best if not only defense to the crucial charge of c s c one crim a sexual conduct in the first degree opening statements from both the state and from mr thompson's counsel richard stevens bore this out the state said you are going to hear from a b the accuser she is going to tell you quote what really happened because and then in turn thompson's counsel stood up and also started to build up the credibility of his client he said my client will come up here and he is going to quote take the stand he is going to quote subject himself to cross examination and he is going to quote adamantly deny that he committed see a c one in the first degree that state but what about the fact that i mean i know there's references that refer to prosecutors and put cross examination but i mean the video you know you are hearing from him right i mean it's it's long and it has components of things that look like cross examination of course these are late jurors how inaccurate was it really i guess is part of my question i think he bade very clear in the statement that he i mean he used the words he will take the stand that's a legal the stand i mean you're  you're like i thought he said something about we're going to hear him well i think and then you can imagine the other jurors saying what we did they had that long video he also said he also said that the prosecutor will subject him to multiple questions that's in the record as well so i don't think there was any doubt in the juror's mind what had been promised nor was there any doubt that that promise had been broken at the close of trial and more they saw a b take the stand and maybe story could have been put on through dr  position who investigated her for days after the event that happened and who was able to tell the jury here's what she told me a b could have sat back and not had to give some very difficult testimony but she did she brave the witness stand as a twelve year old girl and then you have mr thompson who was there watching all this who appears to be hiding behind this video so i think this video if anything heightens the prejudice calls the jury's attention once again to the fact that mr thompson did not testify as promised and therefore the state court's decision that he was not prejudiced by this broken promise is an unreasonable application of strickland because after all you care was the promise not actually not putting him on the stand right you're not saying the problem was he should have put him on the stand no your honor i think the way to think about this is that the at the moment of promise is when we see deficiency because by stevens's own testimony at the state i hearings he said he needed to keep his options open that was his strategy he had two options put him on the stand or not put him on the stand and he didn't know which one he was going to choose until after the state had finished putting on its evidence so then stand up at irredeemably poison one of those two options was deficient now we don't know we weren't going to know whether that would be prejudicial until we got to later in the trial maybe things worked out in a different way and thompson is acquitted on c and there's no prejudice there but doesn't make his decision at the outset any more reasonable to make essentially what is a a no win gamble with his client's credibility and it's all in the district court on that issue we did your honor yes the judge rational reason promising that their client or that some other evidence is going to be put on and then later in the trial not putting it on and again without any sort of unexpected event occurring during the trial to justify that change  strategy and without any sort of explanation to the jury as to why they change that strategy i mean i think it's almost a misnomer to call what mr stevens did strategy because again he knew he needed to wait to choose one of those two options you foreclose one of them at the outset of trial no reasonable attorney meeting the constitutional minimum for reasonable systems would take an action along those lines and some prejudice you know advocates and prejudice has to be we were from the first circuit or did that have a video where there actually was the jury actually still did hear from the defendant that did not have a video your honor not aware of any cases where there was a video necessarily but go ahead  describe the first three cases really useful and we were going there were still the court still mentioned that through crime and through cross examination of the other person and he said she said ok so we were was an instance where sort of draw out this notion that maybe he didn't maybe we were to not know so there was still somewhat of a narrative put in place and i think what's crucial here is not simply that a counter narrative was presented to the jury what's crucial is that stevens gave the jury every reason to disbelieve that narrative so i mean in english while it's not at all as to as to prejudice the court recognized there that even though english unself was still able to get up take the stand and present his story directly to the jury he was still prejudiced because his lawyer promised that his girlfriend as compromised of a witness as she was still going to also take the stand and cooperate his story and when she failed to appear this court held that the negative inference would have formed in the jurors minds and that inference were attached to english and would have attached to his testimony and therefore he was clearly prejudiced in this instance and the other key point that this court focused on in that opinion was that this was not an instance of overwhelming evidence i think that maps on directly to this case here as well no physical evidence here all we have is the testimony they be as we point out in the briefs the testimony is somewhat equivocal if not contradictory points one point she says she's not sure exactly how she was touched at another time she suggest maybe she was touched in an area where there would not be penetration even possible which is the control meant for c s c one so this is this is not an instance of overwhelming evidence the district court recognized as much when it in its opinion below so what this really did boil down to was as the court said in english a quote swearing match between thompson which was not on the case for english wasn't at the case but the state court or was not it was your honor but the issue there was that the state court found there was no deficient performance and therefore did not ever rule on the prejudice factor so when the court considered this figure there was a clear state court when it decided there was no prejudice sided that if there was a performance problem there was no prejudice that we got to say that that was an unreasonable determination was it unreasonable reasonable lawyers making this determination we think in this instance that it was unreasonable i mean even reasonable lawyers can make unreasonable conclusions at times and i said on reasonable i mean they're relying on some reasonable things like the fact that they saw the tape but they say they saw the tape they saw he shouldn't have got them in this position but they saw the tape and they they knew what their argument was and they