i want to begin by saying that this is not a case where temperance should be given to the state court this is not an advocate we've already ruled that great i'm sorry this is not an advocate that's already been established by to the right the only issue that th could nonetheless be useful sometimes that's because it impeach is a witness but there's no witness here to impeach he's dead right so the theory would have to be that the inadmissible evidence would lead to other so what could this have led to you know it has the has there been any investigation i don't know why there wasn't it and if a dent shiri hearing here what's the theory on which if we granted relief vacated this would this would wind up leading to something that had a reasonable probability of changing the outcome help to spin out the best case for the defense of what this leads to that changes the whole case is that this actually leads to this or that instance calculate the time finding that this was the modus operandi for mr lewis ok the problem i have is that st i thought this might be for for be evidence but for for be at least the new jersey court apply it seems to be when you know there's some question about identity and it's a signature crime there's no identity question here that snoop was the one who was who was there sometimes absence of mistake i don't see how that really applies here so i'm having a hard time seeing the how this comes in is four  the reason why snoop found himself in the livingston's apartment is relevant to whether or not livingston had the specific intent to rob him after he had him with the bat well i would violation with regard to the initial crime and the sequence of events that that would stop you because if you can't say that then the argument of your  have to do with robbery and and felony murder because if there's no paradigm for us to say stop that those remain and it's not something that's dependent on breaking that's something that's just with respect to what constitutes felony murder has to be something that's the killing has to be occurred during the commission or the feeling of the part fence and here mr livingston's testimony was you know the killing occurred and then there were the gaps in his testimony was it was an afterthought one had nothing to do with the other he wasn't committing the killing in terms of and further the convict and that's not the question that gets asked brady it's not was there enough evidence presented to the jury to in fact but whether or not the evidence that was not bad was not provided good selves and having a lack of confidence in the result and that's that's what that's what the issue is here the fact that you didn't have this information about mr lewis is that raise a question as to whether or not we are confident that he received a fair trial now whether there was enough evidence to to to convict him that's a that's not witnesses reputation opinion the bell you being a notorious burglar we have to have any reason to go down that route i think that if it's your honor i mean we would be able to ask for the specific information as to the juvenile record itself us disposed to a summary and then we can use that information to go down into the weeds and figure out what was what other records existed what witnesses and and that's something that mr that he says attorney you know he did it because he wasn't provided with that opportunity to have this information another was a criminal record you know that's something that he bent and i have the ability to use that criminal record to them believe i did cite and go very heavily into rules of evidence in prior submissions in terms of the manner in which this is been brought before your honor's the day this was previously before a panel then remanded back to judge the nando because in consistency with the dentist decision it was remanded because judge demands original decision and district court had cited and miss ability as a factor in brady consideration it was to the question i have for you is a trial the prosecution said in closing there is no evidence that lewis was there to steal anything that he was in fact a burglar or someone committing a property crime you know it seems to me that that argument by the prosecution highlights the use the defense could have put if they had the the criminal record num ber one they would take away the argument that the prosecution has of innocent victim he was just there you know the various and  being there that would seem to be valuable and you know undermining that it would allow possibly other arguments you know tell me why that's not correct or that perspective on that statement is not correct well i think really it's key to go back to what the trial prosecutor knew or understood at that time and consistent with the record in state court it appears that at some point after the verdict was rendered and prior to sentencing he realized that he inadvertently told the defense prior to trial that the victim did not have any criminal history he discovered that there was this rap sheet that was disclosed prior to sentencing so the defense knew about it the prosecutor and the defense were both in the dark at that particular point as to the argument that was made as i'm sure your honour's are familiar with instructions to the jury are that arguments or not evidence we go any further  substance i can really only say that it was based on what the prosecutor knew at the time and that he was not aware at that particular point it wasn't a matter of any evidence or apple with the issue he had it would it play that that set the prosecution up quite nice y he's unison victim but at least give me that i think so but it's also countered by the defendant and the need per to to support that the appellant's argument defendant i trialed had to be a credible witness to find his version of events believable and even just as a matter of his own inconsistent number of being consistent statements that he provided including his trial testimony margaret there goes where it goes to materiality th questions i asked ms tour what is your position with regard to the fact that he wasn't convicted of the principle charge or that the most serious charge he was convicted of felony murder which would have required intent to rob do you agree with ms toure that it couldn't have been an afterthought that he had to have the intent to rob him while he was beating him with a baseball bat i concur with that as a legal statement that was discussed by the division however again in order to to to rule it out in this case and i think if your honor noted the jury clearly didn't buy that by rendering their verdict except i don't see how you can separate out the murder felony for felony murder you have to have the felony calls the murder not you did a murder and then you stole some stuff from a dying guy right so understanding whether he kenyan is a burglary was the predicate for bumping this up to murder so the after he lay there dying that that's not a predicate for a felony murder so which of the two versions is more believable is going to be influenced by whether or not this was a burglar in the st place but i suppose that's correct but i think you know based on the fact that the defendant you know bradley consistently tried to portray this as i didn't let him into my home and there was other evidence you know it's used at trial by the prosecutor that that was not the truth and that he left certain things out when this now that he had him into the house in the house to rob him but that the defendant version of the events that he was an intruder was not actually the case and that the defendant statements in that respect were not credible and not believable based on record the balance of the evidence arrived putting his shoes back on you're saying the jury didn't believe that he put the boots on because he wanted to look nice when he was headed to the morgue that's that's correct and that seems pretty evident to me well that's great back to my original point about originally arguing the yeven its rules i don't know that there is a valid method to use the existence of these arrests and they're being marked as dismissed in his criminal history this is the best i can imagine let's say that there's some that there were some eye witnesses right or police reports on these before and this leads to some people in the community who