Response in Opposition to the Commonwealth's Motion to Vacate

the defense, the Commonwealth suppressed it and has argued (for years) that Mr. Williams' claimsof sexual abuse are self-serving and slanderous, just like the government argued against thedefendant's claims of drug use in Cone. The Commonwealth's current assertion, that Mr. Williamsshould have uncovered what the Commonwealth hid, asks this Court to sanction a procedure bywhich the "prosecutor may hide, [and] defendant must seek"; such a procedure "is not tenable in asystem constitutionally bound to accord defendants due process." Banks v. Dretke, 540 U.S. 668,696 (2004).3. DiligenceThe Commonwealth has not made any express argument with respect to due diligence. JudgeSarmina found that Mr. Williams exercised due diligence:Petitioner established that the claim could not have been raised earlier withthe exercise of due diligence through the affidavit and testimony of Marc Draper.It is because ofthe statements in Mr. Draper's affidavit, in which he allegedthat he made a statement about petitioner's motive for the crime, which was neverdisclosed to the defense, that this Court ordered the DA's and police boxes opened.The information uncovered as a result of this Court's order could not havecome to light ifit weren't for Draper's original affidavit.NT 9/28/12, 17. Judge Sarmina further found that the defense diligently obtained Mr. Draper'sstatements, which were not previously available to the defense. Id. at 18-19.Moreover, the prosecution's continuing efforts to conceal the truth from Mr. Williams furthercounsel in favor of a finding of diligence. The prosecution's conduct here is similar to that of theprosecution in Banks v. Dretke, 540 U.S. 668 (2004). There, the Supreme Court found that thepetitioner had acted reasonably, despite having failed to uncover the Brady violations sooner. Here,substituting Mr. Draper's name for the name of the witness in Banks fits the Supreme Court'sanalysis like a glove:19