no physical evidence whatsoever linking her to the crime and in the case and which was based solely on accountability because both the attorney general in its motion to dismiss and the trial court judge  no evidence that we have produced is of such a conclusive character as it would probably change the result and we trial now to properly make this assessment the court it's essential that the court looks at the quantum of evidence that we and it's important in this case it's over thirty years old and during that time much of the circumstantial evidence that was ritually you anything else nancy rush is no longer viable against her well based on the new evidence as well as the appeal court  regarding the conclusion nature of the new evidence one of the most critical pieces of evidence against miss rich was the argument made by mr carro in his closing argument to the jury that misprision fact need the first phone call  small testified that the first call was made and that the other call that was made was a different voice but it was still a male voice and something our contention is all the time this was prosecutorial misconduct on the part of the prosecution this was an argument made for the first time in closing you might recall that joke was found in the box in which stephen small was was buried there were three witnesses no less than three witnesses called by the state during the trial to attempt to establish this but it has its quarters where in the appeal in two thousand and court found that there was a discovery violation on the part of the state and actually there was an illinois state police report saying that they had compromised or contaminated the liquid that was in a particular job that they had and some of the majority found it to be a discovery violation and just suspected and in her dissent found it to be a pretty violation so because there was no evidence that the particular water that was used or whatever who put it was can me associate with nancy british those witnesses would all go out because that evidence could not be put out yet and so this was used at the trial and actually the prosecutor now has to big map and put stickers of shows all throughout the area trying to influence the jury ah so this was another critical piece of evidence which no longer exists in light of the appeal a third critical piece of evidence which is no longer valid against her was a test needed jeanne moos with well now he was a farmer and he claimed that the day before the kidnapping took place he saw a white van in the area of pembroke township were the gravesite of the students paul was later found and he said he saw a white van inside the van was an individual with dark hair and woodward claim that this was the day prior to the kidnapping on september first and that he had seen the band leader area near the gravesite so now we know she was on the phone with someone else she could not have been in that  items that were used for the kidnapping particularly if with respect to the box and as you'll see from danny edwards affidavit we've attached she said as in fact false he's admitted supplemental affidavit says that money and she wished to not go  off for almost twenty years and so what actually happened is there was a reporter who was doing the story on the case and based upon that mr ebbers became willing to provide an affidavit and so that's the time that we  so it took all this time because his attorneys told him we don't want you coming forward with any information because it could affect your appeals and mr edwards waited until after it heals were over and this information only came out because he finally became willing to talk because he became very ill he's close to dying and we ended up taking in evidence deposition of him because we were afraid his health i'm so that if we would come to an evidentiary hearing we could use this testimony and also he said that he had become a christian in time and he saying that nancy wish had nothing to do with it and that he sealed the plan from her that he bully her and all these things if that would change the jury's view on retrial that's precisely what we're here for and taking that testimony as being true for purposes of the motion what the law sets and here it was not possible to bring danny and words into trial because of course he was a codefendant and he had a fifth minute right not to testify and that's what the law says all the supreme court cases all the way and she didn't know anything about it and i did it all on my own and the reason it broke the box was because they didn't want nancy to know about it and the reason i put the bicycle in the back of the car is because i don't know the partner and she didn't know that i was making a the westerfield case from the federal court where we had very similar situation where the head of the conspiracy was allowed to testify about a codefendant when that question what they were doing what he suspected they were doing involved and if one can standards has said we must be able to find that petitioners new evidence is still conclusive that it is more likely than not that no reasonable juror would find him or her guilty beyond a reasonable doubt if  and amount warrant an evidentiary hearing at this stage the second point is what the court has to look at in terms of whether his testimony is rebutted or newly discovered rushed him from the payphone to a cop car which is approximately one block from his residence in edwards at that point carried out the kidnapping needs rich one home nancy rishon it that she waited that night until two thirty and then she left her house and she went to a remote rural area and she picked up danny edwards where he was standing next next as in train track this was after danny edwards had taken the victim in his car an explanation as to why is she was not involved in this matter she would have been present at the call and all this is something that dean edwards could have done stuff he could do if you was really that determined to try to hide from his ear if what was going on he had no reason in ball for at that point in terms of the reasons and called because she wasn't absolutely necessary unlike the diva floor when her participation was essential to getting the kidnapping actually to the extent it is consistent with the trout has money her statements to police and we do have the transcript of her entire phone call i mean prince harry interview with police and it's rather straight in  point that we needed to go to jack's only to see rich when she was being interviewed by police admitted that was a lie that danny edwards had told her to say she knew at that time that they were not going to jax there's statements in her interview about d n a edwards said he wanted to bring