sense at first blush it makes some sense to say that hey there should have been that evidence you're hearing but let's assume for the moment that that's a problem although both could argue it's not what is the possible prejudiced that could have occurred to mr libby here was there any evidence that might not have been presented i mean you almost have to see by a black being a judge trough as opposed to a jury trial that the judge in effect would not give you the same good justice a jury would well your honor i'm not sure the knight agree with you but i think that is the meat of the legal argument is  judge on this case was about the when the jury trial right and the supreme court has been very clear about what's required when you waive a jury trial right they didn't say when you leave a jury trial right because you're pleading guilty they didn't specify that it's when you're we've even jury trial right because you're acting for a bench trial but the waiver of the constitutional right to a jury trial must be made in knowing intelligent voluntary manner i think we would all agree on now and not exactly the same standard for guilty plea and it must be with an understanding of the relevant circumstances attendant to a jury trial and the consequences of waiting and so although i can agree with if you not think he was dalglish it reasonable probability that you would not have been convicted by the other at the jury trial but instead of establishing a reasonable probability that you would have nonplussed guilty and insisted on part of it is the consequences of winning that right and that is just not the letter of law from the united states supreme court about that we are a constitutional rights what would you say would be fundamentally sufficient same what changes to kids to cases the consequences from the particular facts of your kids and we have in this particular case where the defense was credibility of police officers credibility of a confidential will argument i could see in that case advising someone for those reasons we want a bench trial because we have a better shot with the judge of understanding this complex now or law in cases like the one we're talking about today ok so the concourse would be  you understood it was i think you were very clearly inviting that kind of policy to be the policy that would be acceptable pulcifer this court go forward to review your literature i must take issue on because one of the things that you learned from the beginning and i am trying to stay true to it in my practice there can be no policy when it comes to criminal defense every defendant every case every functional circumstance the credibility of back to my first question assuming there was a constitutional violation it's true for the moment you're correct he'll say this the assessment that you make in the end when the tour will depend in large part on a production whether the evidence why could would have changed the question directly your honor i would want to stay back on the case where the defense is credibility it's awfully hard to predict whether or not there's a reasonable probability that a juror of twelve independent people affected the outcome of the plea process in other words were to satisfy the prejudice requirement the defendant must show that there is a reasonable probability that but for counsel's errors he would have pleaded guilty and he would  the affirmative defense likely would have exceeded detroit and when you say that this constitutional violation which we've assumed would have caused the trial to go all the trouble to have been different y that i think they need for the court to understand at least from my perspective whether you agree or not there are a cost of the errors that can have been pretrial that counsel can fail and two examples in this paragraph you just read from intel are the failure to investigate to discover exculpatory evidence and failure to properly advise the defendant about a potential affirmative defense i put those encounters gauri a those are mishaps incompetent room use things that may have been the counsel does that may in some way a fact whether a defendant pleads guilty or goes to trial because they don't know the scope of tory evidence they don't know the affirmative defense class b and advice is to enter a plea or go to jury trial and what hill is doing is saying yes we're carving out this new standard for prejudice where all we need to show is a reasonable probability that you would have insisted to go to trial case and let me just say had there been an evidentiary hearing we would know why counsel given that advice and it would be a lot easier from his own words to argue confident or incontinent but i'm talking about the circumstantial confidential informant your defense is the credibility of officers on it's circumstantial evidence that this was a wrong decision there were no benefits and one of the things i pointed out in my brief is neither the district court nor the government be the credibility particularly of the police officers i don't really understand how if you are meaning the credibility of the police officers to constitute an affirmative defense are you suggesting that the  but it also isn't in the category of cases where strickland classically would apply that rather is in the category of cases where the prejudice standard from healthy about card would apply if we disagree with you conclude that you have to show mr dooley has to affectively plead that he lost some advantage by winning the jury trial right i'm trying to understand what the defense would have been at a jury trial had there been a jury trial and why would one conclude that that defense would be were likely to be accepted by a late jury then by a trained judge well your honor i think i think that's the difficulty i was speaking to judge amber about in judging the probability that you don't even have to answer that question in this case because the district court judge had already found with this is credible and so defense attorney armed with that sense i think the credibility of police officers on and again