rowling how much time would you like to get this is all right we're we're not real strict on time i will tell you that all of us have read the briefs we are throughly familiar with the issues in the case and the facts so you don't need to spend a lot of time on the facts and i would like to reserve a couple of minutes for a bottle all right and same time that no rational trainer if the acts would have concluded that townsend was involved in beyond a reasonable doubt his condition rest entirely on and timely and reasonable identification made by someone who knew him at the time of the events but described a stranger comes in and a lineup wearing a mask over the lower half of his face he recognized him immediately as someone he knew yet on the night of the offense he did not recognize his offender more photos and wasn't there an argument made to the jury by defense counsel yes your honor the coincidence argument is just a coincidence or this helps or it's just a coincidence that the happen to identify him you know three four years later if there was the theory of the defense it was very question that they had just happened to be in between the two cars behind the barrier shop where johnson reported that the struggle with kard and so a rational jury couldn't a rational eat say it's not a coincidence that that hat was there they have what happened i think there's three main reasons why a rational juries should not have made that determination the first being  that the hat is actually meaningless the fact that thompson's d n a was me on that hat is needed less and less that hat was a glimpse of the offender and i don't think the state presented credible evidence to show that it was on the night of the offense neither johnson nor the second i witnessed near smith said that the man with whom johnson was struggling were at once johnson first showing the photos of the crime scene that was in twenty ten before he saw the light man and it was at that  and i would say even if even if that had been credible that the offender was reagan had those two d n a profiles found on that so someone is going to be linked to the scene that wasn't there because only one person was wearing that hat and over the state to present evidence the head was not all that significant even looking at that high number in the piece who say that gomez talks about when you're putting someone in to fingerprint evidence or something like this and that's why you're proving there go you have to consider whether there's other alternatives for it to be there because the state evidence johnson did say he cut his hair before and the fires on so i just i mean it when just keep reuben townsend came and he could have touched of the head at some point to sit down it could have been i mean it's a generic black knit hat you could have accidentally left quote have come to the conclusion that this jury did i i understand your client had arguments but was the jury required to accept one of them no it wasn't i would just i would just continue saying it was unreasonable for the jury to accept this because there were so many alternative explanations for that and because johnson's identification was so weak and both of those evidence depended on each other to make each other stronger  and i think johnson realistically you can argue that he was able to identify towns in only because he found out i mean he didn't say for three and a half years he knew someone he looks at photos says the police have assessed spect he gets into the lineup room and see someone he knows hat and then only belatedly claimed he where had all of this evidence looking together i would say it was irrational irrational to conclude with respect to our second argument though even if this court finds that the jury did get a chance to make a little more or this expert testimony is very thin to show that when a witness learns facts after the events they can incorporate those facts into their memory so this is one case where truly all of the state's evidence needed an expert identification but in terms of ineffective assistance couldn't a reasonably competent attorney have decided that johnson's identification was so bad coming three and a half years after the a him never saying anything about recognizing the offender they had they had you know didn't really prove anything as you say they are calling an expert to tell  e all the intricacies of human memory and human ability to identify someone else would have placed more emphasis on the identification than it was worth couldn't couldn't have said i don't i don't want to put the spotlight on this i just want to argue for the jury that this is this is nonsense it's no evidence at all i don't think we can make better human in this case to reach that conclusion in this case because counsel himself focused on the psychic evidence substantially in closing argument right but on what imus my question is couldn't a reasonably competent lawyer have said i can make this argument to the jury and i don't want to have them believe that they need an expert to he was never able to give the jury anything other than his own i think you meant about mostly credibility which sleep easily reject it by saying you saw johnson in court he's not lying to you he doesn't have anything against this defendant so the way that counsel i view this case ended up being more so about credibility than about the actual science of mistaken education and in this case it's so similar to limit with it regardless of whether or not counsel wanted identification to be the fourth thread it was that prejudice yes he was if you look at what are the factors but i guess the leap you're making and we don't know because it's not in the records is whether the defense counsel considered calling an expert and decided against  to and let the court said was regardless of what her strategy was it was unsound because her theory of the defense depended on this evidence and that's exactly what occurred in this case no matter whether counsel could say about why he did his theory of defense absolutely depended on that the jury didn't understand things about witnesses and about how you couldn't miss identifying an acquaintance they didn't understand about weapons focus or stress they didn't understand about how witnesses confidence is not related to their accuracy and they found all of that  