scupper oh if mr perot had not been deprived of his fifth and sixth amendment rights the council his trial would have looked completely different in a way that would have given the jury a very different picture of scott corrosion sponsibility for his daughter's death first mr pro unequivocally requested counsel on a clearly established law and yet the video of his interrogation was admitted at trial the district court which was an era and because it was not made a part of the record then it's not possible for this court under rule ten based on its presence and it will tend to supplement the record to include it so unfortunately we're unable stated verbatim in the court of appeals opinion and under this court precedents that sufficient what we don't have is a lot of the context including the statements that followed and of course as it goes to the homeless era point which is central  tell based on the existing record we have we have in the we have in front of us probably through the state court opinions quite a few statements both the actual alleged invocation and some of things before and after are you saying that what we have in front of us that's referred to in the state court opinion is an accurate that if you have the transcript it would prove an inaccuracy what i am trying to get the point you're making no you are saying it would just add still more color more context absolutely it would add more cohen and there's no way this could be a clear indication under the at the standards there's no need necessarily to remind but opposition is that this was when we talk about this alleged invocation all right so when he says it's a funny statement well then let's call the lawyer first of all it's let's as in we that is that's that's a strange there's something odd about that that's not how it works it's not a lawyer for everybody right it's a lawyer for your client but then then because i gave what i could that's odd to me that's that's a little hard to understand this to the state courts that have a negotiation feel to it you know i've done my bit now i want some help from you guys but that's really hard for me to understand i gave what i could as being an invocation of counsel it seems very much to qualify what in the world he's saying in the first part of the sentence you obvious it is that the first part of the sentence is itself clear enough and that any reasonable officer would understand based on that part of the statement that mr pro is requesting counsel and does not want to continue asking questions without you have to take the whole thing you're the one that's been talking about context you surely up to take the whole sentence well that that's true you should look at the entire sentence but our argument is that i gave what i could actually strengthens his argument it doesn't necessarily mean that he was as articulate as he possibly could have been and of course the supreme court doesn't require that but it does mean that he was suggesting to the offices that he did not want to continue on three questions without counsel being present and i think that's significant and i also think that even there he didn't say with absolute clarity when you compare it to cases the supreme once an attorney before making a deal then i think you could argue that before making a deal qualifies the first part of the sentence in the same way because it suggests that it's conditional on some particular making a deal  could add some possible ambiguity but i still think that a reasonable officer looking at that statement as a whole particularly the force in the first part of the statement does in fact suggest an unambiguous indication i think it's also important to go can suggest that we want a particular thing if we are making plans to go to dinner and you say it's your choice where we go and i say ok let's go to mcdonald's that be choice i've indicated that's what i want to do and the same thing i think here is true for mr perot the miranda rights have been read he has mentioned attorney on previous occasions although perhaps not with the clarity that precedent requires and now he's saying that that's what he wants to do i think that that statement made a huge impact on the trial and as i mentioned it did it in two ways first in the way that the state used that invocation sorry the post indication statements and second in the way that the use of those statements affected mr perot's own shot a g to look at the way the state used it we need look no further than the opening and closing in the opening statement the state leads with the inconsistency in missed approach statements those inconsistency is can only have come from comparing his initial statements at the scene to the statements that were made during the interrogation one of the state's very first points in closing is look hard at his statements and see how they progress again the progression goes to the statements that were made during the interrogation in the bottle the jury is told it would be quote insanity not to look at everything he has said and scoot defied sorry scrutinize it with a magnifying glass and the state also pushed the context of the statements he was making in the interrogation it's not just that they were inconsistent it was the situation his daughter at that point was lying in the hospital with very servia injuries and he was told that he didn't know the exact nature of them that they were very severe head injuries and yet he was still according to the state not telling the truth that in fact later admitting to not telling the truth that paints a very negative picture of him because it shows not only that the initial injury that he supposedly caused  gives him some responsibility but also he is not taking