this case involves the two thousand year two thousand conviction in the massachusetts a period court of the defendant petitioner here w denied due process at his trial by the suppression of a document consisting of a two page letter which was sent by the prosecutor to counsel for a cooperating with witness i can we just get the procedure all so i would like to first address why this was a violation of due process and then turn to the question of why we say that none of the limitations on this corpus relief under section twenty two fifty four bar relief in this case persons who were actually charged with murder and only one of those two was at the very scene of the murder and that is the only person who testified as to what petitioner allegedly did at the scene in this in his testimony it was actually rather big us what he said the petitioner did was run up from behind the shooter touch him on the shoulder and say go go and the question is you know what i mean shoot where did that actually mean go are you are you arguing that the letter should exactly thank you of arguing as i understand the latter point exactly and you're saying that to state courts that he didn't understand that you were making that point that's right and then here's my question in brief on appeal in the state court i don't see anything in there saying to the hell of court that the lower court misunderstood your point when you really arguing what you just are saying  that the failure to produce this document could have been used to reflect on the integrity of the prosecution and that has to do with simply the suppression of the of the evidence the defense will testify that had he been given this document he would have tried the case a different way he said it would have put this in an entirely new light seems to me be able to show that they didn't give this to me because the jury's going to think this was just a matter of an afterthought and judge wouldn't let him do that with a motion for a new trial comes comes he gets on the witness stand and he explains if i had that it would have put this case in a whole new way i would have been able to show essentially this really show where the commonwealth but of its its case why did they knew you had a witness telling him that he believed he had been promised consideration you have his lawyer telling you that so you know what you're complaining it's no harm no foul you could have put the witness on the stand and he show it so he's saying if i had that letter first of all i could have shown it to the jury i could argue to the jury that there was actually an agreement a mind that not only was there no agreement there was not even any discussion about consideration so the commonwealth would be putting on evidence as of emerged at a new trial hearing that you know there was never any discussion which the the document and the queen amount to the same thing and of course they're not the same thing as this court has said as many courts have said there's a world of difference between a document  yes it may have been a bit of additional proof but i gave you the opportunity you defense counsel the opportunity to raise this issue through the  the defense lawyer who says there was an agreement and you chose not to take it and so the existence of this piece of paper really doesn't change i gave you an offer you could have dealt with that you made a choice not to deal with that she did not expressly discuss your theory about government misconduct at the time but between that and the ruling that she would not have led and when right and the reason why she said she talked about whether this proves the agreement is exactly for the point you want to make which is that she was finding the testimony of this person that he believed to have been probably something in the document as absolutely equivalent and that is a fundamental mistake about the reality of the case and the mistake about w account of some other witnesses says the general way what was going on this witness who may or may not have been given an agreement to help him on other charges the only witness who says that there is another witness who recounts that very test him money and the prosecution in closing came up with his nightmare statement was almost who was the friend of the victim in the case and then next came burgos who was somebody who was romantically involved or interested there only by happenstance was not tightly connected to any of these people and had no motive then the the phrase your worst nightmare is f did mention four times in the opening and five times in the closing and i'm not sure it's important that the that the prosecutor didn't reciting it and repeating and repeating it put it  words the fact of the matter is it was essential to have these three witnesses another person who was right there in the room with vasquez so that she didn't hear any such and such statement and it is true that the existence of this threat this nightmare conversation was absolutely critical to the credibility of a common with this case they come with could not have won this case with these two people who were charged with murder admitting to being involved in the murder without without that estimate so in that respect i think it's highly material and i might add that this material and then of course as you want to mention also and this issue is to be decided by this court on a do no book basis precisely because this claim that we're talking about the document and not whether there was an agreement this claim was never a you say the massachusetts hear your court made an actual determination that knows such agreement as to cooperation exists that is correct your honor no that is incorrect and mr stearns call back to your attention and history you also say that they made a factual finding that no agreement was reached on page twenty seven i'd like to because i expected you to stand up here and the first thing you were going to say was that you would like to clarify and misrepresentation contained in your agrees your hon i don't believe it was a misrepresentation of my briefs what happened here is mr rodriguez testified during the trial that night that he testified his defense counsel e mailed the district attorney and said what is up with my client immediately the district attorney with a different assistant district attorney went to court the next morning to say that this witness testif would like to explain your honor during the trial the trial judge did not make a determination that there was no agreement she made no and i i say that in my record during the trial in the forward year after the witness t s the assistant district attorney calls the defense counsel and the witness there's a there is a why do year during the trial at this point the trial judge does not make a determination  that no agreement existed i agree i totally agreed with your honor there and i in no way represented to the court that during the trial of wa that they made that representation after during the motion for new trial there's there's two different things that are going on here your honor during the trial the trial judge does not meek a determination about whether or not a cooperation agreement existed she just says to defense counsel you have the opportunity to cross examine and he declines to do so after the trial but i defense counsel for the witness finds a letter the letter is from the district attorney's office it has a different name in the signature block in what she says but that letter is produced both to the district attorney and to the defense counsel this is after trial and the case is on appeal at that point a motion f trial is held in and it is at that point that the trial judge makes the determination he does not if you will go read the transcript in any event i do think you  correctly determine i want to point out that the petitioner here is making much of the facts and the facts have already been found by the state court and pursuant to teddy his a version of events do not control the factual scenario you have to go with the state court the supreme judicial court in the massachusetts trial judge judge page's version of what happened here and what they say i understand that you dispute whether there was or if there was as i read the new trial judges determinations she did not resolve that question so why don't you argue your case without relying on the assumption that the state courts made a determination as to whether there was or wasn't there a cooperation agreement i don't think your case turns on that's your out of the clearly established a lot of regarding a prosecutor's stuti to disclose its authority evidence is brady fair brady versus maryland in mccambridge disclosure and given that there was no disclosure during the trial of the documentary documentary support to the trial of judges to the attorney's testimony that they were talking about who operation your honor there was never anything in writing that the da after the y dear the the defense attorney for the witness yes defy that there was never anything in writing during the idea of the witness and then comes up with a letter that he is in his trial which tends to support that there was such an agreement well what the trial judge determined was that there was the suggestion of an agreement because the agreement was not signed and it had the wrong person's name yes according to sherry it is material you and it wasn't disclosed by the prosecution the prosecution had testified that he did not know that the letter was sent ok so your argument is it couldn't have been disclosed because the prosecution didn't have a copy of this letter in its file you know your honor that's not my argument you're on your honor it was the record shows if you go back and you look at the motion for new trial where the a da testified that she could not say when the letter was sons and she could not say who sent it she had no personal knowledge if you read the transcript of the motion for new trial so they don't you know i bet they sent it no they just couldn't say who sent it or how it was sent it was dated may of two thousand and the trial was in september of two thousand ok ok so we've now gone through the brady calculation yes which gets us to prejudice yes you're out of the jury convicted the petitioner of murder in the first degree based on the following evidence the petitioner was a high ranking member of the lan things you had a disagreement with the victim and a friend on the night of the murder and on three other occasions the petitioner confronted or threatened the victim petitioner instructed four of his subordinates to retrieve a gun and meet him where he knew the victim as he stood in the doorway about twenty feet away the jury heard testimony from eyewitnesses as well as the petitioner subordin