1

1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

2
3 - - - - - - - - - - - - - - -:

4 IN RE: :

5 ERIC LLOYD : CR ID: 1710006739

6 DWAYNE WHITE : CR ID: 1710006768

7 DAMON ANDERSON : CR ID: 1710006710

8 - - - - - - - - - - - - - - :

9
10 BEFORE THE HONORABLE FRANCIS J. JONES, JR., J.

11
12 - - - -

13 STATUS CONFERENCE
WEDNESDAY, 18 DECEMBER 2024
14 COURTROOM 7E

15 - - - -

16
17
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20
21
22 Lisa Amatucci, RPR, CSR
SUPERIOR COURT REALTIME OFFICIAL COURT REPORTERS
23 500 N. King Street - Suite 2609
Wilmington, Delaware 19801
 2

1 APPEARANCES:

2
3 ANDREW J. VELLA, ESQUIRE
JAMIE MCCLOSKEY, ESQUIRE
4 ERIKA FLASCHNER, ESQUIRE

5 Deputy Attorneys General

for the State of Delaware
6
7
8 - - - -
9 ZACHARY GEORGE, ESQUIRE

10 Counsel for Eric Lloyd

11 - - - -

12
13 JON CIOSCHI, ESQUIRE
HERBERT MONDROS, ESQUIRE
14
15 Counsel for Dwayne White

16
- - - -
17
18 RAJ SRIVATSAN, ESQUIRE

19 Counsel for Damon Anderson

20 - - - -
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 3

1 I N D E X

2 DIRECT CROSS REDIRECT RECROSS

3 WITNESSES

4 STATUS CONFERENCE - Page 4

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 4

1 Wednesday, 18 December 2024

2 Courtroom 7E
3 10:00 a.m.
4 PRESENT:
5 As Noted:
6 THE COURT: Good morning, everyone.
7 Mr. Anderson, and Mr. White, I have
8 not met you before.
9 Good morning, Mr. Lloyd.
10 All right.
11 How do we want to proceed?
12 Why don't you all give me an update
13 of the two weeks ago conversation.
14 MR. CIOSCHI: We are here for the
15 update, Your Honor.
16 Our hope in the update was planned --
17 this is John Cioschi on behalf of Mr. Dwayne
18 White. And to the extent permissible for
19 co-counsel -- obviously, they could speak for
20 themselves, as well -- we had --
21 THE COURT: I just don't want to
22 hear the same thing three times.
23 MR. CIOSCHI: Of course. We will
 5

1 try and be as efficient as possible.

2 So, Your Honor, we had initially
3 planned this status conference to discuss the
4 status of discovery, and to discuss the status
5 of our request for the assistance in the
6 testimony and production of documents from the
7 Federal Government.
8 But as Your Honor well knows, a very
9 significant development has come to pass since
10 then. And I am speaking, in particular, about
11 the State's letter of December 13th.
12 THE COURT: Wisher.
13 MR. CIOSCHI: Wisher.
14 Would Your Honor wish to hear our
15 concerns about that, which were outlined
16 extensively in our December 16th letter.
17 THE COURT: Okay.
18 MR. CIOSCHI: Your Honor, the State
19 concluded closing argument at our clients'
20 trial for their lives as follows.
21 The State is asking you to view
22 trials as a search for the truth. Look at the
23 entire picture. Look at the games that were
 6

1 played.
2 That was June 13th, 2019.
3 As it turns out, Your Honor, it took
4 the State years, six years -- excuse me, five
5 and a half years to admit that they, in fact,
6 were playing games.
7 And they didn't make a full admission
8 to that.
9 As Your Honor knows from our letter
10 that we submitted for summary judgment on
11 Monday concerning Wisher, the State
12 deliberately elicited and failed to correct
13 false testimony from William Wisher, denying
14 that he was promised a substantial assistance
15 motion, denying that he was promised that
16 there would be a big chunk recommended if he
17 testified truthfully against our clients and
18 for the State.
19 So as we have outlined extensively in
20 our letter to you in this court on, Monday,
21 December 16th, this cries out for relief.
22 Our clients are serving extremely
23 long sentences, and have served years at this
 7

1 juncture. And a large part of the reason they

2 have served such time is because the State,
3 courtesy of Deputy Attorney General Jamie
4 McCloskey and his co-counsel, elicited false
5 testimony.
6 This is a due process violation of
7 the highest order, and one that this Court
8 cannot allow to stand.
9 There is no dispute of material fact,
10 and there can be no dispute of material fact,
11 concerning the fact that false testimony was
12 elicited from Mr. Wisher;
13 False testimony was not corrected
14 from Mr. Wisher, and;
15 That the State relied on that false
16 testimony in closing argument to vouch for
17 Mr. Wisher's credibility.
18 And, by the way, the State spent a
19 large share of its closing argument explaining
20 why Wisher was so important and his testimony
21 was so important to the State's case.
22 So we not only have admissions of
23 ethical violations in post-conviction, we have
 8

1 admissions of due process violations that

2 deprived our clients of a fair trial at the
3 time of their trial and on convictions for
4 which they are now serving -- two of the three
5 of them -- practical life sentences, and the
6 third, a functional life sentence.
7 So, respectfully, Your Honor, I don't
8 want to stand here and spend 30 minutes
9 rehashing the arguments that we have made in
10 our brief to you because it is thorough, and I
11 know have you read it, and I know you take it
12 seriously. But this is very, very serious.
13 This is very, very serious.
14 We just ask that the Court strongly
15 consider granting summary relief at this
16 juncture.
17 The State can have no answer.
18 There is no question that Wisher's
19 testimony was false. I mean, they don't admit
20 that, but they say that in post-conviction in
21 their letter of December 13th they made false
22 representations or misstatements about what
23 was promised to William Wisher. That is a
 9

1 core component of our Napue Giglio -- "Napue"

2 N-A-P-U-E, "Giglio," G-I-G-L-I-O, claim in
3 this case.
4 They don't contend that the evidence
5 underlying that admission, which was a
6 recording of an interview with Department --
7 excuse me, Deputy Attorney General Mark
8 Denney -- former Deputy Attorney General Mark
9 Denney -- William Wisher himself, defense
10 counsel for Mr. Wisher, and Special Agent from
11 the FBI, Shawn Haney, S-H-A-W-N H-A-N-E-Y --
12 they don't deny that that was concealed. And
13 it is obvious that it was concealed, because
14 if it were turned over, Your Honor, they would
15 never have been able to elicit this false
16 testimony in the first place.
17 And on cross examination then
18 attorney -- I believe it was Megan Davies,
19 attorney for Mr. Lloyd, aggressively spent
20 most of her cross examination examining
21 Mr. Wisher about his cooperation. And the
22 vast majority of it, almost every page,
23 talking about the proffer this, the proffer
 10

1 that; each piece of that chronological

2 development of cooperation.
3 When she got to one of the penalty
4 questions, he says, more or less, I know what
5 this looks like to you, ma'am. I understand
6 what you're trying to say. But they didn't
7 promise me nothing. That was false.
8 And they didn't stand up and correct
9 the record.
10 And then in closing argument, which
11 was initially presented by Mr. McCloskey, they
12 relied on that falsehood to bolster Wisher's
13 credibility.
14 You also heard from William Wisher,
15 also known as Butchie.
16 This is Mr. McCloskey:
17 You heard William Wisher testify that
18 he pled guilty in this case, and that he's
19 already received a 21 year sentence. William
20 Wisher told you that his understanding was
21 that he was being offered 21 years whether or
22 not he came forward with information, and it's
23 his hope, although nothing promised to him,
 11

1 that he may receive a motion for substantial

2 assistance. And it's his hope that that would
3 result in some level of reduction of his 21
4 year sentence.
5 That is how they framed Wisher, a man
6 who is just hoping for help.
7 They knew the truth. They had the
8 truth sitting in their own files. And until
9 we got to post-conviction in front of Your
10 Honor, until Your Honor ordered an evidentiary
11 hearing on this claim in October, they hid
12 that from all three of these men, their family
13 members, their prior counsel, us.
14 They hid that from this Court. In
15 post-conviction. Which is only part of the
16 issue.
17 They stated, in response to
18 Mr. White's brief raising this Napue claim:
19 Citing nothing, petitioner recklessly
20 alleges, quote, "but the State had, in fact,
21 assured Wisher that, in exchange for his
22 testimony, a substantial assistance motion
23 would be filed and that it would recommend a
 12

1 substantial reduction in his sentence," end

2 quote. That is a quote from my brief -- from
3 our brief on behalf of Mr. White; a brief and
4 claim that was adopted by Mr. Lloyd and by Mr.
5 Anderson, through their counsel.
6 Petitioner asserts as fact a claim
7 for which he has no evidence.
8 False.
9 The State did not promise Wisher that
10 it would file a motion for substantial
11 assistance.
12 That is what they told this Court.
13 They continued:
14 "Wisher testified" -- and now they
15 don't dispute this -- "that no one promised
16 him such a motion would be filed, and
17 petitioner has not presented any evidence to
18 the contrary."
19 These claims are clearly false and
20 meritless.
21 Continuing later:
22 Put simply, the State and the
23 circumstances related to witness cooperation
 13

1 in this trial could not have been more

2 transparent.
3 That was a lie. They are trying to
4 deceive this Court. They deceived
5 Plaintiff-Petitioner's jury, and now they are
6 trying to deceive this Court.
7 And only after this Court held them
8 to task, only after they had no choice but to
9 come forward, they made a half-baked
10 admission. They said we made misstatements in
11 post-conviction. But don't look over here,
12 Judge.
13 So we came forward and we showed you
14 what "over here" was. That was our duty on
15 behalf of our clients. That is our duty on
16 behalf of the State of Delaware.
17 And to make no mistake about it,
18 they called Deputy Attorney General Denney,
19 Deputy Attorney General McCloskey, Deputy
20 Attorney General Flaschner --
21 F-L-A-S-C-H-N-E-R -- who signed that brief.
22 Denney signed it.
23 They were on the signature block.
 14

1 Serious allegation of ethical

2 violations by the State. This was a serious
3 violation of ethical violations by the State.
4 And they were sitting on the evidence
5 that proved it was true; that proved it was
6 true.
7 And this is not an academic exercise,
8 Judge.
9 Mr. White is in prison.
10 Mr. Lloyd is in prison.
11 Mr. Anderson is in prison.
12 They have been taken away from their
13 families. They have lost time. They have
14 lost loved ones. Mr. White has lost numerous
15 loved ones since he has been in, because the
16 State decided to play unfair.
17 What did the State say in closing
18 argument?
19 The State said this is a search for
20 the truth.
21 The State was hiding the truth the
22 entire time.
23 The entire time.
 15

1 And only because this Court held them

2 task, only because we pushed them to disclose
3 discovery that they were reluctant to
4 disclose -- I wonder why -- did they admit it.
5 It was false testimony. It was not
6 corrected. It was relied upon in closing
7 argument for a critical witness. And the
8 State can't dispute that it is a critical
9 witness.
10 He testified intimately about the
11 relationship that he had with Mr. White and
12 with Mr. Lloyd; the relationship that helped
13 explain the structure of the alleged drug
14 conspiracy, the alleged RICO charge here.
15 And he testified extensively about
16 drug recoveries, about efforts to conceal
17 those drug recoveries, about coordination with
18 an attorney for Mr. White, a coordination with
19 an attorney for himself, the same attorney.
20 It's just a shame. It's just a
21 shame. It is a real shame because they
22 corrupted the truth seeking function of a jury
23 trial. And they did it intentionally.
 16

1 So we have every element of a Napue

2 violation.
3 False testimony. Not corrected.
4 Relied upon.
5 And they might say they didn't know
6 about it. That is exceedingly implausible.
7 Yes, we know that Deputy Attorney
8 General Denney was the one who conducted the
9 interview where the promises were made. But
10 Deputy Attorney McCloskey conducted the direct
11 examination of this witness. And Deputy
12 Attorney General Denney was sitting at the
13 table during the trial.
14 What are the odds that Mr. McCloskey
15 didn't review every piece of recorded evidence
16 concerning this witness's cooperation before
17 he got up on that stand?
18 THE COURT: It doesn't matter, does
19 it?
20 MR. CIOSCHI: No, it doesn't.
21 Because at the end of the day, Judge, as you
22 are well aware it is -- for Napue purposes,
23 for Giglio purposes, it is knew or should
 17

1 have known. Knew or should have known.

