adequate pretrial investigation namely the central focus of that issue is whether defense counsel was ineffective for failing to in he was an individual who picked up the defendant from the home where the alleged incident occurred and he provided brief testimony at trial that there was basically nothing wrong with the defendant he overheard the defendant speaking on the telephone with the child's mother about possible sickness that the child had and that there was otherwise nothing wrong with him ob sp testified as he did that you have to ensure hearing that he was with mr jackson all day long that he was with mr jackson any children at the home and that he l d during the evening time which would have overlapped with when the mother indicated that she got home at three thirty so in this case it's kind of like an alibi witnesses said sort of a reverse alibi were instead of the witness saying that this person was not there at the scene of the crime this person is saying that they were there and that nothing happened and the you know the other witness they were just talking about regular things mr jackson the defendant was talking on the phone with the mother the child and they were discussing abhi child's illness things that i had been giving him  all when the alleged event occurred and his testimony only makes sense in the context of another witness who would basically be able to corroborate that there was this sort of essentially with the defendant from when he was with the child that day or two afterwards when i he was speaking on the phone to the mother about they were not able to pinpoint during the trial when the actual when the actual wall battery i guess you could say actually occurred we know that the mother came home at three thirty and the trial testimony established that the child was actually sleeping when the mother came home and that she testified that she was sitting there with the defendant in the house and he was just kind of playing video games and not you know doing anything of no odd when she came home and it wasn't until later when the child was  awoken from the sleep that the mother discovered injuries so i don't believe that based stablished when this actual injury  the doctors that testified in the case testified that the injuries to the child were consistent with with some sort of battery or beating up lack of a better word og and sort of there were the imprints that the jury was able to draw from the evidence was well you were the only person that was with the child during that time so therefore if there's evidence of a beating that you must have done  indicated that he was with the defendant until the evening now that is kind of a difficult time period to pin down as far as what the evening that  z mr walker picked him up in the evening and the mother of the child returned home during three thirty and it's not clear  stomach area ob but they could not pin down as to who did so there was the defendant that was with the child but there was also another child ah that was in the home as well so that is a possibility that wasn't you know the central issue at trial there was sort of some allusions  to it being the child's father because there was this dispute about the child telling somebody that daddy did it to him and mr jackson is not his father on so there was you know that was part of the defense strategy was in trying to raise reasonable doubt was that it wasn't the defendant that actually committed the battery it could have been could have been the other child that was in the home could have been someone entirely different but that's the inference that the jury threw was that you were the only one that was with him  even though we're not entirely sure when these injuries occurred they seem to have occurred recently and you know that's the inference that makes so i think that it's interesting irrelevant it's not our whole ob but some of it and one of the interesting things that mr jackson says about mr ferguson is testimony that he doesn't say about other eyewitnesses is  o'brien called him months after being in jail seeking information now i think that as far as if you want to talk about who's full facts i think that this is one of the most  gist of the state's argument is that it's the defendant to basically point the defense counsel in the right direction as to where and who to investigate there i mean i appreciate that argument but there's one there's one premise that that's based on that there's an assumption that defendants are reliable historians of their own cases and we know from basically our collective experience in the courts that the defendants can be pretty much the most least reliable historians of what happens in their cases and that is an important thing to know because if as defense counsel should just stop at our clients work as to what happened in that case as to who was important who was not who was there wasn't then we would be severely handicapped in representing that defend it because we might not know the other side of the story we would not know the whole picture and that's why it's incumbent on defense counsel to yes take some of the information that your client tells you look into it or there may be no where may lead somewhere but do your own independent investigation just like the technical brian she's trying to find out the facts for herself there's no reason that a defense lawyer especially in a case like this that just has something off about it that he shouldn't be taking every fact that you can and running with it every opportunity to investigate the facts of the case and trying to figure out what really did happen here mr newman this is not a public defender who's got a huge caseload this overburdened the defendant is paying this lawyer three hundred dollars an hour oh is that the regular rate for criminal attorneys in the moline area so it's a little higher than if so this is this is somebody that has the resources to run this stuff in fact he wasn't even able to recall which associates had been working on the case that time and did he do quirks characterization of the defendant having been better off with his mother representing him and i say that not here not to to make light of that but his mother actually did more pretrial investigation then the lawyer that paid thirty thousand dollars and that's not affected assistance counsel if the defendant and his family are asking you to look into certain things when there's in a case with so much uncertainty and you as a law firm have the resources to do so and you're being paid to do so and there's the possibility that you're going to either find a witness who's going to robbery your defense or independently by he also could have been part of a continuum of witnesses who would have been testifying to the same thing namely that mr jackson out they were with mr jackson at  time period during that day so i'm talking about mr forget this mr walker and mr pope who's the child's mother that knew that from lunch to evening none of those belcher about the child's illness and what had been given him for food and that kind of thing so this wasn't awful and this was a fact it came out that the child had some sort of illness it that's the inference that the jury ger right from the other half and they can draw a reasonable doubt yes and then on direct appeal you know in the light most favorable to the state then that isn't really going to to the actions of the defendant