this case presents one question and that is is it arguable on this record that the trial judge erroneous we consider the out of court statement of a now i'm testifying codefendant against my client at his bench trial and we think the introduced evidence that calvin's mother joyce forbes made an out of court statement in which she identified callen her son as the leader of the drug conspiracy with which they would charge up after his conviction was affirmed on direct a post conviction petition and in that petition he claimed his trial lawyer was ineffective for not object him to the admission of his mother's out of course statement against him and that is a power of order was ineffective for failing to raise that issue one direct appeal the post conviction judge dismissed the petition as frivolous i want to convince this court that the trial judge's ruling was wrong and i want to make three points in support of that argument and of course i'll try to answer any questions the court might have first mr maritz post convention claim was sufficient to withstand first stage dismissal because it stated the gist of a constitutional claim of ineffective assistance of counsel and that's all you have to show the first stage under the controlling president of hodge's a tape from the illinois supreme court at the first stage the question is not whether the petitioner has made a substantial showing of a constitutional violation it's whether his claim has an arguable basis in fact of why in the court is stressed that's a very low threshold does this claim have an arguable basis in law well it only does not have that if it's based on under the brutal case from the united states supreme court it also violates the defendant's right of confrontation so we have an arguable basis why is the claim have an arguable basis in fact well a post convention claim has no arguable basis in fact only if it is fantastic or delusional according to the our supreme court and how does an aide or whether it's completely contradicted by the record i don't think mistakes are made in this case that mr aris claim either delusional or fantastic so the really the question this is a completely contradicted by the record and we argue that it is not now there are cases in which  prove violation at a bench trial is completely contradicted by the record and of course the state has cited those cases one of which is people versus the one but in those cases the trial judge actually stated for the record that he or she was not going to consider the out of court statement of the ninth us to find could find it against the defendant that's pretty definitive the judge says the act then the record shows that the judge did not violate the law what we have here is the judge said nothing one way or the other judge didn't mention it so the state ari's well because the judge didn't mention that of course that was the presumption that the judge did follow the law and the judge didn't consider joy ford's out of court statement against i probably should hear of the second point is there are sufficient indications in this record to put the presumption in doubt and i think that's all we have to do at the first agents whistle to have an arguable basis the record shows that both the defense lawyers in the trial prosecutor tried this case as though joy form statement was admissible against all the co defendants first none of the wires filed a motion in limine a with the trial third and maybe most importantly this record shows that each of the lawyers for the co defendants cross examined the officer who testified about joy force out of court statements the only reason for an gauging in such cross examination the only reason a lawyer would cross examine the witness is if he thought the witnesses testimony had been admitted against his one of the prosecutor poses no objection to every defense lawyer all for defense lawyers in the case cross examining the officer about joy for statement well the only reason a prosecutor wouldn't object is a judge that lawyer can't cross examine my witness this evidence was not admitted against his client but the prosecutor made no such objection the judge never said oh man counsel this isn't this testimony was the biggest your client the only reason the judge would allow such testimony would be if the judge also assume that the testimony was being emitted against of the defendants so since the fact that state hears regulation i think i think it's more than speculation i think it's an inference that if a case is being tried by all the lawyers in the courtroom as though the evidence was being admitted against all the defendant and the judge said nothing i think it's an inference that the judge considered it and again justice harder  burden is simply to show that it's arguable so i think it's better that speculative i think it's an inference it actually was very surprising to me that during the entire course of this trial nobody ever said a word strongest indication is that all the lawyers cross it jammed examine joyce forbes about this so this wasn't simply a situation where some hearsay evidence comes in or there wasn't a foundation for something i think it's just a simple trial where there's the presumption that the judge did consider but what we have here is affirmative acts in support of the conclusion that everybody in the courtroom thought this was admissible and again why would all of the lawyers for all of the co defendants be allowed without objection to cross examine a witness whose testimony is only admissible against one once defense counsel did the prosecutor could certainly say just that lawyer here cross examined mind with us about his testimony because it wasn't admitted against his client if these trials have been held there was other evidence and my final thought for me it was off yes there was testimony about that my final point justice carter that i want to make today is that in spite of that testimony it's still arguable that mr barrett was prejudiced of course we have the burden to show it was arguable that counsel was ineffective for not being performing not objecting and that mr bayard was actively prejudiced as a result now there was no physical evidence tying mr critz to any of the drugs in this case there was no confession there was no fingerprints timing and he was never caught in possession of any drugs the sole basis of the evidence that he was the boss that was involved in this conspiracy came from state's witnesses who had significant credibility problems they were either drug addicts or convicted felons or had made deals with the state exchange for their testimony which is a pretty common it is and there's no question that evidence was admissible and there's no question that it supported the conviction but the question is is it arguable that mr rich can beat the prejudice prong of ineffective assistance of counsel and the only testimony that he was involved in this trip