed evidence in this case the jury never knew that at the earliest stages of investigation teresa dudley's behavior indicated that she knew much more about the disappearance of her baby that she let on the police she ran from the police when they first came to her house if she reported her baby missing or the state  easily been crying when the police officer pulled up and then ran afterwards but this statement and that's what it says the evidence supposedly from both the other part of the report and other witnesses say she and her mother were laying on the floor crying on the ground crying when the police officer walked out but is or is there any doubt that that's what the record shows i don't think there's doubt that she was crying at some point but officer given this specifically put his report that she ran when he first approached her we said two things in the report clear at least appear to be inconsistent is that correct i would disagree i think she could have been crying and then ran afterwards it says when i drove up she was lying on the ground cry how can that be consistent with she ran first i think she ran after i think he pulled up and she was outside and there was crying there was emotional and she ran after we're ok well that's helpful now there are some appear there are other witnesses that  did testify as to the events of that night when the police officer arrived correct and they all say that she was lying on the ground crying right now is there any suggestion from the testimony of any of the other witnesses that she ran no because this is the suppress the reporters the press so they had no reason to ask this question i didn't ask you whether they had a reason i just asked you did anything come out one way or the other about assuming that she was laying on the ground and assuming your hypothesis is that she might have run afterwards based on the statement in the report is that supported or refuted one way or the other by any of the other witnesses and it's just because they weren't asked because they weren't asking they didn't have this report so they didn't know to ask those questions and one of the cases we cited in our brief but again the state also says that she worked closely with the police as soon as they arrived from that point onward she went with them everywhere they went and was offering comments or suggestions or whatever something again that seems at least inconsistent with running doesn't that well the same report also noted it wasn't just running it was also that she he said she specifically he requested that additional investigation be conducted regarding teresa because of her suspicious behavior he specifically noted that she was he thought her behavior was suspicious knowing more than she should have known directing them where to look he thought that was suspicious and that's exactly why they brought them in to the police and the police station that night the police brought her the police station they question her they gave her a lie detector exam i'm not saying that this is your obligation to do this but i'm i'm just curious i'm curious why the state hasn't tried to locate this police officer may ask about this inconsistency but i guess i'm equally inconsistent why you have not either because it seems to me that could go depending on what the officer says if he remembers this could go a long way towards addressing essentially the harmless error nature of this if in fact it's harmless but that would have been addressed on post conviction review and there's arguments that  granted the writ so there was no reason for us to explore further after he granted the writ we put this evidence in front of him and he granted the read so at that point there is no reason to explore this issue further if in if there is you actually never asked for an adventure we didn't have to because he granted the writ no no no i get that i think as far as materiality you know how do you said that the question is whether this is favorable evidence puts the case in such a different light as to undermine confidence in the  outcome judge charges consider this and said that this would have crippled the state's case given given the amount of cross examination of the mother what do you think your best argument is as to why this statement that  i would have would have liked to done met more investigation as to why she ran why is that crippling using that word the why is the report crippling souther report it's this it's this phrase it's the two statements in the report it because it does two different things it treats the dudley was noted was the key witness in this case she provided the motive the circumstances around the disappearance she testified to finding the bre identifying the t shirt that the baby was not in so what the suppressed evidence does is it destroys her credibility and it undercuts a key piece of evidence the key pieces of evidence that were tied to the case now the state says that every single thing that you attribute to her as being the key evidence was actually the there was actually even either came from a different witness rather than the mother or was cooperated by a different witness other than the mother is now is that true or untrue untrue in what respect well the three key pieces of evidence in this case where the brett that we talked about the baby being in the box behind him says his house in the dirt those are the three key pieces of evidence they're all undermined by the brady material because they are all develop they all are introduced into this case are all associated with recent dubey now at a time when she knew she was a suspect and she had incentive to point the finger at somebody else that's to ask all these questions but but the box is something that i think it was the grandmother said there was a box that was outside hill's house and then they match up the numbers on the formula or something so that doesn't come from trees confident in identifying the shirt she testify that she was the girlfriend but she knew that there were drugs to get the box you have a limited amount of time so you got the box you got the shirt what was the third key thing from her from red to other the brett but the brett is not we were talking now about your statement and the judge's statement that this issue of she ran and searched the alley would of had been known would have crippled the case right that's not the  a different issue there were knowing that she was a suspect knowing the suspicious behavior that she engaged in knowing that she had an incentive to point the finger away from herself and at somebody else and then the key piece of evidence that are associated from they're associated with her after she's a suspect because she was directing the