issues in his brief i would like to address two of those issues i'd like to address on the one hand the ineffective assistance of counsel argument particularly as it applied to the pretrial motion suppresses confession and i'd also like to address the visibility of evidence of abortion obviously if the court has any questions regarding these issues or any of the other issues raised more than happy to address those well let me begin if i might with the ineffective assistance of counsel argument i think if there's any one thing that my colleague and i probably agree upon it is the pivotal role that a confession plays in a criminal prosecution that was i think illustrated in a case that i cited in mr cooper's brief people versus r c you now see our supreme court said a confession is the most powerful piece of evidence that the prosecution can offer and then they went on to say that its effect on a jury is almost incalculable in this case he well in advance of trial and prior to filing a motion to suppress trial counsel had been provided a multitude of records cooper the contents of these records are set forth and explained i think in detail in the various reports of the forensic experts that were retained it hired after this verdict came in and prior to sentencing these records reveal the background of cooper which i think is so so important with respect to this issue you see what these records indicate is that cooper had those records was simply the i q of his client which i think the stipulation was it was an i q of seventy nine actually that was contrary to what the experts concluded but be that as it may i think the point here is just this that he raises the argument he files a motion to suppress his motion to suppress he argues or alleges that the statement is involuntary in part because of these various deficits that he apparently recognize from these records he has all of these records to support that position and yet at the hearing he offers none of them he offers absolutely not of it you see in my judgment an argument rings hollow when you don't have evidence to support your failure to do something with these records which i think is the guts of this argument i just believe in illinois here that the authority clearly is that you know a lawyer has an obligation  behalf of his client and the obligation is to provide his client would effective representation and that includes investigation to see a lawyer can't make any judgments unless he's informal and the only way you can make an informed judgment is by let's assume that the secret for the sake of this argument that trial lawyer had done what you have done how would you be helped how would mr cooper's case be helped by calling as an expert doctorin being who would testify consistently it and one of the levels that these two experts found to be particularly persuasive is the comprehension level you know i think they made a point of saying oh he could articulate the rights if you ask him to repeat and he can repeat them but does he understand what they mean and because of what they believed was a severely limited intellectual functioning he couldn't comprehend the meaning of these right now addressing your question i would bet a phelps it would based on their independent evaluations of cooper and based and how prehensile psychological testing which was performed on cooper as well as the rest of the test that you point out their opinion is that the results of all those resources was at cooper could not comprehend the meaning of the rights and while he could articulate them he couldn't tell what they meant and that was the problem and i also her ultimately coming to that opinion and you know had the trial judge and by the way the judge who heard the motion was different than the trial judge but had the judge who heard the suppression most and been provided all this evidence i believe that certainly a reasonable probability exists that the outcome of these proceedings or this motion would have been different wants i'm sorry discuss something to fry  standard as far as i know it does i mean it has been used before as i understand what out of jackson in fact there's a case up in lake county that i believe was used some some years ago without objection right and was just indicate that they're dealing with a client who at a bare minimum has been diagnosed with a traumatic brain injury which is what these doctors said was the case in this situation and when you the moral here is it's what the lawyer comes aware of you know i think we've all made our experiences represented a client who we may not have felt had any difficulty communicating with us or felt that the plankton understand what was going on and then all of a sudden we come upon a variety of records would suggest you know maybe we don't know yet that this story maybe there's more to it than that and that's where i t a lawyer is obligation comes in to find out what effect do these disabilities and deficits have that's all you know it may very well be that the that these doctors will say look we've reviewed all the records we've evaluated him we've given him every test imaginable psychologically we don't think there's anything there you know that's possible but i think the lawyer has an obligation to make that decision in that's his obligate wouldn't an effect he would think actors lives and actor and means it in my judgment it would not because i think what they were looking at was whether he possessed specific faculties a lot of burden when what was involuntary then other than i'll let you go if you start with the premise that we're dealing with a person who has some limited intellectual function and all the other things that we've already talked about here's what they do they the guy out and they sit him down and they say i want to read your rights to you you have the following rights you have a right to a lawyer you have a right to remain silent you have a right to have your lawyer here you have a right to they don't take them individually they don't say look circ you have the right tool or do you understand what that right means well not desert but they can point me to my question can you