surveilled that the defendant needed a new trial and all that was necessary in this case but the identification was so much worse and when the defendant like the witness identified the defendant hours after the offense here we got this additional three and a half years so i think that famed defense counsel the rejected of the jury was the trial that had the opportunity to observe the witnesses and this question now it's put itself in the jury's place and i change that decision of green with the people's arguments that the defense had the fans d n a was on the hat because he was wearing a hat at the time of the offense that it was bath at the scene of the crime that defendant was identified by a witness as  and you've got a had in the vicinity of the crime scene we don't know what it was deposited there how long it had been there out there i those two main pieces of evidence couple together and that's what makes this lets you know clearly proof beyond a reasonable doubt certainly just the d n a of a cat just begging discovery without any identification  establish the burden of either form specifically under the deficiency problem of the defense must show that years were so serious that he was denied the counsel it's guaranteed by the sixth amendment might be the fact is the that is but the effect of reversing under this issue we've created credit per se rule that there are certain circumstances where there are cases where identification is a component that defense counsel is inefficient for failing to produce some sort of evidence and then there would that would be completely unprecedented and completely inappropriate significantly different situation where we did not have this other piece of evidence they have physical evidence that there was a miss case here there was undeniable physical evidence that placed the defendant at the scene of the murder expert witness and make room or which had our break the discussion of it was actually the testimony that actually would have been produced from two different experts there's nothing like that in this case it's impossible for us to say well actually with that that are listed  goodness but again we don't know because there's nothing in the record ever about about witness identification had a duty to advance and based on the fact that convictions had been not yet convictions have been reversed based on the trail quite good not giving enough careful consideration to evidence similar to this type of case that put the burden defense counsel given notice he should have been he was case which it was here and there are some weaknesses in the identification and i think even the state would concede that counsel is per se ineffective if if counsel doesn't come forward with an expert and at least tried to get expert testimony and i think that the answer to that is twofold first of all this was a case where the expert necessary expert testimony was necessary to prove facts  and comments of the jury again it's going to be highly unusual that you have a defense a greatness identified saying describing a stranger and then identifying acquaintance three and a half years later it's going to be highly unusual that the d n a evidence to corroborate is also dependent on that witness ability to remember if that person was wearing or had the item what had which had that d n a so it's not that every case is going to be ineffective it's just that in this case the things that the jury needed to hear were the exact things that were being reversed and it's i mean it's it's r would be the incorrect decision in my opinion what about mr connery's point loma dependent solely on eyewitness testimony and there was no corroborating evidence whereas this case had corroborating evidence so you can't really well in the way that you're arguing and that's actually one of the points that i wanted to make lemon did have corroborating evidence the victim himself before he died said that lie he shot him like he was one of the defendant's close friends so there's that additional evidence from one of the two right witness identification roll correct it wasn't guess who don't depend on that but here are the two pieces of evidence as i explained i had also depends on the credibility of the eyewitness testimony so it's still basically the same thing it's different corroborating evidence and lerma but the stills result is reached and there was i was as i was subjected this case is somewhat similar to steps where there were three eyewitnesses and there was also the fact that a gun had been found which had the defendant's d n a along with two other people's d n a are they will say it had but it had three different d n a profiles and the defendant cannot be excluded from one of those i know that that's not the same thing is in this case where there was a match but there is still a risk case enough of room for debate to consider how the d n a could have gotten there so just the fact that the this kind of testimony was so necessary to explain the evidence in this case is what  it's a subject we need to make a new trial also with respect to any confusion on wet counsel would have said what the experts would have testified to and if it would have been harmful part of the decision and lerma r that these studies are well accepted throughout the country he stated the henderson case in our brief there's some interesting facts in there where they know how to get the exact thing ninety percent of witnesses agree that confidence is not related to accuracy and  of the jury was because the expert was going to testify about these studies and not be given his own opinions on the facts of the case and we don't know what any expert retained by the defense would have said and this case i think we do because we know these studies these studies are also the same thing  where the problems were here we know what these experts the space we know the specific things we need weapons focus we need something saying that witnesses will be credible when we believe their own identification we know stuff about how you can misidentify an acquaintance and we need things about how your memory can be contaminated by facts these studies are all the same in every case in since you don't relate those studies to the facts of the case we know but they would have said that's all i had does this group have any thank you anything