2 And under Giglio, knowledge of those
3 promises are imputed to the entire
4 prosecutor's office, not to mention the
5 Prosecution team right here.
6 The State has the burden of proving
7 beyond a reasonable doubt that this false
8 testimony, which it relied upon twice in
9 closing argument, didn't affect the judgment
10 of the jury, or was harmless. Because Napue
11 incorporates the Chapman standard. That is
12 according the Agurs, A-G-U-R-S, and Bagley,
13 B-A-G-L-E-Y.
14 And I can give you the exact cite.
15 THE COURT: It is in your papers.
16 MR. CIOSCHI: It is in my papers,
17 that is correct.
18 And Haskell from the Third Circuit,
19 H-A-S-K-E-L-L, reaffirms this principle of
20 Supreme Court jurisprudence.
21 Harmless beyond a reasonable doubt,
22 that is their burden to prove. They can't.
23 They can't.
 18

1 Wisher testified about lots of heroin

2 being recovered from his house. Drugs. More
3 that could have been recovered, but were
4 secreted out as part of the alleged
5 conspiracy.
6 Wisher testified about coded language
7 used for guns on jail calls and communications
8 between alleged members of this corrupt
9 organization.
10 He testified that Eric Lloyd runs the
11 show. He passed the torch to Dwayne White.
12 There was no one higher up in the
13 organization, the supposed organization, than
14 Dwayne White, than Eric Lloyd, according to
15 him. That when he got home from prison -- or
16 when he was about to come home from prison,
17 Eric Lloyd was his plug into drug dealing. He
18 connected him into this conspiracy again.
19 And Dwayne White eventually, when
20 Eric Lloyd went back to prison, took over.
21 He testified extensively, as I said
22 before, about interactions with Joseph Benson,
23 about interactions that implicated --
 19

1 allegedly implicated Mr. White in trying to

2 unduly influence Mr. Wisher's testimony.
3 And he testified that he was present
4 at the so-called pass the torch party, which
5 was -- that's kind of my shorthand for when
6 Eric Lloyd went to Federal prison and
7 supposedly gave the torch, or the reins of the
8 drug organization, to Mr. White.
9 And then he testified about dealing
10 with Dwayne White as the head honcho after
11 Eric Lloyd was locked up.
12 The day after the party they started
13 working on drug sales in earnest.
14 He testified about the ledger that
15 was allegedly found in Dwayne White's
16 apartment, which was a big piece of the
17 State's evidence.
18 And he testified again about
19 Benson's -- Joseph Benson's involvement in
20 paying for Dwayne -- in representing William
21 Wisher at his preliminary hearing on the case
22 that he eventually got this secret deal for;
23 That he eventually was promised a
 20

1 substantial assistance motion for;

2 That he eventually was promised by
3 Mark Denney a big chunk -- the State would
4 recommend a big chunk, 10 to 15 years, if he
5 testified truthfully.
6 There is no question, there is no
7 question before this Court as to the
8 significance of the due process violations at
9 issue here.
10 So we ask, first and foremost, that
11 this Court strongly consider granting summary
12 relief today so that these men can have the
13 fair shake that the Constitution promises
14 them.
15 Just one quick note before I conclude
16 on that. Or two more quick notes.
17 Mr. McCloskey also referenced that
18 Dontae Sykes, another cooperator, hoped --
19 using the same language as Wisher -- hoped for
20 a sentence reduction.
21 Imagine what the jury would have
22 thought of that representation had the truth
23 been reveled about Mr. Wisher.
 21

1 In rebuttal, right before former

2 Deputy Attorney General Denney concluded his
3 argument, he said something very choice that I
4 want to quote to this Court:
5 "No lawyer who is trying to craft a
6 narrative to match manufactured truth should
7 be practicing law. There is only one truth."
8 That is what they did. They did what
9 they told the jury they wouldn't do.
10 And Mr. McCloskey, during Wisher's
11 examination on redirect examination said in so
12 many words, or elicited in so many words from
13 Mr. Wisher, that nobody told him what to say,
14 and that he was telling the truth.
15 These violations should not be
16 allowed to stand, Your Honor.
17 Your Honor knows how significant and
18 how grave this is. The State should know.
19 The State should concede relief. They haven't
20 yet. All they have done is conceded they
21 misled this Court in post-conviction.
22 But the necessary implication of that
23 is that they misled these mens' jury in the
 22

1 trial for their life.

2 This Court should grant relief on
3 this due process violation today.
4 Thank you.
5 THE COURT: Let me ask you a
6 question.
7 A little bit off topic, since you
8 represent Mr. White.
9 MR. CIOSCHI: Please.
10 THE COURT: There appears to me, and
11 I can't quite figure out why, that there is a
12 factual dispute about whether the State
13 provided Mr. Sykes's cooperation agreement
14 before the trial in this case. Your brief
15 says they didn't do it. Their brief says
16 they did.
17 Can you shed some light on this one
18 for me?
19 MR. CIOSCHI: Yes.
20 So the first time that I -- so I have
21 been counsel with Mr. Schwartz, Karl Schwartz,
22 who is not able to be present today, and of
23 course Mr. Mondros has been local counsel on
 23

1 this Rule 61 since before it was filed. And

2 as Your Honor knows, we have alleged due
3 process violations concerning the
4 consideration, the consideration promised and
5 not disclosed to Dontae -- D-O-N-T-A-E --
6 Sykes, Tyrone Roane, R-O-A-N-E, and then
7 Wisher, who we have been talking about
8 excessively about. In discovery over the past
9 few months -- in fact, on I think it was
10 October 24th, 2024, I believe the State
11 disclosed, for the first time -- and I had
12 never seen it before -- a cooperation
13 agreement with Dontae Sykes in State Court.
14 Now we knew, Your Honor -- and the
15 court claim concerning Sykes before this
16 moment was that Sykes was promised or received
17 a tacit understanding, some type implication,
18 some type of wink and a nod concerning his
19 Federal case, and testified falsely about
20 that.
21 THE COURT: I get that.
22 MR. CIOSCHI: Our understanding from
23 the trial transcript was that before
 24

1 October 24th there was no cooperation

2 agreement from the State concerning his State
3 case. But that what happened was when the
4 State case was dropped, the Feds just adopted
5 it.
6 That cooperation agreement that was
7 disclosed to us that I had never personally
8 seen before that was not in the file that I
9 received from prior counsel suggested to me
10 very clearly that there was, in fact, a
11 cooperation agreement with Mr. Sykes for the
12 State and for his State case; that that was
13 not disclosed, and that misstatements were
14 made about it at trial.
15 I mean, it is not quite as bold a
16 misstatement as the ones concerning Wisher.
17 Those are lies.
18 The testimony that we cited in our
19 amendment concerning Sykes and the State
20 cooperation agreement has to do with him
21 saying the charges were adopted by the Feds.
22 Well, that is not the full story.
23 THE COURT: So let me make sure I
 25

1 understand your answer to the question.

2 MR. CIOSCHI: Yes.
3 THE COURT: Was there any -- in your
4 file that you received from trial counsel --
5 MR. CIOSCHI: Trial counsel and
6 direct appeal counsel, Mr. Modica.
7 THE COURT: -- was there any
8 cooperation agreement of any kind with
9 respect to Sykes?
10 MR. CIOSCHI: No.
11 That is why we alleged it was
12 suppressed.
13 And we understand the State has a
14 different view on that. But, as Your Honor
15 has said previously and I think suggested in
16 correspondence, that is a question of fact if
17 we do get to an evidentiary hearing at this
18 point.
19 I mean, frankly, at this juncture we
20 are not inclined to trust the State's
21 representations about what has been passed.
22 THE COURT: Okay.
23 Thank you.
 26

1 MR. CIOSCHI: Thank you.

2 THE COURT: Mr. George.
3 MR. GEORGE: Thank you, Your Honor.
4 Zachary George on behalf of Eric
5 Lloyd.
6 And on Mr. Lloyd's behalf I adopt and
7 incorporate Mr. Cioschi's comments. And I am
8 not going to repeat them.
9 I also trust that the Court had
10 opportunity to review Mr. Lloyd's reply brief
11 that was submitted only within the past couple
12 of days.
13 THE COURT: Just let the record
14 reflect that I have reviewed everything.
15 And I also listened to the recordings
16 that were sent to me.
17 MR. GEORGE: Thank you, Your Honor.
18 At this juncture, it is hard to read
19 this case any other way.
20 The State has to -- they are boxed
21 in. And I don't see any way to avoid a
22 concession.
23 The State has admitted that it made a
 27

1 misrepresentation to the Court

2 post-conviction.
3 Let's assume for the sake of my
4 comments at this moment that what the State
5 was doing on December 13th was correcting a
6 representation that they inadvertently made.
7 I am not saying it was inadvertent,
8 but let's assume that it was. It necessarily
9 has to be an admission that the same
10 misrepresentation was left uncorrected to the
11 jury. And there is no other way around it.
12 I would also like to point out some
13 of the comments highlighted in the reply brief
14 and also that are reflected in the secret
15 recording, which is a narrative by Mark Denney
16 at the end of it actually telling the witness
17 to hide this promise from the jury; that if
18 the jury found out about this promise they
19 wouldn't believe him. That they would destroy
20 the State's case.
21 THE COURT: I am well aware of the
22 words.
23 MR. GEORGE: I have never seen
 28

1 anything like this. It is remarkable.