send a case the proposition then that would be provided basis for this court to suppress a stain or send it back for an internal adventure hearing has this quarter any quarter of you ever said that that it's a burden on the state not just to show they read miranda not just to say that he cases that i'm aware of all talk about a knowing and understanding waiver of rights and i think inherent in that proposition is the rights being administered in a manner in which a person to a person of limited  various disabilities and deficits that they feel this person possesses and the impact these deficits would have had on the it miss ability of this confession specifically because of his inability to waive the i think a reasonable probability exists that the outcome of this motion would have been different quite frankly take it to the next level which i think i have to frankly and that is that not only the motion would have been different they don't come to trial would have been different as well and i think we start with the premise of our supreme court the value of a confession i mean it's in how people affect on a jury if you take this confession how does this you know what you're left with is something that is far from overwhelming you're dealing with a young woman who uncorroborated testimony regarding the events that allegedly occurred i certainly can see that a single witness certainly can sustain a finding  but i think the witness has to be credible i think the witnesses that's one has to be positive and i think neither of those factors apply in this case she was repeatedly impeached and i think importantly the physical evidence that was presented in this case was actually consistent with her entire version of what occurred here so i think if you take this confession out of this case i think you're left with a situation that is far from overwhelming and i think the outcome of the trial would be different as everybody seems to have an opinion one way or the other on this subject and it's because of strong opinions in this area that courts have recognized the problem with evidence of abortion and again  fertile field for preconceived notions and prejudices and it is precisely for this reason that courts are particularly chill for about admitting evidence of abortion even aware evidence of abortion is relevant to explain to this jury what was the result of a pregnancy and the court rejected that and said no that's not an issue in this case you know what this jury is concerned about that regard is really irrelevant and and i submit that here you know i i think the issue here is what was the purpose of abortion ever what was its purpose you know if it has no purpose and it carries with all this baggage a courts of because it goes to her state of mind it explains why she for years misled the police and lied to forensic investigator interviewers telling them oh hooper had nothing to do with this this was somebody else who who i if once you concede to pregnancy is a proper relevant non objectionable aspect of this case which would support multiple rapes as opposed to the one that your client admitted  and i think what that does is it serves to provide sympathy to this woman and we want more sympathy with the thirteen twelve year old girl when she's having sex with the twenty year old brother  don't think i i cited those stands for the proposition i just state so i think of the conflict in the other and i think quite frankly he did not waiver based on the holding in these various cases as you know that there is no question civil trials that you have to make the objection to trial if your objection to trial and raise it in a motion for a new trial which i think supports my position although i'm afraid of maybe of hit a wall with with a couple of weeks ago but but that's my point or let me take it a different deficient and that even if certain deficiencies existence they certainly would not have changed the outcome of the motion or the trial specifically regards to the defendant's motion to suppress statements the defendant did not receive ineffective council strategy and what he argued was that the defendant was coerced into making a statement by the police officers the argument that consul believed in his profession and his professional opinion was winnable as opposed to focusing on the defendant's intellectual shortcomings he presented this coercion claim thoroughly it was valid trial strategy and in addition to this scorching claim he did also present evidence regarding the defendant's low i q and argued that the coercion in addition to the defendant's low i q produced and involuntary statements the fact that appellate counsel now might argue that he would have done things differently or introduce a different sort of evidence certainly does not rise to the level of finding trial counsel constitutionally deficient it's also well established that the mental capacity of a defendant is only one factor to consider in the totality of the circumstances when considering whether the defendant waived his rights and this court has ruled vats defendants with i q's much lower than the defendants the defendant's i q during the motion was a seventy nine defendant with i q s of sixty to fifty four seventy six have all have made knowing and intelligent wafers and clearly the tribal courts also felt the same way child court was presented with this very same argument in the post child motion presented with these evaluations there is not a reasonable probability that exists that the outcome of the motion would have been different it's a bare speculation on the defendant's parts to assume that console did not investigate did not consult and the doctors this is not supported by the record it's possible that counsel did investigate did consult with doctors and decided that after speaking with them that he was not going to pursue that specific a for feeling to properly present evidence regarding defendant's low i q regarding the defendant's learning disability that was all the evidence that was presented at the motion counsel didn't present evidence of the defendant's impaired intellectual functioning he proceeded with emotion and