conspiracy from a witness who didn't suffer from those significant credibility problems was the out of court statement of his own mother and in our brief we sighted people versus hernandez in which the illinois supreme court said it would be difficult to imagine evidence that is more prejudicial income patients over defended by and i'm testifying codefendant and how much more prejudicial is it when the defendant's own mother gets on the witness stand and says he's the leader of this drug conspiracy he's unemployed but that's where he gets all of his money so just kind of our threshold wasn't so low i think we would have much more of a problem but we've got a combination of a very low threshold here that we only need to show that it's arguable we have evidence of five six seven there were a number of witnesses there's no questions i mean when asked that question is the writer's wrong well if the testimony of a drug addict is suspect if the testimony of an ex convict this is suspect of the testimony of someone who made a deal with the say the suspect if all that testimony is suspect it's kind of like zero point zero zero zero equals zero so now we're not saying the evidence wasn't sufficient to convict we're not raising reasonable doubt we're just saying he evidently his guilt is not overwhelming because it's totally based on credibility it was not one piece of physical evidence that tied calvin heard to this drug conspiracy there was no fingerprints there were found drugs on him there maybe we're not contesting that the evidence was sufficient to convict but where a case is totally based on credibility it's a close case where a case is totally based on the credibility of witnesses whose testimony is inherently suspect it's a close case so all i'm saying is it is certainly arguable that he could meet the prejudice we don't even have to mean predators from at this point the supreme court made that very clear  what is it i was hoping i was i'm going to have to pronounce that in court it's got hit is the da h i t t ese it it sounds like slang for the hitters and there was a lot of testimony mean i don't think it is anything to do with drugs there was a lot of testimony in this case that the same individuals who were charged with the drug conspiracy remember whose were members of this group which also made music which recorded songs i don't know if it's a reference to hit songs or what but that was the name of the organization that with them there was a tattoo parlor i believe in iowa from which drugs were so so he's not alleged anything affirmative affirmative overcome that presumption and that's the standard that the only way you can overcome the presumption is really affirmative evidence in the record and there's no  second point is having to do with the amount of evidence of this case you can say that oh well there's your predator addicts they're bad people but the point about the intake the supreme court did deal with both prongs of the ineffective assistance of counsel claim court tate said at the first stage of p c proceedings the petition alleging ineffective assistance may not be summarily dismissed if it is arguable that counsel's performance felt alone objective standard of reasonable is and two it is arguable that the find it was precious so that's the only burden we have here i'm also point out that the judge didn't really mention any individual witness's testimony when he was deciding guilt or innocence the judge really treated all the witnesses a whole he said i take the circumstances that when defense counsel argue well judge these are very suspect witnesses the judge in the trial just said think the circumstances that a person in presented as a whole not just individually individually i would be very concerned but as a whole when i take everybody together i start to see a picture and as i indicated i'm not taking any one of these particular witnesses as an individual and taking all their testimony as a whole all these witnesses so the fact that he didn't specifically mention joy for us i don't think is significant he may or may not have considered joy for his testimony but you want all the testimony together so it's not what not you know justice it's a really interesting question there are some cases where the state cited which the judge said of course i'm not going to consider that evidence there are other cases in which the judge says i'm going to consider that against everybody  overruling defense counsel's objection to the evidence so there are positive indications in those type of cases of the courts have said if a judge overrules an objection to inadmissible evidence that that overcomes the presumption and shows the judge that they consider it but i think i want to stress that this court again i don't think under the just standard we have to show that the presumption is overcome maybe at the second stage of postcondition proceedings mr moore is going to have to show i think all we have to show is that the presumption has been put into doubt why has it been put into doubt because it looks like all the lawyers in this case tried this case as though joy forbes out of court statement was of this of all against everybody especially the fact that all the lawyers cross examine the witness who testified about the statements so there's that mean it's arguable that the presumption his might be overcome i think it does now mr murray may ultimately not prevail on this one he may lose this post in this you claim ultimately he doesn't have to prove his claim he doesn't have to establish a substantial violation of his constitutional rights until the second stage all this is a this is really a procedural case the procedural posture controls this case and with all due respect to the state i think the problem with their argument is they fail to recognize the procedural posture of the case there are used that misnomer it has not established ineffective assistance of counsel has not established the trial judge considered this inadmissible evidence against mr britt but i don't think we have that burden yet ha just take the supreme court has counsel wasn't well if if there was positive indication that the judge did consider this erroneous evidence it's way more than arguable that counsel is ineffective i think the underlying claim and the ineffective claim in which it must be raised because  right that's correct too but that's part of even the just you know what will absolutely and at this point all we have to do is show that it's arguable that he was prejudiced now at the second stage after mr rich gets counsel and the the claims are actually had to issue the post convention trial judge could conclude you haven't shown prejudice thank you but at this point it hasn't reached that stage the question is is our claim fantastic or delusional no is it completely contradicted by the record no is it based on america's legal theory no none of those are true and that's why at this