will next hear the argument in lenny art versus william william bundy thank you and mr lennier that they didn't have that evidence or that they turn it back over to his counsel all the while and at the end of the day eight days after the jury verdict they finally produce all of that evidence i'd like to ask you to clarify something for me before you proceed that says that identifies those who left the art is not appealing but the notice of appeal doesn't distinguish them i think that the argument that you make focuses on the prole supervisor to whom you know we should on who should focus again throughout the brief you referred to just defendants generally and it's quite unclear to me there were two motions proper for the district court jamiel motion and  fifty nine and sixty motions for a new trial on the j mall motion on appeal the only defendant is manager allison on the new trial motions we submit that both defendants bransford and allison among the defendants because mr ellison's knowledge about the supposed contents of the tape may be different from mr bransford the misconduct alleged seem to focus on mr bransford sometimes a conspiracy is kind of generally adverted too but it's important to distinguish among them i think ok maybe we can just start there you are so on that the district courts at least the new trial motion didn't know that until after the trial but what was his what was mr allisons knowledge of that more evidence with respect to during the trial what could have been a douceur what was known at the time yes actually at the time of the search is really what i wanted to focus on that that mr bransford head or anyone and i gather your client's testimony changed with respect to what made the threats and who had been told about the contents of the my cricket set what was there to show that mr allison had knowledge of any of that so the barracks and he had a conversation with mr ellison and it was after that conversation and further meetings and discussions with state office a police officers that they then proceeded back to george liniers home to then conduct the what we believe so you're talking about september light in light of the new light newly discovered evidence because mr lennier testified at trial that it was that morning september twenty fifth two thousand and seven interaction where he told mr bransford that he had the tape and abusing children i mean there were reports of him abusing children even before that right that culminated on september twenty fifth correct the reports were at least several months old at that point the record reflects the reports made in july of two thousand and they needed to come back in an event right they did not have to come back in any event because according to the testimony of bransford and of money or that g p s was going to be fixed i mean there did need to be you know three state police officers  he did make that decision and it's our view that that was all pretextual in light of the earlier conversation with mr bransford which in light of the newly discovered evidence also in our view allows us to argue to the jury and have the is there that the tape was erased or tampered with so the most important point your honor is that the evidence you produce eight days after i get it and so there is no up truth there's nothing on it why does it matter so there's no opportunity conduct full discovery and forensic analysis of the tape in the first instance so we actually don't know whether it's original tape or not but what we do know is that yes i thought somebody did look at the tape and was unable to give an expert at the time was not being right in the civil in the civil action here and the expert and i was just about to get this the expert did say that the tape had a start stop signature that was not on the cd copy the c d s were not the same as as after side by side comparison of my carcass at and the cd to scotty it is clear that the content is exactly the same and i think judge carney what's meant there is the words are the same but he's very clear that the start stop signature is not on the c where he talks about the two things that make the tape not identical to the cd copy and of course as we pointed out our briefs the cd that he received from the state had three files on it in the two thousand and seven cd there was only one file on it so all of these issues we can ten need at least for others covering exploration of the district court but even on this record it would be sufficient to grant a new trial on on as to at least allison bransford but you would need to show that the that there was in fact a exculpatory conversation of some kind of like the threats that he alleged in his first complaint and that there was a conspiracy entered into as a right because what happened later is kind of irrelevant if the cd was an accurate reflection of the contents of the tape and i would didn't we and that all of them would be sort of need to be discovered in discordant first instance but on the existing record the record is consistent with the notion that the tape was swapped out and that the cd copy was a copy of the original tape and that's what the expert is getting at is that if when the parole officers and the state police officers get back to the barracks and before they send it to the lab they make a copy of the tape of only one side that does not have the exculpatory information on it or the accept or statement they only make and they and they take that copy of the tape and send it to the lab first the experts testimony and report is perfectly consistent with that because what he's saying is that