honour's this case is an example of a wrongful conviction resulting from the presentation of evidence that incurably tainted this trial this the mony of george georgiana cotton and the other references to or testimony that were never stricken or moved to be stricken from the record well it clearly meant her her testimony was stricken and that was a suggestion of the judge that mr thomas e has made a motion and the judge granted that's on page three forty six the motion was for a mistrial well initially for a mistrial and then later on he said the judge said i would entertain a motion to strike the custom only of miss cotton mr leonhardt opposed that and then the judge granted it now that's that's just as to her testimony that's pays one phase two is what other testimony was there of the police officers that was not in effect procedur defaulted or anyone else that implicated mr glenn in in the murder the only real testimony in the pendant of the george and a cot procedure background here yes the only relief that mr glenn saw was a mistrial yes right i mean the terminations by the trial judge receive it doesn't this case real really boil down to an attempt by mr blanton to constitutionalized a determination by state trial judge th otherwise subject to abuse of discretion view and isn't that what this is all about second guessing a trial judge's determination that based on all he has heard and if she had attempted to tell them the precise date and was accurate there's and but that's the thing in fact defense counsel had an opportunity even and did so and did cross examine her after the encounter where she had changed her accounts and was an opportunity on the court of the defense to dirty her up even more and actually also to be able to refer in that cross examination to some of the testimony that was taken in camera yes and any and unfortunately he failed to do so the most salient points being that that she identified others or another person is responsible for the killing and the motive being that she wasn't naming that person because she was receiving drugs from mr young blood but it didn't end there ok in it was never raised initially it in the p c r a proceeding but the prosecutor in effect violated the court order striking the testimony when in closing argument he refers to the female witness as corroborating circumstance of gerry to me we know there is a female witness who testified and i interviewed her just a few days before fact cooperation all this was back corroboration of gerry pratt and i would that that on so many levels it was improper it wasn't i'm sorely it didn't violate any directive who or that it seems to me would occur here was a failure on the part of the court and counsel perhaps to clean up a few at least details in your police your position reviewed more than they were just details that they that that having not stricken more than just the that when he talked about there being too much information in the record to clean up the unfortunate that event though was that he never tried he never moved to have that the that testimony stricken p never asked for an instruction saying ok when she doesn't when her testimony is stricken the jury is left with the impression that yeah this girl who's a drunk at a crack addict and all this these difficult things that she experienced in her life you know she was almost made to look like as a victim  you know when you have the trial and there's testimony presented and then it's just stricken but the other instances when her testimony is referred to or are not stricken or addressed by the court what's the implicit message the implicit message is that her testimony isn't completely incredible or something that should not be before the jury in any way the implicit message as well cross examination and the rest of the stress of the trial just just broke her down and this legal system is going to keep you from considering that this two testimony that was shifting and what have you but it doesn't mean that the core the core allegation that she made in certainly gave rise to an inference that he was looking for an alibi that he didn't have it i mean that is a reasonable inference well that the testimony was essential that luther glenn asked me for i know i understand the test yes but my that evidence from her that she was pretty steadfast look i can't say definitively that he was at my house at that precise moment nobody can but she can say he asked me for an hour you know to back me on an alibi yes yes she could say but can it also not be argued that pratt was ultimately corroborated when the fleeing car was stopped with a gun found in a crisp pretty all of this evidence is evidence a jury had an opportunity to hear and hear it hit the part and they still decide that at least some of it was believable and enough of it was illegal to convict beyond reasonable january twenty sixth this incident happens january twenty eighth is the day that that luther glen and jerry pratt are in the holding cell the incident happened before pratt even says that he spoke with glen that would have been public information that he would have been able to acquire independence that his friend the guy that he knew from prison who just was released was pursued in a vehicle saw it should have been presented in that fashion and it should have stood on that basis alone that there was no corroboration and look what back tried to do he tried to reference that oh you know i'm telling you the truth because i'm so upset about my friend that that testimony should never have been admitted in the light sentence rarely turn up his alibi witnesses for folks in criminal prosecutions but his testimony when you lie about who you are let me let me take this back of the first issue  mean i've seen them as cottons as well both as a prosecutor