Legal Case Summary

Mr. Heisenberg. May it please the Court, Ronald Eisenberg for the Commonwealth. May I reserve five minutes for the Luron. The defendant was convicted of murder and Chadel Williams for her earrings 24 years ago. The conviction was vacated by the district court granting Ed Putt Brady relief on three different grounds. I'd like to start with the alleged alibi evidence concerning the Latanya case and who in fact would not be able to buy it all. The essential fact in judging the materiality of this evidence is that the case in alibi depends entirely not on case in seeing the defendant, but on her seeing him on a bus. And the reason for that is because there was no dispute here about where the defendant went after the shooting. He went to the evidence for at homes. The evidence was clear that that's where he had lived much of his life. We're most of his friends lived where he spent most of every single day. The Commonwealth evidence showed that he got into a gateway car after the shooting and Coral and could easily have been at the evidence for at homes within 13 minutes of the shooting. So the question of how he got there is the essential thing, not that he was where, not that he was there. And the problem with the case in alibi evidence is that case in didn't say she saw him on the bus. In fact, the new affidavit presented by the defense on post-conviction proceedings from case in specifically says that she saw him at the Abbott heard homes not on the bus. And in fact, as she specified, she got off the bus at Henry Admit Vale, which is at least one half mile away from the Abbott's heard homes, from the closest point of the Abbott's heard homes to the bus stop. So regardless of the time that she did that, she couldn't have seen the defendant on the bus. And without that, there's no alibi and no materiality and no brave violation. Now, the truth is that the bus claim, which was the essence of this alibi, was weak to the point of vanishing even aside from the time you're case in. The bus claim from its inception was incredible. It depended on the statement of the defendant's father that he was with the defendant and they left his father's house at exactly 153. He specified 153 to go out and catch the bus. And that he then saw the defendant get on the bus right at that moment while he was sitting there in his car. He went out and sat in his car and watched his 20-year-old son until he got on the bus. Now, 153, he happened to be almost the exact moment of the murder and the precision was important because the father, unlike the defendant and the defendant's mother, lived rather close to the side of the murder at the Fern Rock Transportation Center, less than a mile away. So minutes mattered in terms of trying to locate the defendant at a different place than the murder. Aside from the incredibility of the defendant's father, remembering the exact moment that he did this on a day when, according to him, nothing special happened at all. There's the fact of the defendant's own statement to the police, claimed that he actually left his father's apartment, not at 153, but at 130 that afternoon. And when questioned about this at trial, all he could say was, well, you heard my father say that it was 153. There was also the fact that evidence was presented at trial from the SEPTA employee that showed that, in fact, the bus wouldn't have passed by the father's house at 153. The father claimed that he knew when the bus comes because he takes the bus regularly and he knew the schedule. He never explained how that is if he has a car, nor did he explain why he didn't just drive the defendant where he was going. Actually, he did explain that. He said, I had to go somewhere. He was asked where he had to go on that day that he, that, I'm which nothing special happened, but he remembered in detail. And his answer was, I don't remember where I had to go. What I had to go somewhere, so my son took the bus. The SEPTA employee testified that the schedule showed that the bus would not have arrived at that stop yet, that there were several stops before they had a 156 stop. So that it, 153, the bus wouldn't have even been several stops in advance on the other side of Broad Street. And the additional problem with the bus, Alibi, is that when asked about the bus, Alibi, and his claim that he had seen in case in Alibi bus, the defendant said, oh no, I said I only thought I saw her on the bus. Now, there's a subtle point there that I think has been eclipsed by the defense. He didn't say, oh now I realize I'm here

. I understand the fact that we can make a mess. This shouldn't we not interpret the Pennsylvania Supreme Court's fighting, and I guess this is what I'm called this one, that maybe it's actually four, that the police did have in their possession the DPW receipt, showing when the time to case and picked up her. Yes, sir, I'd be happy to address the suppression claim. Obviously, of course, if there's no materiality, in light of the facts that I've discussed, then the suppression claim would be of no avail. But there was actually 103, and she initially thought she picked it up at 3, or 3 because she misread the receipt. And then the question is, who had possession of the receipt? Then I guess you go on later on, could the defense have somehow, through due diligence, gotten the hold of the same receipt that was being held by the prosecution? It's a separate question, but did it not first? It was first. So I'd like to address exactly that question. Did the commonwealth have the receipt? And the answer is that the existing record shows that it didn't have the receipt. And there was, it did not. What do you mean by the commonwealth? I mean, in the broadest sense, and let me explain your honor. Prosecution and law enforcement, that's correct, your honor. But we're not going back to look at the record, right? We need to defer to the fact finding of the state courts, and we have a statement here in the recitation of facts that says, during their investigation, however, the police came into possession of the DPW receipt, showing that case in cash register check at 103 PM. Don't we have to defer to that finding? At least, does it appear to be on the given space? The one thing there were actually two statements about this issue in the state Supreme Court opinion, is the panel recognized that it's a very least-create semandoguity about what the factual finding was. The later statement is, there was no evidence to commonwealth withheld the receipt from the defense. Now, I understand that withholding and possessing are different things. But we have to look at this opinion against the factual background in the record in order to decide what was within the realm of reasonable, because that's what deference requires. And that's why I'd like to discuss the facts about the receipt. Is it, isn't part of what's in the record also that the commonwealth's inaccurate assertion to the Pennsylvania Supreme Court that the receipt was introduced as an exhibit at trial? And what significant should that have for what you're describing as a finding as to know? I think it was for no infusion. There was one pink document. This receipt was referred to as being pink, but there was one pink document. It was introduced to trial as an exhibit, and it wasn't the receipt. There was a different pink document called the Scheduling of Welfare Payments, which was distributed to people so they would know what day they could come to the panel. They didn't show the day they didn't show the time for that. That's exactly right, Your Honor, and therefore it was of no significance to the defense. But that's the document that the commonwealth had. And because, Kason said that she gave her receipt to a investigating detective. So that's the possession of the law enforcement. That's her later claim, Your Honor, but she doesn't account for all the facts of record. In other words, Kason doesn't say there were two pink things. I gave them the car, and then later on, or at the same time, I gave them the receipt. She said that gave them one thing. We say she gave us one thing. There's no actual... I'm getting lost in because the schedule of receipts and we just agreed that it was the dates that one's checks are available to be picked up. Yes, Your Honor. Not the time the state Supreme Court and the gas water was, specifically said what Judge Karsk just cast to you, a DPW receipt showing the case in the cash chart check at one of the three PMs that can't be the schedule of payments. Yes, Your Honor. And apparently, the court was confused, but at the very least, we know that the court specifically then said at the end of that very discussion, something which seems contradictory, which is there is no evidence of the commonwealth without the receipt. Now, let's only go into the decree for a soon end in Cal's and not create the obligation on the part of the prosecutor to find out where the police had investigated this in terms of Cal's coming here in 85 acres or was. And at the time in Pennsylvania, there was not an obligation