investigation she keeps after she's a suspect evidence keeps popping up and it comes back from her the bread the baby in the box behind the house in the sure are all tied to her and specifically to the box which you mentioned it was there was testimony from an aunt that she left that in the alley on saturday morning judge starkest noted that teresa dudley was seen in that same alley that's exactly when she found the barrette on saturday morning that's exactly what after she'd been released from the police department she'd been given a lie detector exam so she knew she was a suspect and that's exactly when she went back to the house so not only is the bread found there but that's exactly when the box was left in the alley that impeaching or incriminating is to the mother because this wasn't just one offhand remark i understand that if the baby had been found in the l a i get that right but the baby wasn't found  the there's the house the garage the alley and then it was a lot right behind the alley so we're talking in the same general area well that's assuming that she was referring to hill's house when she was referr you don't really know whether it was her own house where the apparently this perpetrator whether it was this defendant or not has left the house right if i understand correctly you're asking if we don't know which how she was referring to w ell two answers number one this is the report in question there's ten questions on this report genesis he was referenced on it out of eight out of ten of those questions he's referenced eight times is that inculpatory of her or impeaching of mr hill because it wasn't just one offhand remark the officer thought it was suspicious that she said it multiple times and it was maybe not exactly you know it was but it was  you and another important point that judge starr has considered it wasn't just that backtrack your question about the baby not being there on saturday then being found sunday can you explain that a little more thoroughly as far as like the timeline of what we know happened that day now the question is you know she tells them to search that area that the lot is searched on saturday and then the baby is found on sunday so why is that important the answer is she knew she was a suspect on friday night  saturday morning she was taken to the police station she's questioned she's released so she knows at that point she's a suspect she was back in that alley on saturday acting suspiciously and that's where the box was left now she couldn't do anything then because this is when the police are still coming and going but she definitely access to the box and she knew she was a suspect so the earliest possible time she could have put the box in there would have been saturday night given the fact that the police were there on saturday it's laid out that day and in fact there's evidence to support that's what she did because her next door neighbor but you have to assume that when she said look in the alley and us and we're also assuming that men also look in the lot that she knew or had some idea that all this is going to unfold is going to come back the next day get the box with the baby on the box and put this baby out in the lot those are all inferences that you have to make to come to the conclusion on that point that you're making right but there's a strong piece of evidence that happened during that time and that supports that her next door neighbor friend in babysitter who dance was overheard saying on saturday night that the baby was dead in a box so this wasn't just i think the baby's dead this was a very specific comment you know the baby's dead in a box  and then the baby was found the next days and come out of this police report no that came out in the trial direct but so so how is the statement about the alley crippling given given that what did come out during the trial  i'm sorry can you repeat that again given that the statement about the baby is dead the baby's in a box how can this fact that she's referring to go look at an alley the day before then be her credibility in light of the evidence that did come in that evidence actually never came in which of the janssen evidence did not come in it was defense counsel called a witness or they brought her into court but then she was never actually never testified but that did come out in the record that the fence counsel had became or at the very end of the trial that barbie janssen the friend and neighbor and babysitter was overheard saying the baby was dead in a box now how that relates and as far as brady goes brady instructs that prejudice can be found from other areas had they had this they certainly could have known if they had known about her suspicious behavior you know that she's telling them where to look she's running she's considered a suspect they certainly would have learned a much earlier or known at a much earlier time that they need to do additional best occasion regarding teresa if anybody else it seems suspicious behavior so it's very likely to conclude that had they known that had they had this report they could expand their investigation and learn about barbie suggest a much earlier than they did and had they done that there's a specific timeline of not only the accounts of the war in concedes she's lying repeatedly about important facts she's running from the police she's directing the police to the area where to to search she's considered a suspect you know the body is found in the general area where she tells them to search her friend neighbor and babysitter knows the baby is dead in a box on saturday night so that's two of the state's witnesses  counsel didn't learn of that till the end of the trial they try to do anything with it at the end of the trial it's unclear and i looked on and i'm not sure if there was something off the record defense counsel said she was ready to testify but there was another witness ready to go so they had to push it back the prosecution objected on lack of notice and there's no specific finding from the judge as far as what he was if he was going to let let them bring this witness and he implied that he could they could counsel for the warden brought that up and i think that's an important point because that's one of the key factors in this case that that distinguishes it from from many other cases now during treasonous testimony actually in judge starr is consider this you know you said there's very little in the record to indicate teresa was impeached in any way during her testimony she's not asking any questions about being a suspect she's not any ask any questions about running from the police she's not asking any questions about where to look for the baby they did ask questions about bret that's true