and a common pleas court judge myself i mean it you just want to slither under your table when your witness runs from  e it's the worst thing that can happen and there's no there's no allegation here of any prospect tauriel misconduct no suggestion the prosecutor did anything if anything the prosecutor made clear on the record you know you do what you want to do judge i mean there was a strong prosecutor look you go home for the night and think about what you want to do here in that how this how he told the process that the prosecutor said i'm going to go polygraph mr cotton and see what comes of it and then that was never produces the what the result i understand they're coming out with the testimony the top mr thomas e immediately makes that motion indicating that he in effect agrees with it mr hart opposed it and the judge granted the motion so the place where the homicide letter later could place right in that doesn't that doesn't commend from his cotton that comes in from somebody that comes in from to a young what i said he was there earlier in the day i don't remember the time from i think it was sixty eight hours before  again and it's going and it clearly did not come in to suggest that that that timeframe was the time of the shooting but it's clear and identification that glen you really want her and him having read this testimony i mean it appears i mean you're going to responses that we have no clue what she was saying because she said two different things he did it he didn't do it and she was told that say something she did think that you know she got immunity and then she turned her story back around again who knew so the judge had no choice but to strike her protest my ok so what so that now he gets what he wants the jury in effect probably believe she's she's lying at some point who or it doesn't make any difference because they're told to ignore all of her testimony so what is the fence then see this is half the problem your honor that the defense never realized the monte blair testimony was coming in the defense actually made a motion it at some point in the proceedings to to disallow the multi player evidence because of a discovery violation that he didn't know the attorney for luther glad represented marty blair and there was an issue that was raised that it was not granted a certificate on that you know addresses that issue but that's not before some of the big land was caught blindsided i mean you know they hear georgianna cotton testify then they hear her kind of all over the point place and they don't hear her say that it was actually somebody else or other people and she was lying because a crack the impression is that you know you have a good defense attorney that a tactic credibility in this poor witness stand up to k and the trial court whatever you know she's wavering ok we're going to strike her testimony but it's in the back of their minds how can they disregard i mean this was a woman who said i say oh yeah you have to believe me because luther glenn talked about this female witness whose testimony would hold up in court you have to believe me because you know monte blair was was you know th a there was a he defended it on the case that there was a notorious criminal named arantes shelton who was actually convicted of numerous firearms offenses and had a almost identical the i'm talking about the trial of teasing it all apart but this is part of the body of evidence that the jury considers but then why were they given the chance to and that's what i'm arguing that they should have heard ok if if if if the commonwealth wants to proceed with monte blair the multi player evidence  now now granted a lot more of monte blair and in it also would not have our the defense from coming in after this trial and and raising a double jeopardy issue suggesting some kind of pro tory complicity knowledge putting miss cock on the stand and i return to the fact that really this was a very very straightforward matter the trial judge had only two options three and he considered them and even considered them overnight and he determined that the better course was  testimony rather than ending the trial and scoring but here i fear that he did that because on some level he believed  in mr thomas's position here he's a trial and now the primary witness against his client he has through cross examination show that she's all over the lot so much so that he is willing he i would think of where i he i would probably want her testimony to be stricken as opposed to a mistrial at some point because now the jury is the same the state's primary witness has just been shatter in terms of the veracity of her testimony and that should hang in their minds to help me of things saying to stop ok if if it's a mistrial and they come back they've got time to regroup you know be without cutting but they've got time to regroup whereas i've got him on the ropes i've just  destroyed the primary witness let's strike her testimony that's exactly what the judge suggested that's why i go along with i'm an that seems to be a reasonable course of action a retrial might actually not be without they might clear out that's a good they've got they've still they've got a bunch of impeachment material to use the second time around she's been given immunity but they may bring her back in a cleanup style and she does better that's that's a reasonable consideration for defense counsel to take into account and i assume you would agree because in the record we have i don't think it makes this clear you your westmoreland county boy are right next to allegheny county so you know allegheny county pretty well the motion to strike the the testimony and he i don't recall that he brought up a mistrial motion at any time after he got the testimony of scott and i believe there was but it was