i represent the defendant appellant jimmy reese mr reese was convicted of predatory criminal sexual assault and aggravated criminal sexual abuse and this is the appeal from the denial of his post conviction and supplemental post conviction petitions the primary issue i would like to address this morning is the ineffective assistance of counsel claim which the post conviction court denied after a rd stage hearing so just to provide a little bit of factual background or context for this the defendant's st trial resulted in a hung jury prior to the nd trial the state disclosed l karim as a witness in the state's disclosure of her identified her as an expert in child psychology and therapy and the state also disclosed karim's notes of her therapy sessions with  e i'll just identify her as the victim in this case g s trial the state tendered karim as an expert in child psychology with a special specialty and trauma  she testified that she provided treatment to a lot of sexual abuse victims and that's who provided treatment to g s she testified that the victim exhibited the trauma including lots and lots of nightmares and lots and lots of anxiety and she testified that she diagnosed g s as having post traumatic stress disorder and another thing that's that's crucial to all this is the prosecution also elicited testimony from g s his mother g s did not have anxiety before the of alleged abuse but that she had severe anxiety afterwards and then the prosecution relied on chremes testimony argue the defense during its closing argument so the ineffective assistance of trial counsel claim centers on mr mr reef is trial attorneys failure to investigate and challenge karim's testimony and in particular g s his mental health records which defense counsel knew but failed to obtain prior to trial show that g s had been diagnosed with p t s d before the alleged abuse ever took place beyond that there were several ways in which it was alleged in the petition and then litigated at the rd stage hearing that defense counsel should have attacked or limited kareem's testimony for example kareem was not a psychologist none of her degrees were in psychology she was not licensed as a psychologist she was not even eligible to be licensed as a psychologist and yet the trial court at the state prompting identified her as having a level of expertise commensurate with a child psychologist the state tendered her as an expert in child psychology and it was never pointed out to the jury that  in fact corinne did not hold those qualifications it was never pointed out that corinne was g s is therapist and an advocate for her rather than an objective forensic examiner this came out quite a bit during the rd stage hearing you know corinne admitted that she was looking out for g s's best interests as her therapist she admitted that she works with prosecutors she gave the prosecutor in this specific case advice on how to ask g s questions at trial and in fact yes his mother cream admitted after many questions about how to testify at trial and all of these things point to by as i think perhaps more importantly karim's notes did not see a lot of the opinion she testified to a trial again this is something that came out at the rd stage hearing she testified that the child was showing lots and lots of anxiety and yet her notes don't reflect that the same thing with her testimony that jeffs was suffering from lots and lots of nightmares  karim was allowed to testify at trial as to the effect of asperger's on g s his ability to communicate even though in her own notes karim admitted that she was not an expert in asperger's again this is this is these are basic things that any reasonable defense attorney would have jacked to to limit the scope of what it was kareem testified to a trial but again circling back the most important thing is that you know while karim admitted that a patient's prior psychological treatment is important to rendering an accurate diagnosis it was never pointed out to the conviction court's decision the court the whole trial counsel's performance was deficient and g s prior records and for failing to consult with an expert however the court held that trial counsel was not deficient for not attacking chremes testimony because it was consistent with his overall strategy of emphasizing the weaknesses in the state's case the court committed a number of legal errors and how it analyzed no ultimately ruled on the defendant's ineffective assistance of counsel claim the st thing and probably the most important thing is that the court conjured up a strategic basis to justify a defense counsel's failure to attack during testimony  at trial that defense counsel himself did not offer at the rd stage hearing at the rd stage hearing defense counsel could not point to a strategic reason for not challenging karim's current credentials or her opinion in fact he testified to the exact opposite leave his approach was the same as with any other expert which is to question their credentials and their conclusions but the post conviction court invented a strategic reason for not challenging the testimony  the justification that the post conviction court came up with was error for a multitude of reasons so there's case law which we cite in our brief mostly harris v read which relied on  s supreme court case kimelman v morrison which holds that just as a revealing court should not nd guess the strategic decisions of counsel without the benefit of hindsight it should also not construct strategic defenses which counsel does not offer and that's exactly what the post conviction court did hear another well established principle of laws that an attorney can't make a strategic decision after not after failing to conduct reasonable investigation and again trial counsel here unseated that he should have obtained these records he had no reason to not obtain them and in fact the court agreed that he should have been paying them so in other words no reasonable investigation took place one of the things that we discussed at length in our brief is that many of the actions that defense counsel should have taken would not have emphasized during his testimony would have preemptively limited the scope of it for example precluding her from testifying to anything having to do with asperger's since she admittedly was not in at an expert in that area i think you know kind of overarching all of this is that as a matter of logic the post conviction court's strategic reason that it came up with for not challenging chremes testimony doesn't make any sense if