required to rely on findings of the state court on factual issues because mr mcbride has presented clear and convincing evidence that many of those findings were in cracked in addition there was never a fin would have to look at individual findings hooting the finding that counsel had a strategy there was actually never determination below as to whether there was counsel's performance was deficient what i was i really am asking i was gnashing the ultimate question only that he had a strategy yes today we need to look at whether he had a strategy but there was never a decision at the stake or proceedings as to whether he had a strategy no the superior court never made a decision as to whether you had a reason they got to let me let me take you through what the state court system did here because i think i'm a bit confused ultimately by what it  meant the common pleas who are that tried the case was not the same common pleas judge who ruled on the p c r matters that right judge simpson tried the case right the second prong under strickland yeah the sapir can i think i mean yeah i'm getting to that the the case went to the superior court and the superior court a reasonable strategic basis in the context of this trial then it goes on to say the majority opinion that the penalties and say such being the case we will consider counsel strategy together with the prejudiced prong of ineffective assistance  what does that mean the severe court actually didn't consider the strategy it only considered whether the strategy but it wasn't even sure was there cause some sort of a prejudice oh really only people who have no use in the law on the last  appearance yes but it percentages that by suggesting that it was with language it's just it's looking at but this is a peer court decision i think it's very clear that it only looks at the prejudice i beg to differ on its clarity but i think we agree on have plenty of you because the district court did not conduct any sort of evidentiary hearing below and as a result is that in the district court shoes who are but don't we after the supreme court's decision and richter last year are we in that particular doubly deferential zone where the question we have to ask is not the ultimate strickly question but whether the state court was just completely off base didn't fall below this required by strickland we got this w deferential lens we've got approach all this through right yes and so sitting in the same to the district court which would have to give deference to the state court what we were able to establish that this record proceedings is that the factual record that the state court relied upon when it was making a prejudiced term nation was completely factually incorrect there were three very key points the state court relied upon that were never even presented some of them were never even presented at trial and and one was misconstrued the first a woman named on the long she never testified at trial and her testimony was considered by the state moving a mattress outside of his house however mr mcbride was in prison that time and that's undisputed and mr graves only testified that was actually mr mcbride's father that was moving the mattress out of the house and then the third point that there was testimony by two women and that back who actually was in a relationship with mr mcbride at one point in time and a woman by the name of denise beck heard it was mr x younger cousin and boost both of them testified that mr mcbride did say on occasion that he had killed his wife but it was in a joking manner and in response to a girlfriend that night him over and over again less significant that there was a mattress containing the two separate statements or admissions of having killed your wife in different circumstances but you two different people while the second confession could not have happened because mr mcbride was also on the  determination in looking at the record i might agree with you on the efficiency issue but i'm still looking at the prejudice because of all the other evidence i was sure and let me speak to the matter es it just raises so mr mcbride lived in a house that had other units and and it was open up top so that the attic connected the different you nuts and so that people could move back and forth in addition that house was open all the time to parties there were people and then out of that there were other people living in the house it was for lack of a better word these are circumstances that are presented to the jury we deserve this testimony was presented to the jury and there was i mean there was there was evidence there that was of some significance of weight would you agree oh no because it's not that and significant but it all goes to credibility and it's all circumstantial because although there was a ineffective assistance of counsel and there is only evidence that turns on credibility there's nothing linking someone to a crime then because of that there can be clear prejudice because there's the ability for the jury to find all reasonable doubt i really credibility because you have the uni the d n a evidence doesn't link mr mcbride that it says that there was a mattress in a home that other people had ak access to with blood on it that's all that says there's no will help our case if people see that the police are just overbearing solon's that they never gave my claim that they were they were after him from the start they really didn't investigate this was just a case of foregone conclusion with them and then i thought if they that that would be a good thing for my client for people to to see the police in that light so that's why i didn't object when this started now you can say that's a load of codswallop or some other term you might want to use but but in the end is it not with in the realm of a deep  something we have for two there's two problems with that strategy which is why it should not be deferred to and the first is that that strategy would be like me saying the sky's yellow i'm going to rely on the law you can see that there was a strategy but we have to go beyond right the strategy have some reason the strategy has to be based on reason professional judgment and so if i come up with a trial strategy but it's based on the fact that the sky is yellow the clear deficiency is that he did not understand that he had the ability to to object to references to mr mcbride he does not understand why he didn't do it there's no he didn't understand that he had the ability to and he didn't do it both well there's a there's at least an even bigger the in the record on the first point right i mean there's no way ambiguity on the second point he certainly did do it but there's there's stuff in the record from which you could say well he did know it mcbride answered questions what i gathered from that and what i felt the jury would gather from that is that when it shifted from question asking questions becoming a centrally a fuse it's very towards mr mcbride the mr mcbride