in conjunction with the the question is what evidence was there besides the cotton testimony now stricken that implicated mr glenn in this in this murder your honor that actually gets right to the first point that i wanted to make and building upon what you guys were asking about as far as is this a case about prejudiced i think the biggest mis characterization that loser client has been making is ok there are several pieces of evidence starting with the fact that a confidential informant contacted the police shortly after the murder and stated that mr glenn was in fact involved with the shooting was that was testimony that came in through an officer and i don't that's pure hearsay right ok yes that was coming in through officers testimony about their investigation  him that you wish is driving by on a on a church but he in fact testified and he was cross examined by mr tenacity and he gave a statement that not only did mr klein confess to his and he didn't blair say it that in addition to glen stating that he had shot this person that there was a woman who would testify against him with credibility can muster if it is not explained in any other way how mr blair would have known that other than to have learned it through mr going that's exactly yes that's what i was going to ask was there any evidence that in fact it was blair who fled from that car yes a police officer testified your honor and he identified monte blair as the individual who their finding and the superior court of pennsylvania and the appellate courts in the state have found that to be a fact in this case that mr glenn confessed to his participation to jerry pratt we also have the fact that i believe it was five days after the murder her the police attempted to pull over their client for a traffic violation and he took off consciousness of guilt he led them on a high chase pursued for several miles his car crash he also took off running and he was later found hiding in some weeds and then of course his passenger sure enough johnson she signed a written statement saying he has been calling me and writing me from prison and he wants me to lie and give him an alibi at trial when i can't do that and then of course at trial she testified i don't know if he was there you know i can't say for sure but her original signed statement to police was that he wasn't there so at worst he wasn't there at all at best she can't say but regardless he is trying to get a witness to lie for him at in court no least what the commonwealth has a very different in terms of how would you read it from a maid sacking an alibi that he knows he's not entitled to that's right and you know these this evidence was put in front of a jury and they reached their decision it's been up held in the state courts i don't see how mr glenn has shown that there was a clearly contrary to or a reasonable application of federal law as determined by the u s supreme court in this case he may disagree with the jury's decision you know we could you know debate that but he hasn't met his part in hades court this is a high standard you know given his mind or his history judge ambrose question is are any other evidence that we guys are asking the facts that our eye witness fell apart ultimately was struck from the record that actually tainted our case and we were actually we asked mr talking about that the the question then becomes if if that is a taint on the case and clearly i think everyone agrees that cottons testimony was a major problem you then have others testifying that referring back to cotton you have the police saying that there was an array which cotton was asked to identify the the possible shooter why should any other evidence have come in that even refers in any way he does not prove that this was so prejudicial not that there is any conceivable or arguable precious here but that there's a substantial likelihood that you might have the other had you conceding that you can't win on the performance from why defense counsel should not have made appropriate motions to exclude or have a curative instruction for that first of all i think there's an argument that that evidence w admissible on its own to get to the course of police conduct and of course of the investigation now we have to remember and i limiting your ructions given to the jury to explain that that's the only reason that evidence was  trial counsel did not later move to strike that i don't believe that that action is deficient performance i don't think that that rises to the level that's necessary under certain to show that he performed efficiently there's still  what about what about the the the photo array that at least that's the one we were pretty sure was not procedurally fault that the admission of the photographs in the array that were compiled by the police and viewed by the scott prior to the  as to the question of whether or not defense counsel should have made a motion to deal with that  let's whatever he's got a conspiracy is relevant and let me just say that's not how i read this case on appeal it may have been argued that way in front of the jury but if there was that kind of argument being made here it would have been an argument that ms cotton was put up on the stand and the commonwealth knew exactly what they were doing and they did it intentionally there's not even a whiff of that before us the on the due process argument that is noted at the latter part of the brief of your post counsel he mentions that there was an instruction given to the jurors that you're to have your cottons testimony but also an instruction that you were to consider all the evidence and the point is you can't have it both ways isn't a chance a jury here was was a bit confused we have we have no indication of that your honor i mean george you know hans testimony was struck