you know went nowhere because they didn't have any context of it in this court robinson versus has said you're sort of losing me there about that particularly this suspect part defense account did defense assume knew that she had been taken to the police department and question and you said given a lie detector test right right so now we're from that you're inferring obviously that she was a suspect right yes so why would you be asking her if she was a suspect of the police that effect how could she even testify to that  that test my would come up from the police not from her that's a good point and they that was my very next point that they certainly could have asked questions about the police and it never came up during the police either because they didn't know and i think because they didn't know you are saying they would have and that never came up the officers were never asked any of those questions and in fact during the prosecution's closing argument he specifically addressed defense counsel's attempt to it to impeach teresa and he called it quote a sad situation in defense counsel's closing argument you know in their last argument to talk to the jury as far as why they shouldn't convict gensis still you know they called they called they conceded that they only scored minor points on teresa you know as i said before just imagine the closing argument they could have had if collectively all this evidence they did knew you know not only did she lie about where she was that night the circumstances about the disappearance you know that when the police did come she ran that she directs police to this area where to search she's considered a suspect her friend knows that where the body is none of this information came in and it has just started noted this evidence went to the heart of the case and the jury didn't hear any of it and i think as i mentioned before that's one of the key distinguishing factors in this case you know judge me keegan in your opinion now i'm saying had they learned about trees of being a suspect much earlier that they could have expanded their investigation in and they could have learned about that because brady instructs that prejudice can be found from other a you know brady can if they had her available as a witness but they say we never even talked to her first they had her as a witness but they had no idea that you know that they had no way of knowing that to ask these other questions why would they have asked any additional questions of her we just repeating what you said before i'm trying to figure out specifically why would they have asked more questions of what is her name barbie sudar be sue or be sue if they saw a police report that the mother why does one lead to the other other than just saying it because i think if they knew you know try to answer it differently this time if they knew that trees it was suspicious and they knew there was a close connection between the two there was testimony they were friends neighbors treat her babysitter if they  that you know i think they definitely would have explained in their best again and how they could have learned this and then presented the information as i just briefly mentioned the opinion they wrote there the distinction with this case and many others there were suppressed evidence in that case but in your opinion you you noted in that case that the witnesses in that case were thoroughly cross examined weaknesses in the state's case were exposed the jury was aware of most of the evidence and the evidence that they weren't aware of which had marginal value none of that's true in this case you know this evidence went to the star witness and the jury never heard any of it and as far as you know counsel for the warren mentioned other areas or other evidence that pointed to guilt so before my time is up i like to discuss that briefly there's four key pieces of evidence in this case that remain untouched from the brady material from the trash bags the tape there's a bus driver and the fact that genesis hill was seen in the house that night now the bus driver you know in the brief they note that there was a bus driver who identified hill and it's written as if there's a direct identification of hearing a statement but when he's called in to testify he says quote i could not really honestly say that would that it would be him or not so the witness certainly has no faith in his identification so that's far from overwhelming evidence of guilt and if he can even identify identify him in court that's not overwhelming in regards to the trash bags judge targets noted that there were there was significant problems with that testimony to get the point across i just read you know one of the questions watching his testimony was that he lined the trash bag digital but on cross examination he was asked a question are there some creases that are on one side of the dividing line they do not continue across yes or question can you explain why that doesn't continue across the division line answer no i can't he was also asked can you tell any scientific certainty whether these lines are created in the manufacturing process or by a different action after the bag left the box no i can't he also know that there were no fingerprints on the bag  so that certainly far from overwhelming evidence regarding the tape the inference is here that from the words perspective that they please search for tape in hill's uncle couldn't find it  but that's not what the record reflects he was asked about his tape and he said quote i don't have any more because i remember using it on my clippers and i looked at my box and i said i had used what i had in my clippers and the tape they got came from my clippers so there's an acknowledgement from him that he did provide the tape and that's during trial they presented no testing of that there's no testing there's no comparison analysis so that evidence never came in so that certainly if they don't even use it that's certainly not overwhelming and the final point regarding the other evidence was the fact that he was seen in the area that night genesys hill the first officer he did talk to you know he denied being there but officer  that on june first and june fourth he was interviewed and he was consistent that he had been there and he never denied that dudly asked to testify that it was common for him to be there that he spent the night in the intermission to come and go as he pleased so the fact that he was there is not any kind of certainly not any overwhelming evidence of guilt and he was there on a regular basis they spent the entire day together so that i mean it is what it is he lived right around the corner from her so he was always over there so that's not any compelling