advocated out his client on claims that he felt were having a ball in his professional opinion his strategy was reasonable and the fact that he chose to counsel also present its not only defendant i q at the motion but also at trial and it's purely speculative what exactly is the result or what impact the defendant's cognitive deficits would have pads and how they would have affected his ability to understand miranda it's pure speculation but even if this court finds that counsel decisions were not trial strategy the defendant has still feel to prove that a reasonable probability exists that the outcome of the motion would have been different or the outcome of the trial would have been different had the defendant's statements been suppressed at trial it's very clear that the defendant testified in a coherent manner he was responsive to the questions from both his attorney as well as from the state he showed that he had the mental capability of understanding these complex question he answered in a coherent in appropriate manner  despite his cognitive deficits in addition to that the defendant was able to recount bands that had heard from years prior without any difficulty again indicating the facts he was able to  understand everything that was transpiring the trial court also noted in the post in the put in its ruling and the pulse trial motion they at the evidence of the defendant's limited i q did not indicate the defendant was incapable of not understanding his miranda rights and also the courts noted that it looked at the totality of the circumstances when it made the decision and ruled that the defendant had knowingly and intelligently waived his rights in addition to your honor's to to into all the evidence that was presented even without the defendant's statements there were certainly enough evidence in this case that was presented by the people the victim testified at trial i won't belabor the details i'm sure you're aware of them but from five years of age this sexual abuse speaking on when the defendant started inserting his fingers into her vagina coleman it culminated to the age of twelve thirteen years old where he began sexually abusing her by inserting his penis into her vagina and it ended up with her getting pregnant and certainly the testimony alone of this victim her testimony was found to be credible the jury on several occasions had indicated that someone other than the defendant had sexually assault her and that's how she had gotten pregnant if the jury chose to find her credible chose to accept these in consistencies and chose to convict and when viewing trial counsel's performance as a whole it is very clear that he was anything already been made one very important important point to note is that in the motion in limine e the abortion advocates was objected to because it was hearsay there was never any argument made that the abortion evidence should not be introduced because it was prejudicial the prejudicial component of the abortion argument the first time that was ever introduced was during post trial motions therefore it is not an issue that has been properly preserved and it has been forfeited forfeited for the purposes of appellate review but beyond the forfeiture issue it wasn't putting gas on the fire the abortion was part and parcel of this specific offense it was relevant to shoulder victim state of mind and to also show her the reasons why she delayed in her outcry why she gave the different versions that she gave regarding who exactly had sexually assaulted her to the police during the first  friend caitlin and more importantly in contrast to the cases that defendant cites to feldman outwards and those cases the prior pregnancies and abortions involve events that had nothing to do with the charges that were pending before the courts in those cases and contrast here the pregnancy and the abortion had everything to do with the charges that were pending before the court to be were part point though  she testified how the abuse transpired from the beginning to the very end including the abortion her testimony was found to be credible even one percentage of the jury was presented with the various versions that she gave in the jury my opinion it is irrelevant because it would not have changed the outcome of the case again which was aware of the many different versions that were presented by the big time and how she repeatedly on many occasions indicated that someone other than the defendant had sexually assaulted her and that's how she had gotten pregnant yet the jury chose to believe the victim found to accepted her in consistencies and found her to be credible enough to convict so whether the evidence would have come in at substantive or for pietschmann purposes only it certainly would not have changed the outcome of the case and even if this court were to find that the court that specific issue it was certainly harmless where the jury was properly instructed otherwise it's going down to be abortion issue i also wanted to know stats again not only was the abortion issue relevant and part and parcel to this case but it was also a very important to explain to the jury and as your honor noted earlier the jury would have been left with open ended questions what happened to this pregnancy what happened to this child so it was necessary in order to explain and certainly we can't sanitizing the fans or crime in order to suit the defendants and here there is a conspiracy that was transpiring in this home  the mother was aware that the sexual abuse was going on and she did everything in her power to cover up this crime and she did that by right after her r c had an abortion  began being homeschooled and she began being homeschooled for the purpose of her not being exposed to the outside world so as to continue to cover up this criminal activity  adopted by patricia and her husband as an infant's and certainly as r c testified that was this was something that she was very fearful to have to leave her home and end up somewhere where she would not essentially have a home of and truly the pregnancy as well as the abortion are part and parcel of this offense they specifically pertain