2 I don't see any way for the State to
3 solve this problem, other than to concede.
4 And I am not so sure they are going to,
5 frankly. And that is why we are here. And we
6 are asking the Court to make this ruling now
7 for them.
8 Mr. Lloyd has been in prison for over
9 six years. He has over a 30 year sentence.
10 And, also, it is important to note
11 this absolutely would have reasonably affected
12 the thinking of the jury. Which is a
13 relatively low standard, frankly. But the
14 State's admitted as such. I mean, the reason
15 Mark Denney told Mr. Wisher not to tell the
16 jury about it was because he knows it would
17 affect the judgment of the jury.
18 And then beyond that, it is the
19 State's burden, obviously, under Chapman to
20 show harmless. But on that point, if we get
21 to that today, I would like to be heard again.
22 This is certainly not harmless error
23 as it pertains to Mr. Lloyd.
 29

1 Mr. Lloyd's case is devoid of any

2 real evidence against him.
3 Every single piece of evidence
4 against him came from these turncoat
5 witnesses, as we have been referring to them.
6 And as Mr. Cioschi alluded to,
7 Mr. Wisher said Eric Lloyd runs the whole
8 giddyap until he passed it on.
9 He describes hundreds of thousands of
10 dollars in drugs, and he attributes all of
11 that to Mr. Lloyd.
12 And I want to harken back on that
13 point to Megan Davies' comments to the jury in
14 closing argument, where she highlighted the
15 comment that Mr. Wisher had said that had been
16 disclosed, which was, I don't know anything
17 about Mr. Lloyd, but if you want me to say it
18 I will say it. And then, sure enough, he said
19 all sorts of things after this promise was
20 made.
21 And, I mean, there is no other way to
22 slice it. This was a promise. He said I
23 promise you this discussion will happen.
 30

1 I would implore the State to concede.

2 It is the right thing to do. Justice requires
3 it. There is no other way. We cannot
4 tolerate in the State trials that are built on
5 testimony like this behavior like this by the
6 Prosecutor's office.
7 I am interested to hear what the
8 State has to say about this.
9 Do they throw Mark Denney under the
10 bus and say it was all him and we had nothing
11 to do with it? Maybe. Maybe not. It doesn't
12 matter.
13 THE COURT: That is the point, it
14 doesn't matter.
15 MR. GEORGE: They need to make this
16 right.
17 So, Your Honor, I don't mean to
18 belabor the point. But we join in all of Mr.
19 Cioschi's arguments. We ask for relief today.
20 And then I will save my comments
21 regarding discovery for later, if we come to
22 that, if that is all right for the Court.
23 THE COURT: Thank you.
 31

1 MR. SRIVATSAN: Good morning, Your

2 Honor.
3 I am not going to belabor the points.
4 I am going to adopt everything that
5 Mr. Cioschi and Mr. George, Zachary George,
6 said before I came here to the podium.
7 But I do want to draw the Court's
8 attention to a number of points which attest
9 to the fact that the State has not just now in
10 the Rule 61 proceedings, but throughout the
11 proceedings, from the very outset of the
12 charges being instituted against my client --
13 and I am sure against others -- has involved
14 itself in duplicity, and deception, and fraud
15 upon the Court. As well as in their briefs.
16 As well as at trial.
17 And, so, this is not just something
18 which cropped up now and that the Rule 61
19 counsel have suddenly discovered, hey, there
20 are lots of documents which were not given at
21 trial, there has been a pattern.
22 And I just want to quickly talk about
23 that pattern, at least in Mr. Anderson's case.
 32

1 Before that, I want to draw the

2 Court's attention to my opening brief. And I
3 suspected there was a lot of deception.
4 So on Page 1 of the opening brief, I
5 draw your attention to -- and I am going to
6 read it out and put it on the record because
7 it epitomizes all of the problems that we are
8 facing today, all of the Defendants.
9 The effectiveness of any human
10 designed system endures in the integrity of
11 its component parts that coalesce to form a
12 symbiotic whole.
13 A weakness in any one systemic part
14 causes failure.
15 A jurisprudential system is even more
16 complex. It depends on adversarial players
17 who are intended to be married by a mutual
18 submission to the mandate of governing
19 constitutional, state and federal.
20 Yet, deviations occur when
21 adversarial actors ignore their obligations
22 and diminish and accuse rights under the
23 constitutional framework.
 33

1 When State actors failed to surrender

2 their subjective notions of fairness, which is
3 what happened here, at the altar of
4 constitutional jurisprudence, which is what
5 Mr. Cioschi and Mr. George were alluding to,
6 and all of our papers have said.
7 When actors fail to surrender their
8 subjective notions of fairness at the altar of
9 constitutional jurisprudence, as happened in
10 Mr. Anderson's case, systemic failure occurs,
11 causing a miscarriage of justice. That is
12 precisely what happened here.
13 I knew about this and suspected it
14 because of the trial transcripts and the
15 statements made by Mr. McCloskey, and even by
16 Miss Flaschner, I think, in the closing
17 arguments, that the turncoat witnesses did not
18 receive any benefits. And now we discover
19 that they received benefits.
20 And there was subtle untransparent
21 opaque agreements made, which I put in my
22 brief as well, the claim Number 7, about
23 Mr. Wisher.
 34

1 But there is more. Not what Mr.

2 Cioschi just said about Sykes, but about
3 Roane, as well.
4 And Your Honor knows from the papers,
5 especially my Claim 6, that Mr. Roane received
6 $30,044 --
7 THE COURT: Let's focus on
8 Mr. Wisher.
9 Let's focus on Mr. Wisher.
10 MR. SRIVATSAN: So I am coming to
11 Mr. Wisher now.
12 Mr. Wisher, right from the outset,
13 there has been falsity. And I just want to
14 quickly touch upon how that trend of falsity
15 has pervaded Mr. Wisher's situation with
16 regards to my client.
17 In the warrant they claim that
18 Mr. Wisher had met Mr. Anderson. He had not.
19 Mr. Wisher recently in testimony --
20 in a interview said that, and he confirmed
21 that. He said, I never met Mr. Anderson on
22 the street.
23 But they used it. And they used it
 35

1 to pin it with Mr. White.

2 And they said he had met Mr. White
3 and Mr. Wisher in the City of Wilmington on
4 September 1st, 2nd, or 3rd of 2017. Which
5 never happened.
6 But that was then.
7 And then from there Wisher's
8 situation has grown and grown and grown.
9 But as the evidence of his
10 connectivity to my client has been
11 strengthened and strengthened and
12 strengthened, and at trial they made these
13 statements saying no benefits. And we find
14 that they did receive benefits, Your Honor.
15 So this is not some off chance
16 localized, isolated event.
17 Pretrial, at trial, they have already
18 covered it, the statements that were made that
19 no benefits were received. And I am not going
20 to belabor the point.
21 I just want to go to my opening brief
22 again on Page 115. And I am just picking out
23 some instances.
 36

1 This is about Roane.

2 On the 6/7 transcript, Page 158, Line
3 Numbers 22 and 23, Mr. Roane discussed his
4 plea deal with the State of Delaware. But it
5 wholly excluded any mention of the sweet deal
6 he got in the form of cash and noncash
7 assistance.
8 I am not going to belabor this point,
9 but they asked him:
10 So, cooperation is part of the plea?
11 Yes.
12 And is there a document that details
13 your cooperation?
14 No.
15 That was a memorandum of
16 understanding. That was dated December 12th
17 or December 13th of 2019, six months after
18 trial. Conveniently.
19 Talking in the past tense for a
20 cooperation at trial.
21 Trial was over six months ago. The
22 document was already in place. And it was
23 signed later.
 37

1 That goes to my reply brief that I am

2 just going to point out, Your Honor.
3 THE COURT: Let's focus on Wisher,
4 please.
5 MR. SRIVATSAN: Yes.
6 So my brief that I filed recently on
7 Claim Number 7 talks about Mr. Wisher's
8 dialogue on Page Number 6.
9 If you can see Page Number 6, it
10 states very clearly. He says the State said,
11 We can come to a longer term agreement asking
12 stuff that you care about, that we care about
13 for your family's safety, and that kind of
14 thing.
15 That never came up at trial.
16 Trial counsel never had an
17 opportunity. They were blindsided.
18 We can tell the judge, like, listen,
19 we're having a productive conversation. That
20 productive conversation never came out.
21 In the affidavit that was filed by
22 Mr. Witherell, he states very clearly he did
23 not receive any documentation, the proffers,
 38

1 et cetera, from the State.

2 The State keeps insisting that he did
3 receive, but he did not.
4 Do you want to get the plea done --
5 that is a 21 year plea of Mr. Wisher -- and
6 then we can keep talking, did you guys think
7 about that?
8 And I have outlined these portions in
9 my brief.
10 Page 7, there is a second page where
11 he was -- there is a lot of scribble on it.
12 You can go back to prison with the plea
13 paperwork, right, for a long time with no
14 cooperation agreement on it.
15 That was suppressed.
16 You know what I mean? So no one will
17 suspect anything worse if you go back.
18 So the deception was in place with
19 Mr. Wisher also, way before trial.
20 This is a breakdown in the justice
21 system.
22 There is a breakdown in the due
23 process system.
 39

1 This is completely ignoring

2 everything the United States Supreme Court has
3 ruled; Napue, all of the other cases.
4 It is completely ignoring the
5 Delaware Constitution's rights, which are
6 given to my client.
7 It is a complete breakdown.
8 If the defense does not know what the
9 State has in its possession before trial, they
10 cannot prepare for trial. And they cannot
11 effectively represent the client. At least I
12 can't.
13 I can't cross examination the
14 witnesses on the stand effectively,
15 aggressively, to get them to state on the
16 record if I don't know about the cooperation
17 agreement, if I don't know about the
18 substantial benefits agreement, if I do not
19 know about their probation being yanked and
20 closed off so they can leave the State.
21 The system is broken.
22 I don't think -- honestly, Your
23 Honor, this is my feeling. The State has
 40

1 committed egregious violations under the code,

2 ethical code, which is very critical. That is
3 why we are officers of the State. We have a
4 duty to be honest with the court.
5 They were not honest with the Court.
6 They were not honest with the defense
7 counsel.
8 They are not honest with us.
9 We request the Court to grant summary
10 judgment.
11 THE COURT: Thank you.
12 MR. SRIVATSAN: Thank you, Your
13 Honor.
14 MR. VELLA: Your Honor, good
15 morning. Andrew Vella on behalf of the
16 State. And may it please the Court.
17 If the Court would like to focus on
18 one particular thing, I am happy to address
19 whatever it is that is on the Court's mind.
20 Otherwise, I am happy to respond. And I will
21 respond briefly.
22 THE COURT: Go ahead.
23 MR. VELLA: Okay.
 41

1 THE COURT: Let's focus first on

2 Wisher.
3 MR. VELLA: So I guess that is the
4 basis for the request for -- we will call it
5 summary judgment.
6 Under Rule 61, if we start out with
7 the Rule, the Rule calls for summary
8 dismissal. But there is no mechanism in a
9 Rule 61 for the granting of summary judgment.
10 Even if the Court were to read the
11 Rule as allowing for that possibility, here,
12 although all three defense counsel appear to
13 adopt the position that there are no issues,
14 material issues of fact here. And the State
15 has conceded so many things. Neither of those
16 things is accurate. There are issues of
17 material fact.
18 THE COURT: Let's stop for a second.
19 MR. VELLA: Sure.
20 THE COURT: You agree that the State
21 did not produce the interview between
22 Mr. Wisher and Mr. Denney prior to trial?
23 MR. VELLA: No, we do not agree.
 42

1 We do not agree.
2 We do not know at this point.
3 I believe that Mr. Denney would say
4 he sent that -- a recording, not a transcript,
5 a recording of that interview to all defense
6 counsel in -- we will call it after it was
7 made. So December, January, February.
8 THE COURT: Let me ask this.
9 I am going to muse a little bit. And
10 you guys can get up and deal with my muse
11 after Mr. Vella sits down.
12 You all know my background. I don't
13 come from this world. But in my world, if I
14 transfer a file to another lawyer, I will
15 pretty much know what was in that file. And
16 it baffles me that one side says I didn't send
17 it, and the other side says, "I sent it." I --
18 I just -- I can't get my head around that one.
19 MR. VELLA: Therein lies the issue
20 here with discovery and post-conviction --
21 THE COURT: Before you answer that,
22 let me ask one more question.
23 Does the State agree that it had an
 43

1 obligation to send the Wisher interview to the

2 defense counsel?
3 MR. VELLA: Oh, yes.
4 THE COURT: Okay.
5 All right.
6 MR. VELLA: Yes.
7 It is a prior statement of a witness.
8 It is Giglio material.
9 It is impeachment material.
10 Certainly.
11 Certainly.
12 Absolutely.
13 There is an obligation to turn that
14 over. Without question.
15 Just getting back real quick on the
16 Court's musing.
17 Sometimes the problem in Rule 61 with
18 discovery is it is hard to recreate that file
19 five years later. It is certainly hard for us
20 to recreate that file five years later. And
21 it is really just -- you have no idea what
22 the -- I don't know what trial counsel is
23 doing with their file, or how they are keeping
 44

1 their file. Post-conviction doesn't know.