. The Brady obligation only applied to police, I'm sorry, to GAs files, prosecutors files, not within the police files. If we look at it through the documents, then it's very clear what happened here, that the worst nut of withholding because the receipt mentioned initially, the one of the receipt was in the police files, and I think it referred them one time to the prosecution files, not in the G8 file, therefore there's no obligation in the Brady, therefore the commonwealth didn't know how to receive the defense. There's no evidence of that, which is very different from saying that the receipt shown in the one of the three paycheck was in the position of the public rule, for that's totally consistent. Yes, Judge McKay, I understand the argument. The defendant is essentially asking you to presume that the state court got the law wrong. In other words, they're asking you to do exactly the opposite of what the law must have to do with the law. What is that? But no, you're arguing here a little bit about the fact that there was no receipt. Well, the question that the district court got to was that there was a Brady violation for the failure to provide the receipt to the defendant. So that's what we really have before us. And that's why I began with the material. The fact that my crime is helpful, but it doesn't go to the heart of the matter. The heart of the matter is the materiality of life tried to address your honor. I do think it's done. Don't we have to look here? And I think the important question for this Court, this stage on the case, we see question, is what argument could have supported the decision by the Pennsylvania Supreme Court? And when you look at that, do you do that? Do you, of course, are you sure that the Victriop lies in the situation? I want to ask you whether it be your question, your answer to Judge McKay's question or my question. Tell us how you think Richter controls this gap-thirling analysis. Well, first of all, on the materiality question, we don't really even have that legal question because the State Supreme Court did hold that the receipt was not material, even if it had been suppressed, because the times didn't match. And that's, essentially, the argument that I've been making, that the times don't line up right, not just at the times don't line up right, but that the importance of the bus that receipt is not material. You have to defer to that finding. Then there's the additional question of suppression. And in answer to your legal question about Richter, I think it's quite clear that the Court has to defer to the Court's, the State Court's ruling, its decision, not its reasoning. And remember that Richter wasn't the only case that was decided on that very day. There was also the case that the Supreme Court versus Moore also written by Justice Kennedy on the very same day. In that case, it seems to, and in this line's up, my question lines up with those two cases. But I'm not sure that so far you touched on or even responded to what I thought was the important Judge Fisher's question. And that goes to Gap filling. And even whether or not there was a gap here, pursued to the two cases, names of which we've just mentioned. I mean, wasn't there a gap if so, what was it? No gap on materiality. I would say no gap even on suppression, because given the record, which showed that there was one document, the defendant's author of proof, or at least the defendant's affidavit simply doesn't have to go ahead. If there was no gap here, then the panel had no authority to attempt to fill such a gap. And to reach the question of due diligence, right? I wouldn't agree with that exactly, Your Honor. I'm trying to figure out what you're saying. To the extent that the Court, the State Court gave a reasonable or could have did provide a reasonable basis for its decision, that of course must be deferred to. To the extent that the State Court didn't articulate reasons, the Federal Court under Ed Pah must consider what the State Court could have done. And that's Richter. Because Richter, with those just sorry afference, that's why I mentioned Primo, Your Honor. In the Primo case, there was an opinion. And there was an opinion that was so vague as whether it was form one, form two, of Strickland, that insofar as whether it was one or two of Strickland, the legal wasn't a thing you couldn't tell. And so the Court said you got it as soon. Some kind of, you've got to go in there and try to gap it. To me, it's the thing, you presume a reasonable decision, the same thing we give the decisions of Congress. So if there's no explanation or an explanation which is so ambiguous as a Primo, that you can't trigger what they did, it's incumbent upon us to assume that the reasons we have been used to apply the reason. The one about the afference, the situation where there was, a pretty firm, there was no gap, there was an explanation as to why the defendant played guilty, saying that it rejected the paper and it looked at trial

. And the Court, the State Court made out a pretty thorough rationale which later on, the six-year-old that said, and it's been quite agreed, did not require the kind of richer or Primo gap phone that you're arguing it should apply here. How many of you understand why, after an end of my interview with Rick Duan Primo? First of all, your Honor, I respectfully disagree that Primo held that there was essentially no opinion that the... No, I agree. I mean, you need to say that. The State Court didn't then supply reasons in this particular area. We must hypothesize what those reasons could have been if there were any reasonable bases. We must follow them, even if we're thinking of themselves, the telltale words, Your Honor, are words that could have and would have. The State Court could have or the State Court would have if it had addressed this. Those kinds of words appear in six different places in the Primo argument, in the Primo argument, characterized as fill the gap. In the current case from this Court, from last year, the same thing happened. And there again, we had an opinion from the State Court, which this Court described as cursory. It wasn't a sufficiently full explanation of the Court's conclusions. This Court did exactly the same thing. It said that we must still review the arguments that could have supported that Court's holding. Does that happen, even when they've given a reason? In other words, and it may just be repeating the Chief Judge here, but doesn't there have to be some ambiguity? I mean, there's got to be something you could reasonably call a gap. Isn't there any, if they give an explanation, it's the only explanation, and it covers the territory, then by definition, there's no gap to fill, is there? I think that's a harder case, but it's not this case. But consider the, what, where's the gap? Well, if the State Court, if the Court doesn't believe that the State Court rule that this evidence was not material, or if the State Court, if the State, if this Court doesn't believe that the State Court articulated sufficient reasons as to why it was or not material, this Court must examine arguments that could have supported the Court's holding. But does that truly even articulate the wrong reason? Does that go that far? I think that's a legal question. I think that was George's question, you're on it as well, if I understood it. And my answer is, I think that's a harder question, which is still open from the U.S. Supreme Court, but it's not this case. It's not the Court. That was the wrong reason. They studied the rule. They studied the case, but then they applied the wrong rule to the case they said it was a dress. They didn't address the Richter question, Your Honor. You have to look at the rationale of the Richter case. And so what is the rule then? Is the rule then, if it's an incorrect application, no gap feeling, but if it's ambiguous, there can be gap feeling? Well, I think that the answer to your first question is that it's not before the Court and therefore can't be decided here. And the answer to your second question is yes. If there's something that this Court thinks of, or can see as a reasonable basis for the State Court's ruling that the State Court didn't articulate, this Court has to consider that. Does that argument have to have been made in the State Court? Presumably. We can't just pull something out of the air and say, oh, well, we see something that nobody else talked about. Your Honor, the Ed Pastatio does not agree to a paper either of the State Court or of the parties before the State Court. Well, it really is. It is. It is a grading of papers with deference of what the State Court did and what was before the State Court. So what's said precisely that the deference eliminates the grading of papers concept. In other words, you're not going through to say they did a good job here. They did bad job here