wisely first of all had no response eventually said th interview was over and stop speaking i did not believe that to be an improper comments on his assertion of the fifth amendment assertion he won on the say i'm not sure that it would be a successful motion under those circumstances it wasn't mr m bride saying i choose not to answer because of a constitutional right or otherwise was mr mcbride not responding so i'm not certain that that was or would have been the subject of a proper proper constitutional challenge and any event i didn't make one in addition at the p c r hearing the prosecutor actually admitted that the trial counsel didn't think that he violated mr mcmahon rights the statement made by mr lauer stated that he did not think that in frige to a miranda rights or what was going on which certainly causes one to be concerned about the state court ruling but there are other statements of the record where he he seems to indicate no used i didn't want to object i thought this was a good thing for my client this was playing in this was i had a right where i wanted up you know that sort of the pitch he seems to be making but he couldn't make richter's pretty emphatic about don't ask the strickland question you ask the twenty to fifty four d question look at strickland you got to put both deferential ones  argument that's been made by the petitioner and that is somehow that mr lauer did not know the law it's absolutely not accurate because if you have to look at this case from the beginning ok show us where it is like your your colleague on the make it my notes first of all first of all in pretrial in pretrial the fence counsel and this is not mentioned in a brief because as we started prepare for argument yesterday in pretrial he filed a motion indicated during questioning on several occasions by words and actions a desire to terminate the questioning process and consult with an attorney notwithstanding these facts the question continued and petitioner allegedly made certain cremains statements there a back on this case again but it isn't a record because as part of that of the court you know record that all motions ever filed but he did file a pretrial motion to suppress all statements and make specific reference to words and actions that motion denied by testify my client going to tell you from both run that he cooperate with the police that he he told everything he knows and he goes in there was his strategy in opening statement before when witnesses called him let me ask you for cornlie why well i have two questions first why make this an issue why what was and and maybe this is just academic on my part but what was the purpose in asking and you were the trial counsel what was the purpose in asking questions that went to the fifth amendment right to remain silent because you did ask i got an answer to those questions there wasn't an objection in the trial court let it rule but you know what the fifth amendment says what was the thinking to expose the system to that kind of a risk a fifth amendment violation overturning all the good hard work that you you are the police everybody else was trying to do well there's two things your honor first of all living up to the trial there's lots of discussions a koran and i've been there twenty years a lot of murder cases with defense counsel and as these motions were denied they adopted a strategy which you know we should talk about what's going to happen at trial i knew that the family's going to testify as to allow a trice a lot of cases he's a thirty year did but following up on judge jordan's question what i don't understand is why do you need the humanae if the strategy is to demonstrate that the police and investigators had tunnel vision that all they wanted to do was look at mcbride to the exclusion of every other possible suspect why isn't it probative enough simply to demonstrate the fact of the question rather then the particular  answers themselves which in part to me seem pretty damning especially where someone says i don't want to talk and it's actually a question just that i can't answer it because it's just the way when then it went in because the understanding roz that this was going to be the defense that the defender was going to testify and rather than you know have him get up there he wanted it to my knowledge based on you know my recollection of the case and we're going back to two thousand and one now he's testified at trial and as he said in his opening statement you know once he laid out his opening all this was coming in and there was this matter of getting in the record and that he was going to then use it on cross examination to show how let's get back to what i think is that what you were there in the courtroom that leads me to the second thing i want to ask how how could disappear core and i don't mean to cast th aspersions but they they're just gigantically wrong about what's what happened to trial i mean how can what are we supposed to do with that judge that what they were because we've been through this in the state courts and the supreme court pennsylvania was aware of that error when they denied our katar in this case they were aware it because we cleared up soon as that came out notified spear court of it as well but it didn't it didn't change anything in terms of the fact that there was a finding that mr lauer was not in effect us because he's not effective because this is his trial strategy to put all the stuff in and that was the crux of the issue and that issue but but this is this is really the strategy that mcbride was doing for sixteen years because his strategy from day one was that he was cropping all my wife left which someone saw someone saw her here which was not true wanted he wanted to testify and judge and jury about the strategy in the courtroom and in presenting that statement including the non responses i mean right but judge if that is if the strategy is to show that your client is willing to talk to police that he went there as a good faith husband trying to help and to show that the police wouldn't look anywhere else and they were trying to basically frame mr mcbride because that's essentially that the theory and frame up defenses are are you know are out there and there recognizes as as good arguments whether the feds to mcbride had remember this case was sixteen seventeen years after her disappearance mcbride was living in florida under this a different name soon name he had made these admissions to friends some say in a joking manner he was joking that he disposed of his wife's body some well i don't know who does joke and he explained all that to the jury mcbride and they heard his testimony and they heard his explanations for his statements in terms of these lay witnesses but the but the bottom line judge is that as a trial lawyer when law is going to trial what's he going to do not because his guy on the witness stand and let the sevens come and where mcbride says i want to take the stand and tell my side because for