the court philip churning on behalf of mr hall here this morning this case arrives here as a result of a court decision memorandum decision eighty four pages filed in march of two thousand and three one of the most extensive i've read in quite a while yes it is and of course i'd like to focus on the ineffective assistance of counsel issue which  as being fact says that my client and his mother did not communicate any information information to do co who's the trial attorney before the return of the jury's verdict well that indicated that he was in church ten o'clock well you know i i think one of the things that strikes me about this case is if you look back three weeks after the trial when my client is complaining to the trial judge your honor my attorney didn't do anything for me and the court allows him an opportunity to express himself and he does and and won't read that to you but he does describe the lancaster the social welfare being in church with his mother and so forth and the dunes motel he mentions and then the court says to trial counsel is there anything you would like to put on the record and he says no i'll submit it and the court says well why don't you just make sure that everything that is in your position is completely recorded says your honor we discussed the matter of alibi witnesses and it was my feeling in discussing the matter with him considering all factors that the distance involved would not preclude any alibi witness that he mention from seeing him that some distance place and still mr hall would have had the chance to be at the place where he was it was really a question of identification of the person committing these acts now in explaining why he wouldn't because in fact as the magistrate judge said after that all of this reviewing yes yes he was may have been with those folks but the driving distance does not preclude both of grant's happening concurrently sequence really rather so that the whole issue is that as i understand it is being in church ten o'clock in the morning does not and little rock does not preclude hopping in the car getting on the freeway and whether it's an hour and a half or two and a half hours getting out to commit the robbery well i don't i don't dispute that at all i think so why did not i mean if you know that you're citing uncorroborated of by his defense counsel because he felt desperate to get up there and do something because his attorney had not done anything and if you read the testimony of mr hall i mean it reads like and i don't use this term lightly you know he's slightly retarded if you read his testimony he is at a loss when he's asked by his own attorney who completely unprepared completely unprepared when he defense counsel assuming that there must be some discrepancy in the time if it were ten o'clock i would agree with you your honor however what do co says here which i think is critical to the trial judge  evaluating all matters now i'm quoting i considered that the best approach would be for mr hall to take the stand and say that i was and that he was not there and i did not feel that considering these alibi witnesses could not produce what i considered an airtight alibi that fears that they could have testified to him being where he saw them that still would not necessarily prove that there was a possibility that result as i understand it i may be wrong but i minder standing is what she concluded was there was information communicated to do crowd that he was with his mother and church at ten o'clock and that there was nothing that alerted him that if the hall was still in little rock as late as two o'clock in the afternoon or whatever the time was in the afternoon that church and thereafter was what was it is true so that what he was attempting to say i think the magistrate judge concluded was that unless he had an alibi witness who could keep him in little rock to foreclose driving to bakersfield and wasn't very helpful to put them on and he was pretty adamant about saying that when he was during the evidence  hearing and i understand you may disagree think he's a liar or whatever i don't know but i'm sitting here trying to look at the record and sort all this out and say well where's the gap right well i think the problem is what in the record shows that duke muar should have known by through alibi witnesses that hall was little rock at a time when he could not possibly everyone assumed that he had been in church within give or take a half an hour hour or so ok so everyone assumed that it had been in the afternoon that she goes to church at eleven o'clock in the morning religiously morning service as well and lo and behold mr duke o moves memory is terrible and all other respects that's all i recall ten years before i had a conversation with michael with my client's mother and she said it must have been ten o'clock in the morning well you know i it's difficult for me to accept this lawyers credibility i can look back three weeks after trial i can look back at my client's testimony where he says i was in church in trial i was in church with my mother until two or three o'clock in the afternoon and that's what mr duke was saying and if i say this i cannot rationally i have never seen that you have to have an ironclad alibi if we had an ironclad alibi a videotape of somebody in a  e when supposedly they're committing an act someplace else but we don't we were rarely has that alibi defenses don't have to the ironclad indeed i can't imagine under that i  understand that with how do you put your enemy interpretation the magistrate judges put on it is that even if you put those witnesses on they wouldn't account for the ability of them to get from point a to point b