there are start stop signatures that lead me to believe that this might be a copy and further exploration is needed and before the trial court he said it leads him to believe it might be a copy it could be or couldn't be relishing of it there like it could or couldn't be i mean he can't rule out conclusively that it that it's not a copy is what he's basically saying is that the standard of proof that 's going to allow this to get in your we would contend that rule out the possibility we would get so the standard we contend implies your honor would be that there's a probability that the trial would have been different or could have been different and  but probably the outcome would probably be different this is not how hard our standard then you're acknowledging right now the precise formulation in the cases is either as a probability or probably we think we satisfy your standard but get to argue to the jury that they can reasonably infer that bransford had a motive to seek out the tape that he then communicated that motive to allison and that they went ahead and grabbed the tape as a pretext why does the newly discovered evidence of the runaround from bransford whether it's innocent or calculated why does that support an inference that ellison knew about it knew about what was on the tape at the time of the  then second we didn't have all this evidence to suggest that now we know or the jury would be allowed to infer that bransford was particularly in that interested in this tape and we would allow the jury one for we would argue to the jury that there should that the material misrepresentation in the evidence tampering our interest support learn your score thesis that the parole officers cared about the tape and that they were at his home to seize the tape and not for a valid parole reason and if you sort of and the extension to ellison of course really does rely on the morning of the summit to september twenty fifth two thousand and seven and the meetings and discussions that happened between france for nelson on the morning of september twenty fifth let me ask another question  denny art make any objection when he was given the cd that purported to be a copy of the tape saying this couldn't be a copy of the tape because it doesn't have the contents on it that i expected office and says you provided me with a cd but it doesn't have the other side on it had one side and what i want is custody information and i want all of all the findings relating to the tape that you can give me ok thank you very much  may please the court my name is steven strawman assistant attorney general with me to my right as assistant attorney general robert deering to your honor's left judge hall can you hear me your honor thank you thank you your honor may i proceed thank you so this case really the core issue and the sole issue is whether or not mr ellison had reasonable suspicion on september twenty fifth two thousand and seven he was presented with three sworn statements of mr lemmy or abusing children them with alcohol drugs and then having sexual encounters with them three violations of his conditions of parole no content no contact with minors no alcohol and no illegal drugs he was a convicted sex offender on special parole which is a higher form of parole in connecticut it is a very restrictive form of parole for particularly the special management unit that mr ellison supervised was a special unit with smaller case load offenders then they found mr leonard hiding behind a wall had having cut off the jeans you know for just one second still the information about his possibly abusing minors again came to light in early august and yet this seizure and search didn't occur until towards the end of september that strikes me as surprising to leg given the gravity of the allegations can you help explain why that might happen there was nothing in the record you were on or about  and there was no questioning by plaintiff's counsel on that point plaintiff's counsel had the dates of the statements so they could have asked either sergeant bundy who provided the statements to mr karr to hannah who is also a parole officer and mr allison mr ellison had just become the supervisor of that unit and it was came to his attention for the first time on september twenty fifth there was no evidence he was aware of the statements as early as august so the state police were it was testimony in the record that he was abusing minors he felt that he had a duty at that point to protect public safety and to remain mr lennier immediately so he asked mr bransford to call mr l watch unit inside the house and he asked the state police to assist with perimeter security so the evidence at trial was that the state police were behind trees and around the perimeter of the property to prevent in the scape of what they considered at that point to be a dangerous parolee the counsel for mr lenny art argues that on special needs searches like parole searches the law allows an examination of what the actual motivations of the searchers are and that case law says that you can go beyond that because of this special to make sure that the special needs aspect of a war search isn't obviated by the actual motivation of the searchers do you agree with that characterization and no your honor as as a matter of fact like every fourth amendment case the question before the court was it objectively reasonable to conduct search that mr ellison did on september twenty fifth two thousand and seven did he have objective in disha that would form reasonable some suspicion that mr lennier was in violation of is a long line of cases