2 The only ones with access to those
3 files to what trial counsel had is
4 post-conviction counsel. We are not rummaging
5 around saying --
6 THE COURT: What does your file
7 reflect as to whether this was sent to -- the
8 Wisher statement was sent --
9 MR. VELLA: Unclear, because there
10 are cover letters that happened after the
11 protective order that were put in that were
12 purposefully ambiguous.
13 "Please find enclosed additional
14 discovery."
15 "Please find enclosed a recording."
16 Something like that.
17 So you are going to get -- we might
18 have cover letters from January or February
19 that went out to defense counsel. We couldn't
20 tell you what is in them because they were
21 purposefully ambiguous after we realized there
22 were problems with the discovery getting out
23 in the case. So it is going to be hard.
 45

1 And just kind of circling back, it is

2 hard to recreate this discovery.
3 And the problem, at least from where
4 I sit, is the State has a Brady obligation.
5 And it is a continuing obligation. And the
6 State satisfies its obligation when it sends
7 those materials to trial counsel.
8 If post-conviction doesn't happen to
9 have those items, it is not another Brady
10 violation. There is no more of a Brady
11 obligation. The State has satisfied its
12 obligation. And the problem is --
13 THE COURT: If you sent it the first
14 time.
15 MR. VELLA: If we sent it the first
16 time, agreed. Agreed.
17 But the problem is we don't know what
18 post-conviction counsel has seen.
19 We don't know whether this is just
20 some sort of test for gotcha. Hey, we don't
21 have this. You probably didn't send it.
22 No idea whether -- we don't know what
23 they have and what they don't have.
 46

1 We asked for a list. And we got one

2 two days ago. And I think it has been helpful
3 to say, like, if you identify stuff, identify
4 document, identify a recording, identify
5 something for us. We will look for it and we
6 will get it to you. Whether it is Brady or
7 not, tell us what you need, and we will look
8 for it.
9 It is the any and all and trying to
10 play the, well, you know, we asked for all of
11 this stuff and you didn't send us any of it.
12 And at this point we are kind of
13 frustrated with the -- you are asking for very
14 general things, and if you are more specific
15 we can help.
16 We don't know what trial counsel --
17 we know, to some degree, what we sent to trial
18 counsel. Probably not a hundred percent.
19 That is just the way a file is in the end.
20 And to later claim a Brady violation
21 for something that trial counsel -- in some
22 cases trial counsel says we had these things.
23 We contacted Megan Davies.
 47

1 Did you have these cooperation

2 agreements? Yeah, I did.
3 And that is not coming from
4 post-conviction counsel who is saying no.
5 Well, we don't have them. Or they didn't have
6 them.
7 THE COURT: Did any trial counsel in
8 this case say to you we had the Wisher
9 interview?
10 MR. VELLA: No.
11 Megan Davies --
12 THE COURT: Was it asked?
13 MR. VELLA: Yes. We have asked
14 Megan Davies. She has to go back -- she is
15 on maternity leave right now. So when she
16 gets back to her office in January she is
17 going to see.
18 THE COURT: Let me stop you and let
19 me ask defense counsel.
20 Did you ask your corresponding trial
21 counsels whether or not they had the Wisher
22 interview?
23 Mr. George is first. He is off his
 48

1 feet before Mr. Cioschi could get off his

2 feet.
3 MR. GEORGE: I spoke to Megan
4 Davies.
5 Megan Davies is extremely responsive
6 to me. And to say she on maternity leave is
7 misleading because she --
8 THE COURT: Let's not worry about
9 that. If she is responsive to you, that is
10 enough.
11 MR. GEORGE: I asked her if she
12 received this. She told me no.
13 THE COURT: Mr. Cioschi, did you
14 contact --
15 MR. CIOSCHI: Your Honor, I haven't
16 asking specifically about the Wisher
17 recording. But I made this claim based on
18 what is in the Wisher recording ages ago.
19 Mr. Burke filed an affidavit saying
20 no, I did not know he was promised anything;
21 No, I do not know that he was
22 promised a substantial assistance motion;
23 No, I did not know that he was
 49

1 promised a big chunk, or any particular

2 recommendation would be made in that
3 substantial assistance motion by the State.
4 That is in a filed affidavit.
5 THE COURT: Okay.
6 Mr. Anderson's counsel.
7 MR. SRIVATSAN: I did contact both
8 counsel. Mr. Maurer. And I emailed him.
9 And he told me that, Whatever I had, I had
10 given it to Mr. Andy Witherell.
11 I contacted Mr. Andy Witherell. I
12 didn't hear back from him at all.
13 I specifically asked about the audio.
14 And I attached the audio to the email and sent
15 it to him.
16 So I sent it to both counsel.
17 THE COURT: Why don't you do this.
18 Why don't you send another letter to
19 Mr. Witherell. And in that letter you say to
20 him the Judge asked me to write to you and he
21 asked me for you to respond to my request
22 within 14 days of this letter.
23 MR. SRIVATSAN: I will do that, Your
 50

1 Honor.
2 Do you want me to do that for Mr.
3 Maurer, as well?
4 Mr. Maurer was the first counsel.
5 THE COURT: You know what, I don't
6 remember when Mr. Maurer got out.
7 If when he got out doesn't make any
8 sense in the timing, you don't need to. But
9 if you think you need to, do it.
10 MR. SRIVATSAN: It is not going
11 to --
12 THE COURT: I am more interested in
13 you getting an answer from Mr. Witherell.
14 MR. SRIVATSAN: Certainly.
15 THE COURT: You tell him I told you.
16 MR. SRIVATSAN: And I did write to
17 Mr. Witherell, and I told him he had not
18 signed the --
19 THE COURT: Why don't you do this.
20 Why don't you copy me on the letter so he
21 sees it.
22 MR. SRIVATSAN: I will do that.
23 THE COURT: We will get a response
 51

1 from him.
2 All right, Mr. Vella, you are back
3 up.
4 MR. VELLA: If the Court wants -- I
5 know Mr. George came up here and said we were
6 misrepresenting things -- I can let Mr.
7 McCloskey, because he is the one who talked
8 to Miss Davies.
9 So if you would like some
10 clarification on that point, we are happy to
11 do that.
12 THE COURT: Sure.
13 MR. MCCLOSKEY: Your Honor, thank
14 you.
15 I did reach out to Miss Davies. We
16 have had at least two conversations. The
17 first one, when this issue about the
18 cooperation agreements came up.
19 I contacted Miss Davies. She said
20 she had to go to her conflicts counsel office
21 in Wilmington to check the file because that
22 is where it is, and that she found the
23 cooperation agreements for all three
 52

1 individuals in her file.

2 So I don't -- the fact that we said
3 that Miss Davies is on maternity, she
4 absolutely is responsive. She responds to
5 emails, calls. We are not saying that we
6 can't get in touch with her. The issue is she
7 has to get to her physical files, which are in
8 Wilmington.
9 THE COURT: What you are basically
10 telling me, there is an issue of fact as to
11 whether or not the cooperation agreements,
12 including Wisher's, was sent pretrial.
13 MR. MCCLOSKEY: I don't know that
14 there is an issue of fact as to the
15 cooperation agreements.
16 Miss Davies says that she had the
17 three cooperation agreements in her file.
18 That is what she told us on the phone.
19 With respect to the December Wisher
20 proffer, I spoke to her -- I can't remember
21 now if it was earlier this week or late last
22 week. I think it was a few days ago. And she
23 said she would have to check her physical file
 53

1 to see if there was a recording in there.

2 She did tell me that she did not
3 recall that proffer. But I can't say one way
4 or the other. She said she would need to
5 check her file to see if it was in there.
6 So that is the state of where those
7 conversations are.
8 And just, if I may while I am at the
9 podium since my name has been mentioned ad
10 nauseam by defense counsel, Miss Flaschner and
11 I got in the case after the vast majority of
12 discovery was produced.
13 This is a very voluminous case that
14 we were trying to get up to speed on in a
15 short amount of time in order to help with the
16 prosecution of the case.
17 When I asked William Wisher if he had
18 been promised anything and he said no, I
19 believed that to be the truthful answer.
20 When I argued it to the jury that he
21 had not been promised anything, I believed
22 that to be the truthful answer.
23 I have no notations about what was
 54

1 discussed about the cooperation agreement in

2 my prep for Wisher.
3 I believed that to be the truth.
4 So for all of defense counsel to
5 state my name, point the finger at me that I
6 intentionally mislead the Court and the jury,
7 that is not the case.
8 THE COURT: Let me try to do this in
9 the vernacular and cut to the chase.
10 Do you have any recollection of
11 knowing about the December Wisher interview
12 with Mr. Denney?
13 MR. MCCLOSKEY: As I stand here
14 today, Your Honor, I do not.
15 As I was going through all of my prep
16 for my direct notes, I had no reference to
17 that proffer at any time.
18 THE COURT: Okay.
19 Thank you.
20 Miss Flaschner, I assume the same is
21 your recollection, as well?
22 MS. FLASCHNER: That is correct,
23 Your Honor.
 55

1 As I stand here today, I have no

2 recollection of knowing about that.
3 THE COURT: You agree it doesn't
4 make any difference that they didn't know
5 about it?
6 MR. VELLA: The should have known in
7 terms of what is in our file and what we are
8 supposed --
9 THE COURT: For purposes of Napue
10 and Constitutional law and those principles
11 --
12 MR. VELLA: The Napue violation --
13 well, that gets to the heart of kind of what
14 is the statement. What is the testimony on
15 the record. Whether it is false. Whether it
16 is inaccurate. And, yes, you know what,
17 whether the prosecutors should have known it
18 was false or not. Known or should have known
19 this was false testimony.
20 And I think there is a question about
21 false versus inaccurate versus what -- and
22 what prosecutors knew.
23 While that certainly doesn't guide
 56

1 the decision, I think it is helpful to the

2 Court to have that background.
3 THE COURT: I get that it is
4 helpful. And I appreciate that.
5 But if it is in Mr. Denney's
6 knowledge, it gets imputed.
7 MR. VELLA: It gets imputed, yes.
8 For Brady and Giglio purposes, and Napue --
9 THE COURT: It gets imputed.
10 MR. VELLA: It gets imputed.
11 The one thing that certainly here,
12 and, again, summary disposition, the State
13 would suggest is not something that rule
14 provides for, but also not appropriate because
15 there are issues of material fact. And
16 because the third element -- there is -- the
17 third element of a Napue violation and a Brady
18 violation and a Giglio violation, all of those
19 things, for them to be an actual violation,
20 the alleged violation has to be material. And
21 when we talk about materiality, it has to be
22 material such that it causes a lack of
23 confidence in the outcome.
 57