your strategy is to emphasize the lack of evidence and hold the state to its burden of proof then you have to attack the reliability or credibility of any evidence the state offers to corroborate the abuse it's a false dichotomy to conclude that the choice was either to emphasize the lack of evidence or attacker is testimony  there was a related reason that the post conviction court held that it was reasonable for defense counsel to not rigorously cross examine karim and that was he contended or he made reference to potentially opening a pandora's box a that sounds reasonable in the abstract of the hypothetical certainly there are witnesses as a defense attorney you should be careful with because you don't know what it is they'll testify to or you don't know the things that the witness could testify to that would be potentially really damaging to your defense stricklin is not based on a hypothetical it's a case pacific analysis based on the actual facts and circumstances i think the defense attorney at the time his or her decision is made here there was nothing that corinne could have testified to that the jury had not otherwise been exposed to through other evidence and there was nothing that the state was able to identify and the post conviction judge did not identify in his ruling that corinne could have testified to that would have been damaging to the extent that it justifies the wholesale failure to cross examine her and attack her testimony just to briefly there we go that's just brant and you have any questions so this offered kareem and an expert in child psychology cream did not go with the state when in that regard would that be fair she actually fronted her shortcomings in terms of achieving a psychology doctorate is that fair  i don't know that's something that the state has argued i don't agree that that's a rap accurate representation of the record claimed during her testimony before being which suggested that she was very close to obtaining her ph d when in fact she was not a b d ph d that's something that came out at the hearing because she had not done any coursework in a matter of  she was she would have had to have started her coursework all over again in order to be a ph d eligible most importantly it was never pointed out to the jury specifically what it was being a psychologist or what's required to be a psychologist and then illinois no no you can't hold yourself out as a psychologist if you're not licensed as one she didn't even have the training or the education to become licensed and that was never pointed out to the jury case so there was a nd video and you know i'm not certain that it was made part of the record in the appeal in this case but yes there was a nd video that i believe an issue in the direct appeal because the defense claimed that the video should not have been admitted in part because the questions that were being asked during it were very leading the responses at times where someone i think that specifically what he testified was that she's not qualified to render a diagnosis as a psychologist but she did not that's my point even though she's not a psychologist which i think it is kind of ludicrous that that was hoisted on the jury and grew to what even though she's not a psychologist she does have ground that allows her to make that diagnosis is that correct the psychologist certainly i would agree that she has the qualifications to render a diagnosis as a therapist to make sure that these two things are not conflated the argument is not that her testimony as a whole would have been inadmissible that it would have been viewed by the jury in a very different light had a proper cross examination she was a psychologist correct i would argue that she left the jury with that impression given that she talked about  her having caught glasses in psychology and then her failure to correct the state when the state identified her as an expert in child psychology trying to make her a psychologist you know green that that i do agree that most of the appearance of her having credentials beyond what she had was the the the product of the prosecution's representation as opposed to her own testimony but i think in my view that's a distinction without a difference it's incumbent upon defense counsel to ensure that she's not held out as being having a higher level of expertise and she actually did ok assuming that we agree with  the simplest explanation of prejudice is that without during testimony and with karim testimony the defendant was convicted i understand that the two trials are not carbon copies of one another but  different in the absence of trial counsel there's the problem here with trial counsel there is that they distorted the truth seeking function of the trial the jury was luck with the impression that g s not hav that she did not have p t s d before the alleged abuse and that she did afterwards and that's indisputable false and of course the whole reason that kind of evidence introduced by the prosecution is because corroborate allegations that are otherwise uncorroborated and are and are based entirely just on the alleged victim's statement so i think that it's  bit have to bend over backwards to say that this could not have made the difference in mr reese's trial that the jury said well we're not sure about her what she says and exactly what happened but because of her emotional response and her behavioral response afterwards that must mean that her accusations are credible so i  and that was different we also had testimony from detective haas and then there was also the video statement made at the hospital that was so we're looking here at the state the state's evidence i don't understand how the defendant could be punished for not testifying at the nd trial the fact that he you know we're still what we're doing here is wor something the strength of the state's evidence and of course strickland says that if the evidence is overwhelming that it's less likely that counsels errors could have contributed to the verdict inversely if the evidence is weaker then it's more likely that errors contributed to the verdict there's nothing about these these extraneous things you know there's video at the hospital which you know whether or not the defendant testified it's the state's burden to prove him guilty so i don't understand how that could so dramatically change things to say well now the evidence against them is overwhelming simply because he didn't testify that he didn't do it my question was in response to your statement when you indicated that