say  snoopy he were we all knew he got close to people in the case joints and he would just break in and take stuff he was a known burglar right or even he was a known like home broke into homes to stay there and this was wintertime right so like he stayed places just that kind of mooch wouldn't either of those have given the defense some leg to stand on something to argue in closing that this guy he was not a clean guy he had he was he was a he was a burglar robot robber a squatter something like that i presume your ira st did that those victims are witnesses could have come in testified on behalf of the defendant when they couldn't testified as to the specific instances because he will four or five but maybe the defense could have brought them in generally to say this is a victim he had a reputation for for if they are somehow lucky enough to find witnesses like that which i think is a big give and they haven't given us much to work with they're with it's an old case we don't know very much but if that were found wouldn't that maybe move the needle perhaps hypothetically however i think it's important to note that this was information that was received by the defense prior to sentencing enough to the point where they were able to make an argument before sentencing for a new trial arguing that there was a brady violation here alternately under the old rules the court found it because it was inadmissible it wasn't a brady violation and i said where i mean the trial court the trial state court the defense attorney had this information available at that point and chose not to raise any of those arguments i agree with your honor's that we're all captives to the record that's been maintained there's no evidentiary hearing or extra information other than the existence of these prior arrest would be useful trial know what happened and i conceded that it may very well be if that were the case but i doubt there's no information on the record to show that that is the case a burglary charge can accomplish a wide variety of things and has judged the mandal discussed in his decision there's a wide variety of ways that could have been dismissed either b m b a some type of misidentification that's that's a lot of information that what exactly can we can we just nail down what marketplace but i thought he had receiving stolen property which would play right into this theory that we're discussing i guess potentially but receiving stolen property can encompass a wide variety of things that there's a lack of information in the record as to you know you speak in terms of proof and that's the problem that we're having right it's this to a certain extent as a theoretical exercise a moment and so if we're seeing stolen property as one of them i mean it seemed to play by the theory there's a general problem we're having which is this is an old case we don't really know much we don't have the original lawyers around it but what do we do in an area of uncertainty what we do if we're not sure admit i've looked i've not found cases that talk about the burden of proof concept or tie goes to the defendant or we're trying to guess what would have happened  we never had any kind of adventure hearing or is there more to find out why there's the consequences of well it might possibly be this very favorable thing with the defendant or may well not be my best conclusion is to return to what i said that this was information that the defense had in hand prior to sensing enough that they made an argument in state court and i'm going to presume that it was investigated it seems like it was a better gaited because they made a very strong argument as to why it was a brady by lation in a new trial should be ordered this argument relative to these accusations and arrests was not made and no information was disclosed to further that and that's the closest in time we can going back to try and reconstruct this based on the record that that is that has exist said this was not a burglar he said that in the context of a statement to the police and the police then took that to mean that he was saying that mr lewis that the victim was not committing or you're saying that when he said this is not a burglar he's saying i didn't  mr lewis that was something that we would have been able to develop and then present when you don't you don't under forty four you don't get introduce evidence of what someone did in a past case to show that the person just acted in accordance with the penn that's the real problem i have and drawing a causal chain between you your defense lawyer gets his information and ultimately gets something big gets admitted like this doesn't admissible it has to lead to something that changes the way the trial go and i guess i'm not seeing what you say there's no evidence of burglary what evidence would have shown that there was that this was a burglary the bed of come in just so just one quick point is that it doesn't have to snow certainly show that counsel could have gone out into the neighborhood if you know if the state told him there was no criminal record and that he had known that there was a rap sheet he could have gone out and found out more information from individuals and yes your honor he may have not been able to come out and say this is you know this is a crime he committed and x date but he could have come in and said well this is what is known this is what is known in the neighborhood this is what mr livingston believed to be the case with respect to mr lewis this is what the end justifies the fact that mr evidence council might have got and see how it not just add up with the other evidence but does it cast the other evidence in the light and my brother just hardman made a point there  bad facts for you in the record how is a jury going to get past that the forensic evidence shows the guy is coat off and his shoes off and his story is they were fighting the shoes jury's confidence of that mr livingston i mean he had inconsistent statements there's no doubt about that this would but it would he basically was saying you know i think he didn't know what he was doing  putting the shoes back on he was looking for money he was not he was not thinking clearly right and so this sewing that there is he did not intentionally go out to kill him in the st instance he did not even in a passion provocations and like it was not his intent to be  but just because it's right that this man was it coming into his house to rob him and that's what he believed then that doesn't factor with me to say ok well then then it does make it more credible that he was put his shoes back on of the shoes went flying off and then he wasn't really you know and then he was looking for money and then he put the shoes back on and although it's not true we consider that along with other lies that he told though don't we have to look at the evidence cumulatively your client told a number of lives well i think that you don't need to look at the evidence that was presented that term and whether that evidence alone was enough to convict and you don't say ok well even if you had the benefit of that the rap sheet all that evidence together that still would have been sufficient to convict him and that's what the case is so you don't that's not the you know you're right you're absolutely right about that it's not a sufficiency of the evidence argument that's the for different type of case in this one right and so the fact that it just it would strange about your case is that typically when there's a brady violation the typical case the defendant's counsel is coming forward saying wow if that is then played hide the ball we would have discovered this witness we were discovered this evidence we there's a proffer there's a profit there in the dennis case it was the so called frazier documents which there was a really good argument that the defense made there that the frazier exculpatory right so but i'm i'm having trouble sinking my teeth in anything that you have here other than sort of well we could have done this or we could have done you know not you but defense counsel could have done these things but these things still remain sort of fair i say that yes they're there undefined but and they're undefined because the state didn't turn over the substance to give the defense counsel the ability to do this at the time of the trial and that's what i mean that's why