knew what he probably would say and i mean it may be wrong but i a reasonable that's my concern candidly but again to go back to the point i was making for the judge sutton the the problem here was not that a counter narrative was not presented it's that he gave the jury every reason to disbelieve that we have got it a twelve year old girl who is able to muster up the courage to take the stand face her accuser face the jury then we have a grown man who is hiding behind this video and so at the end of the day the jury is left to wonder why could he face us why could he not face a b must be because he's not credible because he can't tell his story credibly because that's very reasonable but when the  unreasonable for the state court to focus on the fact that his story was told because that's not the crucial fact the crucial fact is that in a battle of credibility his credibility was completely undermined by his own counsel it's not the fact that he didn't get to tell the jury what happened it's that they had no reason to believe him because precisely what his lawyer did and if you have again some somewhat equivocal testimony this is not an instance of overwhelming evidence this  here we're going to prejudice it less needs to be shown as to that i mean we have again the critical testimony only the two of them knew what exactly happened that day and  fact the crucial fact is not whether the jury heard what thompson says happened it's whether they had any reason to believe him and we've seen that they have no reason to believe him when it appears after his lawyer has  built this up you have to explain what he would have said if he testified i'm a thing i'm struggling with i get the promise point i get it but i'm just looking at this case and thinking he had no choice he was never going to put his client on the stand it was just an unwinnable situation in that respect all he could ever do is rely on the video because if you put the client on the stand he's always going to be stuck with the video so if he varies from the video he's going to lack credibility problem plus lots of cross examination questions which are going to make things worse so  this is a case where he made a mistake in saying that at trial i mean it in opening but i just don't really see how he had choices in terms of putting his client out in fact i think that would have been the ineffective assistance i and i when you've already got the video which you know you just you can't when you say the same thing is the video you just double down on it's pretty bad you try to vary from it now you're subject to cross examination and up on the floor just answer the question then reserve the rest of the time for apply but you know all you need to do is say you will hear from my client on the video or simply say nothing at all there isn't a reason to drumming it makes it so different from these other cases the video was always going to be in front of them the question was going to be whether there was a lab aeration i grant the promise thing i get it i'm trying to figure out prejudice though i'm just trying to figure out the different ways this case plays out and it's really hard to see too many differences how it plays out and to you it's just prejudicial because we've got this promise of live vs video testimony and the word live wasn't even used on the stand so practice cross examination prosecutor was asking multiple questions that was all used  english recognized like this court recognized in english he would not have formed this pact with the jury and so the jury would have been you would have just had basic credibility would have been where it was had he not said anything whatsoever and then they could have judged from the jurors conclude that there's at least a reasonable probability one juror might have come out a different way had they can see how they heard thompson's testimony on the video without having to also expect morning runners may please the court system turn in general scotch and kiss on behalf of the respondent warden this court can easily affirm the district court's denial of the petition for writ of habeas corpus due to lack of prejudice a reasonable jurist could find that there was no prejudice in this case for three reasons first the jury was instructed that they must not drawing adverse inference from mr thompson electing not to testify for exercising his right not  second the jury heard and saw thompson's account of the events through his police interview tape approximately a forty to forty five minute interview and finally the evidence in this case was strong mr thompson admitted that he took nude pictures of and groped a twelve year old girl the leap to penetration based on the victim's testimony was truly not evidence strong is the lesser charges it seems hard to say these cases are all it is a he said she said of the young child and it's hard to define exactly what you're talking about i mean and all of that is certainly true in this case though as with any other first degree criminal sexual conduct case in michigan the law isn't the jury was instructed in this case that penetration is any intrusion into a general opening quote however slight and the jurors are also instructed that the victim's testimony alone is enough to sustain the conviction so the jurors know that the quantum of evidence here still needs to be beyond a reasonable doubt for certain but is the intrusion has to be however slight and there was evidence in this record that there was a intrusion however slight to constitute the penetration necessary for first degree criminal sexual conduct the victim testified that at one point the defendant's hand or fingers may have gone she said between where she goes to the bathroom the jury could infer that to be the penetration a shoe and along with the strength of the evidence here we also have the jury instructions and the interview tape as you discussed with appellants counsel in the jury instructions they received both preliminary and final instructions their preliminary instructions including that opening statements are not evidence that the defending is not required to produce any evidence and that the defending is subject to the presumption of innocence and further they receive final instructions again that the attorney statements including openings and closings are not evidence they were again told about presumption of innocence and that the defendant was not required to testify or present any evidence in fact the jury was told quote every defendant has the absolute right not to testify when you decide this case you must not consider the fact that he did not testify it must not affect your verdict in assistance issue what justifies what he did i think here it's really two reasons first that there is value in making a more concrete definitive statement in your opening statement of what you honestly believe at that point what the evidence will be including in this case if counsel honestly believed that his client would testify and tell the jury about his account of the events with or without the video there is some value in being defended if they are not waffling not scurrying around the issue not saying you'll hear from him and then they find out later well he was being a little facetious