good afternoon ladies and gentlemen the remaining case for argument today is wesley vs mr mr van dam that it unreasonably applied strickland in determining that the actions or inaction in this case of trial counsel regarding a potential juror fell within the realm of reasonable trial strategy second it done recently determine the facts when  was unreasonable performance but it was unreasonable to date no court or opposing counsel has posited a reasonable explanation for counsel's failure not to print orally strike a her responses toward your questions started and ended with statements demonstrating her bias she first told the trial court that her relatives murder bothered her to the extent that she could not be fair or impartial then she backtracked telling the court she could impartial yet then under questioning by trial counsel she reversed course again she told consul she could not be sure she could set aside her past experience and judge the case on the facts in the law and trial counsel unsuccessful attempted to remove her for cause there is undisputed evidence in the record that his client asked him to use a printer he strike against a and he did not he had five a bill bill he used one and that was the end of it nothing in the record explains his failure nothing about kesha stated background under the court's questioning or answers to other questions from counsel justifies it is there any indications to m d m that counsel knew who would fill the spot if no indication of this judge's method there isn't much there's a there's a brief period of questioning from the judge for each juror the standard questions what do you read that sort of thing and then there's followup questioning by co and in that follow up question by counsel in this case counsel ask a he asked her to revisit what happened to her close relatives she said a sort of brother of hers who had been murdered i think ten years prior she said that she attended the trial that she w satisfied with the outcome of the trial and at the end of his questioning counsel ascii say is there anything about that experience such that you would not be able to set it aside now my or the respondent says he asked a compound quest that was confusing at the end of at the end of that questioning but right afterward he asked her plainly could you set it aside or not and i can't be sure you know are you saying setting something aside means you're going to resign from your memory certainly not your honor and i don't think that any court has ever set that standard but this court in the thompson case that we cite specifically use the it's the unable to state that a juror will fairly and impartially decide the case and we  contend that that's the same thing as saying you cannot set aside your past experience and her first response to the court her very first question that bookended the front end of the questioning was that she could not set it aside and be fair and impartial s in the prejudiced prong of this problem could you show prejudice to mr wesley without showing you that this juror should have been excused for cause i think the prejudice coin is is an essential part of it and we contend that the state appellate court mishandled that as well the reason is because instead of unreasonably applying the law it and recently determine the facts of the question it omitted parts of the questioning p c a that did not fit its conclusion you know well the problem i guess i have with that is the prospective jurors contradict themselves a lot and they can't you know the early last answer i can't be sure is pretty honest for somebody who has also told the judge the chill try right and we have the supreme court telling us having against yont is one case that comes to mind that in essence we defer to the trial judge on the spot to read body language voice etc and in trying to decide whether to excuse somebody for cause right and i think this seems that at least you're prejudiced argument maybe i'm missing something but it seems to me to to have to meet the same standard it does have to meet the same standard but we're also talking about this in the twenty to fifty four behind text we're looking at the last state court to decide this issue and in deciding whether she was biased we have two sentences of analysis from the state court which don't speak to the overall question of quiche a now it doesn't talk about the trial court's finding it talks about her answers on record it says it  ts the fact the state appellate court omits the fact that she first said her very first answer regarding her bias was that she could not be fair based on her past experience the state court instead focused on the judge's subsequent questioning which elicited a series of word answers from a can you be fair yes you know this is in that case yes but omits the fact also that trial counsel then stood up and asked her a series of other questions that got more detail brought the past case into her mind perhaps and elicited the answers at the very end of the questioning that she could not be sure she could set aside her questioning her of her past experience and it's a very similar case to the one the sixth circuit face and he was which we said in our brief this case where the court initially spoke to the juror about the her biases and said you could be fair but then after counsel question the juror court did nothing in this case that was the end of the story our last statement on record from  is the sixth circuit said that the question of whether to seat a juror who shows bias is not a question of strategy and we completely agree with it but the process we weren't there but with all that questioning there most been some demonstration of her own demeanor her own able to articulate certain things and maybe it sounded