the bike because he didn't feel like it was safe for her to participate at this age she admitted that the only reason that th she ultimately admitted that are around the time of the eleven thirty call she knew that the edwards had the t v reporters she saw it she's on handling it in the car she also she also admitted that he had at one point  a tape recorder out of a car getting a little bit into the details here but when she was describing the route that they took from these cars and she was in the police station she gave a particular when they then took her to the scene and if they can show us where we were what it was a different route and it was on that route that they found because that tape that had been ripped apart and destroyed so another point about  dishonesty here is that she what the most incriminating facts were to conceal she really didn't just striking out just blindly here she can feel for example the first interview that they had that she never went out of her house the night of the kidnapping you knew that when it took place and that was what was going to be at issue eventually she slowly came to admit what had happened initially she said well i l every statement she gave to conceal the fact that she had been there at the call that was used to lure him from his house she finally admitted that she never said that she knew what the substance of the call was but then again your words have great hurry hurry i need to get t i think a very elaborate account of an individual market his her prior actually coming to the she had a new step by step with their conversations were saying that he had taken at once before the kidnapping and taken place and it was when the police said we spoken to your son and your son says that he thought there just before this took place it she said and that's correct and my son is not a liar i admit that i saw this box which there is really no plausible explanation really as to what is this mystery of the box i think she says that any edward said it was for school supplies or something but it was something remarkable was taking place in her garage with respect to this box and she knew furthermore that that was something that she should conceal her knowledge of when she was giving her statements to the police the search one and that was how they discussed with her initially they said well really you're here because somebody saw you every man some call so she knew immediately that this was a very serious matter and that she was potentially involved in an aggravated kidnapping it was as additional all evidence was coming forward at different points that she would have met additional facts so initially the police didn't ask about a box because they had no idea that he was not was in one and had been  underground it was after they found stephen smallpox that it and began asking questions about that and initially then she tried to pin the ownership of the box on an individual who had in fact purchased her grier and he actually  also significant in judging her statements that the police conveyed that important that sort of urgency of the case that someone had been kidnapped from his home and that they were unsure at the time whether he was alive or dead and when faced with those circumstances so the titian ors first impulse was to lie as much as possible to hide the fact that she had been involved at all had seen edwards had been involved at all the inclination was not to get as much truthful information as possible so that they could hunt down their finest individual before something might happen to him you know little did anyone know at the time that he was no longer alive but that does seem rather striking that her initial impulse was rather than to assist in the ways that she ultimately did she deny any knowledge whatsoever and even danny edwards not even to initially admit that he had also been at sea outside of the house at the considering the amount of time the length of time that it path there was still no diligence shown in getting this before the fort and really it goes to the potential prejudice of this state here that these witnesses would potentially testified in the trial and are now thirty years out when your men on and so the court should find it in addition to the fact that there is no conclusive nature to address testimony that she's also failed to show that it was ne initially denied being there for at the point at which she ultimately testified she was present in terms of driving add words to the house and picking him up from the rural area so we it's her testimony that the courtship way and against any edwards new affidavit and they're and they're complacent ness but if she should be looking at that in terms of determining whether do it so the fact that he is giving these blanket sort of statements and tell him to exonerate her i think the court has to look really closely at the extent to which that does not match with what mission that actually took place a question sorry first her first statement was before it became a murder yes the and several she was found accountable for both kidnapping caracas so when it was still a kidnapping did she say you know what there was a box there was a big box and made russian and gone now so the what exactly was inside of her mind he can't say nancy rich nudists or didn't notice he can testify that circumstantially thing that and a person could use to infer whether someone is aware what is going on we don't dispute that that would be the case that didn't really come up a lot below because it that's just not the sort of thing that being addressed in the affidavit but if there were say offer of proof that his testimony would be well this was our conversation and she seemed confuse favorable to the state that's not where we're at right here we're at second stage post conviction proceedings when there are no credibility or reliability determinations made and when we take all the facts as being true unless pos that that's what the court looks at the trial record and the appeals and also the record evidence affidavits and documents that have been put in by the petition that's correct that's what the assessment with me but do nothing of that assessment second stage which is a pleading stage you wish was arrested when she saw pictures all of the newspapers and television and we all know that i witness identification is the most unreliable all of testimony especially as time and circumstance so he starts evidence that could be used but that's clearly not case people first smith which we cited in which the true general acknowledged is directly contrary their position said that it's only prior to trial of that the party has to demonstrate he could have brought the witness forward and this has been done numerous on