steps he might take to help the medical personnel fix it when he then look at the impact on mr produce trial strategy this court frequently in the  inquiry discounts pots of evidence that have common in when the first piece of evidence were induced by the tainted evidence and i think that's the case for mr pros testimony as it was it made sense for him to testify he had already given several inconsistent statements and admitted to that he also was court giving these inconsistent statements at a time that was very crucial for janet recovery and so we had to give some kind of concreteness which statement is you relying on and to explain why he was doing that even in the situation he was it how is it if there's inconsistent statements have not been admitted over the state would have had would be on the inconsistent statements would be the statements he gave to the officers at the scene which was strictly for me you're pushing on an open door i think the pr very easy to show but that's the second part of the inquiry in the first part has a net component to it so you know yes yes your honor and my opposition on that is that the at the cases in this court have as i said give us a call to being a significant one but also edwards from the supreme court have have recognized statements being less clear than this yet still being yes your honor in responding to dr deeble defense counsel either did not investigate the basis for his opinions or did investigate but did not use your own evidence that he did or did not investigate there is not in the red cord however you wanted to show that he didn't investigate you'd have to have some evidence that in most cases yes in this one he was ineffective as a matter of law  examined he did very briefly he did very briefly but was cross examining to cross examine him or his cross examination only established two things one the dr deeble was indeed very set and very very certain of his opinion and to this fall if an accident would have been new in the literature it would have been literally the first time in known respected medical literature that this had come up and yet dr plunkett study which was made a part of the record in the fatal head injuries that study included children who had fallen from less than three feet onto grass and padded carpets among a study of eighteen children and yet had suffered skull fractured me you just have a little time  if at what level was this study and initially raised it was initially raised in the state court the it should have been raised on direct appeal under michigan standards and that's the reason for the procedural bar that we've we've briefed on here but it was then raised out of the state court review what do the state courts say about it then i believe you're one of the state court did not touch on that particular issue just found that the failure to cross examine was the record but i would find it hard to believe that there would be no report from the medical examiner would the norm be the prosecutor has to give all the information correct including autopsy reports and so on so i believe since his testimony was going to be different from  correct so it would be required under brady would yes absolutely and just to introduce myself injury christianson brown of the michigan attorney general's office appearing on behalf of the warden willie smith to go back to to the to your honor's question it would have to be turned over under brady autopsy reports any additional evidence that the doctor of irani was basing his opinion on and what better way to attack the prosecutor's case than to pit their own two experts against each other and that's exactly what he did here dr david is an e r doctor and he said no i'm not a path they might be able to talk to testify about the velocity and which the infant was struck in the head but but based on my experience what i see in the e r i can tell you that the that the injuries that this four month old suffered were not the result of a short distance fall now defense counsel on the other hand touted dr veronica it's testimony saying you're not a path just dr veronica said it is possible during cross examination for mr perot to have fallen with the in the kitchen and for her head to have struck something this is to cross examination of of dr bronnie defense counsel's cross examination of dr bonnie he said it was possible for there to be a short distance fall and for there to be a significant head injury however after that was which was unfortunate for mr perot he said dr brown he said but there is no other evidence that that this was a short distance fall meaning there were no other bruises to the infant if there was some sort of crushing motion which was mr perot's defense at trial so so that the effect of the cross examination shows that dr excuse me the defense counsel did look at short distance falls and it is a solid strategy i'll argue till i'm blue in the face it's a stolid strategy not to call your own expert and to put the two prosecution experts against one another saying hey we disagree if you know ahead of time that one of that one of them is going to go in that direction that's fair yes you're here and so so you don't know whether or not from the record but from but from brady knowing that the prosecution has to turn over every piece of evidence that it's relying on i would say it's highly likely that he was aware that that was going to be the the defense or excuse me that that was going to be dr bonnie's testimony and also regarding mr mr plunk study and in addition the three other studies that were presented at the state court dr plunkett have in particular is a frequent flyer in testifying at trials where there's a where there are head injuries to children