1 There has to be a reasonable

2 probability that the evidence would have
3 affected the outcome. And when we say would
4 have affected the outcome, it undermines
5 confidence in the verdict. That is the
6 standard for materiality.
7 And on this record as we stand here
8 now, I don't know that the Court has enough in
9 front of it to make that decision.
10 THE COURT: What else do you think I
11 need to have in front of me?
12 MR. VELLA: I think you would have
13 to have testimony from the witnesses that,
14 apparently, post-conviction counsel wants to
15 call.
16 I think this is an additional claim
17 that should be litigated much the same as the
18 other claims.
19 I don't think that at this point the
20 State's position is summary disposition of
21 this is not something that we are going to
22 concede. Summary disposition is not provided
23 for in the rules. And summary disposition is
 58

1 not appropriate at this time because there are

2 issues of material fact.
3 THE COURT: Okay.
4 Further from the defense?
5 MR. CIOSCHI: I have some points
6 that I would like to make, if Your Honor
7 would hear them, concerning what the State
8 has said.
9 Not to reiterate my points, but.
10 THE COURT: Sure.
11 MR. CIOSCHI: There can be no
12 dispute of fact that this recording was not
13 produced. And the reason we know that is
14 because in no uncertain terms, Your Honor, at
15 trial Wisher said on cross examination to
16 counsel for Lloyd, Megan Davies, I understand
17 what you are reading but they didn't promise
18 me nothing.
19 When he said that, if Megan Davies
20 had that recording, what would she have done
21 with it?
22 You know what she would have done
23 with it.
 59

1 No dispute of fact.
2 Again, Mr. McCloskey's direct
3 examination:
4 Is it true that you are hoping for
5 the possibility of a substantial assistance
6 motion from the State?
7 Yeah.
8 And is it your understanding that a
9 substantial assistance motion is a way of
10 potentially having your sentence reduced?
11 Wisher's response: But it ain't
12 guaranteed.
13 Let's talk about that. Has anybody
14 guaranteed to you that you are going to
15 receive a substantial assistance motion?
16 No.
17 Even if a substantial assistance
18 motion was filed, has anybody promised you
19 what that recommendation would be?
20 No.
21 We know that that is false, too.
22 So it could be a six month reduction?
23 Yeah.
 60

1 And down lower:

2 And nobody has promised you what is
3 going to happen at a substantial assistance
4 hearing?
5 No.
6 More importantly:
7 And no one has promised you whether a
8 motion is going to be filed, a substantial
9 assistance motion?
10 No.
11 That is false testimony.
12 If this was disclosed to trial
13 counsel, this recording, would that have been
14 allowed to stand? Would that have even been
15 elicited? No.
16 No.
17 And on cross examination Ms. Davies
18 would have ended her colloquy back and forth
19 with Mr. Wisher with, I wasn't promised
20 nothing. Oh, no. What she would have done
21 is, Oh, how about this? I'm going to play
22 this recording where they not only say we're
23 going to file a substantial assistance motion
 61

1 for you, they say you're going to get a big

2 chunk on a recommendation from us. We are
3 going to recommend a big chunk. And then we
4 allude to ten, fifteen, ten years, not a six
5 month reduction.
6 That is one reason you know it wasn't
7 produced.
8 But this is a red herring in many
9 respects, Your Honor.
10 Why? Why is this a red herring?
11 Because Napue does not absolve the
12 State from eliciting and failing to correct
13 and relying on false testimony where the basis
14 for it was produced.
15 The elements of a Napue violation, as
16 a Napue Giglio violation, as stated by the
17 Third Circuit, which is based on Supreme Court
18 case law, this is interpreting, and very
19 genuinely interpreting, Supreme Court case
20 law.
21 One, The witness committed perjury.
22 Two, The prosecution knew or should
23 have known that the testimony was false.
 62

1 Three, The false testimony has not

2 been corrected or was not corrected, and;
3 Four, There is a -- and this is where
4 I am going to have to correct Mr. Vella.
5 The standard for a Napue violation is
6 not a reasonable probability of a different
7 outcome. It is a strict standard because it
8 affects, impairs the truth-seeking -- corrupts
9 the truth-seeking process of trial.
10 The standard is there is a reasonable
11 likelihood that the perjured testimony could
12 have affected the judgment of the jury.
13 That is a strict standard, as the
14 Supreme Court of the United States has said.
15 THE COURT: Would you read me back
16 that again?
17 MR. CIOSCHI: There is a reasonable
18 likelihood that the perjured testimony could
19 have affected the judgment of the jury.
20 In Haskell quoting Agurs, A-G-U-R-S,
21 by the U.S. Supreme Court, The standard of
22 review applicable to such claims is strict not
23 just because those claims involve
 63

1 prosecutorial misconduct, but, more

2 importantly, because they involve a corruption
3 of the truth seeking function of the trial
4 process.
5 The Supreme Court has said in Bagley
6 as I said before, that this standard of review
7 is equivalent to the harmless errors standard
8 articulated in Chapman -- C-H-A-P-M-A-N -- v.
9 the great State of California, which, quote,
10 "requires the beneficiary, the prosecution, of
11 a Constitutional error to demonstrate that it
12 was a harmless beyond a reasonable doubt.
13 That is the prejudice standard.
14 They cannot demonstrate that.
15 They cannot.
16 They know they can't.
17 And that is why they want you to take
18 more testimony, because they hope, they pray,
19 that something will come out that will
20 undermine the trial record.
21 Materiality is based on the impact of
22 a violation on what was presented at trial.
23 So much of what could be testified to
 64

1 would be extraneous and irrelevant to that

2 particular assessment.
3 The only thing that Your Honor should
4 really be paying attention to that isn't in
5 the trial record aside from the truth about
6 these promises is what Mr. George referenced
7 and what Mr. Denney stated.
8 He said if the jury knew about the
9 truth here, Mr. Wisher, if the jury knew about
10 the truth, about our arrangement, about what
11 we got going on here, which Mr. Windett is
12 going to communicate to you more in-depth
13 later, don't worry, we are going to make sure
14 that he makes you feel comfortable with the
15 setup. He said if the jury knows what we are
16 doing here today, what we promised you, a big
17 chunk, that's why we're not going to say exact
18 numbers, they are going to crush -- and those
19 are Denney's words -- crush me. They are not
20 going to believe a word that comes out of your
21 mouth, Mr. Wisher.
22 Those are Denney's words.
23 Those are Denney's words.
 65

1 And the reason that is so important

2 to the State is because Wisher is a critical
3 witness.
4 Not only is Wisher critical, this
5 goes to the core of his credibility. That is
6 why they told the jury that he hoped but it
7 wasn't promised.
8 And that is why they spent a large
9 share of their closing argument on Mr. Wisher.
10 On his ties to Mr. White. On his ties
11 Mr. Anderson. Excuse me, on his ties to
12 Mr. Lloyd.
13 And of course that impacts Mr.
14 Anderson because their RICO necessarily
15 affects him.
16 He was an inside guy, Wisher. That
17 was the State's story.
18 He was Mr. Lloyd's Number 1, Number
19 2, Number 3. He was up there.
20 He knew Mr. Lloyd sat at the top of
21 organization.
22 He was one of Mr. Lloyd's
23 confidantes.
 66

1 He became one of Mr. White's

2 confidantes.
3 And he provided key evidence
4 outlining the entire scope of the conspiracy.
5 But the jury wasn't able to evaluate
6 his credibility. Why? Because they elicited
7 and failed to correct false testimony with
8 Mark Denney sitting at counsel table; sitting.
9 Okay, I will take for granted today
10 what Mr. McCloskey and Miss Flaschner said.
11 It doesn't matter, as Your Honor has said.
12 Mr. Denney was sitting there. And he
13 didn't correct it.
14 This cries out for summary relief.
15 And contrary to what Mr. Vella says,
16 the statute expressly provides that this Court
17 can -- can -- grant summary relief.
18 61(h)(3).
19 THE COURT: Wait a minute.
20 MR. CIOSCHI: And, by the way, Your
21 Honor, just while you are looking, Mr. Vella
22 says we should treat this claim like a new
23 claim. This claim has been in the case since
 67

1 April of 2022 on full briefing. That is why

2 the State had to correct their false
3 statements in post-conviction that I read
4 into the record earlier.
5 Those statements came on March 31st,
6 2023, where they literally quote my briefing
7 on this claim denying that there was a motion
8 for substantial assistance promised, and
9 denying that a significant reduction was
10 promised.
11 It is in the case.
12 The State responded.
13 The State lied to the Court.
14 And the same claim has been
15 incorporated into Mr. Lloyd's motion, and
16 Mr. Anderson's motion.
17 THE COURT: All right.
18 MR. CIOSCHI: Rule 61(h)(3).
19 THE COURT: I have it.
20 MR. CIOSCHI: This is in Footnote 14
21 of my brief.
22 Excuse me, not my brief. Our brief.
23 That we filed on Monday. Or that the letter
 68

1 that was submitted on Monday with their

2 request for summary disposition.
3 Rule 61 allows this Court to, quote,
4 "Make such disposition of the motion as
5 justice dictates," end quote.
6 Quote, "If in" --
7 THE COURT: Of course the beginning
8 language of that subparagraph says if there
9 is not --
10 MR. CIOSCHI: I will read that.
11 If it appears that an evidentiary
12 hearing is not desirable. Yes, of course Your
13 Honor has discretion. You have a lot of
14 discretion in Rule 61.
15 But justice requires that this be
16 granted now. Because there is no --
17 regardless of what they say about disclosure,
18 there is false testimony. They have admitted
19 it is false or admitted it enough for you to
20 conclude with no dispute that it is false.
21 It was uncorrected.
22 It was relied upon by the State.
23 The trial record suggests it was
 69

1 significant.
2 Mr. Denney's statement, which you
3 have reviewed -- Mr. Denney's interview
4 suggests that it was very significant.
5 THE COURT: Let me stop. Because
6 there is a subtlety here I missed, and I
7 think I now have it.
8 What you are saying to me is assume
9 they gave it to us, there is still a
10 violation.
11 MR. CIOSCHI: Exactly.
12 That is Napue.
13 That is Haskell.
14 Haskell doesn't say -- in
15 interpreting Napue, Giglio, Agurs, so on and
16 so forth, Haskell doesn't say unless the State
17 gave it to you.
18 There is no fourth prong.
19 Committed perjury.
20 Knew or should have known the
21 testimony was false.
22 False testimony was not corrected.
23 Reasonable likelihood that perjured
 70

1 testimony could have affected the judgment of

2 the jury.
3 The Chapman standard.
4 THE COURT: And that burden on the
5 last one was on the State?
6 MR. CIOSCHI: Yes.
7 Because it is the same as the Chapman
8 standard. That is what the Supreme Court has
9 held in Bagley.
10 Thank you, Your Honor.
11 THE COURT: If you guys simply want
12 to say "me too," the record will reflect "me
13 too."
14 I am not trying to cut you off, or be
15 short. You can say what you need to say for
16 your client.
17 MR. GEORGE: Your Honor, just on the
18 scope of the post-conviction discovery.
19 I would like to point out, first of
20 all, we served Megan Davies with a subpoena
21 for this week as she appeared in person to
22 make argument to the Supreme Court in one of
23 her cases, I suppose in the middle of her
 71