in regard to the children in the state of the children during that that is correct and that the complection of the trial would have been different had he been called to offered and i spent the majority of my brief talking about exactly what trial counsel was supposed to have known about this potential witness so i'll touch briefly on the potential testimony as forget this and  i think the record is pretty clear based on his affidavit and his testimony at the evidence you're hearing that he didn't have a whole lot to offer i'm sure he was with the defendant most of the day which is wh on defendant with the kids every second that the defendant go into the bedroom to check on the kid dollars luger like cross examination questions i don't think so now there was in a lot of of anything that was flushed out here  lunch with them and they played with them in the afternoon assuming at lunch time of course and the mother came home three thirty when the child will cough some time later was injured obviously i think it stands to reason it happened that day i don't think there could be any other conclusion honestly based on this evidence and so i'm sorry i think there could be another conclusion what was it like it happened the day before if you didn't establish what day it happened how do you know this is the day why would them so i mean the mother noticed that the child was injured do any investigation it doesn't seem like he did a whole heck of a lot but it was also paying a tiny three hundred bucks an hour i want to tell him who i was with the day i was accused of committing a crime assuming that you understood the  i don't believe that was established conclusively i think we can probably learn that that conclusion because he said it was there until the early evening and the mother came home at three thirty so i think we can draw that conclusion but again that wasn't that wasn't the cause of  months after me being in jail seeking out information has been over to the alleged victim's mother's house with me and has seen me or around for kids that's enough to put him on notice that this witness could have some tension with me that was enough to put a detective brining notice that this gentleman should have some information and what's interesting if you if you look at that is that with her river  help her to call for get this so she had spread known from some other source that's where dennis had some information about the event that may be useful to her about station and then he would have been the only one besides mr jackson that was at the home with the children and with the mother so it would make sense that the mother who was talking to the police would say well there was this one other guy he was  have been placed like i said earlier in a continuum of witnesses who would have been able to testify that basically nothing happened that day and a jury could have accepted that offense and they could have acquitted now of course we don't know for sure whether they wouldn't but that's certainly a much more robust defense than the one that the defendant put on and if the defendant essentially puts on no defense and you're looking at it retrospectively as to whether this witness is going to change something then that witness testifying who is basically sort of a reverse alibi witness that's what changed the complexity of the case regardless of whether he's close to defend it but if he spends the whole day with the defendant and these children i think i don't think the jury's going to be suspect of his testimony that he's close to the defendant and the fact that he's a felon is something that isn't and i'm not so sure like you're saying that that would have been something that the state would have you can then use for peach him or even if it would have been affected i mean if if he's testifying i was with the defendant that day  our position is that it would have changed the result on a retrial because it would have established a continuum of witnesses who would have testified that they were with the defendant at least until one into the evening think that mr spurgeon just comes into the story he says that he had lunch with mr jackson the children so there isn't a whole lot of detail as to when he arrived at the home and how he came into the picture but presumably if he had lunch with the children and he didn't notice that there was anything wrong that that that would have a jury would have been able to infer that there had not happened it's three people saying that the defendant was at the place where the crime occurred and that he didn't see the defendant doing the crime and they didn't see him acting any differently and i think that that and the court would have to keep in mind that this oh this case was charged i believe back in yes two thousand and thirteen so the evidentiary hearing happened four years later  so asking him to pinpoint the exact time ah i mean what he could remember from that day was that it was just like any other  i don't recall walker specific testimony as to when he picked he the defendant up cards it was sometime in the evening testified to was just as to whether these injuries were a result of physical trauma sensually not they were some other sort of physical condition that the child  talking about him pointing timelines with accuracy is typical in this case and that underscores the importance of investigating and developing these facts so that you can have a robust trial records not going to knowledge these are difficult cases to defend i mean when the jury sitting there with the injured child or a dead child and there was somebody that was taking care of a child the inference almost every time is going to be since there wasn't any evidence that it occurred that they did it could have occurred prior to and that's where these witnesses come into play as far as their  you know it could have been much more probable that it was the mother ah it could have been more probable that it was the sister it could have been probable that it was the child's father and a number of these arguments are much more available to defense counsel if that's the strategy than when he's the sole caretaker of the trial which isn't really even the case i mean mother i believe the evidence in the record indicated that the mother of my for work in the morning and that mr jackson began caring for the child when the mother  and i would have to double check the record but i think that he actually came over to the house he was not he did not live there and i remember from the record that keisha only i spent the night there but i not testify for instance that the child had injuries on him prior to her leaving so there there was no testimony as that in her testimony frankly wasn't that wasn't really that impact or in the grand scheme of things because she just testified that she discovered the injury went to a neighbor they called the cops and that was kind of the extent of her trust so we're just noisy important in establishing who discovered the injury and when and what was done afterwards as to sort of the chain of custody of the child through the medical care system but arm but overall she wasn't able to really shed much light on the offense conduct but the suggestion is that there are reports indicating that the mother before there were any that was in the records and i didn't want to just know when you were talking about that i don't want to bring in extra record evidence