. All the more so, the Federal Court isn't doing that as to the parties and what they are doing in the State Court. You can tell us what the gap is. I'm going to go back to the Court. Yes, I've written to that, yeah. I've written to the gap. I don't think, on the point that there's a gap as to materiality, there's an ambiguity as to the suppression current. Mr. Woodward, let me direct you in the help direction here. I didn't mention this. No, it's not a song. You obviously read the panel opinion in this case, and we didn't deal with materiality issue. Now, this is just assumed for a second that we made this agreement, that the court could disagree with you on the materiality issue, which takes us to withholding question. Now, on the question of withholding, the Pennsylvania Supreme Court's entire explanation is this, let me read this to you. Finally, it's clear that there clearly was no brave violation. The DPW receipt was not exalted to worry, because it had no bearing on the opponent's alibi, and there's no evidence that's caught off withheld the receipt from the defense. Yes, sir. In other words, the court out, it's not at all that the Supreme Court said about withhold. It seems to me there's a gap, because I've been reading that for a number of months, like a year now. I can't find the reason. The Supreme Court addressed in that conclusion both elements of the Brady claim, materiality and suppression. The cursory statement of the Supreme Court in that regard was essentially identical to the quote-unquote cursory statement of explanation of this Court. So it does the statement by the Supreme Court does that sentence that Judge Fisher read you, give rise to a gap. Arguably as to the second point on suppression, Your Honor. On withholding, it changes the ordinance. Let me back up the second. If I gap and I may have misled, then it was understanding that. Not really not just a holding by the Court, but a lengthy explanation of reasoning. Well, then there might be a gap on both of those points, but that's precisely the kind of gap, the reasoning that the additional reason that it could support the State Court's conclusion that Richter and Primo and Collins clearly require this Court to provide. But that's assuming the statement there's no evidence that is a legal conclusion and not a finding fact. If it's a finding of fact and it weren't for the previous statement, then it would be even harder for the defendant, because we'd have a finding of fact that the State, that this Court must defer to. If we have a recitation and erroneous finding of fact, then we're not in the land of the Edgard-Deference anymore, then we're looking at it to no avail. How does one draw a finding of fact from the non-existence of it? The statement one might draw a conclusion, a legal conclusion from that, but how does one engage in factual determinations where there is no evidence from which to make such a factual decision? It's a statement of fact about the record before the Court, Your Honor. And it really, it doesn't matter that much whether we really labor to characterize that statement as one of fact or law, because either way, it would require deference from this Court. But we have a situation where the commonwealth had misrepresented to the State Supreme Court that this receipt, not the payment schedule, but the receipt itself, had been turned over at trial, which is perfectly consistent with the findings of fact that it came into possession of the prosecutor and that there's no evidence that it was withheld because it was put into trial, and evidence of trial as the commonwealth represented inaccurately to the State Supreme Court. As you've said, Your Honor, inaccurately, as such a representation was made, it was contrary to the record. The card was in exhibited trial. It is in the record that this Court has. It says, schedule of check payment dates and food stamp authorization. There is no timestamp on it. It doesn't look like the receipt. It's clearly not the receipt. The police activity sheet that was made recorded at the time of the initial interview with Kason records that she gave them the scheduling of check payment card

. There's nothing about the receipt. What the representation made that all of the pertinent, brain material, strike pertinent, all of the brain material was turned over. I assume that the death's pretty common. I assume that such a representation was made at trial. I don't know whether such a representation was made here, but of course the question is what is brain material. And what we've been discussing is from my question. That's your question. My question is, what is that representation made? I do not know your honor. I'm sorry. It's not a record. Could you please go ahead and discuss the Frazier lead material which I have a concern about? I would be, that means the Court, I understand, the account that it was because it was in it. The Civil War. If we're not brain material. Yes, your honor, but not I think in the way it's been characterized by the defense. The argument has been made that the State Court held unreasonably that the initial pieces of evidence, the bear statement that we have from Frazier had to be admissible in it itself. And that's just not true. And we know that wasn't the State Court's statement. So we can therefore conclude that the material does not have to be admissible to be writing. The first piece of material doesn't have to be admissible, but the last one does. It has to need to admissible evidence. And that's exactly what the State Court said on the very next page after the Frazier discussion, it was addressing Zahar Howard and distinguished between those two cases. And Reman for an additional hearing on the Zahar Howard question, because the Court stated in Reward Darts' Zahar that the Conor of the Sureds and the Information is double here say. This is in the appendix at A74 and 75. It is admissible as such and thus immaterial under Brady. The Pennsylvania Supreme Court rejected that argument. And it said the report would have led trial counsel down new investigative avenues that had the potential to materially undermine the Commonwealth's case. And it said further that Howard, as to Howard, the appellate had expressed the couch of the utility of this evidence in its value as impeachment of one of the Commonwealth's key witnesses and thus resist the claim of an invisibility. In other words, because the evidence could have led to impeachment material against Zahar Howard, the Court said it could qualify as bait of material. And on the Reman, when given the opportunity to prove that Zahar Howard had actually made a prior inconsistent statement, the defendant failed, did not even attempt to do so. And the evidence showed that in fact she had not and there was a fact finding. But let me return to the room. So where would you deflation material? Wait, he's the lightest on. And it is a question. Thank you. Oh, but he served some time to it. Yes, sir. Thank you. Good morning, Your Honor. Good morning, Your Honor. Any row for Apple Lee James Dennis. Your Honor, in this case presents exactly the kind of extreme malfunction that Havius was designed to address. And that is what Judge Brody found

. And the Commonwealth has come in and asked you to reverse all of Judge Brody's findings and let that extreme malfunction stand. And it asks you to do so not just to rubber stamp the state court's decision, but to actually make sure errors in those decisions by seeing if there's some reasonable basis that they could have come up with for those unreasonable decisions. The Supreme Court has never done that with a reasoned opinion and rightly so. It would render Havius review not just limited but virtually meaningless. A meaningless Havius review is vital in a case where the jury never heard about extensive ex-culpatory evidence. And it's critical here to contrast the trial that Mr. Dennis had with the trial that he didn't have because of this oppressed evidence. It's true that there were three eyewitnesses in this case, three out of nine that police interview. In court, those identifications were challenged and Mr. Dennis asked the jury to say, please believe those identifications were mistaken. I don't match the descriptions and I have an hour by and that hour by was I was on the bus. I was on my way to Abbott's bird. And when I was on that bus, I saw a neighbor, the Tonya case. I don't know if she saw me, but when we got off at the bus stop, we waved to each other. So they went to Latina case and then she said, I did take a bus that day. I did take the K bus to Abbott's bird. I did see him when we got off at the bus stop and I do remember waving to him. But it couldn't have been the time that he said because I worked until two that day. And that was the end of Mr. Dennis's out of buy. He had nothing to challenge her recollection. She had no reason to lie. The time came down to her word against his and he was branded a liar. And at that point, there was no reason for the jury to doubt those identifications. But imagine the trial where the jury got to hear the suppressiveness. Think about how drastically they received alone changes things. That one piece of paper shows that Mr. Dennis was telling the truth. He was where he said he was when he said he was. Literally the only thing that made Case a commonwealth witness instead of a defense witness was her recollection of the time and the receipt changes that completely. She wasn't working until two o'clock. And now Case isn't making him out of the liar. She's confirming his story. Now the jury has a big reason to doubt those identifications. Now, after that the fact that the police had information that someone else committed the crime. But they abandoned the lead even when she parts of it checked out. They found one of the suspects Ricky Walker, who William Frazier told them about. Exactly where Frazier said he would be. And just like Frazier said, he admitted that he knew the victim. A huge red flag right there. So Walker not surprisingly did not admit committing the murder. But they accepted that

