talking about the nineteen eighty one case for case the one at the marion county yes the marion county this is the one where the motion for a change of venue had to grant was granted yes ok ok in an egregious case of ineffective assistance of counsel mr schroeder's trial attorney failed to conduct an independent investigation and this resulted in the defense introducing the most damaging evidence against mr schroeder the testimony of mr may in michigan and may who identified schroder as the same person who broke into their home and sexually assaulted machine and may in a crime that was nearly identical to the charge conduct in this case this was highly prejudicial because the evidence for the charge victims was weak those victims were unable to identify their assa also for another two reasons one the may testimony actually bolstered the prosecution's otherwise weak identification evidence and to the defense introduced more prior bad act evidence that the jurors otherwise would not have heard of and in particular this shannon made crime has she's bite mark evidence that linked when you know we can now look back at what happened at the trial of course we can see how things played out at the trial but at the time counsel made that decision to call the maze what was his strategy it appears that counsel was not prepared for trial the date scheduled for trial he stated that he thought he had a handle on the prosecution's evidence but he never said that he'd conducted his own independent so what he thought he knew was he had been told by john helper in the prior attorney that dr alexander that she's one of the two cheese bite mark evidence experts had previously told him that mr huntington was actually the bite mark for the shannon may incident and they also had an officer named white i think it was who said the same thing however by the time trial started everyone knew that dr alexander had changed his position on that and said that it was schroeder's bite mark and there was a second expert for the prosecution also said that it was schroeder's a bite mark not huntington's had the defense counsel just interviewed the mays he would have found out that they knew mr huntington because he lived in the apartment building and they would have definitively said he's not the one which was totally undermine what the defense's argument was for this case and he would have never called them and this other cheese bite mark evidence went to come in to also link mr schroeder to the second i'm sorry the first crime the charge conduct when the mays actually were called to testify with their testimony of support complete surprise it appears was there was an in chambers brief meeting right after they testified where the defense counsel expressed surprise with their testimony accuse the prosecution of a brady violation because it appeared that mr may had actually told the prosecution that mr huntington was not the one and that he recognized mr schroeder as looking into the mays home their back window two to three weeks before miss shannon may was actually sexually assaulted so he was totally surprised it's true that the trial court did give a curative instruction by telling the jury there not to regard the identification of him as the one who looked through the window but it didn't cure the fact that miss shannon may identified him as the person who sexually assaulted her and then the prosecution used that evidence to prove that he also committed this the prosecution said something along the lines of these crimes were identical if he committed one he committed a ma had they not had this evidence they would have had the where creighton weimer prior bad act evidence only which did not have the cheese bite mark of a still pretty compelling evidence by the others correct that is true however how was this particular it there were some prejudice and there's there was quite a bit of evidence in this one there was this was a pre d n a case there in terms of identification because that was the key aspect of the linking evidence they amor crayton and where and why or why she claimed at trial that the mask had fallen of and she actually could see the man's face she never told the police that so that makes her testimony a little bit questionable and then where similarly initially told the police i cannot provide much information because he was tied up and blindfolded and i only saw the guy for a few seconds but by the time it came to trial he was positive about his identification and remember this is also a case where there was a pretrial publicity right before the trial which caused the change of venue and all of these individuals live in the eugene neighborhood where mr schroeder's photo on the front page was nearly the size of this binder so they were all contaminated a bit with their identifications because they had seen that unfortunately it's true that trial counsel failed to inquire into those which is yet another example of his ineffective no no of course the state court dealt with how do you see issues and it was generally believed by everybody that whoever committed one of these crimes committed a wall and i suspect the counsel strategy was let's get the sta off on all of these cases and if we can find to be weakness in any one of mitt ghost the one that is being cried that's not a bad strategy now you're suggesting that he should have attack he pointed out the disparity between the testimony of the various witnesses instead of attacking the individual victim so if you will know that might have been a cumulative error argument comes into play is that because the trial court also denied the eyewitness identity expert who could have testified about the fallacies of commonsense with regard to where cr wires testimony that would have provided scientific evidence to show that they should i'm sorry let me rephrase that that their testimony should be viewed with caution because of the passage of time more than a year had occurred from the time of the incidents to trial doctor hawkins had also been able to testify that the degree of certainty that the witness this i one hundred percent positive that is not whatsoever correlated to accuracy of identification and the more that someone is an evolved in a traumatic incident the less likely it is that there accurately remember anything and then there's the unconscious transference whereby if you see someone's face in another location we as human beings are fallible we have a tendency to not accurately recall why which would explain why weimer all originally told the police they couldn't identify the man but after that newspaper article came out they all by the time trial came out they all identified him as the person testimony don't you have to show hundred twenty two fifty four d one there's established supreme court precedent for that requirement yes we do requires funds for adequate defense it's about the meaningful right to access to justice as well as decided a few years later it talked about how the supreme court was being called want to clarify because somehow the lower courts were understanding the access to justice meant that the defense should have the same tools in their tool box as the prosecution but i don't have any case that you can point to this  they will take up the other two i'll turn first to the ineffective assistance of counsel claims petitioner is not entitled to relief on those put claims because he failed to establish the state court's decision was on reasonable it's important that this court evaluate counsel's performance without the benefit of hindsight and from the position that counsel found himself in at the time and counsel's position was this the state's case against petitioner was very strong and counsel needed to find some way to try to inject reasonable doubt into the case calling the mays as witnesses was reasonable as a way to introduce evidence suggesting that a different person howard huntington had committed the charge crimes and it would have been reasonable even if counsel could somehow have been able to learn which it's not clear that he could have been ahead of time that the mays would claim that huntington was not their attacker that so because only by