1 maternity leave. And that is when I had the

2 discussion with -- prior to that, we had a
3 discussion about what was received.
4 What was reported to me was that she
5 seemed to recollect the cooperation agreement
6 dated December 21. No recollection of the
7 recording dated December 21.
8 And it is significant to point out
9 the differences between the recording and
10 cooperation agreement.
11 You can listen on the recording. And
12 you hear Mark Denney tell Mr. Wisher, What
13 this promises -- as he is tapping the table
14 and he is and he is clearly -- it is December
15 21st and he is clearly pointing at the
16 cooperation agreement -- this promises you
17 that we will have that discussion; that we
18 will file a substantial assistance. And this
19 will be worth 10 to 15 years to the same judge
20 that overheard the trial, Judge Cooch.
21 And then, obviously, I can represent
22 to the Court, Mr. Wisher is out.
23 We have -- I have spoken to him
 72

1 myself. He calls me. And he was released

2 very, very shortly after this trial as was, as
3 was Mr. Roane.
4 The summary judgment language, the
5 Rule doesn't cite summary judgment. It just
6 cites whether a hearing is desirable.
7 Certainly, on a lot of the
8 information that has had a been alleged by the
9 defense, a hearing is desirable. But I am not
10 so sure the Court really needs to go that far.
11 Does the Court need to sit through a
12 week, two weeks worth of testimony from
13 Federal Prosecutors about the consideration
14 that was given to Tyrone Roane and Dontae
15 Sykes when it doesn't matter because we
16 already know that the consideration given to
17 William Wisher is sufficient to justify
18 relief.
19 I join in the sentiment that Napue
20 violation is -- doesn't change whether or not
21 the tape was disclosed.
22 But I find it hard to believe that
23 this tape was disclosed.
 73

1 You had three trial counsel that

2 cross examined on these impeachment points and
3 not a single one of them brought this up.
4 This tape is not a court exhibit in
5 the criminal activity trial sheet. It is not
6 a trial exhibit.
7 We have asked the State to produce
8 any documents that show that this was turned
9 over. And I think that the Court can read the
10 between the lines that is not there. They do
11 not have that.
12 I can't imagine standing in front of
13 this Court defending myself against an
14 allegation such as this at a Napue or a Brady
15 violation and not bringing to this Court's
16 attention proof that this was turned over,
17 especially in the context of everything else,
18 which absolutely shows that it was not.
19 And the mere fact that we have two --
20 two of the trial lawyers are here, and not a
21 single one of them has any recollection.
22 And, look, the Department of Justice
23 doesn't stack itself with a bunch of slouches.
 74

1 These folks perform their duties. They get

2 ready for trial. I've seen them do it. There
3 is no way --
4 THE COURT: I have, too.
5 MR. GEORGE: They have to.
6 There is just no way that they
7 wouldn't have known about it.
8 But it doesn't matter even if they
9 did.
10 But the mere fact that they are now
11 going to other people and saying, well, did
12 you get it from us, did you get it from us,
13 did you get it from us, that means that they
14 don't have any proof that they sent it. And
15 that is because they didn't send it.
16 So I get it, that is only relevant
17 necessarily to the Brady allegation. And you
18 might not even need to get to that point.
19 But there is enough in this record
20 here to understand that this was not
21 disclosed.
22 At best case scenario, these two
23 prosecutors didn't know about it.
 75

1 Well, if they didn't know about it,

2 how did anybody else know about it?
3 Summary relief has to be granted.
4 And summary disposition, as Mr. Vella
5 cited, is appropriate if an evidentiary
6 hearing isn't desirable. And what I am
7 submitting to the Court is an evidentiary
8 hearing isn't needed.
9 If the Court does not grant relief on
10 the Wisher matter alone, certainly the
11 evidentiary hearing is needed for the rest.
12 But at this juncture, we don't even
13 need to go that far. So we are asking for
14 summary relief.
15 In the alternative of that, the
16 State's comments today absolutely dovetail
17 into the defenses' need for an open file from
18 the State to be produced. But I would like to
19 save those comments for when the Court feels
20 they are appropriate.
21 THE COURT: Mr. Vella.
22 I'm sorry.
23 MR. SRIVATSAN: Sometimes it is
 76

1 difficult to hear back there. I just request

2 also my colleagues to speak into the mic.
3 I want to incorporate everything that
4 Mr. George said. But I also want to bring to
5 the Court's attention that there are
6 potentially other documents which are missing.
7 I have created a list, sent it to my
8 colleagues, and Mr. Cioschi incorporated that
9 in the letter to the Court.
10 But I will draw William Wisher, since
11 Your Honor only asked about -- so I just
12 wanted to bring this to the Court's attention,
13 as well, what Mr. George just said, that they
14 still don't know what documents they have or
15 don't have. At least that is what I heard.
16 So there are documents that, at least
17 during my review of the proffers which are
18 already given, I found that there were audios,
19 still more audios potentially, because of the
20 abrupt nature in which the audio that is in
21 question right now at issue begins and ends.
22 And, so, the audios, which precede
23 the received 11/produced audio. And there is
 77

1 potentially an audio which succeeds that, as

2 well. And this is only with William Wisher.
3 And there were about 15 or 18
4 documents that we felt that are still in
5 abeyance and we have not received. I just
6 want to put that.
7 With regards to summary disposition
8 of this matter, I think my client and their
9 clients have spent enough time in prison for
10 all of the doubt, all of the deception, all of
11 the excuses.
12 We asked the State to produce the
13 letters that they had sent to the defense
14 counsel at trial and pretrial, listing out all
15 of the documents that they actually handed
16 over to them, and we were told that is not
17 within the scope of discovery.
18 And if we don't know and don't have
19 those documents, how in the world are we going
20 to know what defense counsel were given if
21 they are willing to erect barriers at every
22 step of the way. And this is happening six
23 years after the conviction.
 78

1 The system is broken, and the whole

2 defense is broken.
3 I request the Court to dispose of
4 this matter without any further delay.
5 THE COURT: Mr. Vella.
6 MR. MCCLOSKEY: Your Honor, if I
7 may.
8 MR. GEORGE: Your Honor, before the
9 State goes, I just wanted to point Your
10 Honor's attention to -- Mr. McCloskey, excuse
11 me.
12 I wanted to point Your Honor's
13 attention to this cooperation agreement with
14 Mr. Wisher, the written one that is discussed
15 on the recording that is the subject of our
16 discussion today.
17 That written cooperation agreement,
18 assuming it was disposed -- excuse me, Mr.
19 McCloskey. Could you please sit down? This
20 is a little bit uncomfortable. I don't stand
21 up behind you while you argue.
22 MR. MCCLOSKEY: I will stand right
23 here, Your Honor.
 79

1 I won't lean over your shoulder.

2 MR. GEORGE: So in that letter,
3 which the State disclosed on November 20th to
4 us, that was about a month and six days after
5 we asked for this discovery. And this is
6 after they said, you will recall from our
7 last discussion with the Court, there was no
8 cooperation agreement that was formalized
9 with William Wisher, and they admitted -- Mr.
10 McCloskey admitted that was an inconsistent
11 disclosure.
12 So this one is what Mr. Denney is
13 talking with Mr. Wisher about on that
14 recording.
15 THE COURT: Don't they end by saying
16 "I'm going to take it with me?"
17 MR. GEORGE: Yes. exactly.
18 Get this. Listen to this, Your
19 Honor. I hate to be informal, but, really.
20 There is a significant discrepancy
21 between what is said in this cooperation
22 agreement and what is said on that recording.
23 William Wisher agrees to testify
 80

1 truthfully if called as a witness in any

2 matter related to the information provided in
3 his proffer.
4 If William Wisher testified
5 truthfully in the trials of Eric Lloyd, to
6 DeMichael Showell, who was in this case
7 before, and Dwayne White, he will be eligible
8 under Delaware law, specifically, 11 Del. Code
9 Section 4220, to have a judge of the Superior
10 Court, following any motion by the State of
11 Delaware and a showing of good cause, reduce
12 or modify his prison term. Both parties
13 request to have this agreement sealed by the
14 Court.
15 Eligible.
16 And what Denney says on the tape is,
17 What this means is we promise we will file one
18 of these for you.
19 We promise. It's a guarantee.
20 And what this also means is that when
21 we do, we will ask the State -- we will ask
22 the judge to reduce your sentence by a big
23 chunk; 10, 15, 10 years.
 81

1 It is part of the deception here,

2 Your Honor.
3 This is further -- the fact that this
4 may have been disclosed, this cooperation
5 agreement may have been disclosed, is not
6 evidence that they complied with their
7 obligations.
8 Summary disposition is appropriate.
9 Thank you.
10 MR. MCCLOSKEY: Your Honor, what is
11 lost in all of this is this isn't some
12 recording that Mr. Denney didn't know what
13 was going on. It was a State created
14 recording. And this is part of why the
15 evidentiary hearing would be necessary.
16 There is a lot that Mr. Denney would
17 want to explain in that he created that
18 recording with the intent to turn it over.
19 Now, I -- I don't know. I don't
20 know. I can't stand here before the Court and
21 tell you definitively that that statement was
22 turned over.
23 And if it wasn't, there may be
 82

1 explanations for mistakes, or intent, or

2 whatever the case may be. But that is part of
3 the record that needs to be developed.
4 A lot of things have been said about
5 Mr. Denney in here today that he is not in the
6 courtroom to defend and answer for. That is
7 why an evidentiary hearing is necessary.
8 Part of that is words of Mr. Denney
9 was used against the State at trial, The sky
10 is the limit.
11 It was put before the jury that the
12 sky was the limit in terms of what William
13 Wisher could benefit from his cooperation.
14 This was not created with the intent
15 to suppress and hide.
16 Now, whether it ultimately was
17 disclosed is part of the evidentiary record
18 that is going to be need fleshed out. But I
19 am confident in saying that Mr. Denney would
20 testify he did not create that recording with
21 the intent of suppressing it from the defense
22 counsel.
23 Then, moving to materiality.
 83

1 Let's start with the easy one, Damon

2 Anderson.
3 William Wisher doesn't testify about
4 Damon Anderson.
5 So going through all of the Napue
6 factors, there is no materiality to Damon
7 Anderson.
8 Going to Dwayne White.
9 Dwayne White's sole focus in that
10 trial, as stated by Mr. Burke and acknowledged
11 by Mr. White during the colloquy, was to
12 challenge the attempted murder that resulted
13 in Jashown Banner being shot.
14 William Wisher doesn't testify about
15 that either.
16 He talked about the drug operation
17 and the drugs that were found in the house,
18 how he had gotten them from Dwayne White.
19 Which was all on the wire.
20 He wasn't challenging the drug
21 dealing and the racketeering component of this
22 case.
23 There is no materiality as to Dwayne
 84

1 White, either.
2 In going to Eric Lloyd, William
3 Wisher talks about Eric Lloyd being the king
4 of the show and how he runs things.
5 He was a witness against Eric Lloyd.
6 So is Dontae Sykes.
7 Dontae Sykes was a cooperator who
8 pointed the finger at Eric Lloyd.
9 Eric Lloyd had the emails from
10 Federal prison.
11 There were the money laundering
12 evidence, as testified by Michelle Hoffman.
13 There is a litany of evidence against
14 Eric Lloyd, in addition to William Wisher.
15 And when we get to the materiality of
16 the impeachment value of this statement as it
17 pertains to William Wisher, it is a small
18 piece of the overall impeachment.
19 William Wisher was vigorously
20 impeached by Megan Davies, including sky's the
21 limit in terms of what he was hoping to get.
22 And what is different from Napue is
23 that wasn't presented as what he was hoping to
 85