his studies and they were provided in the record in the district courts of this court has access to them mostly regard shaken baby syndrome meaning the absence of skull fractures and here we know from the autopsy we know that the fact that there were no deference because the state court decided it without mentioning the court the state court did not mention those particular studies but when it was analyzing the ineffective assistance of counsel issue it outlined the counsel's cross examination and stated i clearly investigated it because he asked all of these questions and those questions worst efficient to to cover and or excuse me i'm paraphrasing but and were sufficient to establish effective assistance which is both prongs so at the deference is due to both the deficient performance and performance from as well as prejudice and i want to say i do want to spend some time going back to the the statements that mr perot made when he was in police and tear when he was in place custody mr perot makes makes a big deal about the statements given at the house the statements that he gave to the nine one one operator statements that he gave to his his girlfriend his fiance that he gave to officer williams when he arrived on scene and that he gave to dr doctor excuse me detective doyle and detective mcinerney when they were on scene only after those statements was he taken to the to the police station and then it even assuming that this was an unambiguous request for counsel i don't concede that i don't think it is however even if it was all of the previous stories that mr perot told would have been completely admissible the story that he told nine one one was that she was dropped that she was just dropped we know that that was a lie and then the story changed when jamie came home the mother and he said she had a seizure she she fell off the bed that's another story you're making a lot of prejudice argument pardon me are you making a lot of prejudice argument goes it goes both ways your honor it goes to the lack of prejudice for the infective assistance problem and also for harmless error all of these inconsistency is whether or not this court determines that it was and that was an unambiguous request for counsel all of these in in in consistencies were made before he made that statement how do we know that  on the record to demonstrate that absolutely here on the record is very clear what statements were made them and not a recording that or we don't have a transcript or what all of the all of the transcripts of the of trial including all of the officers testimony the nine one one operators first responders all of that is is in the trial record the testimony the video itself is not and is not in the record before the district court or before the script of the video but you're talking about statements before he allegedly asked for the recording you're not relying on those so you are no no no i'm not relying on anything in the recording i'm lying on everything that is in the record and i just could just keep going down this road because i just tell you what's going through my head as you do this so we're talking six a moment let's just focus on that and invocation right to counsel so the only reason this could be relevant is that it's a harmless  ok and i think what you're trying to say is look at all these contradictions he already had a serious contradiction problem before the alleged invocation and he later said other things or the what is the worst part for him is what he says f b i allege invocation that's very damning after all of these well it was this it was this it was this ok fine it was this so i i don't know where you're going with this i don't i think there are it's not harmless there or i think it's a very compelling case it's not harmless sayer because of the contrast between what they were allowed to hear but then what he says after the alleged invocation so it strikes me that the key thing is the at the question of whether he actually invoked his right but i could be wrong to if you tell me why that's a wrong way to think about it the the that the question on the unambiguous or ambiguous nature of his statement is absolutely primary but after that we do i respectfully your honor i disagree with with what you're saying about what he stated after he allegedly invoked his right to counsel there were all of the discrepancies that that mr perot on the other side is is saying were words were damning to his strategy meaning that he had to change his story as as you know excuse me but he's telling the the jury look at the progression of his statements the only statement that came in after he invoked his right to counsel and this this is this is from the record that you can surmise this was the fact that he fell on the child in the kitchen and his leg hit her abdomen that is the only statement that came in after he invoked his right to counsel every other statement the fact that she had a head injury and that the story changed from the padded carpeting in the master bedroom to the linoleum in the kitchen all of that came in before that statement so let's let's for the sake of argument  say that that was and unambiguous request for counsel it will have no impact on every other discrepancy that he gave think we understand i have a similar concern to the judge as to whether it was   us in the first place ok i would i would point the court to we know that we know that davis is is a general standard that's been stated in and several and several of opinions and that is that allows for you know leeway given to the state courts to analyze those sorts of issues and so i would like to argue that mckinney the six circuit case of a different panel from this court it's been converses