. Just like in Pals, they accepted it. They didn't even check out his alibi. They had had information from Frazier about a pawn shop. It was exactly where Frazier said it would be. They didn't even go inside to look for the stolen earrings. They have an name of Angela Frazier, another witness who could corroborate this confession. And they didn't even call her. They have three addresses and a phone number for the mythical Tony Brown, the government talks about. And they never went to any of them before they dropped this investigation. Now add to that the fact that these same detectives in their vials had a note that Zara Howard, one of their key witnesses, going around telling people that she recognizes the victim from high school. A high school that Ricky Walker admits he knew her from and Mr. Dennis did not go to. It's true. He said victim. I'm sorry, I didn't recognize the victim. The perpetrator. From high school. And it's a school that Mr. Dennis didn't go to and Mr. Walker admits that's where I knew her from. And that's exactly the kind of Shawnee Police investigation that the Supreme Court found material in tiles. And in the face of all this information that was kept from the jury, the state court found that it wasn't probable that even one jurors' mind could have been changed. That holding was objectively unreasonable. And failing to consider it humilatively was contrary to tiles. In some of your honors, Judge Worry properly found that these holdings were unreasonable and unconstitutional under Ed허. And she then properly found that the suppressed evidence could well prevent Mr. Dennis' conviction for acquiring the court in all probability he did not commit. I welcome your question. Was any of the further information you alluded to would have been admissible? Yes, and it was argued also before the state court that it would have been admissible to question the police officers and exactly the way it would have been in Kyle's. I don't know your question of police officers. Well, it's hard to tell ten years later how much investigation could have come out of that. Ten years later, which is one of the materialists turned over, but it absolutely at a minimum could have been used to question the police officers. Is it misabiliated? Is it misabiliated? Is it misabiliated for a turning over Brady material? Pardon me? Is it misabiliated for a turning over Brady material? No, it certainly not what the state court did, which is a separate inquiry from exalbertory and material. Is it absolutely appropriate to consider whether as part of materiality, there's any way to get this information in front of a jury. So in that sense, if you look at wood, if it's not admissible and there's no way, but the attrame what actually said this wouldn't have even affected my cost examination. Didn't Frazier say that everything he had said previously was to use this wood bullshit? You mean during the telephotosis, yes. And he said that in the context of the letter of the Commonwealth that said, I appreciate your offer of helping me however you can. So I don't think we should afford that much weight. It's a matter of the jury argument. And the question is probably more materiality than the misabiliated because it can be quite immaterial, but not admissible. Absolutely. The information itself could have been used at trial

. You could have gotten that information from the jury in a way that Kyle's lays out for us fairly clearly. You could have been, to remind Kyle's the information where they talk about that shoddy police investigation. That was not material that was admissible in itself. In Kyle's, you had a witness beanie who didn't even testify at either trial. And the Supreme Court actually said even if the defense hadn't called beanie, and even if we hadn't called Frazier here, then you could have invested, as you could have asked the police officers, you know, how did you abandon this? How did you accept his word uncritically that he didn't commit this crime? How did you just let this investigation go? And in some ways this isn't even stronger case than Kyle's because there's a lot more evidence that ties to the actual crime. And so in that way, even if the Supreme Court, the State Supreme Court was correct that it was important to consider admissibility in some way, it certainly wasn't a sub-requirement. And it certainly wasn't something that was relevant here where we did show that it was admissible. Can you please speak? You said in your opening statement and in your briefing, of course, too, that the Richter is limited to state court decisions, which are without a reason opinion. Can you tell us where you find that limitation in Richter? Richter specifically says, or we're talking about the ellipses issue. So Richter says, whereas here we have no decision to go from, essentially, where there's nothing to determine. This isn't actually the first part of Richter. We're trying to determine, is there a decision on the merits? And then once we get to the merits, the only reason they hypothesize in Richter is because there is no decision. There's no opinion. It's the point that it's being made that Primo is a case with a reason opinion, and yet the result is the same. And the Supreme Court says, no, there's ambiguity in it. You have to, in a sense, I don't use the same. You've got to fill that gap in. So can it really be the case that the Richter ruling only applies where there's not a reason decision? No, I don't think it's quite that severe. I mean, the case is, if there's an ambiguity, what we know from the other Supreme Court decisions like yields, like Laffler, we look at what is the actual evidence. We look at it as Judge Wendell pointed out the party's arguments, for example. And there is no gap here. Well, please, let me get you to respond to something specifically from Richter. This is the Court. There is no merit to the assertion that compliance with 2054D should be excused when state courts issue summary rulings, because applying 2054D in those cases will encourage state courts to withhold explanations of their decisions. Isn't the argument that you're making here going to actually exacerbate that? Because of what it sounds like you're saying is, if there's a reason decision, even if there's ambiguity, the court, you can't say anything about that. You can't step in and give any reasons for that. Am I misunderstanding the argument? I think slightly or I'm probably not making it clear enough. I'm defining ambiguity. Maybe that's what attention is here. Define what you need, my ambiguity. I'm not suggesting that if there is a true ambiguity in a decision that the court has to stop there and just wonder what happened. Certainly, the next thing that you would do is to look at the evidence that's in front of the court. What you don't do is hypothesize what wasn't before the court. What you do is look at the reasons that the court actually gave. If you're resolving it, you could have all over and over again. That sounds like hypothetical language, doesn't it? It could have in the situation of a summary denial. Actually, that gets to the heart. I think of the judge's question. Are the rules different for a summary denial than they are when the court says some things but perhaps not enough or perhaps even some incorrect. Yes, absolutely. How do we know the rules are different? Where do you find that? I actually think that that's the point that they were getting at in with the language that you quoted. They're actually addressing the concern that if they could have said what the court said was, people are going to say that to get around this, state courts are going to stop giving explanations for the decision

. That's what's going to happen, Ms. Rogo, precisely with what you're suggesting. Because if the rule you propose is the rule, that is, if you give some reason, you can fall, can be found with that, and habeas can be granted. But if you give no reason, then the federal courts have free reign to come up with things that you might have said, then the state courts have every incentive to dumb you up and just start issuing summary rulings, right? If you've given unconstitutional reason, you have to look at the reasons that the state court actually gave. And then on denobo review, you can certainly review all of the reasons that could be applied to that claim. But if the state court gives a reason, what you look at is the reasons that they actually gave. And I think if you look at what happened with the court in Wetzelby Lambert, when they sent the case back, it's a perfect example. When they sent it back, they said, you didn't look at this other reason that the state court gave. And they put the ellipses in the right place. Let's look at the reason here, though, on the case in receipt, where they have, in essence, a line in a half where it says, there's no evidence that the Commonwealth will fail to receive from the defense. Yeah, and that is actually, I think, the perfect, and that is Judge Randell's point, which is, let's look at the briefing. This is not in the context of nothing. It makes perfect sense when you look at the fact that the Commonwealth was arguing, not just initially, that they had, but this was the wrong document. Once the defense, once the public health appointed out, it was a wrong document. They said, well, it wasn't in our files. They have never said that the police didn't have it until after the state court briefing. They have never said. And so assume that it's not a fighting effect, but it is a legal conclusion, or that there's sufficient ambiguity around that, that we need to do some gapfilling, and we're looking to the reasonable diligence exception, as a basis for that. How can you simultaneously argue that this receipt was so easily available that it gets rise to an effective assistance claim, and at the same time that a reasonably diligent counsel could not have obtained it? Because Brady turns on the duty of the prosecutor, and Brady specifically says, these are the requirements for a prosecutor to be held responsible for turning this over. It's got to be exculpatory on peach mouthings, and it's got to be material. It doesn't turn on the prosecutor's decision of whether or not the defense counsel was effective and conducted a thorough enough investigation. Now, certainly, I'm sorry, certainly the, and the Supreme Court has never done this. In fact, I would actually say it's quite contrary to aggers and bagglies, but certainly some federal courts have said, and use this reasonable diligence language. And if you look at the cases, and even the cases in this circuit, what they're saying is either, and you point out, Ceruzco, in our first argument, in Ceruzco, they had the documents, they had them before trial, and if you look at other cases, in Peru, for example, it was a warehouse of the defendant's documents, his own documents, that he had access to. So obviously, if you have it, or if it's a criminal record, where everybody has the same access to the document, and you can, you're expected to get it as a part of discovery. But that's great. But maybe the language and grant deciding, describing this situation, should be explained to the cabinet, or maybe it's dictated, because the name was granted another grueling grant. It is, it is grant, exactly. I mean, that's exactly the case I'm talking about, and you can contrast grant with Prado-Mal, for example, where they did not have, where relief was granted, and they did not have that same system set up so that the prosecutor and the defense had equal access to the document, and they put the burden rightly on the prosecutor. Wouldn't it be reasonable to constru the Pennsylvania Supreme Court statement about there is no evidence, or to infer from it, that what the Supreme Court had in mind was, as following up on Judge Cross's question, that the Supreme Court had in mind that this evidence, i.e. the case in document, received, was publicly available. I think if they wanted to say it was publicly available, or that defense... But they didn't, and in fact, that issue was never waived. In fact, that issue appeared in the briefing in the initial appeal from conviction to the Pennsylvania Supreme Court. When you said that issue was never waived, are you talking about the Commonwealth's comment in its reply brief? I'm referring to the counter-wells comment in its reply brief on the direct appeal. Two responses. So we know the Supreme Court had that before, right? By virtue of the reply. Yes, setting aside that you can't raise arguments for the first time in a reply. The Supreme Court can do whatever they want with respect to later, and they had it in front of them