it was the difference between the two trials was screams testimony and i was pointing out the court and counsel there are four topics that the state will address this morning beginning with addressing the standard of review in the case considering the evaluation of the trial stages in this post conviction proceeding that is being reviewed today the end effective assistance of counsel claim was dismissed at the rd stage so following an avid ensure hearing so at this point it is a manifest weight standard that it was fact finding and credibility determination here the defendant bears the burden of making a substantial showing of a constitutional right and must add as th the stage he must show by a preponderance of the evidence and substantial violations of a fact of assistance of counsel occurred on the other hand the actual innocence claim was dismissed following  nd stage hearing which means that as a dyno will review which includes taking as to all well treated facts that are not positively would budded by the record terminations there is whether the post conviction petition made a substantial showing of actual innocence to warrant an evidentiary hearing under either analysis the reason you is going to include a determination of the probability there would have been a change in the result of trial under strickland for the ineffective assis error the result of the proceeding would have been different and that is sufficient to undermine the confidence in the outcome actual innocence the new evidence must be of such a conclusive character that probably changed the result on trial having great viewed the standards of review people would like to address evaluation of the trial evidence as it effects the evaluation of evidence for both claims the people wish to dispel the claim that the victim's testimony about the abuse was neither consistent nor reliable or an cooperated i'm sorry your honor as stated in the case of paragraph fifty five certain out of court statements by a child witness are admissible because they are reliable cooperating evidence in this appeal the defendant has not safeguards of reliability of the statements she had three consistent prompt outcries within forty eight hours of the abuse statements to her mother on the th of september the statements of the cheatings physicians on the th of september and statement to the interviewer at the child advocacy center on the th of september having it up to that hearing the three prompt outcries were both the court also found those errors to that prejudice the defendant and the people maintain the prejudiced part here is to trolling change outcomes sops through more vetting and attack and the challenge of corinne would d during the victim's treatment in two thousand and thirteen by karim the evidence you're hearing here provided a whole picture of what the defendant felt should have been done by which the  child court determine the impact of that testimony means testimony that child was not sufficiently weighty to affect the outcome specifically the child court found her testimony did not directly relate to the defendant or the abuse this finding was not against the manifest weight of the evidence it found she would not advocate for the chogm of being associated with the abuse charge this finding was not against the manifest weight of the evidence the appellate court found that the appellate court to not explicitly belying careens testimony in affirming the defendant's conviction this is not against the manifest by a court to rely on the on this court's opinion as the arbiter of that evidence means testimony here was a limited and the defense counsel kept that limit by not pursuing further information there was not a reasonable probability of that and that checking her background in opinions of what she interpreted the victims to mean was an attack on the reliability of actually treated the victim records did not change the victim's testimony or outcries therefore the child court did not find that there was sufficient weight she her testimony to change the outcome of trial finally turning to the actual innocence claim his claim should not be used to really really get the sufficiency of the evidence we're looking at the probability not searching to see of what another jury would do considering all of the evidence both the old and the new together affidavit was not new evidence it was known to trial counsel before the st trial and counsel did not and certainly by the nd trial having no he did and the childcare properly asked if it could have been raised in a post trial motion also it was not conclusive most importantly it did not go to defendant's actual innocence because it was not both exonerating and conflicting is merely impeachment or conflicting it would impeach his prior trial testimony but it would also conflict with thomas's testimony and the defendant statements and testimony was not fully exonerate the defendant as the affidavit does not account for where andrew was the whole night it is read in conjunction with other testimony such as testimony which has credibility issues of its own most importantly looking at paragraphs twenty dollars of the record and you said that his mother told him to go downstairs and the mother came downstairs to talk to him about his inappropriate with the victim so there certainly was a period by which and you could not account for the defendant the entire night i nearly there must be a substantial showing of the that provision of the constitutional right the defendant's speculation as to what caused a hung jury or of the verdict in  the nd trial is merely speculation as there were multiple differences between the trials and we cannot speculate on what a jury did or did not rely on in reaching that verdict you cannot build a case for a substantial showing of a deprivation of a constitutional right on assumptions is a burden on the defendant to make the showing your honor is and will now be available for questions just as brenda to somehow memorialize andrew's statements such that they could be used to impeach himself and to tblisi a trial that claim has not been made correct i'm sorry you were saving in an out to have that we do not have that claim your honor because we do not have that claim when looking at what a new trial might be in terms of ineffective assistance on the other ineffective are of the ineffective assistance claims that were raised we should not way and use affidavit as to that question is that also c as far as what the outcome would be correct  no your honor it is not it does