move to the nd case this morning hogan versus neil my name is andrew bents court appointed pro bono counsel for mr hogan mr hoagland is entitle to rid of he is corpus for two reasons st his counsel rendered ineffective assistance of his trial he failed to properly object to what was testimony allowing three experts to tell the jury the accusations that the accuser made all over again and nd mr hoagland was robbed of his right to due process when each of those experts also vouched for the credibility of the accuser and i'd like to st focus on the ineffective assistance of counsel claim both the state court and the district court agreed that council performance was deficient in this case and the only question is whether that deficient performance prejudiced in the store holder and on that score the state court applied to the wrong standard did not apply to strickland prejudiced standard instead the state court asked whether mr hoagland was entitled to reversal of his conviction in other words whether the trial court erred in admitting the hearsay testimony but that is not what strickland asks even my friend on the other side agrees that the state court invoked language in addition to the strickland standard strickland asks whether there is a reasonable probability but for counsel's unprofessional errors the trial would have come out differently and under that standard mr hoagland has shown prejudice consider what the state jury should have heard it should heard the accusations from the accuser as well as the denials by the defendant and the fact that the accusations of malice station only came out after mr hoagland's wife learned of his affair now that is a close case and one in which a jury could or might not convict but the state had more errors arrows in its quiver it had three experts each testified that the accuser had told them the same story and as the district court concluded that made the accuser's credibility much stronger and there is a strong argument that could be made that she was prejudiced by that thus i think the district court has told this court that under a do novo standard there was prejudice here now if there are no questions on the accuser's credibility that sort of testimony is banned by virtually every state including indiana but can you talk about the default so mr hogan did not procedurally default his claim he fairly presented it to the state court all that fair  presentment requires is that fair presentment that the state court was aware of the claim and there are a number of indications that the state court was aware of that claim st and foremost the state court concluded that he was not denying fundamental due process hoagland's brief framed the issue as valjean which calls to mind constitutional litigation over prosecutorial vouching for witnesses in addition the facts of the case bring to mind constitutional claims which involve a sort of vouching problem and finally even in his pro se petition for rehearing mr hogan recognized that there was a due process problem all of those indication show that he did not procedurally default because he presented his claim t indiana supreme court the only thing the my friend on the other side points to is the fact that he did not cite a federal case in his petition to the supreme court that the context was indiana's the context was the context was opinions which would not directly a fact indiana site on the evidence issue right right that those cases all say that this is a fundamental problem when you have this sort of validation for the credibility of a child witness and it's a number of the cases it's a manifest injustice when this sort of evidence is introduced under the due process clause they're saying it under their own state evidence true laws but i think it speaks to a broader due process problem that the indiana supreme court would recognize that's multiple entrances the right i mean because that the difficult thing you know that he had gotten this character picture right you know he the indiana supreme court had reversed its rule but then he didn't get the benefit of that and given  thing was about indiana's evidentiary rules that permitted this vouching testimony it does seem right like indiana supreme court would not have been on notice that what he really wanted i mean i think what he i think that  his motion would have thought that he was objecting to his not getting relief after the evidentiary rule was changed but i think the reason that the viet victory was pyrrhic was because the indiana supreme court concluded he was not denied fundamental for the process that's exactly what the indiana supreme court said for think the indiana supreme court was signaling that it didn't understand the due process implications of mr hoagland's claim that it was not merely a state of an intruder issue and it is invoked due process concerns and that is why virtually every state has rejected this sort of testimony it is valid to test them and i'll turn to that the substance of the bow to claim each of these experts was called upon to tell the jury essentially that they believed the witness was telling the truth over and over again in the jury heard that the child accuser was telling the truth and this was not just caregivers or parents saying that the accuser was telling the truth these were three experts trained to evaluate and treat victims of abuse and so the jury was surely overwhelmed by this and it very likely substituted the credibility of the expert witnesses for the credibility of the accuser what was the sequence of the test when did when did the victim testify as opposed to these voters the victim i believe text testified before each of the experts testified and then that's right the victim did give details however she would have to guess she was twelve and she was testifying about things that happened five years prior or four years prior and five years prior  exists there was some mention at least in the briefs that she was pretty well challenged is that correct she was cross examined that's correct i mean so she's twelve years just one expert saying oh i think she's telling the truth this was repeated and since is where each expert testified multiple times that the accuser was telling the truth multiple times he would under questioning the yes or the prosecutor for