off is actually instructive on this point the conversation that was had here was mr perot says well then let's call a lawyer then because i gave what i could the officer in turn said ok counsel and then mr pro is the one who proceeded with the conversation the you're relying on things that he said after this allegedly unequivocal state and that is something that mckinney versus hofner flushes out and determines is allowable under giving up on the argument that it wasn't ambiguous before you know he was up later no no i'm i'm arguing in the alternative your honor that to get the original argument not the alternative i argue that it's that it's not your strongest argument and i wonder if it holds water basically just to be candid ok if he doesn't hold water or not the statement before you look at what they said afterwards i mean he could say about i do i agree with judge suddens comments to opposing counsel but that it wasn't the equivalent of what your honor just said well god darn it i want to lawyer those two statements are not back whether whether it's whether this court views his statements as ambiguous or unambiguous at all to me does not matter number one because of a deference and number two because any error was ultimately harmless given the overwhelming nature of the evidence presented my apologies if the argument didn't seem clear i'm happy to clarify if you're focusing on the alternative or human nature i'm just puzzled about the primary that that's fair but i would i would suggest that let's call in and an attorney then because i gave i gave what i could the way that i read the way that i read that statement and his previous statements which are allowable is that he knows he knows that an attorney is an option and he wasn't clear about it i'm happy to answer any more questions we would ask  that it really focuses on the post indications statements in a very narrow exception the language there is also relevant to the actual statement itself was well if you don't mind i just assume wait until they get a public defender of whatever and then continued on from that the focus of the court was on perished indication statements not on the language there that the court seemed to find unambiguous was just to be clear that the phrases were well then let's call the lawyer then because i gave what i could you do concede we have to consider that whole sentence we can't just consider the first part of the sentence i think it makes sense that sorry you can see that we have to consider the whole sentence is supposed to just the first part of it i think you have to consider the whole and say that well then let's call the lawyer because i understand he has tickets the ball game absolutely do absolutely invoking a right to counsel so you do have to consider the whole sentence yes and the second part of the sentence is going to the fact that mr perot does not want to continue on certain questions without counsel present second if i may say your previous question from the end of opening just sutton if you look at page two forty six and two fifty two of the record that's where dr bronnie testifies in the preliminary examination the autopsy report is not in the record but of course that will not necessarily show what he has to say about whether this fall could have been accidental in the preliminary exam he says carpeted to the autopsy report but why wouldn't they have been when the prosecution had been obligated to turn over something that conflicted with their other medical witness that it's possible under brady that they would have turned that over my point is a narrow one which is simply that saying that the autopsy report would routinely have been turned over and we know that there was a record of that it doesn't answer the question about whether the so short answer is we're not sure whether counsel would have had known what theory was ok that's correct here's the quote here's the reason we're asking that question dr testifies first you're focused on the cross examination of dr whether that's an effective and one way to think about it as well you measure ineffectiveness by what happened overall which means you're allowed to consider what happened later and that supports the idea well perot's attorney could have decided to rely on the conflict between the experts but the other way of thinking about it  well how can you credit him with that if he didn't know for honoring was going to testify later i guess my theory is you judge effectiveness by the scope of the whole trial you can't punish him for being you know if feel if it works out that it's a sound strategy but what happens later it turns out to be a sound strategy whether you're justified with it or not i think that's true you're on a bit to be points or may just respond briefly to that first of all even if you look at dr braun his testimony as well the best the defense counsel is able to get out of him is maybe it's theoretically possible he also said this testimony a thousand things a theoretically possible meaning i don't think that's likely the cause but who knows maybe second and finally if you look back at dr the testimony he was the key or at least one of the key witnesses on the key piece of medical evidence and he said in that that the literature does not contain any indication whatsoever that this could have been an accidental fall any jury would have been left with the impression that this just could not possibly be an accident and yet there is literature easily investigation stating that this could be directly contradicting his statement we know from that that it was not a reasonable decision because he either didn't investigate or having investigated and found evidence that directly robots it did not even