in time therefore all they are doing at best is creating some question as to whether he could have and did actually drive fast enough to to close the gap why are you arguing for something different that you know i don't think so your honor i respectfully disagree i think a reasonable doubt is what the defense is what we're doing because if a jury heard this evidence that's the magistrate heard it in my view yes and what she can well you know it depends on who you believe surely if she did stand this is back in relevant time when she should be remembered and she said well we went she says he didn't do it she says i talked to him he asked me how much the fee was i told him and he never followed up on the investigation which the client says i told him to talk to my mother the defendant said talk to my mother she's got the witnesses and i'll give this to follow through then he had to talk to the mother and she said ten o'clock and he had done the that he was out of church at ten o'clock in the morning then we are stuck in a in an untenable position he could say i'm not going to do any more research any more investigation but the things that he would have and if he had done a thorough investigation he would have put those witnesses on the witness stand because i cannot see how it could be competent under any circumstance to put a price convicted her on the witness stand to testify to the very things that other people could say but she you probably had extensive experience and i think what he's saying here with us is it might be detrimental it used to be sort of a rule of thumb in the kind of alibi that they always talk about in seminars is the old mother it sure chalo i mean that's that's a tuna fish sandwich you know trial lawyers you know i couldn't agree with you more but the irony is that's and that's what he says when it's alibi he puts he puts the defendant on the witness stand to say and then you put them on and everybody else and they all have different stories in the whole thing goes up in smoke so he decides rightly or wrongly and i'm not giving this guy that an a plus for defense but then you're alibi ends up helping the prosecution we don't know whether that would happen but it seems that this lawyer had something that generally falls within the accepted scope of dealing with this kind of because it was an airtight why i put them on a search on what i'm taking away is the judge those that even if he had made the investigation and i would agree that a lawyer needs to do the investigations we can make an informed strategic decision i'm still trying to understand if he had made that followed up what would he have discovered that he could have put on an alibi why is it kept him in a little rock to the point where he could not possibly have a group or an alibi that would have narrowed the gap with time so it would have been a question of whether you could have made it in time first and i don't see as it would be any need to put on the hall that's not my question my question is what is the alibi evidence in lieu of mr hall mark that would have proved what he was in little rock at a time when the deal was going down or that he was there long enough that he would have had to drive like that he split to make it which of those two scenarios i'm confused well i think that the the the trier of fact would have had before it evidence of a that he was in little rock until approximately if they believed his mother he stayed with her and then had they ate some dinner afterwards they had mark you know walker who was someone who had seen that church at the time and she knew it was in the afternoon they would have had surely jack's any choice to make she's convicted also a felony whether to put her on or not no need to put mr hall on half an hour thirty seven minutes by the prosecution's governance estimation to out a little over two hours by my investigators driving and so it would have cast doubt yes upon his presence at the scene of the robbery  and we haven't touched upon the question the social welfare which we do have a hit if you will from the computer ok and again in that case of feed on the evidence that he was at the welfare office that puts them in a position where he couldn't have been correct or doubtful of whether he could have been that's right and then that's that's my question either which is that he couldn't have been there could have been two places at the same time for the to have gotten up to do the second  trying to understand the factual yes and the result in conflict right and i think the end result is that while i can't and i would be the i would be reluctant to say that there is an ironclad or airtight alibi which i don't think is required at all otherwise i would hope that the state would decide to prosecute but we don't usually have that and that's why i see this as his statements early on to the trial judge  are such that they strike me based upon what the defendant actually testified to as being he didn't say to the trial judge you know i talk me allegations we didn't really know a lot but since that time the records become a lot more clear and we've been able to figure out a lot more about what happened and both mr turning myself spent a lot of time examining each of these really a case where and the reasonableness of mr ducasse actions are largely determined by the information that he had at the time and what we found out by looking at the record was that this was the situation where mr hall was on the eve of trial he had had two different attorneys and his most recent attorney was all ready to go and at that point in time he had heard about mr heard that he was a good attorney so mr hall was able to get a hold of him