the court and joshua jury tell you for helen and one chambers when i tell the story of what happened to trial in this case do you lay people or lawyers their answer is always wow that's a perry mason moment which is shocking in the sense of experience but was more shocking to people is how mr chambers could be convicted in this case in a case in which the district court before a trial  identity as the material issue the single material issue at the trial and in which the government started off with a case purporting to have to i would misidentifications and essentially going to the jury without any ansted a serious point right i mean i understand that the one was stricken and the jury told to disregard it but with respect to the other with the jury been allowed to credit the original the examining prosecutor of that witness that's why it was left when the witness left the stand that it is so unusual i don't know that there is another case that would present the safe particularly when it went up on appeal because i think they're all acquittals it is probably the problem and you know in the unifil identification in court the witness admitted it's a no brainer this one african american person sitting at the defense table she acknowledged on cross this is and you dish look back and this gets into the other points as well you have a fair opportunity to identify him i mean you took off nine months after don't more than that up sorry but a year and a half after the after the incident after being asked but also in the context of but but she acknowledged that but if you look at the biggers in the context of biggers the the fact is really turned on their head because when she has an opportunity during the course of her testimony not in the first five ten minutes of her testimony when she's looking and finally said oh yeah that's him because he's a defendant he's obviously the defendant but which he has an opportunity over the course of cross examination and redirect to look at him and then says you know it's not him it's not him she said it twice she gives it articulate circumstantial and tenuous on their own what you end up with going to the jury is a series of these tenuous an inference is that a week on their own and never a stablish what they portend too is what they purport to establish because what you have is for example the government you know they cited the phone records but no one ever established that it was mr chambers phone at that time never has no one ever established that mr chambers with any location for the cell site that he was there in the car links him to the name t those two links and then you've got the license plate we've all of it the circumstantial evidence it seems to me is problematic but the license plate is is the is that of this it's a new york plate according to the government's witness it's an acura according to the government's witness with the says it's accurate according to the police off to the detectives an initial alert that he puts out isn't accurate this is not that this is this is a hyundai and so the it doesn't hammer hammer he was going to get one right now same exact camera no forensic evidence no nothing that connects mr chambers to zero again you're talking about the circumstantial evidence that the car in which the victim and it is to identify  all presume that there's some connection with mr chambers to the event that occurred there's no connection of him being in the car there's no connection of him being there is no connection to mr brown is part of the robbery so all of the phone connections ok but but all of these things have so i mean if you take out the id part of it this case you take out the my part of the id part of it this is no case but if we're looking at the raft and i think you'd be hard pressed to argue that it was obvious that it was the same person so what but but then she says he saw that even the same photograph can be put in a second or a set there are other elements to let's get to the other is he plays the court my name is nick are taking and i am an assistant united states attorney in the southern district of new york pardon my voice i represented the government in the district court and also on appeal  mr chambers was convicted of robbery and kidnapping after a fair trial it was not a perfect trial wait a minute you know it's it's an id case in which you have to i d s one is completely stop drop from the mean really it's just another way of asking the question i put to straight what do you think the jury could do with testimony in terms of could it could have credit the direct testimony and reject credited both mr ellis in court identification on direct her prior out of court identification of the defendant in which she circled his picture and a photo array signed her name under it and the detective contemporaneously wrote that she said it kind of looks like him or less discounted the recantation it could have she was under as judge scofield who witnessed this transpire under immense pressure she was very emotional she took multiple breaks during the course of her testimony both throughout the course of the testimony and what was clear and what is clear from the record is that mr chambers at there were multiple pictures of mr chambers in the record he looks different in almost every one of them as the court recognized earlier it's hard to discern whether that the pictures of him in front of her at that moment which were at least one photo array and the person sitting in front of her a court or the same person and that may have been what led her to recant it may have been the circumstances of the pressure that she was under it may have been that she was shown thirty five hundred material with her personal address her current address on it  the jury was entitle to draw whatever inference that that it that it could the the jury had before it her prior out of court identification which she had not we can't one of the government say the government said that that it described that the factual events that had transpired during during the course of the trial during her testimony that first she unequivocally identified the defendant as the individual who especially after cross examination when mr gray tell made several points regarding that in court identification for example the point he just made now that it was a no brainer wanted to confirm what and i was not the question prosecutor but but  but i think would have wanted to confirm and ask the appropriate questions to confirm whether she was in fact still identifying the person for the it wasn't and she said no but the jury had before it all of those identifications and i think more important so i can assume that this came as a surprise to the prosecutor when she recanted right in fact you did and so the problem with the case is a whole is there seem to have been a lot of surprises for the prosecution i gather that the facts that mr good relies on with respect to his weight hearing the argument facts that were not made known to the district judge before trial because the government wasn't aware of the prosecutor your office right about the multiple photographs shown to the daughter now the statements that were made to the victim am i right that the government didn't know any of those things in order to tell them the district court about them and the government knew and made disclosures prior to trial with respect to what it had known right so that the the fact that she