with the final credible corroborated defense but he also would have been able to shut down many of the improper prosecutorial comments that were made in this case that so prejudiced the defendant's right to a fair trial now in our brief we've separated the prosecutorial misconduct from the ineffective assistance of counsel but i hope in this argument this morning to show how the prejudice from the ineffective assistance was exacerbated he put a lot of argument on and he told a lot of stories but that arguments are evidence the jury is told that opening statements closing arguments are evidence here that he had three witnesses who gave statements to the police immediately after the shooting who said they asked who could run rated the defense theory that mr mulder was the aggressor in this incident not mr isaac man and those statements were he said it wouldn't have been useful that's entirely inconsistent with his his defense at trial which was that and he repeatedly said this mr molder was the aggressor that he was a bully the he didn't reveal what the source of the evidence would be and it couldn't bend from his client because he admitted at the critical hearing that he would talk to his client between the time he was retained and the third day of trial comments and the ineffective assistance intertwine to create more prejudice to the defendant's right to a fair trial now that the source of carroll's impact carol said in closing argument i'm after the prosecutor pointed this out he said well that he told the jury that was my opinion well opening statement is a time for stating what the evidence is going to be not what your opinion is and furthermore what this was we don't know where he pulled that out but it was the defendant who paid the price when the prosecutor accused the defendant of making up his defense the jury was instruct  set out exactly how the prosecutor kept making the same improper comments even after repeated objections w heard the defendant say i have to right to use it if you attack me then she heard a shot mark snyder heard do you want to fight we don't know who said that saw the defendant retreating towards the median molder appeared to be be the aggressor the witnesses who told the police that mr isaac nim was the aggressor the state put them on the stand the witnesses who told police that mr mulder was the aggressor but the defense theory became dependent on mr isaacson's testimony that mulder was the aggressor but the prosecution in closing argument told the jury that the defendant had fabricated his defense for the first time after hearing all the other witnesses testifying so if these three witnesses had testified that mr moulton was the aggressor then the jury would have had corroboration that mulder was the aggressor not isaac men and restoring the these reports there's not anything in the police reports that talks about a struggle do i witnesses always see exactly the same thing no and in fact present attorneys argue if everybody tells the same story there's something wrong however w we don't even get to deciding whether or not the gun went off by accident until and the first point is that mulder came at the defendant and that was the central point of the defense who the who was the aggressor and the state repeatedly accused the defendant of fabricating this claim and if the witnesses had been able to come in and say yes he came after him and more than one witness said that my client said i have the basically i have the right to defend myself if you were attacked me so that is that also in terms of how the prosecutor conducted their case and their closing arguments now the prosecutor said when the eye witness testimony matches the physical evidence that equals proof beyond reason and also the jury was instructed that an initial aggressor has a duty to retreat which is correct and the press tutoring hammered this point in closing argument telling them as it meant could have run away from boulder rather than engag him but if martin lawson and snyder those three witnesses had testified that mulder was the initial aggressor the defense would have had a strong counterpoint to this argument the state also called the defendant a man going right now out that night looking red herring into this case in rebuttal in trying to strengthen its argument that the defense was fabricated by bringing in this officer anderson who said that she overheard part of the conversation that she wasn't really paying attention to that the defendant said after he was arrested i just i was just jumped by three people and then she admitted she didn't know what the context was she wasn't paying attention she was searching for her i guess evidence the parties who were the the officers who were a party to the know if that's exactly what he said and we also don't know if that's all the defendant said but the prosecution used their own rebuttal testimony right at the end the case went straight into closing  but if a person s and s carol argue you don't at the time when mulder is struggling is grabbing the gun he's putting his hand in his pocket and he had already made statements about having a knife then it's reasonable you don't have to wait until actually the person pulls the gun out or a knife out  the defendant's defense attorney had all these police reports why is not his decision trial strategy because his on he said it was strategy but his entire argument to the jury was that mr molder was the aggressor and that he was a bully and that he was a mean drunk and therefore he came at mr isaac men not the other way well you have you have to the bottom line is you should he should have called them because they were consistent with his theory yes and if you get a theory doesn't go very far unless you have evidence and when you have the prosecution accusing the defendant who is the only witness for the defense a fabricating his stories then the failure to offer corroboration to prove that he wasn't defense counsel never had any idea of what the testimony would be of those witnesses there was no discretion because those two counts so never were actually found out what those witnesses they were never called we're going to say here we have the police reports in the police reports defense counsel decided because of if you can make an argument to favor even talk to the witnesses are still questionable to our strategy but i see the distinction you're drawing between this case and the other cases that it is a legitimate stink but as we go dancing around this morning if your better than the three witnesses that defense counsel decided that to bring up you could also of the with this is who do you those other three witnesses are you think are much higher up in the tower they just weren't as good  perfect well he wasn't but there certainly with this evidence here there was no prejudice no matter what he said in the opening argument the fact is is the evidence i mean the physical evidence all the witness evidence i don't care what his opening argument one of the defendants still would have been convicted  is really a correct statement the other thing is is he made here this is a difficult case to fair and i don't feel is ben a post conviction petition filed by mr isaac many years later saying you know what my attorney was ineffective because he's been called these eyewitnesses who are good friends of mine i don't know what their last names are i don't know where they were existed and they would have been helpful but here this was minimal heavy lifting for carroll all he had to do was get the police reports the police found the witnesses he didn't have to beat the bushes oh yes you do with concert the witnesses and it what really happened that night i don't think you can look at any of the witnesses either the ones that weren't called or were called and say that's exactly what happened but the jury had to put everything together and they struggled with that and when you have a prosecutor who is denigrating the only witness who saying this is what happened and also his story was consistent i'm several key points with mr mulder's own testimony which the state says to the jury when you're deciding whether we eat our evidence equals proof beyond reasonable doubt don't we don't include moderately well so it's it's a combination of the prosecutor  shifting the burden of proof accuse the defense of fabricating that fans define with the burden of proof it is and then you know selecting what evidence they want to put in to their equation of what equals beyond reasonable doubt and then you have a defense attorney who is not communicating with this client co counsel met with the defendant once more then in june this  trials in december there is no evidence of what she actually talked about and my client's mother testified that the only what they knew from mister carroll was he was interviewing witnesses and defendant was going to testify that say so and as far as the relying on the state's witnesses the state's witnesses said that mulder was the aggressor now whether or not he walked over there that's much different than saying he was aggressing forward as mr isaacson was stumbling backward saying i have the right to shoot you if you attack me now granted you know it's three am it's outside a dorm it's dark it's the middle of winter there's it's thirsty thursday some people you know the state's case wasn't this was a winnable case for the defense not the state