part of that he needs to show clear and convincing evidence state courts base their decision on iran determination of the facts you can't do that was that the victim s l went through around five interviews to discuss to discuss these assaults now we talk about a lot of inconsistency between her wording in two listed three specific events i think what makes her version of events particularly compelling is that you know when she reported in two thousand and ten she didn't allege new assault she didn't try to make it more you know she really didn't change anything around she can say there is something new or something else going on and the fact that she was coming back as a twenty year old  you know she comes in and to have her come in as a twenty year old to testify when she's been put into foster care she's left she's made a new life that really was the compelling evidence i think the other lot of gaps in their testimony that the state exploited in this case where you know hayden did make some comments when she was interviewed suggesting that there was something else going on and i think the other part of it really was bill gris own testimony a lot of it was just very self serving he you know he kind of painted himself he most of the testimony was fairly consistent with estelle's until he started looking bad and then it became sort of a like well i don't even remember what the strategic i think in that case council the council didn't interview kayla before trial though she was in the courtroom i think because the nature of you know i think counsel made a now kayla would have gone on and said no that didn't happen you know it really didn't add much and i think really the key is eight never really relied on that statement in any respect in that case i think it was really undisputed that nothing happened until two thousand and eight nobody reported any assaults until two thousand and eight so the fact that s l may or may not have pulled another child in incredibly vague terms about an assault really wasn't  you know something that the the defense counsel wanted to focus the jury on that's not something he did an interview tailor before trial and they talked about it a little bit at the mocker hearing you know the district court makes the earth and mr gove is kind of make a big deal about the fact that he didn't that counsel didn't file a number one felt that that statement was you know that's all statement regarding you know telling writing the word molest was was an important thing he needed to counteract he could've you know he could resented haleigh if he wanted to but again you know and in terms of all of the just great weight of everything that was either inconsistent or brought out i think counsel made that decision and in any event you know and i think a lot of my argument is maybe going a little bit more towards prejudice i think just looking at everything that was before the jury whether or not they heard taylor say that that didn't happen really women made any difference this early on the question is on the witness stand and yet at the same time the case is being described as compelling and there was a guilty verdict despite  that really thorough impeachment right so i guess i'm i'm struggling here with the tension between those those two views of the case which both seem to be coming from the state well i think a victim  sense i witness can be very thoroughly impeached and still believable you know i think some of the the post conviction for its comment said you know self destructing this thing counsel really cut her part but he said you know i consider the motion to dismiss at the end of trial you she wasn't rendered incredible so i think you know i think this are coming just sort of the struggle that we have in these cases that turn on credibility i think there's a temptation to say because it's credibility it's of closed case and i i think that i think that doesn't give a lot of credit to the jury because we've we asked a jury to determine credibility and of these cases so you know you can have a witness is there really impeach the jury can still believe her for any number of reasons and in this case the case still went to the jury you know it still went to the jury as i was you know on the stand but ultimately the jury had to ask itself you know look at her demeanor look at her delivery how is she you know how is she delivering the stuff and is that you know that we believe are and i think comparing her story to you know touch on the back to just the deficiency point i think you know what gets lost in here a little bit of counsel did present did offer strategic reasons for all of these decisions i think  the you know the main one is during trial after this very successful impeachment of count of s l e made the decision that it was both bogged down the rest the presentation to kind of try to prove that these are the sort of lesser inconsistent these which by the way gilchrist concede that the facts on those that these things were before the jury with these do not remember kind of questions that doesn't make it in effect like that doesn't make it ineffective i think it is really were to the point counsel said you know presenting the stuff would have would have required him to put on hostile witnesses to the defense that he knew the state would be able to use to rehabilitate s l and he didn't want to harm go bristling that so he went to put that out there i think on the prejudice prong there's a lot of discussion about progressives verses cumulative evidence and i and i think we kind of all got a little off track on that i think the easiest way to look at it is is corroborative evidence is persuading that of the that a witness is credible on a fact and the cons the opposite side of that is the opposite sort of purpose would be impeachment evidence to make to persuade that they're not credible both of those things can be cumulative they you know it's it's corroborated in cumulative art opposite so i think in this in this case the district court kind of went astray in calling  and corroborative has ultimately it's impeachment evidence is going to make it's going toward making the witness less credible so and in any case you're going to look at whether