1 get from the Government, it was what he hoping

2 to get from some random defense attorney.
3 Here it was well established to this
4 jury that William Wisher was hoping for a
5 significant benefit from the State, and that
6 the sky is the limit. And it was put before
7 the jury that it was ultimately going to be up
8 to a judge what that benefit was going to be
9 if the State filed a motion.
10 And here, the last part of the
11 materiality component -- which, again, goes to
12 why an evidentiary hearing is necessary on
13 this -- is it is being presented as this was
14 an outright lie by William Wisher.
15 That conversation evidence is a
16 conditional promise about testifying
17 truthfully, which inherently requires the
18 State to determine that he did, in fact,
19 testify truthfully prior to filing a motion
20 for substantial assistance.
21 What is also important is going
22 through these proffers.
23 William Wisher gave up Eric Lloyd in
 86

1 his second September proffer, months before

2 this agreement with the State and the
3 cooperation agreement occurred.
4 So in talking about this whole
5 inducement of he was dangled with this promise
6 in order to get William Wisher to say whatever
7 the investigators wanted him to say is not
8 factually -- he had already given up Eric
9 Lloyd in the end of September, prior to
10 reaching this agreement with the State.
11 So there is a whole complex layer of
12 materiality as we are assessing what was that
13 ultimate impeachment value of that particular
14 conversation. Because the difference is
15 William Wisher being asked what's your
16 understanding of what you need to do to get a
17 cooperation agreement from the State?
18 I need to testify truthfully.
19 And who is going to determine that?
20 The State.
21 And if they determine that, what will
22 happen?
23 They will file a motion for
 87

1 substantial assistance.
2 And who is ultimately going to decide
3 whether to grant that motion?
4 The judge.
5 Who is going to decide what sentence
6 to impose if you get a benefit?
7 The judge.
8 So it would have changed the nature
9 of the questioning, but in a nominal amount in
10 the grand scheme of what he was impeached on
11 and what the ultimate value he was to each of
12 these defendants.
13 Dwayne White wasn't challenging what
14 William Wisher had to say about him. He was
15 focused on the attempted murder. William
16 Wisher didn't touch on that.
17 William Wisher didn't touch on Damon
18 Anderson. He has no claim with respect to
19 William Wisher.
20 And it is a small component of what
21 was available to the impeachment value as it
22 pertains to Eric Lloyd.
23 So there are a number of things that
 88

1 need to be answered for.

2 Mr. Denney is not here to explain
3 various components of this and what was going
4 on and why he didn't stand up to correct the
5 record. He needs to be given an opportunity
6 to do that before, ultimately, we are making a
7 determination that the State sat there on its
8 hands and allowed false testimony, because it
9 was incomplete testimony, it was inaccurate
10 testimony in assessing what the December
11 proffer sets forth. But it was still a
12 conditional promise that ultimately was going
13 to rest in the discretion of the State.
14 THE COURT: Somebody from the State
15 address the question of the defense's
16 position as to the fourth requirement of
17 Napue.
18 MR. VELLA: So even if the standard
19 is harmless beyond a reasonable doubt, so
20 Napue violations fall into two categories of
21 what was the false testimony about, what kind
22 of witness is this. Is this is a -- and is
23 the false testimony about facts in a case, or
 89

1 is it about this is going to be your

2 credibility that we are challenging.
3 So there is two classifications: The
4 fact based impeachment, or the fact based kind
5 of we will call it false testimony, and then
6 false testimony that goes to impeachment
7 credibility.
8 This is in the credibility category.
9 And if we are talking about State
10 cases that talk about that kind of violation
11 rising to the level of harmless beyond a
12 reasonable doubt or not harmless beyond a
13 reasonable doubt, McArthur Risper is the State
14 case.
15 And in that case it is not completely
16 analogous, it is not a false testimony case,
17 but it shows -- it highlights the difference
18 between the credibility cases and the fact
19 cases.
20 So McArthur Risper, there was a
21 witness that the State -- one of the officers
22 from the State agency Downstate spoke to a
23 witness who made a claim that someone other
 90

1 than McArthur Risper may have done this. And

2 that didn't get turned over. And that is
3 because the officer thought it was not
4 important, it was not credible, there was no
5 teeth to it, there is nothing to it. It was
6 just someone saying, oh, McArthur didn't do
7 it, it was someone else. Didn't identify the
8 other person.
9 Well, the defense was unable to get
10 to that person. And there were issues with
11 continuances, and whatnot.
12 But the court found that in -- you
13 know, in cases where there is a fact dispute
14 about, like, did this person really not do it,
15 or is there something about the facts of the
16 case that this witness, this potential
17 witness, this evidence that we are looking at,
18 does that have the potential to completely
19 just throw this into an area where it
20 undermines confidence in the verdict.
21 And in Risper our Supreme Court said
22 yes, you know what, in this kind of case where
23 you have someone who is potentially going to
 91

1 just exculpate, or you have someone who says,

2 no, someone else did it, even if it is not
3 super credible, the State has an obligation to
4 disclose it. And because that was not done,
5 the Delaware Supreme Court reversed it.
6 Credibility cases are different
7 because in credibility cases -- in all cases
8 the court has to look at the weight of
9 evidence and compare this one piece of
10 evidence. And here what we are talking
11 about -- just to put it into context -- what
12 you are talking about is William Wisher's
13 credibility. Right? That you are getting at
14 him because of his credibility.
15 So if the defense doesn't have this,
16 and the defense is unable to correct this
17 statement, okay, unable to correct this
18 statement, the State doesn't correct the
19 statement, it amounts to the materiality
20 question is how is this material to William
21 Wisher's credibility and how does it affect
22 the overall case.
23 And I think Mr. McCloskey addressed
 92

1 it affects each defendant here differently.

2 It affects Lloyd the most. White and
3 Anderson, not at all.
4 White conceded everything except for
5 the murder, and he was acquitted.
6 So the stuff drug dealing and the
7 RICO he didn't contest.
8 Anderson, different sorry. But
9 didn't affect him. Wisher didn't talk about
10 Anderson.
11 Eric Lloyd is the only one.
12 It is all about Eric Lloyd's
13 credibility.
14 If you look at the transcript, what
15 this evidence, what the December proffer would
16 have added was another 15 minutes of cross
17 examination on the benefits you might be
18 receiving from the State. And that was
19 thoroughly -- thoroughly -- fleshed out in
20 front of the jury.
21 His credibility was challenged with
22 documents, with his agreement, with -- his
23 credibility was called into question. And
 93

1 this clearly would have added, but not by

2 much, it is incremental. It is not
3 exponential, it is incremental.
4 It doesn't change the result here.
5 It wouldn't change the result here.
6 And it is harmless beyond a
7 reasonable doubt. Because the jury had that
8 -- if the jury had no other challenge to
9 Wisher's credibility, the State would concede
10 you know what, this is pretty important.
11 In the grand scheme of things, this
12 is one statement in a proffer using one word,
13 using the promise word. Right? That is the
14 magic word here, it is the promise word.
15 Were you made a promise? No.
16 Everything else after that, think
17 about -- all you have to do is look at Megan
18 Davies' cross examination of William Wisher,
19 and listen to the closing arguments about the
20 sky is the limit.
21 If counsel had pointed out, All
22 right, so you weren't promised anything.
23 Well, here's the statement. You're a liar.
 94

1 She was already calling him a liar.

2 She was already questioning his
3 credibility.
4 It only adds incrementally.
5 That is why it is not material,
6 because it is not something that causes you
7 to -- it doesn't cast doubt on the result
8 here.
9 It is harmless beyond a reasonable
10 doubt because it is only incrementally. But
11 only make that cross examination and those
12 points to be made a little bit better.
13 But ultimately it is not something
14 that affected the outcome here. It did not
15 affect the verdict here.
16 His credibility was already in play,
17 and defense counsel had already fileted him
18 on. Just read the record.
19 I mean, this amounts to they were
20 able to miss. They missed a few questions if
21 they didn't have it.
22 And if it is -- and if we are in the
23 area of correcting false testimony, it is not
 95

1 -- for the same reason, it is not material.

2 It is not material.
3 And failure to correct the record
4 here would be harmless beyond a reasonable
5 doubt.
6 THE COURT: You are all going to
7 stand up and argue to me -- go ahead.
8 MR. VELLA: I wasn't sure.
9 THE COURT: You are all going to
10 stand up and argue to me why that is wrong.
11 Okay?
12 I think where I am as I sit here
13 right now is I need some written help from
14 everybody on --
15 MR. SRIVATSAN: I can't hear, Judge.
16 THE COURT: You were all going to
17 stand up and respond to what Mr. Vella just
18 said.
19 Here is where I think am.
20 I need some written help on this very
21 specific issue of Napue.
22 After I get that help, I am going to
23 make a determination as to whether I need a
 96

1 evidentiary hearing. And we are going to get

2 a date for that before we leave here.
3 That evidentiary hearing, if I need
4 it, is going to be limited to the Wisher
5 issue. All right? And then we will see where
6 you go after that.
7 Follow me?
8 MR. CIOSCHI: Understood, Your
9 Honor, yes.
10 Your Honor, when you say on the very
11 specific issue, what you would like briefing
12 on was the materiality issue under Napue.
13 THE COURT: Yes.
14 You argued that there is a strict
15 standard.
16 MR. CIOSCHI: Yes.
17 THE COURT: They argued something a
18 little differently. And you are -- I want
19 you to address the facts as you understand
20 them as to the fourth point.
21 MR. CIOSCHI: Understood.
22 THE COURT: Because your argument to
23 me today, it doesn't matter whether they
 97

1 turned it over or not, that there is still a

2 Napue violation. And, frankly, I don't think
3 the present briefing gives me that.
4 And the State has referenced some
5 State cases that I think need to be addressed
6 by both sides.
7 MR. CIOSCHI: So the two issues that
8 you would like us to brief are whether
9 concealment matters for a Napue violation,
10 and whether we have met the standard for
11 harmless. Or whether the State has proved
12 harmless.
13 THE COURT: Correct.
14 Correct. That's it.
15 MR. CIOSCHI: Thank you.
16 THE COURT: Yes.
17 Do the parties think I missed
18 anything on that issue?
19 MR. GEORGE: Not on that issue, Your
20 Honor.
21 May I ask a point of clarification?
22 Before this Wisher material presented
23 itself, we had already been contemplating a
 98

1 separate unrelated evidentiary hearing, in a

2 sense.
3 Is this something where the Court may
4 be ordering an evidentiary hearing on Wisher
5 in the short term?
6 THE COURT: Yes.
7 MR. GEORGE: And another one later?
8 THE COURT: Exactly.
9 Let's figure out the roadmap.
10 You have given me a roadmap that
11 suggests that this petition begins and ends
12 with what happened with respect to Wisher in
13 the interview.
14 If it begins and ends with that, why
15 are we going to go down a further road with a
16 whole bunch more witnesses if it is not
17 necessary.
18 Follow me?
19 MR. GEORGE: Yes.
20 THE COURT: Look, the last thing I
21 want to do is delay this any further.
22 I feel for everybody behind the bar.
23 And the three fellows on this side of the bar,
 99