. Absolutely. But I think what you start with is the decision itself. I think you'd start with, if they wanted to say due diligence, if they wanted to say it was accessible, they would've said... But you're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to... You're not going to

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... And... And... And... And... And... And... And... And... And... And... And... And... And... And... This... Well, this... Well, this... But this... It's not appropriate. That's not my question. That's very difficult. But this is a nào or cockin Bardabanok arguments of an effectiveness in that brief. I don't think it undermines the ineffective. I think you can absolutely have both. Because Brady turns on the duty of the prosecutor. This is the truth-finding process. In this case, it's a perfect example of it. This is what we hold the trial process includes the eyewitnesses. And your brief frequently adverts to the motion that there were nine eyewitnesses, right? There were nine eyewitnesses. There were only three testifiers, all very favorable to prosecution. So how can we look at that state court record such as it is? And say, well, I'm pretty confident or maybe there's a good chance. One or more of those six other witnesses who were never called by defense counsel could have given helpful testimony to Mr. Dennis. We can't do that, can we? You don't need to look at those other six witnesses to find a reason to hold that one. Well, you talk about them as undermining the quality of the force or the force of the three eyewitnesses we do have. Well, there are also ineffective misplanes, as you know, that we brought. That judge Grody has not yet ruled on. That's what I'm saying about this. And maybe Victor is the answer. The only thing to back to this is, you need to be available. The DPW record, I assume that's a record of BW, not a miscasing. And you seem to be suggesting that miscasing, or maybe with a attorney, can go with the DPW and sign a release and get a record from DPW. Why you assume that's the case? I don't know one way or the other whether that's the case. What I do know is that it's certainly true that the Cal trial counsel could have subpoenaed the record. And I'm not suggesting that he wasn't effective. And I do think you can have both because the standard for Brady does not turn on the quality of the representation of the defense

... This... Well, this... Well, this... But this... It's not appropriate. That's not my question. That's very difficult. But this is a nào or cockin Bardabanok arguments of an effectiveness in that brief. I don't think it undermines the ineffective. I think you can absolutely have both. Because Brady turns on the duty of the prosecutor. This is the truth-finding process. In this case, it's a perfect example of it. This is what we hold the trial process includes the eyewitnesses. And your brief frequently adverts to the motion that there were nine eyewitnesses, right? There were nine eyewitnesses. There were only three testifiers, all very favorable to prosecution. So how can we look at that state court record such as it is? And say, well, I'm pretty confident or maybe there's a good chance. One or more of those six other witnesses who were never called by defense counsel could have given helpful testimony to Mr. Dennis. We can't do that, can we? You don't need to look at those other six witnesses to find a reason to hold that one. Well, you talk about them as undermining the quality of the force or the force of the three eyewitnesses we do have. Well, there are also ineffective misplanes, as you know, that we brought. That judge Grody has not yet ruled on. That's what I'm saying about this. And maybe Victor is the answer. The only thing to back to this is, you need to be available. The DPW record, I assume that's a record of BW, not a miscasing. And you seem to be suggesting that miscasing, or maybe with a attorney, can go with the DPW and sign a release and get a record from DPW. Why you assume that's the case? I don't know one way or the other whether that's the case. What I do know is that it's certainly true that the Cal trial counsel could have subpoenaed the record. And I'm not suggesting that he wasn't effective. And I do think you can have both because the standard for Brady does not turn on the quality of the representation of the defense. You said that multiple times, but if Brady, if it is a not unreasonable interpretation of Brady, to say that due diligence is a component of the Brady obligation. That is the due diligence of defense counsel can bear on the Brady obligation of the prosecutor. Doesn't that undermine your argument? I don't believe two answers. I don't believe that's true because if you look at, for example, Agors. What does it even mean to say there's some due diligence requirement on defense counsel? It's got to mean, doesn't it? That if something is reasonably and easily accessible to the defense, there is not a Brady obligation. Isn't that what it has to mean? The second circuit recently dealt with this and we was speaking out of yet, which is a case we used in a letter. Not a Supreme Court decision. No, I'm just using it as an example of what they mean. If you look at those cases and if you look at the cases of this circuit, what they mean by reasonable will just, it's an objective standard. That's what they had, which is objective. And it's what they could reasonably have had. Sure, and following up on Judge Jordan's question, you can't completely extricate from the Brady inquiry. At least in some instances, the performance of a role of defense counsel, can you? I mean, as here, this is a pretty unusual situation. This is an alibi. This is alibi evidence of the three Brady issues in this case. Cason is profoundly different because the police, I think, we would have to agree. It would almost have been impossible for them to know about this witness on the bus. If the defendant himself had not revealed that information. Yes, absolutely. He came forward. Yes. They had no way of knowing about it. That's right. He had the sole access at that initial point to information relative to case. Shouldn't that impact on the inquiry? What he had access to at that time was, well, he knew what's his own memory. I mean, what he gave the police and he clearly didn't talk to Cason. Or we wouldn't see the result that we had. He clearly didn't try to confer with her about this. We don't know that. No record doesn't share that. The record doesn't tell us that he had sole access to Cason or that he had. I'm saying that the source of his information to the police was his recollection from that day. It is not the big difference here, the fact that it's the Commonwealth that calls Cason. In its case in chief and puts him at the area between 41430. Completely undermines him when it's just turned a testify. Yes, absolutely. That is the issue that's in response to the Commonwealth argument. It's not just trying to establish his alibi. It's a government witness that the Commonwealth says, well, if this receipt had come to lie, we wouldn't have even called her. And this is the disinterest of witness who gets out there and says, yes, all this happened, but it was two hours later. It couldn't have been then. I was at work

