Ronnie Long can prove his innocence today after *44 years* of wrongful conviction. I will be live tweeting about oral arguments, which you can livestream here at 9:00am EST: 
Long is claiming Brady violations based upon forensic evidence that has been withheld for decades such as a suspect hair from the crime scene that was not a match for him & dozens of fingerprints which also weren't a match.
The only evidence against him was a highly suggestive, in-court, cross-racial identification by the witness, who was wearing a disguise.
Jamie Lau arguing for Ronnie Long that the withheld evidence was material for Brady purposes.
Judge Thacker asking how this case is different from Wetzel v. Lambert, 565 U.S. 520, 525 (2012).
Judge Thacker asking whether the record as it stand shows actual innocence or whether there needs to be further discovery.
Lau arguing there's enough now to find actual innocence but that, if the judges are unconvinced, there should be remand for additional discovery.
Lau arguing the forensic evidence is not just absence of evidence; instead, they point toward someone else committing the crime.
Lau focusing upon the suspect hair, noting it's consistent with the initial ID of the assailant as light skinned, while Long is dark skinned.
Lau pointing toward 44 fingerprints that were not a match for Long.
Judge Thacker asking whether fingerprint claim has been abandoned. Lau saying it's relevant to the materiality inquiry.
Lau noting that fingerprints were compared against alternate suspects, whose existence were not disclosed to Long until 2008.
Judge Niemeyer(?) says question is whether state court acted reasonably, not whether we disagree.
Niemeyer asks how we deal with the "no impact" determination by state court.
Lau is saying the state court applied the wrong legal standard in its analysis. Cites to Kyles v. Whitley, 514 U.S. 419 (1995).
Lau points out evidence is positively exculpatory and also undermines prosecutor's argument that forensic evidence supported eyewitness identification.
Prosecutor also argued police were above reproach while forensic reports show that the officers were perjuring themselves.
Lau laying out how detectives specifically failed to mention additional testing that was done that excluded Long from the crime scene.
Lau noting that the defense could have impeached the officers.
Judge Thacker asks if the officers testified at the 2008 hearing. Lau says no.
Judge King asking whether the defense accepts that this was a successor claim. Lau says yes, and this court has never ruled on this successor claim.
Lau saying this doesn't violate AEDPA b/c the State withheld this forensic evidence for decades.
Lau argues that the State is improperly using AEDPA as a shield when it withheld the evidence, preventing the defense from being able to present it initially.
Lau noting report from detective showing bad faith, with this forensic evidence being intentionally withheld.
Judge Thacker asking about trial prosecutor testifying he was unaware of forensic reports and that he would have turned it over if he was aware of it.
Lau noting last piece of evidence -- the rape kit -- went missing, and we have no idea what happened to it. Only know about it b/c hospital records.
Lau: Clearly, this rape kit would have been tested. We can infer that they were afraid of testing it.
Judge Quattlebaum Jr. asks whether arguments depend in finding of bad faith.
Lau notes that Brady doesn't depend on bad faith; it's just further support to show that the State knew the evidence was material.
Lau: Final indicator of bad faith: suppressed reports not in Concord Police Department files. Reasonable to infer they were removed from file.
Judge Diaz asks about experience of defense counsel & making strategic decisions regarding not having certain items tested so they could say the State didn't have this tested.
Lau: Record shows they asked about rape kit and were told it was not collected.
Lau: If defense knew SBI had conducted tests and results were favorable, they would have used to undermine the eyewitness ID.
Lau argues ID was unreliable & jury lacked the tools to assess its unreliability.
Lau: Problems w/ID were extreme. Amicus noted it goes against 40+ years of social science research.
Lau: ID unreliable b/c in courtroom b/c Long only one in courtroom w/general appearance that matched assailant.
Judge asks whether we should assess ID based on science now or in 1976.
Lau: We can used 2020 social science in conducting the Brady analysis.
Judge: Standard is whether it was a reasonable application of Brady. Doesn't your argument ignore the heavy burden that needs to be met?
Lau: 2254(d) is the burden petitioner must carry. Clear this evidence would have impacted the trial. This is the Brady assessment.
Lau: Long didn't get a fair trial. That's all that's needed.
Judge Wilkinson III: We can argue about Brady violation all we want, but even assuming one, wouldn't you still run up against 2244(b)(2)?
Judge Wilkinson focusing on actual innocence standard.
Judge Wilkinson asking what additional discovery would look like in this case and how you meet the actual innocence standard when the victim is deceased.
Judge Wilkinson where the case goes from here.
Lau: It's not the strongest burden of proof. That's proving guilt beyond a reasonable doubt at trial.
