and i believe here that mr hynes is represented by blair mchugh so that it probably will not waste too much more time if the pictures have been brought by the government you might let us have those now just put up here and we'll look at them to the extent we wish to and then if we have questions we can provide them to thank you thank you for your  please the court my name is blair mckeown and i represent the defendant of helen in this case cleveland or adams in the oral argument today i would like to focus on the first point we raised in the appeal of the photographic line at their fairbanks rental property was the person who robbed the credit union in burbank several hours earlier the ross picked my client out of a photographic lineup so the lineup was key evidence in the case and that's the issue bringing before the court the most important point i would like to make in my oral argument today is that i believe there's been an ongoing change in the law regarding photographic lineups  there was a recent case and i brought this case to mr schroeder's attention yesterday and i had just read read this recently was by this court it's called united states versus j and it was an on bank decision that was filed on july ninth two thousand and seven ordinarily counsel leaves like to have you send twenty seven jail letters even by e mail so we can read it before your argument but would you please give them write the citation down with three copies and after your argument give it to the clerk so we can read it i show your honor basically jernigan although it's not exactly on point has included language on photographic lineups that we've that i believe is important it was a bank robbery in case involving an eyewitness several eyewitness identifications the defendant was a short hispanic female with a bad complection the government suppressed the fact that two additional bank robberies occurred after the defendant was taken into custody  and the robber in those cases was also described as a short hispanic woman with a bad complection decision despite the fact that there were five witnesses testifying to th identification of the defendant this court found that a brady violation had occurred then the violation will was as i remember reading the case was the government should have told him about these other bank robberies  that they could use that as evidence again that somebody else did it to attack lee identifications and what's that have to do with looking at pictures the same language in the juergen case i think is important it talks about the nature of eyewitness and jennifer cation generally in my reply brief i relied on the department of justice guide for eyewitness identification jernigan that guide us cited as strong authority about the unreliability the general unreliability of i witness identifications and i believe that that's made a change in the law that there is an ongoing change in the law to look at eyewitness identifications in a scientific manner as a department of justice guide and subsequent manual does even with that in mind though you're claiming th one i have a number of factors i'll go over them the police detective who composed the lineup so that that was a random placement we disagree putting it prominently on slot number one this  is a fair lineup would have placed it somewhere in the middle suppose they put it is number two no argument if you rule that it can never be number one or it's suggestive if it was a truly random placement that would be one thing but it wasn't a random placement to my to my way of thinking because of the background of the photograph it tended to stick out a lot feeling that you've left the  question of question is its number one and you said it's not random because it's number one random necessarily means periodic lee it's going to be number one is your argument that it that random means everything except number i don't quite follow you i think that a random choice would be a choice that was done by some outside factor but maybe i'll go on to the other factors which i think are more important the background in the photograph is distinctly different in mister and mr adams photograph the reason is set out in the briefing basically the  division of motor vehicles are going to a digital system and if you look at the photograph it's a digital type photograph rather than the more washed out copies of  d photographs that were taken with an analog camera i believe a polaroid type camera there's also the state of alaska steel is included in the other photographs  not included in mr adams photograph but the most important part is the lightness of the skin of the skin we believe mr roth i want to point out as i did in the reply brief of the testimony that jason mr adams is a lighter skinned person that was the description that was in the newspaper i'm i'm i'm i don't think that's my question correctly here's your objection that the other pictures are too dark or too light there the other pictures are too dark or too dark the number two's light or the number one well i think what's important is not necessarily what we would observe but what the witness felt and we added we the defense attorney below included the statement by the witness that was given to the grand jury and i think that's important the prosecutor asked where the photo similar to one another of the six photos and this was questioning of mr jason ross light skinned black male whatever mr jason roth answered there was i think a couple of other maybe one other light skin and a couple of darker skin so he caught the description that the police gave and put in the paper that he read was of a light skinned black male i mean i think we can have different opinions looking at the photograph but what mr ross saw that popped out there was a light skinned african american male so those are the main factors that we believe that the police detective testified at the evidence you're hearing that after mr ross picked out mr adams photograph the police detective said something to the effect of yes you got the right person so that really affects the subsequent in court identification and as far as the accuracy of the identification i believe that the record shows  mister mr ross said he was fairly certain and we have to agree that the encounter was you know not a thirty second encounter over several minutes i mean i think that's the strongest factor i see i'm running out of time i get a minute for everybody thank you very much which the court hasn't a chance to read i think i would disagree with counsel's assertion that that signal some kind of a change in the law the issue in the german case was a brady violation not the eyewitness testimony matters the court certainly indicated that they distinguishable jernigan was a case the court to get a chance to read was a bank robbery with eyewitness testimony where eyewitness testimony was the only evidence in the case so i think the court may have some some better reason to be concerned there was no other physical evidence no corroborating evidence in this case is different we have corroborating evidence mainly the what is believed to be what the jury certainly i think believed to be the getaway car which contained the some of the clothing appeared that appeared to be w specifically document it's not the policy of the department it's a document that is supposed to help police officers do their job better the fact that they might have used some of the tips in the guide or not use some of the temps in the guide does not make does not mean it met or did we can only eliminate so since so many slots i think all the slots need to be available so it can be a fair a fair test counsel talks about the lightness different issues with the background or the lightness of the skin the government  i think courts now had a chance to look at the original lineup the district court in the evidence you're hearing had a chance to look at the original lineup and look at the witness and he give the district court came to the conclusion that nothing in those photos make be fairly similar photographed in a fairly similar way and the government argued that we meant that this lineup clearly meets that requirement counsel also talked about mr roth and cited some grand jury testimony that seems to indicate he was focused on the skin tone the defendant government art would argue that mr ross was not focused on skin tone for any reason he only answered the question about skin tone in a response to a question about skin tone so he only mentioned it and if you read the the language that did it actually says well i think there were a couple lighter skinned darker skin and he wasn't focused on skin tone he was focused on somebody he saw for a considerable length of time in a circumstance that was very unusual and if you can just walk down the bigger factors that's why he have i'm sorry i don't want to take up much more time just briefly the bigger factors i put set those out on page twenty seven twenty eight and twenty nine of the pre