from this court united versus race united states versus newton vega versus more all of those cases us we thomas all those cases that were cited to by the district court correctly and mr allison testified at length that  he had a duty at once he was aware that there were parole violations he had a duty to investigate for evidence of corroborating for example the v h s tapes where there are minors going in and out of the and judge fitzsimmons was in the best position to observe the demeanor of the witnesses and the quality of the evidence the effect of those three three sworn statements on the jury and she determined that under the circumstances it was objective we reasonable there was as as was asked earlier there was no evidence that mr ellison even knew about a microcassette tape until he's certain dip it is laid by accident finds it in the outside related to the violations of supervised release that are alleged you know he mr linear and signed a computer access agreement and had to do with that device and other recording devices official recording but not something that would encompass a microcassette and i wondered at you answer the this is related because some of the often seem to have been committed in the bedroom that any recording device would be all yes your honor because this was once there is reasonable suspicion of parole violations as long as the investigation is reasonably related to mr ellison's parole duties so the district court for example on the micro cosat noted that the statement in the record from one of the month child victims from upstate new york indicated that he had made a telephone call to mr lenny at mr leonard offered work or the victim called looking for work that it was the jury could have reasonably inferred that that letter or that and that recording of the phone call could have been on the microcassette similarly with letters if the letters were in the laptop case they would not need a search warrant under sampson in the line of cases for parole parolees are almost like prisoners to the extent they have extremely diminished fourth amendment reasonable suspicion  but it's not totally there are some limits aren't there oh i would agree your honor i don't think mr ellison could have gone up stairs and the house where mr levy or its mother resided and gone through the mother's  dresser drawers or things like that but if there were items in plain view and it was a whether it was a letter or a picture of a romantic relationship between aim a child and mr lennie or mr lennie or writing to children he had a stipulation no contact with minors that would include telephone calls letters and so forth or so i'm clear the computer access agreement is a different basis to seize that you're not proceeding under right that's a consent that's a  what the district court found and she also determined that because the trial turned on credibility and reasonable inference as there was evidence in the record in order to prevail on on on his post trial motions mr lennier has to show it total absence of any evidence in the record in favor of mr allison also any facts under reeves vs sanderson plumbing that are debatable or arguable have to be disregarded so  what mr ellison said was just like the v h s tapes we were looking to see if people were coming or going in the residence mr carter haina testified that offenders who have sexually based offenses often do record their encounters whether it's as a trophy of the encounter or to blackmail the victim what are we to do though with what appears to been false statements made both about the step by mr bransford  about whether there was a custody sheet about whether he knew anything about where the the my kwikset was and a false understanding by the government and the by the district court about whether tapes had been returned prior counsel acknowledging that this was over the years and there were several different proceedings ongoing but i was struck by the absence of an inventory made by a parole officers when they conducted the search no one seemed to know what exactly had been taken and then these misrepresentations made later on relevant are not relevant to their motion to granting a new trial they are troubling they they are troubling your honor but it's answered in part by a failure of memory mr  so on your first point the inventory in the items that were seized were described in the parole violation report and there is at least one parole violation a report in the record i believe it's exhibit five twenty five there were subsequent den that to the parole violation reports for example when the forensic unit analyzed a laptop computer that mr laird had he had images sexually erotic images and other in disha that he had visited websites where children my space and other chat rooms are so on and so forth so there was a parole violation adem them that listed the laptop mr bransford was not involved in the search whatsoever of the seizure of the laptop computer or the original delivery to the state police lab in two thousand and seven his only involvement came in the course of mr lenny arts discovery demands in the case where he was demanding ok and you find the original microcassette and and the recorder and the vice and the actual microcassette and quite frankly he i reached out to  parole office and the parole office sent mr bransford and he was in effect a messenger he picked it up at the state police lab and brought it to our office and i immediately contacted all prior counsel mr lenny it was in prison at the time he's been in prison continuously from two thousand and seven to the present i