Lau: Should be clear from present incomplete record that State could not meet this standard.
Lau: You can consider all of the evidence, both old & new.
Judge Wilkinson III: What is the district court to do on remand?
Lau: More can be done w/the 43 fingerprints and the alternate suspects.
Lau: Supreme Court in Kyles v. Whitley says how to do the materiality analysis for Brady.
Judge King: Are you conceding that this is a successive claim?
Lau: This is not a successive claim. It's a successor petition.
Now, the State is up.
Rubin: A case like this does deserve a hard look.
Rubin: When we reviewed, we found forensic evidence was not material and would not have changed the outcome at trial.
Rubin: Evidence has not been described in a fair way.
Rubin challenging claim the Detective Taylor perjured himself regarding matches at crime scene being a match for the matchbooks found in Long's car.
Rubin: Detective Taylor just saying why he seized the matchbooks from Long's car.
Judge Thacker: Didn't the testing find that the matches from the crime scene didn't come from matchbooks in Long's car?
Judge Thacker asking about hair evidence and whether jury or the defendant knew about it.
Judge Thacker: What evidence did the State have?
Rubin: There is physical evidence tying Long to the crime scene.
Judge Thacker: What physical evidence tied Long to the crime scene?
Rubin: Black leather jacket, toboggan, etc.
Judge Thacker: What was skin complexion the victim described? Rubin: Light skinned. Judge Thacker: Is he light skinned. Rubin: That's subjective.
Rubin: When she saw him in courtroom, she said she recognized him based on skin tone.
Rubin: Defense counsel didn't argue physical description in closing arguments.
Judge Thacker: You concede discrepancy in description. Rubin: I do not.
Judge Thacker: In later lineup, how many wearing a leather jacket? Rubin: He was the only one.
Judge Keenan: Don't ignore that Detective Isenhour perjured himself when he said the forensic evidence was always in his possession. In fact, that evidence was tested.
Rubin: Always said jacket, hat, and gloves. Then, she identifies him in court. Not wearing a black jacket in court.
Rubin: ID procedure meets a lot of the modern best practices, followed by confirmation lineup.
Rubin: They search car and find jacket, hat, and gloves. At crime scene, they find shoeprint that matches the tread design in the shoe.
Judge Thacker: Any indication from SBI report that jacket had any carpet fibers or anything from crime scene? Rubin: No. Thacker: Same w/hat & gloves.
Judge Thacker: What if jury had heard some inconsistency in ID, no physical evidence on jacket, hat, gloves, no fingerprint match, etc.?
Rubin: You're supposed to consider not just the evidence but the State's response.
Rubin: No fibers, period, found on leather jacket. 15 days is a long time for jacket to be uncontrolled.
Judge Thacker: Detective Isenhour lied, right? Rubin: Did he misremember? We don't know.
Judge King: Testimony was at least incorrect, right?
Rubin: Detective Isenhour didn't testify at evidentiary hearing.
Rubin: This court can't consider evidence not before the State court.
Rubin: Might not have wanted to call detectives at hearing b/c you might not have liked their testimony.
Rubin: Claim is that 1 report by Detective Isenhour turned over and other not. In fact, neither turned over.
Judge Thacker: Isn't prosecutor saying he would have turned it over evidence of a Brady violation?
Rubin: Just b/c something should have been disclosed doesn't make it Brady.
Rubin: This was sloppy, but no evidence the non-disclosure was in bad faith.
Judge: If we were to find bad faith, what are implications? If we were not to find bad faith, what are implications?
Rubin: Bad faith not required for Brady, but it can be a relevant consideration.
Judge Quattlebaum Jr.: Does way in which evidence was turned over in bits and drabs bear upon bad faith?
Rubin: I don't think gets the case. That would be modern day bad faith. But it looks like SBI did a big effort to search for the evidence.
Rubin: We don't know all the details of the fingerprints not being turned over until 2015.
Judge Richardson: Why doesn't Wetzel v. Lambert, 565 U.S. 520, 525 (2012), apply here?
Rubin: I disagree w/Lau. Wetzel didn't talk about prongs.
Rubin: This is a Harrington v. Richter, 562 U.S. 86 (2011) case.
Rubin: Only one outcome under Brady: This wouldn't have had an impact on trial.
Rubin: Not objectively unreasonable to find that evidence was not favorable to Long.
Judge Harris: Troubled by state court's ruling. I don't think they applied the correct standard of proof.
Rubin: I don't think the state court got it wrong.
Rubin: You still have to defer to factual findings. State court found shoeprint to be strong evidence. State court also found forensic evidence not exculpatory.
Rubin: Even under de novo review, the defense has failed to establish a Brady violation.