. You said that multiple times, but if Brady, if it is a not unreasonable interpretation of Brady, to say that due diligence is a component of the Brady obligation. That is the due diligence of defense counsel can bear on the Brady obligation of the prosecutor. Doesn't that undermine your argument? I don't believe two answers. I don't believe that's true because if you look at, for example, Agors. What does it even mean to say there's some due diligence requirement on defense counsel? It's got to mean, doesn't it? That if something is reasonably and easily accessible to the defense, there is not a Brady obligation. Isn't that what it has to mean? The second circuit recently dealt with this and we was speaking out of yet, which is a case we used in a letter. Not a Supreme Court decision. No, I'm just using it as an example of what they mean. If you look at those cases and if you look at the cases of this circuit, what they mean by reasonable will just, it's an objective standard. That's what they had, which is objective. And it's what they could reasonably have had. Sure, and following up on Judge Jordan's question, you can't completely extricate from the Brady inquiry. At least in some instances, the performance of a role of defense counsel, can you? I mean, as here, this is a pretty unusual situation. This is an alibi. This is alibi evidence of the three Brady issues in this case. Cason is profoundly different because the police, I think, we would have to agree. It would almost have been impossible for them to know about this witness on the bus. If the defendant himself had not revealed that information. Yes, absolutely. He came forward. Yes. They had no way of knowing about it. That's right. He had the sole access at that initial point to information relative to case. Shouldn't that impact on the inquiry? What he had access to at that time was, well, he knew what's his own memory. I mean, what he gave the police and he clearly didn't talk to Cason. Or we wouldn't see the result that we had. He clearly didn't try to confer with her about this. We don't know that. No record doesn't share that. The record doesn't tell us that he had sole access to Cason or that he had. I'm saying that the source of his information to the police was his recollection from that day. It is not the big difference here, the fact that it's the Commonwealth that calls Cason. In its case in chief and puts him at the area between 41430. Completely undermines him when it's just turned a testify. Yes, absolutely. That is the issue that's in response to the Commonwealth argument. It's not just trying to establish his alibi. It's a government witness that the Commonwealth says, well, if this receipt had come to lie, we wouldn't have even called her. And this is the disinterest of witness who gets out there and says, yes, all this happened, but it was two hours later. It couldn't have been then. I was at work. And so she destroys his credibility. And the jury has no reason to believe him now on anything, frankly. They have no reason to doubt the eyewitnesses are very little reason because she destroys it. So you take away that witness. That's material. Even saying a side of the fact that they could have also called her for support for his alibi. Why did he have to recant that he was on the bus? I understand that. What was to prevent him from saying, I was on that bus. And if she says that was, then she doesn't know what she's talking about. He doesn't recant that he's on the bus. What he says is that's why you could imagine. I can imagine myself in the scenario. I get up there and the person who I clearly have not conferred with now says, yeah, I saw you, but that was two hours later. Why thoughts are? You know, I thought I saw, I mean, to you him, it's clearly a surprise. And clearly his counsel has not investigated it. So I don't think it's a recantation to say that's what I thought happened. What's called a change instead of a recantation? Why does he have to change his testimony? I'm not sure it necessarily follows that her testimony requires him to change his testimony. No, I don't think her testimony requires him to change it. I just don't, I wouldn't characterize it as a change. I think he's thrown by the, what would you call it? I think he's just trying to come up with some explanation for the fact that he thought he saw her and she's now saying she didn't see it. Would you call it an equivocation? In the same time. Would you call it an equivocation? No, because you can see when she gets up there and she says she doesn't say I didn't see him. She says it's not Henry and Midvale at the bus stop. That's what a trial testimony is. Some of the bus stop and we wait if he only just, just be there. I saw your case was arguing with very far to this case. I thought you were arguing with her. I was a little transgressive, not even going to answer her question. Go ahead. You remember the question? I know. I know. I got the answer to the question. I'm asking another one, which is I thought you were arguing throughout your brief that it heard his credibility. When he first testified, I was on the bus. I saw case and on the bus. And then he later said, oh, I thought I saw her on the bus. Was that not your argument, your brief? No, that, that's a fair way to put it. My point about that was that in her credibility, because this is the idea of her being a government witness. Now he's suddenly in a panic and he's feeling like I've got to explain this is my story. I don't have another story. This is what happened. And she confirms everything at the time

. And so she destroys his credibility. And the jury has no reason to believe him now on anything, frankly. They have no reason to doubt the eyewitnesses are very little reason because she destroys it. So you take away that witness. That's material. Even saying a side of the fact that they could have also called her for support for his alibi. Why did he have to recant that he was on the bus? I understand that. What was to prevent him from saying, I was on that bus. And if she says that was, then she doesn't know what she's talking about. He doesn't recant that he's on the bus. What he says is that's why you could imagine. I can imagine myself in the scenario. I get up there and the person who I clearly have not conferred with now says, yeah, I saw you, but that was two hours later. Why thoughts are? You know, I thought I saw, I mean, to you him, it's clearly a surprise. And clearly his counsel has not investigated it. So I don't think it's a recantation to say that's what I thought happened. What's called a change instead of a recantation? Why does he have to change his testimony? I'm not sure it necessarily follows that her testimony requires him to change his testimony. No, I don't think her testimony requires him to change it. I just don't, I wouldn't characterize it as a change. I think he's thrown by the, what would you call it? I think he's just trying to come up with some explanation for the fact that he thought he saw her and she's now saying she didn't see it. Would you call it an equivocation? In the same time. Would you call it an equivocation? No, because you can see when she gets up there and she says she doesn't say I didn't see him. She says it's not Henry and Midvale at the bus stop. That's what a trial testimony is. Some of the bus stop and we wait if he only just, just be there. I saw your case was arguing with very far to this case. I thought you were arguing with her. I was a little transgressive, not even going to answer her question. Go ahead. You remember the question? I know. I know. I got the answer to the question. I'm asking another one, which is I thought you were arguing throughout your brief that it heard his credibility. When he first testified, I was on the bus. I saw case and on the bus. And then he later said, oh, I thought I saw her on the bus. Was that not your argument, your brief? No, that, that's a fair way to put it. My point about that was that in her credibility, because this is the idea of her being a government witness. Now he's suddenly in a panic and he's feeling like I've got to explain this is my story. I don't have another story. This is what happened. And she confirms everything at the time. So now he's out there saying, I thought I was, what is Elsa's he going to say? Except all he can do in the other choices to say she's wrong, she's a liar. I don't think they're actually very different. I have no idea why he picked one versus the other, but what he doesn't say is, I didn't, now that I think about it, maybe I wasn't on the bus, he says I thought I saw her. And she actually does say that she saw him. It's just about the time. And I just want to get to one other question that, just your answer is about the whether Brady permits, what do we look at in terms of council's performance? And I think it's really important to look at what happened. And Brady is not the same now as it was when Brady came out. It used to require a request from defense council. And it no longer requires that. In aggers, and then they made it even clearer and baggly, defense council doesn't even have to ask for Brady information, let alone to go out and actually do investigation. And that's very different from the due diligence cases where the defense council has it, or they can just walk in and get it, and we expect them to do so as part of the scope council. So you're not conceding, are you, maybe you are, that the ability of defense council to subpoena evidence makes that evidence easily available or equally available, and that reasonably diligent council would subpoena all the evidence out there. Wouldn't that just, if this were a Brady, if that were the reasonable diligence? Absolutely, and I'm not making that point at all. In fact, I don't think that has anything, any bearing on it. I think that the question about whether council was ineffective is very different than the question of whether, did he have something, or did he know about something? So how do we reconcile? How is it different? Yeah, we're going around here, but I'm still not understanding it. Judge Krasd has the very penetrating question when she said, how can you in virtually the same breath say this man was clearly ineffective for not getting that receipt, and then say it's a Brady violation because the government should have turned it over. As if there were no reasonable diligence component to this Brady analysis, or at least a reasonable diligence component that the Pennsylvania Supreme Court could perceive, how can you be holding those both at the same time and pressing on us that Brady stands independent? Two reasons. Number one, I do not believe that there is any due diligence component to Brady, but assuming for a moment, yeah, leave that aside, right? Because you would agree, we should, that at least there's case law out there that would support that view of it, right? And what I'm saying about that case law is that if you look at those cases, they're saying what the second circuit says they're saying, which is what we expect, the reason we can excuse a prosecutor's duty, and that is the foundation of Brady as a prosecutor's duty. We can excuse it if either can assume the defendant had it, or they actually had it, so they can't complain, because then they're not suppressing it. Or if they knew about it, for example, they gave them the facts, and that was in fact the case in Georgia, which is they had the underlying facts, and they just didn't go to that extra step to find out about it. You agree, do you not, that not only is there such case law out there as to Jordan's question, was posed, that there was such case law concerning due diligence doctrine in 1998 at the time the Supreme Court rule? Yes, and it was the same state that it is now. The fact is it had more residents and vitality than perhaps than it does now. I'm not sure whether I agree with the characterization now, but I would agree that there's certainly the concept that there should be that we should not hold a prosecutor responsible for turning over something that defense has. You can assume he has, it was actually, it was absolutely something that was happening in cases that, but what I'm saying is those cases. Whether it's not the Supreme Court of Pennsylvania would have, could have, or did, considered 1998 has to be our focus in terms of any kind of due diligence jurisprudence. Sure, absolutely. If that doctrine existed, it could have supported, if on a basis of support for the Supreme Court's decision. Not under these facts in this case. No, the kinds of cases that apply that are not requiring the defendant to go out and affirmatively do in Vestiacia to unearth facts. These are facts they either had, or we expect that they should have had through the regular discovery. You can't ignore the facts of this case. It's Dennis, who gave Case into the police. It's Dennis said, Case into someone I saw. So, on it said, you want to go talk to Case. This isn't somebody that the police French don't. But what he doesn't have is the fact that she's going to give the police a different story and a different time, that we don't know that until she gives her policing. He is just about to go out and tell the police case is important. Yes, absolutely. And that's the focus of your ineffective assistance to counsel argument, which isn't before the court here today. No, and absolutely, certainly, if I represented a defendant in the situation, that was his only dissentress that I will buy. What I go do it, yes. But do we excuse the prosecutor? Remember, the police didn't repeat it