evidence of guilt and it's just not good batch or you noted it's not this is not a sufficiency evidence case but least that with regard to the brady issues that are before us all he has to actually a fifth thing in there that you didn't mention and that's the person who overheard supposedly this conversation about hill kill the bitch that's i have read here too and i got that i will now and i think that's a perfect example of just how we before i pay any child support now at best at its best it's inconsistent at its worst it's completely unbelievable because theresa dudley is called as a witness the same day and she's asked the very same question to genesis ill ever threaten you and she says no not only did he not there i mean that day he's never threaten me period and he's always been respectful of my sisters he's never threatened me so there's nothing you know if there was a witness who was in a position to remember that and testify to it it would have been teresa you know she had all the incentive to know about that so she's much more credible on this you know it's and she said it never happened well did did teresa ever testify against genesis hill yes in terms of saying she did say that there was a conversation that she said i'm going to have to pay child support and he said i bet i don't pay but it was nothing threatening at all and there was nothing can we ask a question of it another way  you're suggesting that she's not to be believed on this because the one witness is not to be believed on this because theresa didn't didn't cooperated but she never offered testimony that she never said i think he killed my baby or this is what he did to kill a baby she never turned on him she never uttered those words but she identified three key pieces of evidence in it against him in all those all three pieces of those evidence the bread the baby in the box behind the house and the shirt are all associated with her so you're saying that had she been lying about all these other things that you claim she's lying about she obviously would have also cooperated this other statement about killing somebody i mean i can't speculate on that i think she said that just because it's true you know and she was asked specific question did he ever threaten you and she said no and there's nothing in it there was no history of violence between the two there was nothing there was a conversation about child support these were two eighteen year olds at the time any jokingly said i bet i don't pay and i think an important point that they had spent the entire day together so this isn't any kind of you know ongoing contentious relationship they've spent the entire day together  i take it the whole sense here is not that some third party snuck in and snatched this child and killed the child right correct that the underlying theme here is that the mother did it  yes is the suspicion that you and genesis still have that this occurred between the time that hill admits that he was in the hallway calling to her and when the baby was determined to determine to be missing or some earlier point i'm not sure but i think an important fact is the fact that teresa testified and she never wavered on this she was adamant that she was home the entire night and she never left a bartender testified that that was a lie so we know what the circumstance what she said the circumstances of being home on night with the baby there's the bartender certainly has no dog in this fight aside from teresa who's the last person to have seen the baby  we don't know and that's a good question because if she was not where she said she was if she's not home with the baby and she's at a bar could she have been alone and there been an accident could somebody else be with her could been barbie janssen and that's why she keeps pointing the finger at genesis all to making statements that you know weren't substantiated so we don't know she the coroner testified in this case that she could not rule out an accident so there could have been an accident she's at a bar you know there are certainly reasons people don't leave a six month old baby home alone in an accident could have happened you know and then she's a suspect and she's pointing her finger at somebody else along the way and in fact hill says it's an accident later on to his probation officer that came in at the sensing phase has a probation officer came in and said that there was an accent but there was nothing under oath there was no cross examined no direct examination so that's certainly something that every trial the state could explore but as the record stands now there's nothing in the record and there very well may have been an accident this case and this is a case where the state offered manslaughter prior to trial which would have had genesis out in ten years so there's maybe some truth maybe that the prosecution did know that there was an accident we don't know and i see that my time is up of there's no further questions from that thank you thank you shape  know you have your little i'd like to go back to exactly what the report says because the report does not simply say that she was crying the report reads on the back additional comments received radio run regarding family trouble when we arrived mother and grandmother were lying on the ground crying not simply that they were crying and running around he says that they're lying on the ground crying and when he testifies at trial which is on page one fifty six of the joint appendix he repeats that he says they were laying on the ground crying worse than genesis hill's had the report and certainly the question could have been raised then what do you mean here that she ran when you approached her that's a question that could have been asked but it's speculative what it would have what tell of course it speculative because it wasn't a asked how were they supposed to know to ask the question if they didn't have the report because the neighbor mark davenport is  the only person who testifies about any running around from the police that the fact that officer givens testifies and writes in his report means the report is completely in big us and furthermore even if she h testified she ran from me initially there is certainly substantial other evidence pointing to mr hill's guilt and supporting this conviction beyond what are the neighbors say you are referring to the neighbor having testified as to what happened after missing and he said he makes a comment that she initially had run away from police officers when they arrived but it's inconsistent with the testimony of the other people who testified including officer givens the officer who initially responded so they had an indication of if they had wanted to ask this question of