example ask do you think that witnesses is prone to fantasize do you think witness is prone to exaggerate or she had a need to tell this story do children generally tell the truth about these kinds of matters should children be believed when they make these sort of accusations these were the repeated questions that the prosecutor asked over and over again of these three witnesses and then in closing the prosecutor pointed back to all of these instances of vouching saying look at what these experts have told your jury they've told you where it was either intense cross examination of the editor he was cross examined as well but i think that points out that this really came down to the accuser's accusations and his denials there was no physical not and several other aspects so the district court certainly fixated on that statement to that detective holiday but i think it's took a step back and look at when and where the statement was made when he was st confronted by the detective with these accusations he said no way it never happened then after four hours of more questioning by the detective he finally said there's no way it happened not unless i was passed out and she took it upon herself i think in context what he was saying is there's no way this happened and he's giving an example of how this could not have happened that basically no no child would take this upon themselves and so it didn't happen and that's what i think the statement wires are trying to theory was that the wife made this up in retaliation for the affair and i think a jury hearing this evidence could certainly reach that conclusion as well but here the jury was not presented with you know the fair evidence that was presented with the state calling these three expert witnesses not only to vouch but also to introduce this hearsay testimony which allowed the jury to hear that the accuser had made these allegations over the course of a number of years who didn't when you say the time may please the court this court should affirm the district court because the state cor properly applied strickland in determining that  expert there heard dr butler's testimony was not objected to and that issue was not preserved throughout the appellate process soon her testimony of recounting the child's allegations have never been challenged it was and through us to prove it was the same as the other experts as the health professionals that all testified as to why they were seeing the victim that the victim so dr butler said the victim came in under report that she had been molested by her father by fellatio and so i treated her based on those allegations and then that counselor testified she had  health professionals were meeting with a so the only two doctors that were to help professionals that were challenged were counselors shas tack and dr male so the jury already heard from dr butler that her story was consistent they also heard from the sect if you testified that her testimony on the stand was consistent with the interview that he had done with the  write that that to refrain to the two experts who simply said the circumstances under which they exam and her didn't repeat in detail all of the descriptions you know the kind of horrific descriptions that she gave about what her father did they used some detail different detail it's not that they didn't use any detail but no detail but expounded upon what age had testified to in the jury already heard from age she was very detailed very thorough gave very compelling testimony to the jury and so this additional evidence the court of appeals the court feels was not unreasonable in determining that there was no prejudice  by these these two extra accounts counsel i mean i guess i don't understand why or if you wouldn't be didn't know here because the state court did not cite i mean yes said you know the deficient found the council performance was deficient but it did not take you at the right strickland test on the nd prong it didn't talk about reasonable probability at that part of its opinion it talked about whether defected substantial rights that's a different standard it's contrary to federal law right no i do believe so st of all they did cite the correct standard for strickland in the beginning of the airplane at the beginning of the period before they started to go through the instances of alleged deficient performance when they reached the question of the hearsay  they st said at most this is harmless error and then they said therefore this cannot be he has not shown in effect just as accountable so it seems to me that the the court of appeals is actually saying he didn't even meet the lower standard of harmless error and because he couldn't even meet the lower standard of harmless error he can't meet the higher standard of strickland so that's that's they say at most this was harmless air therefore we cannot conclude that trial counsel provided ineffective assistance that they were applying they were looking at the effect of this evidence on the verdict what effect this had and they said the effect this evidence was harmless so therefore he was not prejudiced by its admission harmless because of her testimony because of her testimony and it was cumulative of other testimony like dr butler's testimony and detective holidays now they don't explicitly say that but they say it was cumulative of other testimony and it was cumulative of dr butler's testimony and detective holidays on which you understand i don't have a time it's multiple pages of she was on the stand for a long time and it was extensive cross examination by the defense attorney to do a transcript of that so yes if there is and that's been submitted to the court as part of the state court record that court this court has that available to it itself is a due process violation and i think the fact that he can't show that st really doesn't have a clearly established federal case that he can point to is that if the indiana supreme court had gone the other way and found that under indiana evidence rules this evidence was admissible he wouldn't have a due process claim to say that indiana having that rule violates due process there is no there would be no case to support  that so it does that it's hard to see the argument that he was raising a due process claim to the supreme court even