that determination is made based on a variety of factors including bias demeanor motivation and circumstances that provide a context for that testimony in this case the court kept the jury totally in the dark regarding an event that was central to an evaluation of credibility of the officers and to mr clay's theory of defense and that is both anderson and thomas's exposure to physical evidence that contradicted their sworn testimony and provided them with an opportunity to tailor their testimony to fit the evidence there is some dispute regarding the inconsistency the testimony at the first federal trial was clear that anders testified to hearing a total of four shots and that's noted in my reply brief noted in my original brief specifically pages nineteen and twenty of that transcript anderson describes the shots as pop hears three pops prior to approaching the parking lot after he approaches the parking lot mr clay he identifies as holding a gun flees and shoots at him that would be the fourth shot thomas also testifies to there being three shots prior to approaching the parking lot and that evidence is i would submit is undisputed by the record there's really no question thomas also testifies to mr clay wearing a black shirt in fact mr clay was wearing i'm sorry mr clay was wearing a white shirt in fact mr clay was wearing a black shirt defense exhibit twelve is the shirt that was admitted at the first trial and it is clearly a black shirt now there is a white shirt underneath because the shirts been cut off mr clay by the t but it it's very clear it's a black shirt likewise the casings are recovered from the scene and there are only three casings recovered from the nine millimeter that's found on the scene that the officer alleges mr clay possessed what happens at the end of that first trial is both anderson and thomas sit in the front row during closing argument and they listen to the closing argument which highlights the impossibility of their sworn testimony and these are direct quotes from the closing argument at two thirty one factually and possible based on the evidence at two thirty six the physical evidence despite what the prosecutor says does not match the stories page two forty look at the inconsistency things that don't match the physical  seven additional references to the physical evidence there is no fourth shell casing it's a black shirt not a white shark less than two months after observing that proceeding anderson in thomas give different testimony at the second trial that now totally conforms to the physical evidence for anderson four shots becomes three shots for yes that trial counsel was able to use the prior transcript to show the inconsistences trial counsel was not however allowed to a do see any evidence either through their own witnesses koeppen off the defense investigator or during cross examined examination regarding their observation of the proceeding where these discrepancies were highlighted which was basically the central theory of defense  the physical evidence does not support the testimony of the officers so while while trial counsel could use those prior statements trial counsel didn't get to show the opportunity and the means by which they would have been proceedings were to take their worst state court proceedings and as as the briefs alluded to there were two hung juries before this one where he was finally convicted and mr clay was only convicted after the case as was the i can tell you from the state proceedings there was not defended and there were not extensively the physical evidence was really not brought out because that was a trial for assault where and they may have said i really don't recall i'm not sure anderson and i think the government depicts anderson as saying well memories change and he really wasn't sure he does the same with thomas the key point here is is not whether or not they had knowledge of it the key point is subsequent to observing that proceeding that's when their testimony changed and that is relevant to credibility determination even if they had knew about the bullets and or the shirt the key fact here is they changed their testimony to be consistent after observing that proceeding all the other statements from the trial the depositions all of those occurred before that proceeding so even if they had possibly had some knowledge of how many shell casings or maybe there was a problem with the color of the shirt they did not see that until watching closing argument from the front row mr clay the jury to evaluate credibility should have in privy should've been exposed to that fact that the yes there was a motion in limine which which defense counsel concurred wef and it was to not mention the prior trial and ballistics dispense exhibit twelve in closing argument defense counsel used the black shirt to say see this is black it's not right and i want to also address something that just college and wrote raise reg counsel some effort to finally explain and show actually you're just saying it because he was the defendant he was arrested you never saw the face of the person with the gun you only identified that person as by the fact that they wore white t shirt so just call it and i think that's the the other issue in this case defense we're not limited to only showing our theory of defense through cross examination of the two police  officers we should not be limited that way defense counsel suggested presenting sergeant coburn on the case agent who was present during the proceedings and the defense investigator and i do want to highlight there was the actual shirt was marked as a defense exhibit i don't believe there is any evidence in the record that thomas had seen that shark i'm not aware of it but if it is out there i apologize but i do not believe it's there  was by defense counsel truck counsel was that they would like to cross examine on the a bit on the witnesses ability to have seen a closing argument and the government's response to that was that the defen attorney and harvey had the opportunity to impeach these witnesses using their previous statements that it was a motion in limine e that had been filed and agreed to that the previous trial would not be referenced additionally the defense attorney did alter her argument to say that she would like to reference it as a prior proceeding however she continued to persist in as a summary of evidence and it was the government's position at that time that there are very few limited circumstances in which a jury would he summary of the evidence and would lead the jury to believe that possibly there had been closing argument and a previous trial which would be in violation of the motion in lemony and it was not truly relevant especially in light of the cross a reference to a prior trial it was to preclude any sort of mention as to the prior trial as a trial in other words the defense was able to use testimony from the previous trials as well as police reports a deposition that officer anderson gave the defense was able to use those items but they were not allowed to refer to it as a trial so in other words it could be a previous hearing or a prior proceeding and the defense attorney successfully did that through both the first trial and the second trial she was able to use the testimony from the state proceeding she was able to use in the second federal trial the testimony from the second trial she was able to use the