henderson's i don't know there's a record doesn't show whether they ever tested i assume that they did but the record doesn't show died they did actually got a fingerprint match i'm not sure it's particularly material to this case but they did actually ultimately get a fingerprint match they found that a man named  balancing that the court is trying to do here they say we want to ensure that the actual innocence exception remains something that's where it's only going to be something that petition is going to be able to pass through an extraordinary case that's one side of the balance the other balancing is by calibrating the standard that that the reasonable juror stands and what the eighth circuit has done then imposes a standard which which destroys the balance team because because the simply the way the new evidence the limitation the way the new out of instruction functions is to say no matter how strong the constitutional claim it is and no matter how strong the evidence of innocence it is something to sure are going to lose anyway and the whole purpose the core purpose of the of the of the actual innocence gateway's to say that those correct i mean my my my position would be that the only thing that has been can do with your view this is new evidence that clears the gateway and the only dispute that is that has been made to that idea is this question of whether or not it's new or not because it was available  trial counsel neither the natural judge nor the district court nor the commonwealth have said hey we think that there's an issue about whether or not it's for a while so so might my primary argument would be that there's no dispute about it and i'm sure the extent that you know honestly i don't know the answer to that question and i think the reason why i don't know the answer is because that scenario doesn't come up very much i think i think that if this court finds that because you square the actual innocence gateway i think the likelihood of being retried is lo petition really able to meet this high fandor and we think that the most powerful evidence in the case here is the evidence about the foot from the police reports involving clyde anderson because that the confessions that she made  to these different witnesses or are exactly the sort of confessions that jerry make he's that he knew that was the real killer went into that convenience store alone he knew that the killer climbed through the window in order to get the mom you know when he left the store he came out of the store and went laughed it's that short little cut on the video there's a there's a third video that we submitted to such a little clip he's had left from the which is actually physical exertion for this murder and that this confession is viable  well what i would ask the court to do is to then to proceed to decide the merits of the on time wait in a hyper assistance of counsel claim it's it's it's the other side of the same coin i mean the innocence question is doing we're putting on lots of this side because there's an actual we said there's an actually it is they here is a title to be released or retried your honor i think i have seen a case where a court said this is such an overwhelming once i'm a cautious lawyer by nature and i feel strongly about michael in my client's innocence here but i'm inclined to say i think that the right course of action is for the court to  there has been no decision on that obviously by so there's no again no opinion frustrate your side and there's still even if we don't have counsel available to your to a fact finder to determine whether there was any kind of strategic reasoning there are still one he'd yes absolutely i certainly recognize that that's not what this that challenge about fable finding is so much as about that but but i think the reality here is the question of whether that evidence is corroborated is is substantially the same question