on his petition for rehearing is the st time he uses the phrase due process he actually is not complaining about the admission of evidence he's complaining that he didn't have additional time to brief the question of if the rule applied if the evidence was not admissible what how it prejudiced him which of course he had the opportunity to present that and i would note that no the way it went was that defense counsel objected to the statement about was she prone to fantasize or exaggerate sexual matters and the state  prompted she said i believe this victim many objected as direct vouching and the court sustained that objection and modest the jury not to listen to it so counsel was in said that she was not prone to exaggerate in sexual matters that was the only comment on valjean by the in the closing by the state the state did not focus on this vouching evidence in asking the jury to convict it completely focused on the consistency and believability of the victim statements on the stand you know that they were mean through most of the argument for us correct and of course this court can't reach the vouching claim because it was not fairly presented to the state court oh just one other point in the record ages mother explain that age had come forward to her earlier when she was younger and  that that she did not believe age at the time because she didn't know what she was saying because she had talked about that her father had made him major washes genitals and she didn't understand really what she was saying of course the showering thing well i think it's a confusion about the showering and counselor shows that talked a little bit about this is that the victim was using washing his genitals as saying oral sex it was it was her it wasn't that it was in the shower or something like that she was talking about that's how she described oral sex and so the mother said i was a quite sure what she was saying i thought i thought it was something more along the lines of showering there and i confronted  earlier and so so that this whole suggestion of retaliation because of the because of the infidelity is just not supported by the evidence in the way that the victim describes her parents relationship and in fact her saying i didn't want them to get divorced and and the mother mother's testimony and and the defendant says to money at that time doesn't rebut kind of that this  was there wasn't a real retaliation that it was an understanding that they were going to part ways and they were talking about staying together and filing for bankruptcy before they filed for divorce and so that the whole suggestion is somehow retaliate for the infidelity just isn't isn't supported by the record would assume that we talked about this tearful income when the when she was eight years old part i'm confused about is exactly she she just she's twelve and she testifies correct and this encounter with her mother essential and she's eight i think she was seven at the time servers yes whatever it is it's ok it's five years right they soon in the unit and there must have been a number of conversations perhaps that that evidence isn't in the record  after after the eights reported to her mother the nd time they went to police shortly thereafter and then i think was about a month later the defendant was arrested for this offense so the time the time between his arrest and trial was that four and a half years or five years was due to litigation because my point being able to trust she's twelve years old correct and much more i don't want to say much more much different than when she was a you know all this happened so that the reflection in detail to been reminded of over some period of time i don't know where that's are you going to prosecute or defense or what it but that's what the jury did believe believed her and she provided a compelling as the state courts found compelling testimony on the stand in the defendant's kind of statements about his view of things and about how she so i want to make sure we have a clean separation between the two claims so set aside the vouching claim for a moment that ineffective assistance of counsel claim is just on the hearsay testimony and that this court should review afresh there's no need to defer to the state court because the state court applied the wrong standard and this court has said it's not merely an issue of wordsmith and that hat the state court has to get the substantive point to correct and because the state court here did not it applied reversible error standard this court should review of the prejudiced analysis on its own and on that score i would point this court to the district court's conclusion that the accuser's testimony was made  much stronger by these experts testifying in addition the district court said a strong argument could be made that the outcome of the trial would have been different without this hearsay testimony that alone i think points to the fact that under a didn't novo standard mr hoagland has shown that he was prejudiced by his counsel's deficient performance what about the state's point that really we're talking about two experts only and that their testimony wasn't emphasized by charlie the two experts that testified also gave the jury testimony that age had made these accusations over the course of a number of years in the interim that judge manning was talking about earlier between the two thousand seven and the two thousand and twelve period so the jury heard from she stack in particular that the accuser had made the same accusations during that interim between the time mr hogan was arrested and the trial and that would have given the jury much more to go on in terms of the credibility of the victim and so that testimony dr should miss she stuck and dr males testimony both made the credibility of the accuser much stronger and then finally just to recap on the due process claim which is separate mr hoagland did not procedurally defaulted because he fairly presented it to the state court this court does not require petitioner to cite the federal constitution by book and verse all that has to be done is a fair present and that was done here and then when this court considers whether due process was denied here the valjean testimony is inadmissible in nearly every state including indiana in this very