i don't want to be ethical or suppression hearing the evidence is going to come in a trial whether it's a big trial or a jury trial mean he's going to find somebody giving if there's a defense that throws in doubt the basic fact of possession but your honor i agree with you in the general sense in this case it was this seems that it is which is why there's only one transcript and he found the officers recitation of what happened credible and he found the defendant's allegations incredible it was the same defense it's these officers you know planted drugs in my house because they entered there without being there an hour before it's that the confidential informant didn't tell the truth the very same narratives and that's why i don't think the court needs to how we do our ruling to resolve favorably this case is because the facts and louis obtained a substantial sentencing benefit here from the district court and the district court of sentencing ruled that because the injury trial started at the time at the same time as a  experienced attorney where if expressed his his his normal practice and we would have had an established more supportive record of the way for a jury trial which would you it additionally need the affidavit that was found by mr stock in this case was filed in response to that then existing would rather not be a good suggestion i mean if we if we knew there was a colloquy it's the court be absolutely clear on the record you're waiving your right to a jury trial and here's what the consequences of this meet the only problem i'd have  trial he didn't say anything at all about them but i'll call them marchin particulars soon if those particulars have to be a part of what he's told and would be every case it would be every concession case it would be every position case where the evidence on the suppression and the evidence on the merits was a difficult well i doubt that might be interesting for women in terms of the quantity of cases here in front of a judge that in front of a jury that this is going to be an identical record this record reflects very close to being a harmless error analysis your honor in my view because the way that it through this witness in their briefs that counsel is expounded on that they are allegations that were not for the district court but if they had if they had been before the district court  that's a far fetched to al maybe you would say that it's so inherently unlikely that it should be deemed frivolous but he did he say that among other allegations in his paper  doesn't go anywhere near walk away or of a jury trial he is in terms of the elements of the sixth circuit as pointed out well except that it suggests that it's more advantageous to be in front of this judge then in been conscious of the fact that we can't as prosecutors interfere in the attorney client relationship and with the district court behaving to call a pretty good through all the potential variations on advice that an attorney might give to color as to why a waiver of the right to a jury trial might be an appropriate thing in this particular case you know this judge has a reputation for this this judge has a influence that the client house from counsel as to why in this particular case in this particular type of situation with this particular client at this time in history it's a good tradeoff to waive jury trial i would suggest to opening you i just want to touch on a couple of the questions that were asked and maybe enter them hopefully not make it more complicated first of all with respect to the benefit that mr lee got as a i believe the ball's in my court on prejudice i just believe that the standard is the hill standard and we read the case back and forth i don't feel that i'm going to be able to convince you of that her and i appreciate that i just want to say that i whether you believe that or not i will have to wait and see what's written in opinion because i can see a principled distinction between the way you were of the guilty plea and one it you're a treasure the record is with the record it is and i never come up here thinking i can do a thing about what the record is the problem is in this case is that it is nearly impossible  like this that there is no reasonable probability that the outcome would be different would be requiring the three of you to say that twelve jurors who never took the jury box would have heard this evidence and leave these officers and i just don't see how that can be establish prejudice not being a reasonable doubt that reasonable probability of a different outcome never reached the issue never will known it this truly was represented per se until he filed a cycle of second supplement to motion that is just the opposite isn't it doc though you have to believe you have to show that the there's a reasonable chance to jury would come to the opposite conclusion that that i would like to have that burden after an evidentiary hearing if i have to have that but you know yes i have done burning my point is it's awfully difficult and perhaps this is a principal reason for why hill should be the standard is because it is awfully difficult to establish that there's a reasonable probability of a different outcome in a case where the jury never took the box and never had an opportunity to suss credibility every one of the twelve of them could have had a different feeling and i think to do is if you have been district court and have seen jury trials we know that sometimes verdicts surprise you sometimes jurors don't believe police officers sometimes they is a good chance that the outcome would have been different before a jury  supervisory power being exercised to or as a matter of constitutional requirement as a matter of supervisory i don't think that i could argue that as a matter of constitutional law that that would be a requirement but i think it's a fair flowing f twenty three and certainly in cases like this where you see how things can go amok on the way that doesn't happen i think that would be appropriate under the court's supervisory powers but i will say this whatever the court