calling the mays could counsel link she's bite marks in the victim's house with cheese bite marks in the maze home and introduce evidence showing that huntington was responsible for both those bite marks and both those assaults just kills it just prior to the trial that it was well known that the expert that changed his position documented in the record in the record it does it does appear that trial counsel was aware that dr alexander had changed his position but carol trial before trial  at least by the time of trial but counsel called the maze knowing that huntington it already changed his position the state's case had already been put on and this was a way of showing it was a way of discrediting dr alexander to some extent or suggesting that at some point dr exum alexander had said both at the swiss cheese which was found in the maze home and the cheddar cheese found in the charge crimes that the bite marks belong to huntington and that at least creates confusion it introduces huntington is this mr may identified huntington boots as similar to the boots that the assailant wore he said that they were newer than the boots that the assailant were but very similar and it was based on that information that police investigated who was  no but he did not do so on direct either so counsel was quite prepared he got from the maze exactly what he wanted to get from them on direct examination and what he wanted to get from them was the similarities in the charge crimes between the the charge crime and the crime that the mays suffered all of these similarities and then he got from the maze on direct exactly what he wanted which was that they were certain that the person who had the cheese was the person who assaulted them and then he planned to introduce the evidence about huntington through officer whitney and through mr halpern which he did and from counsel's position it didn't really matter if the mayes it's sort of two points one he no reason to anticipate that the maze would definitively say that huntington was not their attacker given that police had investigated huntington based on the maze reports so if the mays knew huntington and knew he wasn't their attacker it's not clear why the police would have gone on to get mr huntington and to investigate him extensively so council had a very good reason for thinking that the mays would not to finish really say huntington is not my attacker and second even if they were going to say that he's counsel may very well reasonably have still put them on the stand because this was sort of the only way to get this huntington evidence in and to inject reasonable  prosecutor referred to this witness through so called expert on the bite evidence confused now there is confusion about  right yes if i understand your question i think the confusion of the other case would only fortify the evidence that there was confusion in the mind of that expert witness in the case on her correct it didn't add anything very much to the confusion that everybody acknowledges this witness suffered right i think that's correct but it definitely throws in some confusion about who the bite marks belong to this lawyer put that witness saw these witnesses on the stand without realizing that cross examination was going to be rather  a couple points on that i think that's correct i don't think counsel anticipated the extent and the exact content of cross but i also don't think that cross was devastating miss shannon may actually did not identify schroder as her assailant all she said was that he was similar in height and weight and councils position going into this calling the mays he was already in a bad position we have the other crimes evidence from the crime in which those witnesses and victims specifically strongly identified mr schroeder as their assailant and the similarity between that where crime and the charge crimes were very strong similarity so council was already in a really bad position and the maze could only help him by introducing reasonable doubt regarding huntington or if cross examination suggest that possibly sugar was responsible for this crime as well and he was essentially returned to the position that he was in after that point i would say it goes to prejudice petitioner hasn't shown that had counsel reached out to mr may sooner or tried to interview these witnesses more extensively that they would have cooperated that they would have told him help  information that that information would have then caused counsel not to call the maze and that the decision not to call the maze had a reasonable probability of affecting the verdict that's what petitioner my show to establish prejudice and he hasn't shown any one of those things you recall testified that it was the accused who committed the crime against her she testified that he looked similar in height and weight she could not posit that positively identify him and what did the man on her testimony other than the fact that he could positively identify this guy because he had seen him before and saw so mr may did not identify petitioner as the assailant either he identified him as the person who had looked in his door two to three weeks before trial and the trial court in fact excluded that testimony and told the jury not to consider it oh ok that was their jury was instructed to disregard her act the morning that's correct or anything else i do have one quick point on the ineffective assistance of coun claim with respect to impeachment of the victims in her reply brief counsel suggests that perhaps defense counsel could have introduced the prior inconsistent statements of those victims without cross examining about them and i would just point the court our us forty five point six one zero which was the statute in effect at the time of this trial and required all witnesses to be confronted with any prior statements and question about them before any extensive evidence of those statements could be admitted ok thank you thank you i can't forgive you just a minute to respond to this on this ineffective assistance issue and then we'll switch to the other two cases ok so one key piece of evidence that we haven't talked about is the fact that mays had a blender stolen yes and mr schroeder was found in possession of that blender which definitively linked him to the shannon may crime yeah other aspect that also has it that the council didn't know the about the blunder that's correct it does not appear that council was aware of that either but all of this is about counsel failed to do his job everyone knows a defense attorney has to conduct an independent investigation and not just merely rely on the police reports there's no evidence that he attempted to interview any of them this conversation that he had with mr may did not take place before trial it happened during trial right before mr may testified and mr may gave some red flags that his testimony was going to be harmful for mr schroeder he said things about how i don't want to say anything except in the courtroom as a defense attorney that is a huge red flag that this witness isn't going to help you we as a defense attorneys don't have to bring any evidence it's the prosecution's duty the defense brought harmful evidence because they didn't talk to the people if say the mays refused to test talk to them then the defense would know i don't want to risk something bad happening i would rather try and eliminate that she's evidence entirely as junk science and as contamination problems as briefed before are because without that she's evidence there wasn't forensic evidence linking mr schroeder to the charge to victims so what the defense attorney did his failures just kept on compounding themselves you know they got the blender evidence and the cheese bite mark the link there was some blood test on it but it was not dispositive i may be getting my three trials confused on that so other two which are the issues are except to some factual differences the legal issues are essentially the same that's correct ok that's fifteen three five nine six six and fifteen three five nine six five would you like me to talk about both of them yeah there so we can ok yes you've got to you've got twenty minutes ok