police reports and she was also able to use enderson as ition in order to peaches prior to his his card statement in the second trial with his prior inconsistent statements and that's evident throughout the record and really really what we're talking about  honor and that goes to the district court's ruling when this was brought up each time when it was first brought up it was brought up in the district court said that she was not going to she was not going to allow for a virus for a writer of reasons that was the first day of trial prior to the second day of trial it was brought up again within the context of mr moss mentioned as calling a third party to talk about the witnesses ability to view the trial at that time the district court expanded upon  but i don't know as the defense attorney attempted to ask the question phrased in that manner the the continued objection and the reason that it was objected to was because she continued to attempt to ask the question in the manner of you had the opportunity to view a summary of the evidence and so it comes back to you a summary of the evidence in a prior proceeding and that's cutting it off the fine but but that is also part of the reason i think the district court ruled the way it did because what the district court said the defense counsel said i do realize i was able to impeach him with a prior inconsistent statement that i think it's also important to explain why what reason the statement could have changed is because he saw in the court in response said you know ms allen you were very skilled you could have easily said since that night you had an opportunity to see the evidence and you know there's a white teacher in evidence and you did i mean this is more confusing than helpful so i'm not going to allow and as a court is aware the district court retains wide latitude to limit cross examination and one of those reasons is for confusion of the issues and so while this is cutting it very fine the district court determined that there would be at least the possibility of the jury confusing the issues a trial here and part of this is this was a federal this was a felon in possession trial and the evidence that the defense was attempting to get into was not just the prior inconsistent testimonies doesn't just apply that also applies to the b that is part of issue two before i move on to that i do want to talk a little bit about some of the statements that were listed at the second trial because anderson's testimony was inconsistent but it was not wholly consistent with the evidence and the record bears that out during the second trial on cross enderson did talk about a first and one other pop and then he agreed under cross examination that he had previously given a statement under oath that he heard two pops after the first pop that was the second trial that's a volume one page sixty seven in this exchange occurred between trial counsel for the defense and officer anderson the defense attorney asked and you agree that you have previously previously said there were at least three shots anderson yeah there were at least three shots there were several shots during that time period on redirect the government asked and in talking about the number of shots that you heard or didn't hear you know you heard two shots anderson i heard at least two shots yes the government do you have any idea the total number of shots you heard before you turned the corner and saw the defendant with a gun in his hand anderson no i do not all i know is i heard several shots being fired so the proposition that his testimony was wholly consistent with the physical evidence is not true his testimony was that he didn't know how many shots had been fired this also bears out with officer thomas when during the second trial he's cross examined with regard to the black and white shirt because here again the defense attorney has the opportunity and the ability to impeach officer thomas with other with other  prior inconsistent statements other than the opportunity to view to view the trial in specifically that occur that exchange occurs in the second trial volume one pages one thirty nine one forty two in the defense counsel asks what were you able to see was that the man was wearing a white shirt correct in thomas answered yes me defense counsel asked and so you come back over and you see that officer anderson has shot someone correct and thomas answers yes ma'am defense counsel asked and you believe that it is the same guy from the parking lot and thomas says yes ma'am defense counsel asked and the reason you believe that is because of the clothing correct thomas says i believe that because again there were two suspects in the parking lot i'm chasing after one i know he had left the area from last that i had saw him any match the description of what i saw in the parking lot yes ma'am defense counsel and specifically that white t shirt that matches the description correct thomas it was him i believe it was a white or black t shirt one that black t shirt over white t shirt defense counsel was then able to impeach thomas with his statement to the kansas city missouri police department that occurred that night she was also then able to impeach him with the transcript from the first trial where he agreed that he had previously testified that the person he saw with the gun was in a white shirt and then she was able to use those and consistencies to make an argument during closing and that argument the pertinent part to thomas is contained in the second trial volume volume two page three of three where the defense counsel said in today for the first time ever he attempts to say referencing thomas that the person who was wearing that the person was wearing a black shirt you heard him testify you heard him admit to it when i questioned him he has consistently said over the years time and time again i saw a person in a white shirt and the only reason i dinna five the person in the white shirt that i saw in the parking lot is because when i saw the person laying on the ground they were wearing the same clothing a white shirt he has changed his testimony today to a black church that is not true and he's changing it to conform to his part so the argument that appellant counsel now tries to make which is that a visceral did the d right to to talk about this evidence to argue to the jury it just doesn't bear out in the record because the defense attorney was able to argue about that difference between thomas from the first trial and the second trial and that bears true with regard to anderson in the number of shots again in closing in during the second trial in volume two on page three zero four the defense counsel says you hear officer thomas talk about a shot and then two shots later hearing that you heard detective anderson say shot and one shot later although he admits in past testimony that he said one shot and then two shots later you heard abrams play say three shots we have three shots from a nine millimeter one two three she then exploited the  y to argue that these witnesses were not credible that the jury should not believe them and that it provided reasonable doubt and you think that part of the defense concerning the closing argument the government in which they suggested that memory problem as opposed to an intentional fabrication that is one of the concerns your honor but i think that just as the defense is able to argue