contacted his connecticut appellate public defender his trial defense counsel because he during this period of time in two thousand and ten he was on trial for kidnap rape and murder and was convicted on march second two thousand and ten so and then he was sentenced in april of two thousand and ten so during that period of time attorney paris was his defense i reached out to him i reached out to attorney ted cotch who was representing him on the parole violation his letter is in the file it was believed at the time that mr bransford after no one one of the take it one had brought it back to mr cutts so when he signed the affidavit it was his understanding and my understanding that it in fact had been returned to attorney caught it was a mistake and understanding and you're the civil here in the attorney general's office that's correct matters and it's the criminal division which is separate from the attorney general's office that would be handling the prosecution that so in connecticut unlike the u s attorney's office we do not have a criminal side in the civil side our function is simply civil defense in our particular unit public safety we do one thousand nine hundred three civil rights defense work of is trial to follow up on your honor's question behaviors trial is still pending in the state's appear court up and is that held in abeyance right now or is that proceeding and is proceeding and the that's where the microcassette recorder and the cassette tape is presently being held in the clerk's office the criminal appeal the connecticut supreme court that was given in the spring that's correct your honor i did check with the assistant state's attorney stephen carney who is in the judicial district in new london to s but he was handling that appeal he worked on the trial and there's no does i believe there were cross petitions for certification to the connecticut supreme court so there were there were multiple issues on appeal including whether or not there should have been you know an expert on jailhouse snitches and things like that but that is not yet been decided but that is correct your honor our office had and just like in this case this search was a civil administrative search by parole officers they had nothing to do with the police the police didn't enter the house attend it they did they were present i believe sergeant bundy testified on september twenty fifth two thousand and he stayed near the vehicle so mr lennier wouldn't you know both in the skate from the vehicle but that's the closest he was to the residence he did not enter the resident he did you have anything further for the state of connecticut if you have nothing further thank you i don't have a note about whether you reserved or bottle time i assume you did two minutes very good thank you your honor just i mean to put this in context the tape the recorder the chain of custody for all of that is not only evidence in this case it's evidence in capital murder case as my colleague on the other side's referred to and the discussion that we just had about mr bransford just being a career that's nowhere in the record and why if he was a  tape not the same as the original tape was not the same as he was what is broken and is this issue raised in any way in the current proceedings that are pending before the connecticut supreme court they are not currently at the connecticut supreme says exists did exist once has not been an issue in the direct appeal is that right not in the appeal i'm not quite familiar with the trial court proceedings so i don't want to misrepresent what is happened what happened at the trial court and whether determine how that's going to proceed and i just want to focus on that hearing mr kohn is that hearing going to address a number of the issues that are being discussed with us today i do you know readily your honor i don't know for sure so that's really the basis for vacating a summary judgment do you think he was present but they testimony was in the jury seems to believed that mr allison found the microcassette tape after leaving the house and it was in the laptop initiated the rest of what happened over and transpired over the rest of the day so whether acting in concert with with manager ellison whether by himself we think that the claim against france or officer grants which is certainly proceed and one thing to focus on the tape while important we contend that we could proceed to trial in for of a jury on a new trial without even knowing what's on the tape in other words without for but we think it's important to conduct further discovery in forensic evidence and do motion practice on adverse inferences because what's on the other side of the tape actually doesn't matter what matters is whether or not they had a pretext reason for being there and the material misrepresentations of tampering of the evidence the chain of custody form the broken see on the low the start stop on the on the tape that tells signature on the tape that tells the jury that these officers thought this tape was important and that they thought it was important enough to tamper with afterwards the notion that motivation is necessary or the intent issues there's no warrant in this case there's no consent this computer access agreement doesn't give any authority to search mr lance home with respect to this particular piece of evidence so we're really in the heartland of the special needs doctrine where actual motivation is is going to be looked at because there's no other mechanism for determining whether the the the search and seizure was pretextual thank you very much i think you have t