was told to ignore the caption you didn't know that before trial right because as i understand it it wasn't just squoze before trial and mind and my if i misunderstood something to be completely candid with you standing here right now i cannot recall that fact they don't want to misstate the record on the issue of the daughter state it's about the fact that she was shown multiple photographs and multiple times that wasn't disclosed that that was the reason judge schofield tossed her testimony right the daughter's statements differed in two primary respects from her prior interviews and prep sessions with the government as the government had met with her multiple times prior to trial first she said that  she had reviewed multiple newspaper photographs on her own of the defendant prior to making the second out of court identification as opposed to the one that the government was aware of and disclosed to the court and defense counsel  several months before trial second she said that she was shown a single mugshot photograph of the defendant while at the precinct that was the first time that the government the defense defense counsel the defendant the court anybody had become aware of that that happened on cross examination that there were two people who knew it the witness and the and the officer and i part pressed to understand how the prosecutor doesn't learn  in the course of preparing these witnesses now you know you said you were counsel below but not so counsels i ask this generally i mean how does the office not lar facts and have them come after the first time at trial the record is clear that the and i was the prosecutor who questioned that ms torres the daughter so the record was clear that we met with her multiple times and asked her about the identification procedures multiple times took notes on her answers with respect to those identification procedures each time that we met with our and so that's why it was a surprise she was there was a deficiency in these preparations because you didn't learn facts that came out when she was on the stand we asked her the questions multiple times i don't know that it was it if we had to do it over again we would have asked again and again and again and again the thirteen where you show any other photographs and in response to that question she said that she was shown on direct examination in response to that question she said that she was shown the newspaper photograph of the defendant she did not and that was an open ended question it was a non leading question and she did not then say as she did for the first time on cross examination that in addition to the newspaper photograph that she was shown she was shown the single shot at the precinct but neither did the officer tell you that and you  used by twizy when asked to identify who twas he was he said antwan and that was the defendant in the courtroom so that ties the six one three zero number directly to the defendant and what ties into the home to the home avenue address the defendants for cell phone went back to the barnes avenue address immediately after the robbery and kidnapping at a park and the cell site evidence shows that when when that the agents interviewed the landlord of the barnes avenue address he confirmed that that is aporia done by the defendant's girlfriend live there with her boyfriend that being the defendant there are multiple there among multiple pieces of evidence that tied into the four seventy two barnes avenue address issue with respect to the identification facts that were disclosed only a trial that they would not be sufficient to have warranted exclusion had they been made known to the district court in advance that is not our position your honor tell me what the government's position is hindsight is is always twenty twenty and we may have taken a different position had ms torres explained to us what she explained on cross examination where they laurens the argument is that no harm to the defendant because it was struck and we presume the jury follow the instruction we have to presume that the jury follow the instruction they were instructed multiple times and they even received the transcripts of the testimony showing exactly what they could consider from mr as his testimony what they could not consider the jury deliberated over five full days they asked for multiple witnesses testimony they had before them the cell site records the phone records they had before them various pieces of evidence that they trailed through in the course of those five days and significantly just as just schofield held even setting aside even ignoring any of the any of the eyewitness identification testimony there were sufficient at that the jury's verdict was supported by the circumstantial evidence in this case which was strong and sufficient to allow any of them the rational triers of fact to come to the conclusion the defendant was guilty beyond reasonable and again it goes back to what i said that the biggers factor is really on their head in this case because when she finally had an opportunity to view mr chambers not a series of different photographs in which the government says he looked different all the time or rather the chance to look at a live person she says i he said i just kept looking it's not him so her ability to to see mr chambers during trial was really what turned the tide with respect to what had been a series of different photographs in a complete manipulation by the detective with respect to the question of  i know enough not to do that but also your honor asked about when about but when the when everyone learned about the issue of the forget about the teardrop and i went back to look and it's actually also in redirect so it was not in thirty five hundred you know i would have used it if it had been in the thirty five hundred so this is something that's obviously part of the prosecution team this is detective is is the government is as a whole is charged with that knowledge  this was after the court had the court was considering whether or not to strike this tourist testimony and if there were guards it only establishes further that if the the cart before the horse in the sense to t i'm still not sure i understand quite how you think the teardrops statement did anything more than make her look hard at the six pictures and that spread i'm not sure how it focused her on the defendant the district court couldn't have considered well that it's something for the jury to decide whether among the six people she would have made an unreliable identification of the defendant it is financially dismissed or independent recollection it created a  think she said yes but i couldn't an officer make that statement i mean you do get to make statements like you know i don't consider a beard don't consider the length of the air you know the who knows when the photograph was taken relative to when somebody would have had a tattoo applied so what what what was the if this is part and parcel of the whole manipulation by this detective between the manual or that that what he did with tours and you know the government the court asked about anything else but just that with respect to the government's preparation and its responsibility for the integrity of the evidence this is a detective who had a prior finding by judge batts of that he was not with the di da we weren't getting a hearing you were we were getting a series of disclosures all timidly during trial even so yes