in the morning of october thirteenth two thousand and five the mother of this toddler brought the trial to her sister's home where the defendant is the sister's husband left the child  with the sister and me and her two children later in the afternoon the grandmother the mother of the two sisters picked up the child and the child was displaying signs of injury at that time the mr winfield took the position that the motion for required fighting which is what we call a judgment of acquittal in state court and on appeal to the hills court of massachusetts that there were two candidates for the perpetrator of this incident his wife and himself and that there was nothing in the record to distinguish between the two and therefore the the idea being that if the proposition is fifty fifty that's not proof beyond a reasonable doubt and no it could not be an objective way reasonable decision or application state courts rehearse and you look at the statistics of what this court reverts to reverse as you understand the life that i lead and i disagree with many opinion said i have to suffer the consequences for really shocked and appalled by a decision because rarely does the factual record get so distorted by an appellate court that i don't and there is a central thesis in the appeals court decision then it goes like this and this is a quote here for the defendant was the only adult who had access to the v during the prime stand in which the injuries occurred that is a indefensible misrepresentation at best if it were true i lewis there's no question about it but it's completely indefensible completely it was not argued below by the prosecutor no at the sentencing hearing the trial judge the stir by this issue asked for her best suggestion of why the evidence pointed more strongly to the the husband rather than the wife she didn't say this because it's completely in the fence the appeals court says it's based on sue proposition one that the medical evidence shows that the injuries occurred after midday on october thirteenth two thousand and five the medical evidence does not show that the medical evidence as i argu shows unequivocally that the injuries occur the medical evidence that sometime between one o'clock on march twelfth i'm sorry october twelfth of two thousand tobar twelfth of two thousand and five testified that the sole injury and the burning injuries occurred at the same time most likely occurred at the same time and she put a three day window on the two to three day window on the sole injury and a twenty four to thirty six hour window on the burning injuries so the medical evidence does not show this this is just  the line of reasoning that says the mother's testimony and the grandmother's testimony bracket the time period during which the child was on the thirteenth  over his wife correct and then we've got the evidence that only the petitioner was alone in the house with the child at any point during that for forty five minutes and then we got the testimony that the nature of these injuries would likely have been cited noise screams in the line correct under the standard review that we have even if that might not convince us if we were jury why is  not enough because they trial for head injuries to her skull all bruises along her face one has to presume that the cries that whoever did this would not attempt to muffle the cries done alone isn't a claim that it is reasonable but want for a jury to find that it was done alone and i would say no it's not reasonable because mom would have to presume that the perpetrator would not try and muffle the cries this is a multi family home but we have no evidence in the record about how large the home is the defendant the un controverted testimony was a defendant was asleep and told the to clock in the morning the injuries are consistent with someone trying to muffle the screams assuming there would be so it's total conjecture to suggest well this was done when no one else was in the house versus this was done by somebody who decided to muffle the  also points to the implement that was used which is consistent with a curling iron and says that perhaps the defendant more than the wife i don't understand how that's possibly was involved this is a three year old and maybe she was injured at that point in time you know that's when the injuries were correct she was screaming that who knows i mean to me this is a black box and even though i reserve can i say one thing about my issue number two you can just we don't decide whether or not you can peach by bias by having an evidentiary hearing where the trial judge decides whether or not he or she concludes that there was actual bias and if he or she concludes that there was it we don't let the jury hear about  was sufficient to find that the petitioner and not the wife had both the motive and opportunity to commit these assaults so there's no dispute as to what kind of injuries the victim had the only issue from trial through appeal and now he  identity of attacker and here the petitioner had an opportunity that his wife did not have dr knew in testified that the injuries occurred say after midday on october thirteenth now all the injuries likely happened at the same on october second and the bruises bruises on her face and chest were at least eighteen hours old at the best you can do if you take all that you've been narrowed down to two people who had access during the time when the injury based on the medical evidence but then we also have the fact that the petitioner was alone with the victim during the day he admitted that no one else had access to the house i don't other than him and his wife that his wife did the if you know eleven thirty or twelve thirty and was crying for a period of time then we seems to me that at least the first two of those three factors might might suggest that it's more likely than not that it was the defendant how do you exclude the wife beyond a reasonable doubt what's the evidence that excludes and indicating pain more than a normal child such that if someone else in the house had been there they would have been able to they would have responded or heard of this crime we also have the fact that the petitioner in the petitioner alone it might not that he would quote would have never ever ever ever wanted to take on another child he also told officers that he did not like the victim's mother that he thought they were taking advantage of him on the other hand the his  wife through the grandmother and through the victim's about it they testified that there was a good relationship between the sisters even the petitioner himself said their relationship had improved and we have here the petitioner this child was kind of forced on him for daycare purposes where his wife actually had entered into an agreement to get paid so i think you have this opportunity where he's the only person alone with the victim for the entire time span and then you also have his motivation of hostility towards the  job then to just briefly touch on the second issue after the point where the chance to terminate there was no bias so there is nothing to cross examine the victim's mother on she had made several statements over the course of the until april two thousand and thirteen two thousand and seven that the criminal complaints were issued and then her trial testimony was consistent with her prior statements relationship between the sisters was described by the mother as not great but getting better it's this it's the wife who when it's called after the grandmother tells the mother that there's some injury to this child why won't he answer the questions that are being asked by her own sister there's no motive that differentiates either of these two people from each other and there's no medical evidence that puts it before noon i mean the only afternoon there is not this is a guess that it's the reason the commonwealth had for making this gas is just not in the record and it's on reasonable to allow someone to be do well life sentence based on a guess to counsel do we for do we have all of the transcripts that the entire trial record from the state court proceeding here in in federal court what about investigatory reports police report statements to the extent that they were made part of the state court record so i would like to ask you to check and make sure not that you would ordinarily have to do this in every case i'm asking that specifically for this case we want everything from the state court tri everything that was filed except for the to the extent that there were exhibits we don't want t