and he said hey i'd like you to represent come in and only if i can get a continuance so he has about a month to work with and then what information did he get from his clients and that's where it's really frustrating because it looks like mr hall said hey call my mom find out from her what happened and interviewing the hall and who by the way is just a wonderful woman and it became very clear that she really was the no to testify at that point in time she testified the evidence  hearing that she was extremely ill at that time she was suffering from a heart condition and she really didn't know a lot about what was going on she was very far removed from the case and you know i think the district court found the that mr hall wasn't even sure if it was early enough that he could have been both places and i think the other thing that that really came out though and sometimes in cases like this where we have so many years that go by after  sometimes the very best evidence is to go back and see what kind of things were written at the time of the event and to me what really stands out in this case it all wrote a letter to the court after her son was convicted supply this information that my son's asked for you know for instance his hotel that he was living in you know the church and also the welfare office and and she says you know i tried to keep track of that she said i wasn't really aware as any dates that he was at church but she was really upset that these other co defendants weren't trying to the same time she was intreated why weren't these other guys at trial and i think what really comes out to me from this letter is is indeed her son had been with her on the afternoon of the crime that took place in bakersfield this payless shoe store robbery i believe it was the moment of november if your son had been with her that afternoon three o'clock three thirty know i was it was on the eleventh of november you might remember we were in church together that's what came out was that she really did not have this independent knowledge before she talked to her and he's going to supply her with this and then interview the witnesses more it became very apparent that the other alibi witnesses this mark had a walker and truly i had not been in contact with ada hall in tel quite a ways quite at quite a bit of time to pass between national robbery and i think a point that also needs to be made here is that you know mr attorney has been pretty harsh on on this defense attorney mr juco because he didn't want to put on alibi witnesses but let me tell you these alibi witnesses would have helped mr hall church but to me the most important reason why these alibi witnesses would not have been good ones was because surely jackson was married to roy jackson who was arrested at the same robbery in lancaster just about a week after mr hall second phrase that we have we have a string of three robberies taking place in november of one nine hundred ninety and here you're going to an alibi witness her husband was arrested at the same time in the third robbery and to me that just of highlights the fact that he you know this is very suspect because testimony was going to be coming in and the other thing that really hasn't been brought out that i think needs to be brought out is that and you know the robbery evidence strong but i think that the strongest evidence of guilt in this case was the fact that we have codefendant daniel's in both of robbery number one robbery number two and then he's arrested in lancaster with mr hall and at high energy and very good good hearing that you all went through well she was very complimentary of the two of us and perhaps we were too collegial but you know i did file objections to the s facts and she disregarded those i i couldn't disagree more and i'm very disappointed but that's my you know my personal feelings are not relevant but making credibility calls about these  i wouldn't hesitate it but the problem is that again is is going back to the time of the trial the information that he had and just specifically replied you know that same letter that  mrs hall wrote you know this is a she was seventy years old at the time ten years later when we're having the hearing and she's still ill has medical problems but you know we found a way to get her before judge snyder so that she could see and hear her but you know this is not so and i think that's so critical here is when you read the testimony of mr hall  him how to spell his name i don't know how to spell its name i wouldn't have an idea how to spell it but he's listed i think he have a position other than it church you know exactly what you're saying is true what's your point what my point is to judge this case as this mr hall is an intelligent individual that his mother has every detail down i think is unfair characterization of how we would put on this case put on these witnesses and she said in her letter in addition to the that aspect of it i just want to point it struck me as i understand it the way this is coming out is a little different and i think what was meant he testifies i have a dead guy the correction may help with vision but he has a noticeable i that people who say i witnessed this who said i looked into his eyes and didn't notice that that would have been a point to argue it was never  argued finally i said at the beginning at my opening that surely jackson you know he doesn't have to call surely jackson she's a convicted felon she's got an association with a prior different robbery regarding my client doesn't have to call her to testify if they got a marquee to walk her and ada hall both of her own character evidence was introduced they're both law abiding people so