because we heard from him through the video and not through his testimony there exuding confidence through that definitive statement from being transparent and honest with the jury and further there are always going to be the possible you've changed circumstances but that possibility of change circumstances should not preclude the attorney in his opening statement from giving that definitive account of what he honestly believes in that moment the evidence will show certainly things could happen down the road throughout the trial the trial could extend longer than the attorney believes perhaps other witnesses are to says where the lawyer was unsure whether he was going to put his client on the stand in opening so i'm not sure as is true here still promises he's going to put it in the courts that's fine that's effective assistance that's not ineffective so of course your case it says there's not necessarily a clearly established federal supreme court case on that issue or not to my knowledge that there is a issues including this one because we don't have a more specific case on point and we know from other supreme court precedent that because that district because strickland is broad the state courts get that he had watched the video twice before this before he gave his opening statement and he also mentioned that he had been furnished with a written transcript of the tape and he had reviewed that there appears on page i d s for thirteen and for fourteen so he was aware of what the video showed he was aware of this specifically what his client's saying in that video and he believed he says no fewer than three times during that eviden hearing that he honestly believed his client was ready in was going to testify in that case but there were changed circumstances here he said that once the video was shown to the jury the counsel saw the jury's reaction to it and his own client's reaction to it and believe that because of those reactions it was better to not put his client on the stand and to rest on the video because i believe as counsel said and as you can see i counsel say good at that have an injury hearing that he did not believe that his client could have testified any better than that especially when you would have been subject to cross examination and judge talking as you would twenty you know he more or less was subject to cross examination to some extent the police officer challenge him with some statements some evidence and sort of forced thompson to answer to those things now it wasn't precisely what a cross examination from the prosecutor would have been but there was to some extent some challenging of his statements thing going back to the jury instructions as well not only did they receive this instructions but of course this courting any court in criminal case would have to assume that the jurors followed those instructions that they were told not to try this ever since friends and we four five twenty eight us two twenty five that case and many others that jurors are presumed to follow those instructions if the jurors were told that they cannot despite anything that council s says don't believe what the attorneys tell you about the law i tell you what the law is this is the law consider all my structure as a whole if they say anything contrary to what i say believe me and what i'm telling you is you cannot drawing adverse inference from the from the defendant electing not to testify for exercising his constitutional right not to testify westerners have any other questions again this court can easily from this case based on no prejudice because of the jury instructions the strength of the evidence here and the fact that they did hear from the defendant through his interview tape thank you honor a few points one as to the jury instruction of course jury instruction someone wrote during structures were given in english weaver hampton the other case we saw in our briefs that was not enough to cure the prejudice in those instances and one point i'd like to make about the jury instructions specifically one thing the jurors were told is how did the wouldn't to consider is how did the witness look and act while testifying before you here in court did the witness seem to be making an honest effort to tell the truth or did the witness seem to be a v b in the questions  arguing with the attorneys so not just to the witness looked good on the video but was he arguing with the attorneys which would have brought the jurors mind back to the fact that he did not appear in court because he had something the hundred percent would you agree that it's not that this fact pattern is not this case but i think you agree there can be situations where a lawyer really does want to put someone really thinks it's a good idea and changes his mind based on changed circumstances and that's not an effective in fact it might even be ineffective to stick with your original promise that's correct your honor you agree with that yes that each of these cases they say if there are unexpected events that occur between the opening promise and the solution it doesn't that dilute a little bit the forcefulness of how prejudicial it is to promise and then not deliver on promises it just shows it's not a clean cut point i think it still comes back around to thank you neal if you fail to adjust you're going to prejudice your you client just the same so but in this instance i mean the prejudice was centrally baked in when he made the deficient comment at the outset and then the prejudice later came to light when he found himself between a rock and a hard place and and that's the problem there was no reason for him to be there he knew he was going up to the left or was going to take a right at the close of state's evidence and his opening he built through a barricade in front of one of the turns and then he had to plow straight into it because the right was later for closed by the state's evidence that's plainly deficient in completely irrational and in this instance i think it's prejudicial issues completely irrational i mean if you are if you think you're going to go right and you think going right here opposing counsel says is going to be much easier if you preface it by saying we're going to go right over the hole right option if you are to continue the metaphor works better if he promises in the beginning there might be a slight upside if you make a firm and robust promise of the outset any benefit is going to be slight in comparison to the just devastating prejudice you're going to do to your client so it's not a no win but it's a sucker  call this a hobson's choice they say that stevens and thompson found themselves in this no win situation well how did they get there because the stevens why the very fact that it is a lose lose choice suggests that there is prejudice well baked into this there is no need for them to be this court recognized in english that little can be more damaging than making a promise and failing to deliver it's precisely what happened here therefore we submit that the court should reverse the district court below an order that they grant his  thank you counsel and we appreciate your advocacy end of the criminal justice act which is a service to the law thank you case will be submitted