. So now he's out there saying, I thought I was, what is Elsa's he going to say? Except all he can do in the other choices to say she's wrong, she's a liar. I don't think they're actually very different. I have no idea why he picked one versus the other, but what he doesn't say is, I didn't, now that I think about it, maybe I wasn't on the bus, he says I thought I saw her. And she actually does say that she saw him. It's just about the time. And I just want to get to one other question that, just your answer is about the whether Brady permits, what do we look at in terms of council's performance? And I think it's really important to look at what happened. And Brady is not the same now as it was when Brady came out. It used to require a request from defense council. And it no longer requires that. In aggers, and then they made it even clearer and baggly, defense council doesn't even have to ask for Brady information, let alone to go out and actually do investigation. And that's very different from the due diligence cases where the defense council has it, or they can just walk in and get it, and we expect them to do so as part of the scope council. So you're not conceding, are you, maybe you are, that the ability of defense council to subpoena evidence makes that evidence easily available or equally available, and that reasonably diligent council would subpoena all the evidence out there. Wouldn't that just, if this were a Brady, if that were the reasonable diligence? Absolutely, and I'm not making that point at all. In fact, I don't think that has anything, any bearing on it. I think that the question about whether council was ineffective is very different than the question of whether, did he have something, or did he know about something? So how do we reconcile? How is it different? Yeah, we're going around here, but I'm still not understanding it. Judge Krasd has the very penetrating question when she said, how can you in virtually the same breath say this man was clearly ineffective for not getting that receipt, and then say it's a Brady violation because the government should have turned it over. As if there were no reasonable diligence component to this Brady analysis, or at least a reasonable diligence component that the Pennsylvania Supreme Court could perceive, how can you be holding those both at the same time and pressing on us that Brady stands independent? Two reasons. Number one, I do not believe that there is any due diligence component to Brady, but assuming for a moment, yeah, leave that aside, right? Because you would agree, we should, that at least there's case law out there that would support that view of it, right? And what I'm saying about that case law is that if you look at those cases, they're saying what the second circuit says they're saying, which is what we expect, the reason we can excuse a prosecutor's duty, and that is the foundation of Brady as a prosecutor's duty. We can excuse it if either can assume the defendant had it, or they actually had it, so they can't complain, because then they're not suppressing it. Or if they knew about it, for example, they gave them the facts, and that was in fact the case in Georgia, which is they had the underlying facts, and they just didn't go to that extra step to find out about it. You agree, do you not, that not only is there such case law out there as to Jordan's question, was posed, that there was such case law concerning due diligence doctrine in 1998 at the time the Supreme Court rule? Yes, and it was the same state that it is now. The fact is it had more residents and vitality than perhaps than it does now. I'm not sure whether I agree with the characterization now, but I would agree that there's certainly the concept that there should be that we should not hold a prosecutor responsible for turning over something that defense has. You can assume he has, it was actually, it was absolutely something that was happening in cases that, but what I'm saying is those cases. Whether it's not the Supreme Court of Pennsylvania would have, could have, or did, considered 1998 has to be our focus in terms of any kind of due diligence jurisprudence. Sure, absolutely. If that doctrine existed, it could have supported, if on a basis of support for the Supreme Court's decision. Not under these facts in this case. No, the kinds of cases that apply that are not requiring the defendant to go out and affirmatively do in Vestiacia to unearth facts. These are facts they either had, or we expect that they should have had through the regular discovery. You can't ignore the facts of this case. It's Dennis, who gave Case into the police. It's Dennis said, Case into someone I saw. So, on it said, you want to go talk to Case. This isn't somebody that the police French don't. But what he doesn't have is the fact that she's going to give the police a different story and a different time, that we don't know that until she gives her policing. He is just about to go out and tell the police case is important. Yes, absolutely. And that's the focus of your ineffective assistance to counsel argument, which isn't before the court here today. No, and absolutely, certainly, if I represented a defendant in the situation, that was his only dissentress that I will buy. What I go do it, yes. But do we excuse the prosecutor? Remember, the police didn't repeat it. And you asserted in your briefing before the Pennsylvania Supreme Court that the receipt was available. That he could have subpoenaed it, absolutely. Yes. But the question, but my concern is, look at, if you look at the facts, the police took the copy. Yes, it isn't the Supreme Court title to accept that concession. The Pennsylvania Supreme Court. To accept what concession that they received was publicly available. That's a different question. So, that's a great answer. And to the question being asked, is it publicly available over the Defense Council who could have subpoenaed it? What are you saying? He could have subpoenaed it. He could have investigated and gotten it. And I would expect him to as a good attorney in a capital case. Is that the same as someone who is not getting a criminal record, right, where it's akin to discovery, where you can, everybody has the same access to the same system? This is a case where the police went and spoke to her and took her copy. So, even if he went one CC that she's made an inconsistency, and even if he goes back to her at that point, she doesn't even have her copy. He has no reason to think that there's a document out there. And remember, this is an effective counsel who's relying on the government for his discovery. I'm sorry. I'm sorry. Thank you. Thank you, Robert. Thank you, Robert. I'd like to touch briefly a bit more on the William Frazier evidence, because I think it is emblematic. Before you do that, I wish you'd start right where she left off. Why don't you respond to the assertion that you have no way of arguing a due diligence exception here, because these aren't publicly available. This would have required a subpoena. This doesn't have to do with due diligence. This is the police have the record in their file, and I don't assume for the sake of discussion that that's the case. They don't turn it over, so to say, well, you could have gotten a subpoena, just as outside the balance of Brady. Why don't you answer that, please? Your Honor, I think actually that ties into where I was going, which is we don't really know on this record the answer to that question, because the defendant has never established it. All the defendants have told us that it would have been hard to get the information that they would have had the issue of subpoena. That's never been the defendant's. But why isn't that clear as a matter of Pennsylvania law? Well, I mean, the Department of Public Welfare Regulations, 55 Pennsylvania Code Section 105.1 through 5, addressed the privacy and confidentiality of those financial records with the Department of Public Welfare, and the only exception that appears in the statute is that upon request about a specific person, the county willfully disclose the address and the amount of assistance that a person is currently receiving, that is at the time of the request about a particular person. This receipt, even on the face of it, has far more information than that, and there's nothing that suggests that the receipt itself is a publicly available document. None of that was alleged by the defendant. None of that was in the record. There was no claim that anything, any process like that was gone through. On the contrary, what the defense claim was, was it is as easy as the day in the record, and could not make judicial notice of the Commonwealth's own law? No, Your Honor. We have no idea how they actually received the receipt. We have no idea whether it's even authentic or anything. And the way it is received, the notice that it's done, I'm going to leave now. We can't take notice that it's not publicly available

