please the court i mary mccomb i represent the petitioner daniel pena i guess i'd like to begin by taking questions from the court if it has questions let me just ask you to make sure i understood your pleadings that we just received people are barred by opinions the controller cases that's right and that was why in the control of this case i think we are conceding that the opinion does control the case that's why i was inviting the court proceed i believe the court mr at the district attorney's duty at that point was either not to proceed or to proceed without the evidence with which he had so much problems in the district attorney who did the investigation remember how hard he looked at this this issue before he is a matter of character from an opinion for a lawyer i don't believe so your honor i also think it's an effect that's in this record is that the conflict creates so much doubt about the credibility of the witness upon which the prosecution has to rely and that's the power prosecutor did here was investigated the best of the bill his ability whether or not he could have confidence and the credibility of officer powers  prosecutor did everything he possibly could to know whether or not it's true and he has so he can remember he actually isn't words his confidence in his witness is shattered he has no belief that he can go forward with  understand what you're saying he's not only the knowing he's pretty testimony but to take your words that if the prosecution's confidence in the witness is shattered and it still goes that that  prosecutor had an obligation if he was going to go ahead were not considering any sort of what he was going to go ahead he had an obligation to present to the court all and to the jury i suppose all the doubts he had and he doesn't do that  proceed the court decided that what should happen here is that the prosecutor should throw everything in even the evidence that he had doubts about and that the jury should see what stock our position is that's inconsistent with no c e but if i could go back in a pool we're relying on a pool but also on berger versus united states but first united states articulates the principle that the prosecutor may only obtain a conviction when that when  on what basis right right and you have to the prosecutor has decided that he's going to do what the judge says and he does what the judge says the judge says throw everything out and we'll see what sticks now and there's a couple of examples of how  how the prosecutor has gotten away from his obligation to prosecute only consistent with the truth for example the inmate witness clark duran at the beginning when he talks to the judge about clark duran he tells the judge i think clark duran is lying i'm not going to put him on clark to rand has some evidence about who was in the south the critical moment and the judge says the district attorney says i'm not going to go forward with that evidence because i don't believe it later on in his rebuttal case the prosecutor puts it on now he there's nothing that's happened in the record that would make you believe that clark duran is all of a sudden credible when he wasn't credible before what's happened is the prosecutor has done what the judge said fan his responsibility to prosecute only consistent with the truth and this throwing it all in there and seeing what's the rule of the jury under your kind struck if the jury is the ultimate tr that a lawyer whether a prosecutor well i guess you'd have to be a prosecutor any time that the prosecutor was aware that there were two witnesses let's say a prosecution witness and a defense witness who were testifying to a completely contradictory version of the facts if the prosecutor for whatever reason thought that the defense witness was more credible he wouldn't be able to proceed under your theory but i think it right i don't like the jury does resolve credibility issues but it's because he has to be found trained by the your system they couldn't because they've never here at the prosecutor couldn't go forward you talk to us saying the prosecutor can't ever go forward when there's contradictory evidence we're saying that events over which you could have conflicting recollections why do you think that you think it's clear that the prosecution's witnesses were lying i think what happened was is that to the district attorney after lauren up remember the issue is over whether or not the cell door could have been locked at the time of the crime the prosecution critically depends on the cell door being locked because it has  mr valencia enters after the door after the fight and that's only possible if the door's open and so this the prosecutor himself says that this is this theory and he says that i need that door to be locked in order to afford on the case when mr lawrence comes up and says no it was open i'm sure it was open he investigates he goes to the prison he stands where officer lauren was standing he says i don't think lauren was lying he goes and he talks to people at c d c lawrence an ok person and he decides that he cannot rely on the evidence from the other officer officer powers the power is was sure that the door was locked o'clock in the morning most of them go off the prosecution's theory is that for once you goes in the door is shut the officer locks the bar so the door is locked and shut but once he is in there the problem with occurred before then because officer felix goes down the first time and looks and sees the injured inmate and leaves and then on specifically greedy that the supreme court said in a prove that that is a fundamental due process violation if a prosecutor stands mute under those circumstances knowing that perjured testimony by his star witness has just been opportunity to vigorously cross examine the correctional officers and i assume that there was vigorous argument in closing and the jury was told you're going to have to resolve this conflict that that takes  perjury and when they say the prosecutor is aware of the witness that they like well then that means you're a prosecutor was aware that the witness who presented incriminates me with committing perjury well that's always for the jury it's a prosecutor's job no matter how strongly he believes constitution report i say and then i would say that i do not have an opinion before you on that point because it's not part of this case you know you're going to answer questions if you think i'm part of the case  violence due process to obtain a conviction based on perjured testimony this is independent of whether or not the prosecutor has special knowledge i think that to say otherwise  supreme court precedent and that's they're used to prevent courts law about the special duty of the prosecutor to prosecute only when it's consistent with the truth let's assume we have a case in which the prosecutor if you're willing to answer a hypothetical question let's assume we have a case in which a prosecutor does not know perjury is test i think so your honor i think you have to retreat to the most fundamental notions in our constitution and cases yes there is your honor