as they listen to her some more she'd be a pretty good you were just from her competence and maybe the next one  about any of that but me just looking at her as a pinch of juror obviously if she really said she didn't want to be there are you sure that the maybe you're seeing she did well i appreciate that factored judgment in that that's a part of one year process but in this case we have a few other facts that are going on first of all the court's questioning of her doesn't reveal anything that would like to say whether she'd be a good juror not it's very innocuous what are your activities swimming what do you read i read the sun times and i watch t v there's nothing in that that reveals to us that she would be or would not be a good jury for the defense and because trial counsel had so many preemptory strikes to use under illinois law in a joint trial like this he had five to use he used only one and then the next set of jurors which was smaller he didn't use any so he had four left to use and on top of that he also told his client that he would use a peremptory strike that's in mr wesley's affidavit that's  the record and there's nothing reflecting anything to contradict that so we contend that aside from the normal give and take of what your where the judge can evaluate the lawyer can evaluate the jurors demeanor what have you in this case nobody has posited a reasonable explanation for why you wouldn't use one of those four available printers to strike better so what happens if we agree with you remain on for and the evidence you're hearing you're seeking the lawyers called in to testify about this and he on the jury from the beginning in fact the trial of mr wesley ten years ago if it were remanded for a hearing we contend that we could ask the lawyer freshens we could elicit more responses about what actually happened but the solution that probability that had a been replaced with some other juror he would not have been convicted and now only can he not meet that standard because the case against him was very strong there were four eyewitnesses of the shooting three of whom saw him shoot the victim one of whom whom saw mr graham gesture to him to shoot the victim then turned and heard gunshots but he can't reach the threshold necessary to even reach the point of evaluating the strength of the state's case against him and that threshold is showing that he was in fact biased the state courts found that she was not that is that impartiality finding is a credibility determination that's afforded double deference first as a finding by  what the exchanges were that iraq was concerned because there's no question that there's ambiguity is in the record but as the supreme court explained in patton against you know it's exactly where there are ambiguity is exactly where the record the cold record would arouse some cause for concern that it's necessary to defer to the the trial courts to determination or resolution of those ambiguities earlier in the process the court was questioning the seven in the fourteen juror panel and said is there anything about this case that would bother you she had expressed i believe on her questionnaire that she was a crime victim herself and the court mentioned to all of the jurors when he said was there anything about that experience that would prevent you from being fair and impartial she said i don't know i'm not sure this is on page and seventy nine of the state court record and the court takes a moment and addresses the entire panel and says folks everyone comes here with their life experiences we don't ask you to ignore the life you've learned or the common sense of the lessons that you've had in life what we're asking you to do however is to put aside those things that you bring in and only make your decision in this courtroom based on the evidence in the law if there is something that has that will interfere with that process and we want to know about it and that's is the important bit we don't expect you to set aside how you've lived or what your life experience is we just want to know if you can be fair and impartial so the court tells them we don't expect you to set aside your life experiences we have to want you to be fair and impartial and then subsequently when the court is questioning he say the court says there anything about this type of cases presumably murder cases that so bothers you that you can be fair and impartial and she says yes she had a person close to her was murdered the court but it gets her to acknowledge she goes well she acknowledges that that case have nothing to do with this particular defendant and then when asked directly can you judge mr wesley's case based on the evidence in the law she says yes  this is either a compound question which is discouraged because it leads to ambiguous answers or it's not a compound question and she would perfectly reasonable interpret it to mean set aside or still remember if it's not compound then set aside as the opposite of still remember when you remember it would you not remember would you still remember it and she she gave the best answer she could she said well i try to listen you know i can't be sure and it's it's entirely understandable why she couldn't be sure that's not a very clear question and it's important to remember that jurors are not prepped for questioning the way that witnesses are they come in and out of out of the outside world and they're asked questions and they're in a a solemn and relatively formal setting that they're not used to and they do their best and their best is not always responsive and it's not always consistent and it's the job of the trial court to determine which answers were given with the greatest degree of comprehension the greatest degree of sincerity and a lot of that