reasonable inferences so as the government and when anderson testifies i'm not sure as to how many shots were fired before i turn that corner this trial occurred after a number of years i believe it was four or five years later i don't remember the exact number of years but anderson had already testified inconsistency had been drawn out and i believe the government is able to argue the reasonable inference as well in the government wasn't highlighting the consistencies between the argument between the defense between the two witnesses the government was explaining the inconsistency that had been drawn out based upon defendant's cross examination using all of the prior inconsistent statements if they were able to get into the question is was a student use of discretion and was this prejudicial to the defendant and considering the amount of cross examination that occurred the amount of material that was present for cross examination purposes and to highlight inconsistent statements i just don't believe that there could be any prejudice especially when we're limiting it's one issue and that doesn't even bring into account all of the other witnesses that testified the can the shell casing issue is more than just officer anderson in officer thomas it is also alexis lollies the firearms expert who testifies about where shell casings could have gone and how there could have been shell casings that will recover so to isolate this issue and say that just because of this one thing this is this was ineffective and it eviscerated our defense i don't believe that that is an accurate statement considering what the defense was able to exploit during closing closing argument the question is whether or not the confrontation clause guaranteed an opportunity for cross not whether that that's not whether that process conducted in whatever way the defense wishes and that's what this is and i would highlight that the cross examination wasn't just limited to these issues the defense attorney was able to cross examine with regard to d n a evidence fingerprint evidence testimony obtained from anderson it is a deposition the number of shots anderson heard the number of people in the area in the crowd how many shots were fired the number after clay was shot the kansas city missouri police department's off duty policy and whether or not anderson was in violation of the policy and the consequences for being in violation of the off duty policy these were all subjects for cross examination there were plenty of inconsistent statements that they were able to out and other areas that they were able to highlight in order to show that there was possible bias with regard to these witnesses and i don't want to ignore the second issue i only have a couple minutes left on the second issue has to do with the bias that anderson would have had if he was shot on me this exchange occurred in volume one page eighty one of the second trial where the defense counsel asked anderson you would agree though that shooting someone is much much more serious than potentially violating off the policy in anderson responded yes defense counsel then said and if this is found to be an unjustified shooting you face extremely serious consequences in anderson anderson  possibly yes and then in closing argument the defense counsel argued on volume two page two ninety eight and what happens or not when officer anderson shoots a person in the back because that is unarmed what goes through his head at that moment because that's how you have to understand how we get here because that's a big deal he's made a mistake he screwed up and it's as simple as this this is not some vast kansas city police department conspiracy it's as simple as this he has done something wrong and the consequences should be huge could be huge the record shows that the opponent was able to argue bias that she did get to ask the question that they complained about not asking with regard to what the consequences could have been the objection was to further implications from that and the court excluded that i would i just say closing but to show a confrontation clause violation the defendant has to show a reasonable jury might have received a significantly different impression of witness credibility had counsel pursue that line of questioning i don't think that's possible here because of the concise inconsistent statements and the source of those inconsistent statements thank argument the government at two ninety ninety two ninety one says that andersen testified about two or three or four shots at page two eleven the government argued there was no evidence to show that andersen and were untrue fall and no motive for them to be untruthful and finally at three eleven the government stated that maybe two to eleven actually quote because they're human beings we all see something different end of quote so granted we were able to show inconsistent season prior statements no question about that the government was allowed to portray those a consistencies as that's just the way human memory works we all remember things differently especially when it happened three or four years ago what the jury was not allowed to know is that two months prior both witnesses were exposed to direct argument and evidence that contradicted their physical their their stores it contradicted it the jury should have known that the jury should have had the opportunity to be exposed to that officer thomas he'd never ever stated anything about well mr clay had a black shirt over a white shirt and if you do a look at defense exhibit twelve which i know what would be it's a physical evidence  can see how it's cut off and there is a white t shirt underneath it that was so specific it basically corroborated the detail and the reliability of this testimony and we were not allowed to show well you just saw the defense exhibit twelve two months ago you saw it firsthand the same applies to detective anderson the government  and i think they could have done that but again as i point at as i pointed out that sir thomas was i would characterize as a fairly cagey witness if you look at the first testimony he was hard to pin down and it took defense counsel great effort to even show that he really didn't identify mr clay at he didn't identify him but anything but the white shirt issue number one the government has is basically argued that well we were able to show cross examination and we were able to draw discrepancies mr clay had a right to present a defense a due process right there is nothing in the law that requires us to only show our defense through the government witnesses the same witnesses that we are claiming are biased and have a motive to lie that exist nowhere we were entitled to present independent evidence to show our theory of defense and that did not happen in this case the court did exclude that evidence for two reasons one she said will pour two wando which is directly on point that really referred to testimony in this is closing argument i would submit that distinction actually bowl sure's the need to admit such testimony and then the court also said well the defense attorney that you had prior statements first of all that's never a reason that's not a legitimate reason and all those statements occurred before this prior proceeding for all those reasons we believe that you cannot sustain mr place conviction in this case in a new trial should be ordered thank you