to the exact charges that were pending against the defendants and that's why they were properly admitted counsel also argued in the brief it's fine to argue that it was presented in a way to the jury as to make it seem it was a material issue and i respectfully submit that that was not the case it was discussed briefly in the victim's direct examination it was again brought up in the people's open close argument as a way just to explain a timeline of exactly what occurred in this case very briefly once mentioned in open closed and it was again briefly discussed in the people's rebuttal arguments and that was john specifically to rebut certain arguments that were made in the defendant's closing argument during closing argument the defendant argued that the people had not proven that the victim was pregnant or had undergone an abortion so it was necessary for the prosecutor i'm rebuttal argument to remind the jury of the abbott ends and to let them know that there was sufficient evidence that was presented to them emotional discussing i don't think i think they're both on the same playing same level as sensually and i also believe dads here i don't really see how the abortion would have really or th prejudiced the defendant's because it was made very clear through the testimony the defendant had nothing to do with the abortion he was the one who took her to get the abortion he wasn't the one who decided that she should get an abortion so he wasn't even the person who was responsible for the act so that's like another essentially layer argument as to how this can't possibly prejudicial effect additional toward him but i i do believe that they're on the same playing same level on the same playing field here but when you say response  irrelevant it certainly did not supply the defendant of a fair trial where here the evidence against him was overwhelming as i indicated earlier the testimony of the victim alone is enough to convict here we had the testimony of to talk to me like a detective caldwell and very importantly the defendant's confession which all was overwhelming evidence against the defendant the pregnancy the abortion or relevance they were certainly not central issues in the case they were not material factors in the defendant's makes me tell you exactly how the gas on this fire you know council talked about the opening comments of the prosecutor in his opening close here's the comment the prosecutor makes this young lady began having sexual intercourse when she was twelve years old a body here before she had to have an abortion now getting to your question just as congress is are different abortion of pregnancy well maybe she said maybe your before she pretty direct intercourse began at age twelve you don't have to refer to a year before an abortion this was used solely for the purpose of a rousing sympathy for the complaining witness and i think at the same time it generated nothing but contempt because of what this young girl went through and as you point out the state's prosecution being that he was responsible for the c that led to the abortion it was not relevant state of mind my goodness all the way through this trial the young lady said here's why i didn't tell the truth to the police here's why i didn't tell  the forensic investigators you know that cooper was involved because all my mom told me my mom told me if i can scoop her then i'm going to wind up back in the shelter and that my age are probably not going to be adopted again that's why i wasn't forthcoming this a portion had absolutely nothing to do with that young woman state of mind with respect to how they're arguing it everything to do it why she is not candid with law enforcement  this whole notion of abortion is as i said before it you strip it from this case it would have none no damage whatsoever to this prosecution no damage whatsoever and is counsel pointed out if it even involved cooper he wasn't the one who was instrumental in the abortion itself he wasn't the one who forced her to get an abortion had nothing to do with him and if there feel that the mom was responsible for this you know she's on trial if you're unaware of any other possible strategy that may be more radical and if you don't do any investigation if you don't look into what's involved in all these records if you don't pursue that avenue obviously everything looks more winnable and fact is what why i believe this argument lacks merit you know to say well he chose the more winnable argument sure did because he was an informant because he didn't do what i think he had a responsibility and that's why i think it was a more winnable argument and i think counsel said i'll wrap it up with this well the judge concluded there was no reasonable probability that first of all that as i pointed out earlier that wasn't a judge heard most it is true that the judge did hear the defendant testify and the judge certainly can say they stand i have sufficient a fended i think he was capable of waiving his miranda rights and so forth but what this judge said in that finding was he said i watched the defendant testify i think he didn't answer questions properly i think he was composed on the witness stand and quite frankly i don't think an i q of seventy nine is necessarily enough to show that he didn't understand miranda well my response to that is i think the court was in error i don't i think even the court did wasn't familiar enough with the records because what he said was well i don't find based on what i saw in this courtroom that the fed it was mentally retarded unfamiliar reading the records i don't know if he misspoke i'm not sure but he also said something to the effect of well i the only thing presented here was an i q of seventy nine wasn't what was presented at the motion from trial we had all these records and these reports and everything else that he could have considered so simply because the trial judge felt there wasn't a reasonable probability i don't think is a is a determinative factor and with that i appreciate it thank you very much thank you very much for your excellent oral arguments on both sides this matters being taken under vice not we stand