and we obviously have a strong presumption that the jury fall back when the judge is telling them to consider all the evidence th have to go on the record and there is no indication there is there was not a question submitted during deliberations for example by the jury that would indicate that there was any confusion that they were having trouble knowing what they should look at and what they showed it i perhaps there had been a questions submitted during deliberation that indicated they were still considering trivia cotner are confused about something perhaps that mr klein's argument would be stronger but we i mean at this point we're merely speculating oh they may have been confused or they may not have understood what to do that that's really that's not enough under what was the what was the prosecution's reasoning as to why mr glenn would want to kill the victim here by the crowd as to what that what the reasons might be that he would wish to do so i believe that there was some testimony regarding you know the fact that this was a known drug area but i don't really believe that motive was that are something that was put forth by the government or part of are certainly not actually part of our case against mr klein so you had that one point and i witnessed that witness's testimony the defendants with their client committed the murder you can't draw any inference from the constant reference to the confidential informant the legion of cases that i cited in part two section two of my brief explain that that is exactly why police background evidence should never be admitted i mean with the police background evidence all before the testimony of cotton in sark it was the police background evidence the trial all submitted before the testimony of god yes yes it testified that in her testimony broke down at that hearing ok she was represented by a different attorney and i think one could infer that word would have filtered down either through the lens counsel coming in talking to him in conjunction with what just happened but it does is jailhouse snitches go and something to his testimony beyond just hey this guy told me he did the job but you can look at how devious he was and he's bringing alex before the jury that oh my friend argument that he should now that he's got cotton there cottons the testimony is in effect wiped away in front of the jurors why wouldn't it be good performing for an adequate representation and maybe even better than adequate for him to say well i've got him on the ropes let me continue with this trial because if we when the judge offered him the opportunity to strike her testimony he mediately a pastry forty six grassed in fact when the judge offered him a strong strong spirit instruction which is  but then that the judge gave him something else well maybe i'll just write the testimony and he jumps on it and there's a i can't sit here and tell you that that was a bad lawyer but he did make the motion i mean  he's saying is ok i may not get a mistrial i may get something better than a mistrial this woman testified all over the lot in front of the jurors this woman's testimony in camera was repeated to her on cross and she was caught in all kinds of inconsistency now she's destroyed i can go forward they're going to have in the back of their minds that her testimony the witness it can no longer help them in fact it helps me how is that a bad performance on his part to make that call well because any again the effectiveness goes to the motion to strike ok the second or understand maybe how you know he made it he made a call i'm going i'm going i got offered me this chance to his record testimony i'm going to make that motion he three forty six and rates record six as i recall the judge offered him this is the next morning really the judge thought about it overnight all all people but about it overnight and then her testimony comes back she testifies that next morning and i'm talking about after that was when much about the extraneous stuff there's no way for me to fight that no way judge i understand then mr leonhardt comes in and says he has no objection to the entire transcript being placed before the jury so that they can determine themselves in other words including the camera the they go back the next morning eleven forty five they come back in judge toler says i have given this matter some consideration is my intention not to grant a mistrial i would give this jury a very strong cautionary instruction with respect to one not to consider the testimony that someone else not consider any testimony other than the testimony from the us and also that they must consider and must listen to the facts of this witness that she did not essentially the just was after the motions for the mistrial the judge suggested the possibility of striking the testimony into mass in the media please make graphs that goes  yes of course and so it's at this point is there anything i'll give you one minute to some some some up here are in this case it was a travesty that the jury heard all  allow this thing to proceed in a cleaned up fashion or a jury was not presented with this dramatic aggressive testimony naming him as a defendant as the shooter and and be insinuation being that well her testimony only broke down because of some intimidation and that's really what it was this case became intimidation it was allowed to proceed to burp on that and and  believe what you just learn to be an innocent man who was convicted in this case wrongfully charge i believe the evidence strongly shows that and i beg the court to consider this request for relief this is not a typical hideous corpus case this is not one that comes along all the time but this one really does compel relief ok thank you very much thank you to both counsel take the the matter under advise