there's the evidence is w this i think the post conviction portrays to those old wine in the bottles which really is just saying the same thing over and over again when you know this this case went to a jury was a highly impeached witness so i went to make sure i'm touching on everything which i probably want there's a lot of facts here i just want to know if there's a lot of comment about you know the notion of that council needs to prove that these things that just putting things out there with these you know remember a question is an effective and i just want to underscore that the facts are for the jury especially on the under and over clothing and in fact after counsel sort of brought that out maybe not in the best way but you know following that the state emphasized that point those in her questioning and in closing that as well said under the clothing in two thousand and eight the decision of the sconce and court of appeals affirming the defendant's conviction against claims of ineffective assistance of counsel that was both wrong and a reasonable under the standards established by strickland we're going to be asking this court to affirm the decision of the district court granting him to use relief which correctly identified four significant errors by the court of appeals that involved unreasonable applications of strickland specifically ignoring trial counsel's failure to investigate witnesses or make them available for trial which undermined any claim that he made an object to be reasonable mid trial decision not to call those witnesses when he would have no idea what they would say number two concluding that counsel strategically chose to stop impeachment after s l b m selectively denying having written the false statements in the therapist letter though the transcripts show clearly that counsel proceeded to question s l regarding what the defense characterized as her motive to lie but simply failed to present any of her prior statements that contradicted her denials on those points number three mis characterizing all of the fan and unused evidence as cumulative based on an overly broad definition of that term which doesn't match anything from wisconsin case law seven circuit case law and even us supreme court case law on what constitutes came out of evidence and for failing to make any assessment or acknowledgment of the extremely weak evidence that the state presented when the court evaluated prejudice the arizona supreme court found that it was harmless error admitting a nd confession of the defendants and the u s supreme court said that although it's essentially the same evidence a nd confession by the defendant it's not because it reinforces and crime rates the other one and i think the th circuit case law is pretty consistent on this as well looking at mosley hers is actually isn't from two thousand and twelve talking about evidence that provides crowd rating support to one side's witness on a central and contested factual issue cannot be reasonably described as cumulative and that's what we have here these or central issues to the case these are not issues that were conceded by either side and one thing that i am struggling with in this case that i've never seen from the court of appeals or the circuit court or from the state is an actual analysis of these facts that are supposedly cumulative  or her motive to lie and the testimony simply wasn't challenges with these prior contradictory statements and i think my one of my concerns about your position seems to that's not true in your brief but i tell me why your logic doesn't point in that direction your honor that's a great question and i guess i have put it this way if there are areas where the attorney strategically decides not to go it's a perfectly understandable not to use on pietschmann areas but for example attorney dan wegner testified that motive and bias of the witness are the most i'm reporting area to him and yet when he and his cross examination of well that's the area that he talked about he talked about her you know constant arguments with the defendants she denied that there were those arguments she said that she didn't have behavioral problems there were no problems until she made these accusations and questions about whether he interfered with her dating and she said no i didn't get that impression at all there weren't those problems and he really put her he said everything was fine everything credibility and that anything else would be in it you see most of what is argued here is a council of should should have gone on the attack against us now on backfired her plea and create an awful lot of sympathy for him as  you're i understand that point i would say that she was over twenty at the time she was testifying i guess i would say when he's asking the questions when he's pursuing these points it does not make sense to ask the question have her deny it and then not the very clear impeachment evidence that he has especially when he wouldn't even need to call other witnesses he's got video statements of her directly contradicting herself and that can be devastating yes i understand that there's a tension for trial attorneys in these cases for not wanting to go too far not wanting to press to heart and to let that backfire on the jury but at some point when you're testing credibility you have to do that if the goal is to convince the jury that there's not reasonable or there's not enough from her testimony that it can't find guilt beyond a reasonable doubt if you're asking these questions you can't let her answers that are think on important matters matters that are central to his defense that's his defense theory if he's bringing up the issue and he's asking the question it's subjectively unreasonable to ask the question if you're just go on out of the water in terms she's she's you know she she she agreed she had written it it was true it was serious and then he confronts her with many contradictions and she say i didn't write that that's not true that didn't happen again and again and again why isn't he white white can a reasonable trial lawyer say i don't like the jury's going to believe anything she says i c plant some doubts with these questions and just make her deny