. And you asserted in your briefing before the Pennsylvania Supreme Court that the receipt was available. That he could have subpoenaed it, absolutely. Yes. But the question, but my concern is, look at, if you look at the facts, the police took the copy. Yes, it isn't the Supreme Court title to accept that concession. The Pennsylvania Supreme Court. To accept what concession that they received was publicly available. That's a different question. So, that's a great answer. And to the question being asked, is it publicly available over the Defense Council who could have subpoenaed it? What are you saying? He could have subpoenaed it. He could have investigated and gotten it. And I would expect him to as a good attorney in a capital case. Is that the same as someone who is not getting a criminal record, right, where it's akin to discovery, where you can, everybody has the same access to the same system? This is a case where the police went and spoke to her and took her copy. So, even if he went one CC that she's made an inconsistency, and even if he goes back to her at that point, she doesn't even have her copy. He has no reason to think that there's a document out there. And remember, this is an effective counsel who's relying on the government for his discovery. I'm sorry. I'm sorry. Thank you. Thank you, Robert. Thank you, Robert. I'd like to touch briefly a bit more on the William Frazier evidence, because I think it is emblematic. Before you do that, I wish you'd start right where she left off. Why don't you respond to the assertion that you have no way of arguing a due diligence exception here, because these aren't publicly available. This would have required a subpoena. This doesn't have to do with due diligence. This is the police have the record in their file, and I don't assume for the sake of discussion that that's the case. They don't turn it over, so to say, well, you could have gotten a subpoena, just as outside the balance of Brady. Why don't you answer that, please? Your Honor, I think actually that ties into where I was going, which is we don't really know on this record the answer to that question, because the defendant has never established it. All the defendants have told us that it would have been hard to get the information that they would have had the issue of subpoena. That's never been the defendant's. But why isn't that clear as a matter of Pennsylvania law? Well, I mean, the Department of Public Welfare Regulations, 55 Pennsylvania Code Section 105.1 through 5, addressed the privacy and confidentiality of those financial records with the Department of Public Welfare, and the only exception that appears in the statute is that upon request about a specific person, the county willfully disclose the address and the amount of assistance that a person is currently receiving, that is at the time of the request about a particular person. This receipt, even on the face of it, has far more information than that, and there's nothing that suggests that the receipt itself is a publicly available document. None of that was alleged by the defendant. None of that was in the record. There was no claim that anything, any process like that was gone through. On the contrary, what the defense claim was, was it is as easy as the day in the record, and could not make judicial notice of the Commonwealth's own law? No, Your Honor. We have no idea how they actually received the receipt. We have no idea whether it's even authentic or anything. And the way it is received, the notice that it's done, I'm going to leave now. We can't take notice that it's not publicly available. Your Honor, that's an argument which is directly contrary to the defense claim throughout this entire case. The claim has to be the claim of the government that it wasn't withheld within the meaning of bringing it. The rate is three elements, exculpatory material and withheld. So isn't it up to the government to say, we did not withhold this? And how do they get past that? We articulated that we didn't withhold it. We articulated that the only thing that we had is proven by the activity sheet and the exhibits of trial was the other pink document. That's why we didn't have it. That's why we found out that the loss of the file, the loss of the police file in terms of determining what you had or didn't have. The file wasn't actually lost. What happened was that the police passed their copies to us and they were then intermingled. There's no claim that there was some document which is missing now, or that wasn't turned over. That's all that the loss comes down to. And I'd like to emphasize, the defendant hasn't tried to prove any of this. And that's relevant not only to the case and issue, where he has the burden now of showing that how he did or didn't get it, how all the things that we're discussing now, but as to the phrasier issue, where you at least have to prove as to your real killer evidence, there's a real, that he really exists. I really like it. I'd really like to answer the question that was left hanging from Ms. Rowe, though. Assume for the sake of discussion that we thought we could take to additional notice of the Commonwealth Zone Law and that this is not a publicly available document. It would have required a subpoena of some sort. How does that affect your assertion that you don't have to worry about the case, about this being withheld because there's a due diligence thing and they failed in their due diligence. What does that duty argument? I don't think it changes it, Your Honor, because the question is whether it was available to the defendant. If the law really, and we don't really know in reality, but if there was law that would have required prohibited anybody from getting that document, then it would have prohibited us from getting the document. And didn't the defendant say it was available with minimal investigation? Easily obtained. What Supreme Court case supports the proposition that, that something is not withhold withheld if it is somehow available to the defendant? Under the under-ed put, there has to be a Supreme Court case that specifically holds the opposite of that. As Judge Jordan pleaded, please. But I'm asking you. I'm sorry. I'm curious. I'm telling you. The Supreme Court has directly addressed that particular issue yet, Your Honor. That's why it's not clearly established law foreth the purposes. In fact, isn't the only Supreme Court opinion on point much more limited saying that the Defense Counsel doesn't have to go scavenge for information. For information that's in the prosecution's possession, Your Honor. That's the whole point here. Assuming it wasn't in the prosecution's possession. Well, if it wasn't in the prosecution's possession, then it wasn't ever withheld. I'm sorry for the sake of argument that when the State Supreme Court said that they had it, that we can take that as a given. Your Honor, none of these assertions have ever been proven or even attempted to be proven by the Defense. And that's really an important bottom line here. The defendant has a burden of coming forward with some evidence in order to substantiate this sort of speculation and not really presenting affidavits which are contested. Mr. President, thank you for the national thought. Both thoughts on the fate of that are under fire