Judge Thacker: Were hairs and fibers and fingerprints discussed? Rubin: No, but other evidence was discussed, including lack of white paint on Long's clothes.
Rubin: Maybe best strategy is exactly what defense counsel did.
Judge Keenan: Aren't fingerprints also latent?
Rubin: Report says numerous fingerprints lifted.
Chief Judge Gregory: Closing argument: Victim's testimony not only accurate but completely consistent w/every piece of physical evidence. Not true. Rubin: Not completely accurate.
Chief Judge Gregory: Hammering Rubin over closing argument by prosecutor about every testimony being completely consistent with physical evidence. Isn't that appalling to justice?
Rubin: That was a correct assessment of evidence. The evidence was not exonerating. It was just an absence of evidence.
Chief Judge Gregory: You would have said same thing as prosecutor? Rubin: I probably would have watered it down.
Rubin: It's not a bald faced, totally false statement.
Sounds like some tech issues.
We're back. Judge Motz: State court seemed to rely on things being different back in 1976. Do we assess fair trial w/1976 standards or 2020 standards?
Rubin: Not saying it's fine b/c it's how it was done in 1976.
Judge Diaz: Getting back to CK Gregory's point: Isn't problem that prosecutor himself wasn't aware of forensic reports?
Rubin: That appears to be the case. Judge Diaz: I'm not saying that's helpful to you.
Rubin: I'm not saying it's helpful to us either, but please look at the totality of closing argument.
Rubin: Prosecutor acknowledged things like no paint on jacket.
Rubin: Not trying to move past CJ Gregory's well taken point, but closing argument wasn't that bad.
Judge Wynn, Jr: You didn't say police/prosecutor bad faith. You said could be mistaken. Talking about realities of Concord, NC in 1976 where I've lived all my life.
Judge Wynn, Jr.: Things were a bit "looser" back then. How do we view 1976 in 2020? Black men being prosecuted wrongfully. Lynchings. Here, State had evidence any defense counsel in world would have wanted. And yet the State didn't provide it.
Then to get up and make statements that were just patently false. That's the element of concern.
Judge Wynn Jr.: What's the zeal to keep people in prison when we know there's exculpatory evidence and might be more evidence out there to prove innocence?
Judge Wynn, Jr: Semen evidence disappeared. Testing could have led to an exoneration. And yet, in 2020, we sit here and just say give it the benefit of the doubt? But we know what happened in 1976.
Rubin: I agree w/many of your statements. This case does deserve a hard look. But that should and did occur in state court.
Rubin: I wasn't alive during this time period, but I understand what happened back then.
Judge Wynn, Jr: All these procedural rules in place to prevent us from doing justice. When did justice leave the process such that we're left blind to the realities we all can see.
Rubin: I don't think we're blinded. We looked at evidence. I was worried at first whether I could defend this case.
Judge Wynn, Jr: What would happen if we allowed it to go back? How is government harmed by just sending it back down?
Rubin: The hearing already happened in 2008. With possible exception of fingerprints... Judge Wynn, Jr.: The fingerprints weren't turned over.
Judge Wynn, Jr: This is not a difficult thing to just send this down. Country founded on liberty meaning something. You don't just take away someone's freedom easily. Somewhere that was lost.
Now, Lau is back up. Addressing the State. They're asking for the benefit of the doubt, but they didn't give the defense the benefit of the doubt back in 1976.
Lau: If we're going back to 1976, sheriff struck people from the jury roll, and we don't know who was struck.
Lau: Defense counsel opted against transfer of venue b/c of KKK activity in surrounding communities.
Lau: Here, there's no a reasoned state court opinion.
Lau: Suspect hair matched description of assailant.
Judge: Why didn't your client present testimony by detectives in 2008?
Lau: Isenhour had already demonstrated he was willing to perjure himself. Also, State had opportunity to call him to defend himself.
Lau: State points to Detective Taylor's testimony. Another point of testimony by Taylor: I can't testify to the matches not being a match to the matchbook. Report showed they weren't a match.
Lau: First mention of facial hair, which Long had, was at trial.
Victim's description said dark leather jacket, which Long was wearing in court.
Lau: Not just about jacket not having hairs/fibers. Victim said she scratched the jacket hard. That didn't show up on Long's jacket b/c it wasn't the jacket.
Lau: Problem w/AG's office in North Carolina. They didn't look into misconduct b/c they didn't want to.
Judge Wynn Jr.: When prosecutor said the evidence matched, he thought that. Lau: Correct. Would we even had a trial if they were aware of the forensic evidence.
And that's it. We're done with oral arguments. There are 15 judges on the Fourth Circuit. It will take 8+ judges for either side to win.