these things without going through every single  were the most important areas there and that's why he used os on that point so i think in those areas when he's trying to demonstrate these specific points and he lets her sleep oh uncon basically it sets up this kind of false dichotomy of the defendant getting up and saying that there were all these arguments and fighting and i was cutting her off from seeing this boyfriend and she says no and there were no problems until i disclosed there were no problems with the boyfriend and that goes to the jury if the jury also has her own statement saying that there were all these problems that he was cutting her off that he grounded her for a month and a half that's a significant issue when it comes back to why would she lie because that's always where it comes back soon in child sexual assault cases that's such a huge issue to the defense and to the state it's you know there is one had to argue that she manufactured these charges highly you know and he didn't declare to highlight that motive that was the motive he was arguing he just failed to sufficiently implement it and i think that that's his strategy he's got the facts to support that it certainly is a situation where you know you're talking about any situation with teenagers having that as motive and here that these allegations did come out and there were facts that would have supported the idea that this was to get away because she was being restricted so again if it's the theory of defense to present this claim this motive it's not reasonable to not challenge it when she flat out denies it and you could contradict her and i think that the court asked opposing counsel questions about haleigh how is it reasonable strategy not to resent her when s l basically says i disclosed hurt i told her about this as it was happening and it wasn't just saying the word molest it was also that she says that kayla had this for a sponsor of oh that's gross and never going to go back to him again not calling kayla you can't look at is a strategic decision because something attorney menswear never even can his testimony on that was he didn't consider asking her about it he never interviewed her he had no idea what she would say so it's absolutely not a reasonable strategic decision there was no strategy there even though these statements so both disclosing contemporaneously tequila and disclosing contemporaneously to aaron they were both in the discovery attorney man w d your honor my understanding of the law does not extend super collateral in this circumstance because again this is a delayed reporting case according to the state even got an expert to talk about delayed reporting or s l testifies and directs not cross exam she testifies on direct i disclose this at the time it was happening to kayla so for the defense to rebut that that's not collateral that's contradicting the state's evidence the larger points with the family witnesses erin so apparently being unavailable that again comes back to the lack of investigation by his attorney because that discussion about whether he could come to testify was never ever done in the context of attorney dan wegner saying we need you can you make it out here it was attorney ben wagner had not question him in depth about what he knew the question was well do you have to comply with the state subpoena so that discussion of availability omits the context that it was never you know attorney van wagner is his strategic decision and what witnesses call but he never interviewed aron didn't know what he would have to say so they only discussed whether he had to comply with the state's subpoena erin testified at the mocker hearing that if you would have been asked to come he would have come back which is exactly what he did at that hearing he flew in from colorado and testified in person to so i'm not last point i am not sure which part of their inside money were supposed to believe is the part where the counsel did ask him about this disclosure did ask him about possible buying and and told him he didn't want to basically they're trying to avoid well you know and then counsel said i did talk to aaron and aaron didn't want to come in gilbert didn't want him to come so i'm not sure really how we can find him to be an available witness me especially given that the post conviction for it made that finding and we just heard that think that that question you know even if that was a problem or not interviewing her beforehand it doesn't factor in judge river road near you would ask about the issue of and judge hamilton about is this just holding that council has to if it's a credibility contest they just have to pile on every piece of impeachment evidence there is and i think that's the central problem with mr gilbert's argument here you know counsel did testify hearing he was sensitive to the fact that there's a point where the jury could turn its sensibilities and turn its sympathies back to the victim he said and he noted there a few times she started crying you know if there's a point really when if you're just battering her with these relatively small inconsistent these you know the jury's going to really kind of turn their turn their legion says so in counsel said he was sensitive to that that went into the  n on the motive part i you know i think saying that the boys were the motive is really kind of i mean robert was part of the motive that it really came down to the tearing up the license and the general just acrimony that everybody agreed and was there throughout the trial between a cell and build with he was a strip disciplinary and she was a teenager he didn't like following his rules there's plenty of evidence about her misbehaving she was cutting and burning she was in school she was lying in rebelling i you know i everybody was saying that this was just you know she was really well kind of a typical teenager so when it comes to the questions about mood in two thousand and eight  both were asked and had an opportunity to say why they thought she disclosed two thousand and eight and they didn't say it was dusk and i just he just wasn't a thing this just kind of came in at the end so i'm going to ask this court to reverse thank you as humans