1 it took too damn long to get here. And we

2 understand why.
3 It is just so I can say it so that
4 you all know it, we had to get everybody's
5 briefing done before we could get to this
6 point.
7 And Mr. Lloyd's briefing just took a
8 while. It took a long time to get someone
9 appointed. It took a long time for them to
10 review everything. And that is why it took
11 how long it took to get to here.
12 But we can't be taking that kind of
13 time going forward.
14 And as I said to you on the phone, I
15 have some agreements with criminal office
16 judges, and this takes priority in terms of
17 your schedules.
18 So when can the defense have for me
19 what they need to have?
20 MR. GEORGE: The briefing?
21 THE COURT: Yes.
22 The four of you, please confer. I am
23 counting four. There may be more than four.
 100

1 MR. SRIVATSAN: Your Honor, I wanted

2 to place something on the record before we do
3 that.
4 MR. GEORGE: Your Honor, can we
5 address the briefing matter before we address
6 your other matter?
7 THE COURT: Yes.
8 - - - -
9 MR. GEORGE: Your Honor, we would
10 propose January 31st, 2025, as a briefing
11 deadline.
12 And we would propose that all briefs,
13 both the State's and ours, be due on the same
14 day.
15 THE COURT: If I do that, I am going
16 to give everybody a reply chance. Right?
17 MR. GEORGE: Yes, that's fine.
18 THE COURT: You know what, it makes
19 more sense to let you go first.
20 February 28th. March 15th.
21 Wait a minute, let me finish this.
22 MR. GEORGE: Your Honor, could we
23 make it March 22nd for the defense, if
 101

1 possible, on reply?
2 THE COURT: Sure.
3 MR. GEORGE: Thank you.
4 I may be on trial in Scranton the
5 week of the 5th.
6 THE COURT: I am going to be able to
7 tell you within -- I may not have a decision,
8 but I am going to be able to tell you within
9 30 days of March 22nd whether we need an
10 evidentiary hearing on the Wisher issue.
11 Okay?
12 Remember, if we have an evidentiary
13 hearing, it is limited to this.
14 Let's get a day.
15 We will get two days.
16 Is that enough?
17 MR. GEORGE: That should be enough
18 for the defense, Your Honor.
19 THE COURT: The State?
20 How much time do you need to round up
21 whoever you have to round up to prepare if I
22 give you -- I will try to tell you before
23 that.
 102

1 I will tell you on April 22nd that we

2 need a hearing. How much time do you need to
3 get yourselves ready?
4 From the State's perspective, how
5 much time do you need?
6 MR. MCCLOSKEY: Your Honor, I am
7 trying to envision what the scope of the
8 hearing would be.
9 I imagine it would be Mr. Denney.
10 Defense counsel.
11 We probably would need two or three
12 weeks to get that in order for a hearing, Your
13 Honor.
14 THE COURT: Okay.
15 MR. GEORGE: Your Honor, I don't
16 think it would just be Mr. Denney and defense
17 counsel.
18 I think the defense, we are
19 contemplating, in addition, to seeking
20 testimony from Jamie McCloskey and Erika
21 Flaschner, and also Special Agent Haney, who
22 we believe to have been present at the
23 interview.
 103

1 THE COURT: Okay.

2 We may have a discussion about
3 calling McCloskey and Flaschner. I am going
4 to need to proffer on that, because I thought
5 I reached -- the issue here is did somebody
6 stay silent. Okay?
7 It seems to me that if you proved
8 Denney has stayed silent, that is what you
9 have proven.
10 MR. GEORGE: We take your point,
11 Your Honor. We may not need to go down that
12 path.
13 THE COURT: We will have a
14 discussion about that.
15 MR. GEORGE: Yes.
16 THE COURT: Because it strikes me
17 that that is not necessary.
18 MR. GEORGE: Yes. We understand.
19 THE COURT: How about June 5 and 6?
20 You need three weeks.
21 I will stay away from Memorial Day.
22 How about June 5 and 6?
23 MS. FLASCHNER: Your Honor,
 104

1 understanding the Court is trumping other

2 things, I do have a trial that is pretty old
3 scheduled with Judge Rennie that week that
4 involves -- it is an attempted murder trial
5 that has been specially assigned to Judge
6 Rennie. And has been set pretty far out.
7 THE COURT: When is that trial?
8 MS. FLASCHNER: Jury selection is
9 May 29th. Trial is set to begin June 2nd.
10 I believe we have that entire week
11 blocked off, June 2nd to the 6th.
12 THE COURT: June 19 and 20.
13 MR. GEORGE: It should work.
14 THE COURT: June 19th and 20th.
15 MS. FLASCHNER: Your Honor, I
16 believe Juneteenth is June 19th, which is a
17 State holiday.
18 THE COURT: Thank you for that.
19 The 18th and the 20th.
20 MR. CIOSCHI: The 18th is a Sunday.
21 THE COURT: No, it's not.
22 MR. CIOSCHI: I'm sorry --
23 THE COURT: Not according to my
 105

1 calendar on my iPad.
2 I am not even trying to log into that
3 because that is a disaster.
4 How about the 18th and the 20th?
5 MS. FLASCHNER: That works for the
6 State, Your Honor.
7 MR. GEORGE: That works for
8 Mr. Lloyd.
9 MR. CIOSCHI: Mr. White, as well.
10 MR. SRIVATSAN: Your Honor, I can't
11 hear most of the proceedings of what is going
12 on. I can't hear back here.
13 THE COURT: The 18th and 20th of
14 June for the evidentiary hearing, if we have
15 it.
16 MR. SRIVATSAN: As of now, it should
17 be okay, Your Honor.
18 THE COURT: All right.
19 MR. SRIVATSAN: But I did want to
20 ask a few questions on that, Your Honor.
21 THE COURT: Go ahead.
22 MR. SRIVATSAN: Originally the
23 hearing for was for Roane and for Sykes. Now
 106

1 it is William Wisher.
2 So I am wonder what the status will
3 be with regards to the Roane situation.
4 THE COURT: Here is the roadmap that
5 the defense has laid out for me.
6 The defense has said that I don't
7 have to get past Wisher; that I can decide
8 this case in your favor based on the
9 circumstances surrounding Wisher. And you
10 have been pretty adamant about that this
11 morning.
12 And what I have attempted to do is
13 put a procedure in place so that you will file
14 briefing. I will be able to figure out from
15 that briefing whether or not the defendants
16 are entitled to relief without an evidentiary
17 hearing. I will let you know that. And I
18 will let you know that by the middle of April.
19 If I need an evidentiary hearing on
20 this issue alone, we will have it in June so
21 it is very narrow and I can retake a look at
22 it.
23 Roane is not off the table if we get
 107

1 past this point.

2 MR. SRIVATSAN: My only concern is
3 if the Roane matter gets pushed to
4 evidentiary hearing, for some reason the
5 William Wisher one, let us see hypothetically
6 here, for my client, then what is going to
7 happen is my client is going to be sitting in
8 prison.
9 THE COURT: I get it.
10 I get it.
11 MR. SRIVATSAN: Okay, Your Honor.
12 THE COURT: I understand it.
13 I am more than frustrated. And it
14 goes -- never mind.
15 MR. SRIVATSAN: Your Honor is
16 frustrated with me?
17 THE COURT: No.
18 The system. The system of getting
19 people on Rule 61 petitions is frustrating.
20 MR. SRIVATSAN: Oh, the system.
21 Thank you.
22 That endorses my Page 1 of my opening
23 brief.
 108

1 I did want to add since the State

2 brought it up, and I would be remiss if I
3 don't close the loop on that.
4 They were talking about the
5 materiality standard. They were talking about
6 the impact on William Wisher's testimony.
7 It is going to be de minimis.
8 THE COURT: We are going to brief
9 that.
10 That is going to be briefed.
11 MR. SRIVATSAN: I am not going to
12 talk anything about it.
13 But I do want to point Your Honor to
14 is my opening brief, Page 118, 119, and 120.
15 It summarizes the materiality
16 standards for Delaware.
17 THE COURT: But -- you sure you want
18 to put that on the record?
19 Don't you want to look at the cases?
20 Isn't it this Napue, who is a little
21 different in materiality?
22 MR. SRIVATSAN: I concede that issue
23 at this point, Your Honor. I will not say
 109

1 anything more on it. We will brief it.

2 THE COURT: All right.
3 So that is January 31st.
4 State, February 28th.
5 Reply, March 22.
6 I will let you all know by April 22nd
7 as to whether or not we need an evidentiary
8 hearing on June 18th and 20th.
9 MR. GEORGE: Your Honor, if in the
10 interim -- we have made an offer to the State
11 for a proposed resolution. And I don't know
12 if that is going to have legs from their
13 perspective, or not. But certainly we will
14 update the Court if something comes from that
15 in the interim.
16 THE COURT: Is there anything that
17 the Court can do to assist in that regard?
18 MR. MCCLOSKEY: No.
19 THE COURT: Another judicial officer
20 of some kind?
21 MR. MCCLOSKEY: No, Your Honor.
22 MR. GEORGE: We would, of course,
23 welcome the Court's intervention in
 110

1 encouraging the State to accept a time served

2 resolution that we proposed for our clients,
3 given the gravity of what is at issue here.
4 But of course if the State is saying
5 that that would not be helpful, we will take
6 the State's word, in this instance.
7 THE COURT: I think that is what
8 they are saying.
9 Of course there is always middle
10 ground between where you are and where they
11 are.
12 All right.
13 Anything else were we can accomplish
14 today.?
15 MR. VELLA: No, Your Honor.
16 MR. GEORGE: Your Honor, in light of
17 the Court's plan for the schedule going
18 forward, we will address other discovery
19 questions and matters related to the Touhy
20 process at a later date. Unless the Court
21 would like to --
22 THE COURT: Well, let's do this.
23 I have no idea what is on my
 111

1 calendar. But we have two weeks in August

2 where we don't try criminal cases. Right?
3 MR. GEORGE: I have to defer to
4 local counsel.
5 THE COURT: Let's put -- you all
6 should put those weeks on hold. Okay?
7 MR. GEORGE: Which weeks are those,
8 Your Honor?
9 THE COURT: That one I am going to
10 have to --
11 MR. GEORGE: I could ask my esteemed
12 local counsel.
13 THE COURT: Somebody on the
14 Prosecution team will know those two weeks.
15 Right?
16 I don't know them as I sit here. But
17 I know that we don't try criminal cases the
18 last two weeks of August.
19 MR. GEORGE: Thank you, Your Honor.
20 THE COURT: We are in recess.
21 - - - -
22 (Time noted: 11:53 a.m.)
23 - - - -
 112

1 CERTIFICATE OF OFFICIAL REALTIME COURT REPORTER

2
3 I, Lisa J. Amatucci, RPR, CSR, Official

4 Realtime Court Reporter of the Sup erior Court,

5 State of Delaware, do hereby certify that the

6 foregoing is an accurate transcrip t of the

7 proceedings had, as stenograp hically rep orted by

8 me, in the Superior Court of the State of Delaware,

9 in and for New Castle County, in the case herein

10 stated, and that I am neither counsel nor kin to

11 any p arty or particip ant in said action, nor

12 interested in the outcome thereof. This

13 certification shall be considered null and void and

14 the transcrip t will be uncertified if the

15 transcript is disassembled and/or cop ied and/or

16 distributed and/or shared in any manner by any

17 party without authorization of the signatory below.

18 WITNESS my hand this Nineteenth Day of

19 January 2025.

20
21
22
Lisa J. Amatucci, RPR, CSR
23 Official Realtime Court R e p o r t e r