depends on factors that cannot be captured in the record demeanor indications of candor indications of comprehension a couple of other good examples in this cases where a deer is the trial court in questioning the witnesses or the jurors closed up with a sort of catchall is there anything else is there any reason that would anything else that would give you reason to believe that you could be fair impartial and so there we have an under rehabilitate a juror who just said that she could not be fair and impartial because of her school shows and she could be very she just she could jam for you well it was in response the court said is there any reason that would give you no cause and she said well here's this reason another juror in response to that question said that she was her mother's caretaker and that she needed to be home that now that clearly is not her saying that she's more likely to find the defendant's guilty it's just the jurors are doing their best they're trying to make sure they provide the court with every possible useful piece of information that the court could need and they don't have any training they're not i mean attorneys are trained to listen carefully to the question answer the question that's asked and we still fail  so it is not unreasonable and not uncommon afford for lay people to give ambiguous and inconsistent responses another one of my biggest concerns in this case has to do with the performance pron saying that is a lawyer told him that he would strike keesha it seems to me it's pretty difficult for us to go ahead and say that this is sufficient performance adequate performance established on this record over regardless of whether prince adequate it still would not surpass a very particular to the lawyer involved that there wasn't any any further conversation with the lawyer as to why he did or didn't do anything in particular so the the lawyer who was involved in the beginning there's ceased to be a part of this proceeding all of the other that's correct he's still alive i have confirmed that he's still he's still out there but we haven't had any any further input as to why he did or didn't do anything in particular you know whether he could tell who was going to replace this juror if you if she was struck i believe that well there had been a couple jurors who were struck earlier that the juror who said that she could not be impartial because she takes care of her mother she was excused to respond to him by the court and i remember correctly the court just asked people to slide down one in the next person from the pool how dan i believe you know where the lawyers know who the next person is going to be lots of the lawyer would would see them i don't know if they knew which person that christian or apply to so regardless of the performance was deficient there's still the twenty to fifty four hour if petitioner can't meet prejudice which as we explained you can't but there's also and we don't have a silence on the record we don't know why he did anything in particular but the presumption is that it was a strategic decision the presumption is not that it was out of neglect or incompetence and so when you you have the presumption question then is is there is there any reasonable explanation for why counsel might do this and the explanation is apparent or an explanation is called to mine from the arguments on his motion to excuse key schafer cause he said your honor we move to excuse her calls because she said that she she couldn't be impartial she would be able to satisfy that experience and the prosecution said your honor i don't and you have to remember now counsel neither party had any transcripts of the proceeding to this point this is all in the single day so they're basing their motions in arguments on the recollection of the statements from the jurors and the prosecutor said your honor i don't want to miss counsel but i remember correctly he didn't just ask would you be able to set aside yes will you be able to forget it and of course we don't ask jurors to leave their life experience and common sense at the door and the judge said you're you know she she indicated that she could be fair and impartial i'm going is not an emotion and there was some discussion off the record and then council comes back to announce if the defense exercises allergists and says we're going to use one against a juror who is not to say and that's all we're going to use that's all we're going to use suggest that he's thought about are we going to use any others and the reason that he might have elected not to use i want to get sticky say is that he may have all things being considered a thought that she would see that my time's up finished he may have thought you know all things being considered based on her demeanor in the way she was answering questions her and her alertness this is a juror that i would want on our our panel but she gave this record this answer that i recall as indicating bias i can't in good conscience leave her on the jury if she was biased notwithstanding my gut reaction the prosecutor reminds him your question was not as clear as you thought it was he realizes my initial impression of her as biased was incorrect and so all things are going to equal and i want her on the jury thank you your honor will be proof of respondents argument demonstrates that mr wesley is still waiting for a reasonable explanation for his lawyers failure to use a peremptory strike against a especially in light of his judge hamilton points out his affidavit which demonstrates that he asked his lawyer to strike her to use a free peremptory strike and he failed to do so is it reasonable to ask before the courts get all fired up about those for to ask him to contact the lawyer to find out what he has to say well