not then sounds to me yes because you didn't raise ineffective assistance as to that andrew memorializing issue when i'm looking at the other ineffective assistance that's alleged i'm not going to consider andrew's affidavit and what a new trial would look like is that correct no your honor that this plane it hasn't been found testimony was at the trials and even if we were to look at it there are a lot of problems with the conflicts between andrews to trial testimony against th affidavit the bias and credibility issues which obviously were not determined at the nd stage due to his affidavit it was dismissed before such events are credibility determinations for me they had been subpoenaed couldn't they have completely undermining the clinical counsellor or clearance testimony karim explained that her diagnosis had she even known about the prior diagnosis would have remained well let me ask you this you're breaking up i'm sorry you can continue i'm sorry that you were down but i was in the phone no i just know she she did explain that her her opinion would not have changed even if she knew about the prior medical records and both both experts testified that new stimuli can either be trigger or you can have multiple stimuli or events leading to a diagnosis of post traumatic stress syndrome did it been prevented that would have been a determination for the jury to make as that is an inference from the record as to what was causing her trauma in two thousand and twelve and thirteen whe dreams testimony was that she treated the victim explained the symptoms she was saying i do not recall any direct evidence from remains that there was even a discussion the money did not directly implicate the defendant or the abuse with respect to the cross examination of greed or should i say the lack thereof though that lend itself to the reasonable probability that further cross examination of her would have altered the results of the trial have altered the results of the trial it may have clarified some of the points that defense counsel wishes were clarified but she did not misstate her training  or her ssion when she testified and i believe that the other then sherry hearing even if she wasn't a licensed psychologist she was still able under her job as a counselor with the girl to make a p t s d diagnosis in order to treat her as her counselor so while there may have then you know this is the jury was left to determine the weight that they give to her expertise but essentially it comes down to the fact that she was treating this victim and it allowed the reasonable inference that the treatment shortly followed the abuse and it was reasonable to argue that she needed treatment because she was abused thank you counselor jakes i think you just addressed i have no further question but my question is really a follow up on what justice bridge is brought up and that is it is the state's position that cross examination of the most significant change between trial  two would not have made a difference that your position your honor the state  i'm sorry i'm afraid i was letting you start over but of course your honor don't just please start over with part of your response the state may not agree with your honor's assessment of this is the most significant change between the q trials as we had a rd example of the defendant or the victim actually i think what to me but let's assume for the sake of my question it is the most significant bit of evidence all right your honor that substantially changed it would not have shown actual presidents here because we are determining you know the ultimate question is did the defendant sexually abuse the victim this question w remained the same with or without more thoroughly preparing to and actually attacking her opinions and bringing in another expert because no amount of her expert testimony on the cause of the p t s d diagnosis by which we evidentiary hearing describing that that was subject to different interpretations by two different experts would have undermined the victim's three prompt and consistent outcries and challenging her opinions  diagnosis again was not essential to the state's ability to use the evidence and counter that even her observations of the symptoms and behaviors will be to an inference that they those symptoms were mr curran are you prepared to give a rebuttal yes your honor and i'll try to be brief so one of the things here that i believe was referenced by the state that i want to make sure there's a clear understanding about it is one of the reasons the post conviction court felt that there was no prejudice here from the errors that it did find trial coun made was because this court did not reference careens testimony in addressing the defendant's sufficiency of the evidence argument on appeal and  is you know he wasn't relying on credibility determinations there was nothing pointed out about dr cooper's credibility that i think could could reasonably be called into question he was purely looking at this court's decision in the direct appeal and that is it's fundamentally flawed this court was asked to assess the sufficiency of the evidence which the defendant on direct appeal attacked based on the in consistencies and has various pretrial statements this court ultimately held that she testify or she she she was consistent enough for the evidence to be sufficient to convict that that testimony had been more thoroughly attacked that's what strickland requires the court to do you have to look at all of the evidence and make a determination about whether or not there's a reasonable probability that the jury would have found reasonable doubt had defense counsel properly investigated vetted and then cross examined karim at trial you know and if anything his cross examination of her actually reinforced everything it was that she testified to at trial you know he tried to point out that you know because she had never said he had or excuse me she had never seen g s prior to  with trauma for over twenty years so i'm pretty good at being able to see what different kinds of symptoms they have ok so that's great but you know what she didn't know that actually the child had been diagnosed with p t s d prior to the alleged abuse for which she never received any treatment and i respectfully submit that if you look at everything in totality there's it's simply untenable to suggest that there's that the jury that this testimony did not thank you justice run in any question i do not have any additional questions thank you justice bridges nor do i thank you and i