what happened but i did want to point out that the report itself is internally inconsistent and also to the idea that this report would somehow lead the defense council at trial to ask the police if they had suspected ms dudley when there was other evidence as your honour's pointed out they were aware that she had been taken to the police station and that she had been polygraphed that night and furthermore the idea that that would have been admissible  question to ask it would been have been asking the officers for opinion testimony as to who they identified as suspects that evening requires stacking inferences as to what this one line in a report would have led the  defense counsel to investigate prior to trial would have led the answers to be a trial would have led them to call different witnesses at trial not just around ms dudley but around these other witnesses barbara sue janssen did testify a trial and the evidence that they're referring to about her making a comment about it being in a box is not testimony from or a statement from ms janssen it comes when one of the attorneys during a break in the trial represents to the court that they have the defense attorney represents to the court that they have recently learned of a witness alexis dot import who wants to testify or can testify that ms janssen made the statement on june first the trial judge states point out that they have one not provided this witness to the state although he does say that he would be there would be a remedy for that allowing a brief continuance and to point out that barbara sue janssen was never asked about the statement on direct and so the idea that he's going to he says i'm not going to tell you what i would do i'm not going to direct you how to do your trial but if you call her you need to lay a foundation for providing this testimony is the way he tells them at the end of the defense counsel presentation defense counsel indicates that they have two additional witnesses who they've decided not to call after consulting with their client their aware of missed out important she's in the courtroom she's appeared pursuant not to her own subpoena i believe  alongside her husband mark davenport so they made a tactical decision not to call her but again saying that barbara sue jansons statement somehow would have come in or would have this report would have lead defense counsel to make a differen strategic choice about information they did know at the time of trial requires speculating that the statement about the alley would somehow lead them to conclude that there was this was an even stronger suspect than they had already cast her to be in their testimony they spent a significant amount of their time in the defense presentation of evidence and on cross of ms dudley casting her as the only other possible suspect and making her behavior seem suspicious in addition to casting doubt about the circumstances behind which they brought was found his aunt's testified that they had seen her sneaking around his house had seen her in the property and one and testifies that she actually had the police come down and ask her to leave the property on june first so they had done more then simply ask her why she ran from police they made it they presented evidence that ms dudley was in the house and had access to the evidence that was that was tied to domy because death in addition the evidence tied to me is death is not affected by this is not affected by this police report the five pieces of  bags the tape the bus driver statement genesis hill's admission that he was in the house that night and barbara jansen's statement about the threat that was made to the about that little bitch in response to a discussion they had earlier that day none of that is affected by the police report none of that is affected by theresa dudley's credibility there's also mr hill's own conduct as testified to by officer givens that when they went to his house to search for the child one it took him twenty minutes to come outside and speak with the police officers and to during the search of his house for his six month old daughter he was smirking and grimacing seem to nonchalant and not at all concerned about this baby being missing there's also the counsel for mr hill speculates that somehow after she became aware of this of the fact that she was a suspect somehow after she was released from the police station she had sufficient time to go seek out this box and place the baby in it from who knows where the box itself was tied to mr hill's house officer give an officer i'm sorry officer beaver i believe testified that he had seen in the alley behind the house testified that it was the type of box and that was where she had placed it after it was empty formula and the batch numbers tied it to to the house that mr hill lived in an apartment or a large house divided into apartments so that evidence is independent of ms dudley and it's this that is the same speculative chain the trials the council attempted to cast at the trial itself they presented the jury with testimony that  access to the house and was behaving suspiciously that she would have had access to his clothing she would have had access to the to the formula box and the jury made a credibility determination and chose to convict mr hill none of the evidence that could directly be linked to this police report as being admissible would undermine the conviction of mr hill and that's why the burton core is not material brady evidence and the rich should be degree of the rich should be reversed i'd also like to make one final point judgment you asked about the fact that there is no no follow up that the police department i would point out that they found the report as we did in our brief this report was undercover was uncovered in two thousand and seven as a result of a private investigator retained by mr hill's counsel making public records request of the cincinnati police department although they obtained an affidavit from the defense attorney they have not sought to obtain one from the police department that it is their burden to prove a brief isolation and addition the report found in two thousand and seven there's an affidavit in the record supporting that it's found in two thousand and seven was not presented to the federal court or any state court until two thousand and ten and as we argued in our brief there lack of diligence supports a finding that there should not be happening able to provide this report as support for causing prejudice to excuse not providing it to any state court and it should not have been added to the record because they were not diligent in presenting it to the federal court from both of you with that the case will be submitted and you may