>> to the extent that caperton is not a clear line, i think we are still with caperton.f you want to clarifying -- clarified a lot of caperton, it is about the judge's participation in a significant decision-making in the case. and what issues before them are related to that decision-making, that's the line i would suggest that you can draw in this case. on question number two, if you accept the respondents position, what you would be saying is okay, it's okay to have one biased judge on an appellate panel, or two or three so long as a majority voted in favor or not bias. that's not appropriate under the due process clause. the idea of fairness, the public confidence in the integrity of the fairness of the system requires that each judge the free from bias. and lastly, i would say about referring to the full court, we did that. we asked them if you look at our motion to recuse that's in the joint appendix, i think i section four of our motion says it justice castille denies this, we ask that the full court hears it. and justice castille, using his power as the chief just

caperton tells us to look at all, circumstan -- all circumst case.that's what i'm suggesting here. >> i still don't see how the brady violation fits into the formula you want us to adopt. unless you're amending it to say anything that involves the integrity of the office while you were head of the office. >> i think more importantly justice kennedy, that the brady violation fits in, because that is how the trial prosecutor carried out the decision that chief justice castille had made. and so her conduct in carrying out that decision has a direct relationship to the issue itself. >> we don't have a brady issue before us. the only issue is the recusal, right? >> that's correct. >> all right. so we don't have -- the narrative of brady, if you are not in the case, but even the question that you're raising, do you have prior opportunities to do that? you didn't raise it when there were prior post conviction applications. so why aren't you -- >> that we didn't raise the recusal issue, is that what you're asking me, your honor? >> right. >> in the prior pos