sixteen years i've been playing the police to look around for somebody else and find my wife who disappeared i mean it is a strategy that is not unreasonable the district court let's forget about the state courts this federal district court found it to be that they speciate testimony to show that he didn't know real law you know it's hard it's easy to take something out of context but the question on page two seventy five of the record questioned by mr andrew disallowed would you agree that the testimony at the least refers to post miranda silence the question was whether to file in my client's constitutional fifth amendment rights this question solely limit to whether at least it referred to post miranda answer by lauer i believe it is a reference to post miranda silence clearly question the reason so i understand your answer the reason  you didn't request a mistrial rayon struction was a you thought that the benefit to the defense was you were showing what type of investigation it was that it was out to turn mr mcbride into a suspect when they had no reason to suspect him answer yeah i believe that i think was part of the theory of the defense that the prosecution hadn't really looked much further than james mcbride ever and this was a matter of some three months after caylee's disappearance i mean i don't know how to do this except by referring to the cross examination of agent fritz i mean this is what  dead and mcbride you know he had been advised he has a right to testify or not testify he knew that and he chose to testify and tell the story and now here we are twenty nine years later after the disappearance and that we're going to to say that the strategy was unreasonable and given a new trial what are we to look at just as a matter of law here if the trial court rules on i mean pick a trial  that the superior court took a different view of how to analyze it and that it really didn't look at the stratagem it said it was going to but it it didn't it it ruled on the basis of no prejudice and on and erroneous understanding of what was in the trial record does that matter or should it matter to us what the court took a different route that well i don't concede that they took a different route because in my view it's a two prong test and just like the federal district court judge dead when he ruled that he found no deficient performance i don't have to get to the prot to the to the other test so you can assume i guess perhaps that the superior court for whatever reasons know you were considered it and maybe they feel you know w in analyzing the prejudice test it's too close and so deficient and we have to look at this differently i don't think so judge i think that the fact is that pencil a supreme court was aware of that and it didn't change the outcome in terms of them to prevent just reaching pretty well judge a judge as you could do whatever you want to get thing but legally i'd assume that you could probably find a rational way to get to that point i don't think that you should i don't think that it's it's the right way to go in terms of looking at this case because i think the judge the federal district court judge got it right he looked at this and he said listen the case law is clear can allow references to silence and and you've got to remember because these were voluntary interviews prior to his mr morgan i made several references to all this testimony not being while mr mcbride was in custody the the first set of references there from a may thirtieth one thousand nine hundred four interrogation and what she was imprisoned in lehigh county prison for other offenses however under pennsylvania law that's enough for someone to be in custody every pennsylvania court to consider this and the district court found that as well the test under pennsylvania law is the suspect is in custody for the purposes of america and analysis if he is physically deprived of his freedom in any significant way or is placed in a situation in which she reasonably believes that is freedom of action or movement as restricted by such an interrogation ok let's let's accept all that for the sake of the question and then ask you if you would please to the very first point raised by mr morgan only which i understand to be he trial counsel did understand and there's evidence in the record showing he understood the fifth amendment and it's important so this was not an  a case of he didn't get it he got it he made it deliberate decision to allow it all in because he thought it was going to work out best so i understand that you might be focusing for the first time in this courtroom on this pretrial motion is now we are hearing it for the first time here but if that's in the record and it goes with other things that were in the briefing  how can we second guess the decision of the state courts in determining whether that's a smart strategy or not it's still strategy and it's entitle to broad deference under strict sharia well two things first of all unlike mr mori nellie i didn't have the benefit of being present at that trial so we would like the opportunity to take a very in depth look at that motion and have the ability to  it's not a very you know you don't think it's a very clever strategy but is it not at least reason that in the sense of i a logical person could say hey maybe if i show how much i cooperated and that they were just after me from the start that that's that may work out for me is that is that on its face frivolous and unreasonable by including references to post miranda silences and having not strategy yes there's no reason why you couldn't have that strategy and do it without those references so what we're doing is talking about the difference between strategy and tactics when the the strategy it's so maybe perfectly reason no it's not nickel it's not perfectly reasonable because it's not based on reason you professional judgment well that now you're going back to something that we've tried to like take out of the discussion for a moment assume that he knew ok he did know and he made a reasoned professional judgment that he was going to let this go are we down to tactics no i don't think so i think you're still at the strategy stage and i don't think that he knew in addition i think that the court in this instance the court made the entire thing even worse with the instruction that it gave to tell the jury to focus in on mr mcbride reaction to everything and he didn't object to that either and why would you not object to that he would still have the strategy that he had if it was a strategy and it was reasoned and he could still object to that instruction by the court and in fact you could ask for a limiting instruction by the court when you say if we were to agree with you that council was deficient but for that deficiency the jury would have acquitted yes i think that you can because this is all based on circumstantial evidence and any type of the scale in any direction there could have been there could have been a different decision