and then if time permits such on the senate side issue as well i'm with respect to our claim that mr austin was denied effective assistance of counsel the basic service the council must provide to a defendant is to subject the state's case to meaningful adversarial testy in this case that did not occur in fact it is impossible to tell based if the jury's verdict was based on the evidence presented by the state or that as in the by the defense as the prosecutor told the jury in closing it could quote unquote throw out all of the state's case and still find mr uscan guilty based on that evidence that had been presented by the defense specifically counsel elicited testimony from mr us and that on delivery means and sense of self and that merely giving someone like a drag off your cigarette or something like that sharing drugs was not delivery however the jury was instructed consideration that's just as the state said when i asked an admitted that he was going to give some crack to tracey just ingle for her to use he would be transferring possession to her making him guilty of intent to the liver as a st like defense counsel's argument below that's a misstatement of the law coots actually talks about two different categories of cases where two individuals are using drugs together in one case the two individuals form the plan to smoke together they go out and jointly acquire those strikes and then they come back and use those drugs together without any intent to ever convey any of those threats to a third party in that case then neither of the two users is guilty of the livery however coots also talks about the instance where one of those drugs himself and when the coal user was actually gave the defendant money to do so so here when there's no denying that christopher asked in a minute that he agreed to act as the link between the drugs in tracy to shingle so therefore counsel left the jury with no legal choice but to convict mr austin the elena supreme court of people the chandler holds that when counsel provides the jury with no legal choice but to convict the defendant they're ineffective in chandler the defendant was charged with residential burglary and murder based on the fact that while he and his codefendant committed a residential burglary the victim who lived in that house was stabbed prior to trial the defendant gave a statement admitting to the and said i don't think if you take a realistic view of this evidence that you can find the defendant guilty of murder however the jury was ultimately instructed on the law of accountability which did explain that you are legally responsible for the actions of your  supreme court found that the ultimate error in counsel strategy was that even if she succeeded in convincing the jury to believe the defendant's pretrial statement she left the jury with no legal choice but to convict the defendant which amounted to a failure to meaningfully test the state's evidence which is ineffective here is well where defense counsel left the jury with no legal choice but to convict mr austin she failed to subject the state's case to me in full adversarial testy scuse me counselor at times you i'm sure you're  aware that at times these forecasts determine that it's not appropriate to make an assessment as to whether or not there was ineffective assistance of counsel and possibly deferred bantu of post conviction petition and where we can have a record back is she did but what if our client sisted on testifying insisted that this is what happened this is my story i think the jury will believe me i demand that you represent me and let me tell my story well in first case she needs your advice and before a trial don't provide that testimony you'll be admitting to your guilt if you do if he continues to insist then if i were the defense attorney i would make sure in court before he testifies to tell the court my client wants to testify i'm biased i'm against it that on the record and have you please admonish him that way he takes it very seriously the counsel believes this cause and then while he does have the right to testify he can get up and testify that counsel still controls the strategy of the case this is what the know counsel believed in this defense because she advanced and vigorously in opening and closing so we also we know for that reason that counsel you know her duties are not to just elicit questions on the witness stand which she did here but also to advise the defendant so even if he  designed to have the jury believe shingle when she said that he and that mr austin sent the cells of her because she invested so many drug dealers in the past this even more so doesn't require any off the record discussion because  there this is surely don't allow the states present this kind of evidence there's no strategy where you could say counsel had a reason to let the state say believe her because in this in the past particularly since council depended on the jury rejecting her testimony specifically counsel first failed to object when the state introduced all of this case before even presenting a single piece of evidence about what happened here by saying the person that you're going to hear from today is this reliable informant detective karr later got on the stand he talks of the seal as it's from him that he's worked with shingle and three times in the past and that in each occasion she was provided reliable and accurate and truthful information the information she provided to the police led the police to arrest these individuals and it led she actually purchased drugs from each of these people in those cases and it led to a substantial amount of drugs in one case even a good defense counsel also fail to object when in closing the state used this evidence to say yes we do have this dispute between what these people are saying but you have to believe again the state or deuced initial summation by talking what is this case you heard the evidence this is a case just single this reliable witness who always has proven successful in the past she's been very successful she's always been reliable when they talk about the differences in her testimony that the state says how do you know she was going to do it in this case because this is the whole purpose of this case was to buy drugs just like she's done in the past she was going to buy drugs that day counsel should have objected to this testimony because specific instances where a witness is truthful has been truthful in the past cannot be used to support their credibility certainly if an allegation of bias has been made you can rebut that bias with specific instances in the past but here when the state elicited this evidence there had been no allegation from the defense  venice therefore when the state gets this evidence right at the start of trial they set up shingle immediately as a witness to be believed by the jury they hear detective part her saying not only does she has she been truthful in the past she provides accurate and reliable information on the real drug dealers here so when the jury ultimately heard from shingle they would be disinclined to look for any inconsistency from her testimony as the federal case of my cited show and even if they did find those inconsistency yes they might be less likely to give mine to them because they always can resort back to this thing of of this of idea that this is someone who knows who the drug dealers in springfield are she always buys drugs in the past and this is what she's challenge shingles credibility the state says first of all you can't see it like a very he said and then it disappears but even if counsel had somehow invited it the problem is the state went beyond just saying in the past   counsels to errors undermine confidence in the outcome of this trial first of all as chandler held when you when your defense merely provides an alternative theory of guilt that in and of itself undermines confidence in the outcome of th trial however here there is even more confidence undermined reve and less competent in the outcome of trial because this case hinge so deeply and shingles credibility she was the only witness who could say that christopher austen agreed to sell her graphics and as we know injuries struggled with shingles credibility they asked during deliberations for instruction under liberty and then they were deadlocked at a certain point since she had said us an intended to sell her dr since defense counsel even agreed if you hear evidence of an intent to sell she's guilty the fact that the jury is looking for help and much livery means they wouldn't even need to go there if they believed her so the fact that they asked for delivery  deadlocked does show that they weren't necessarily inclined to believe this case based on shingles testimony alone there certainly was reason for the jury to doubt she will test in one because what she said was supposed to happen what she told the cart detective car like you would happen was not even close to what happened according to detective car later she told him that the man would be he would give her two hundred fifty dollars she would buy an eight ball from christopher aston which  gets out of the car quitting her testimony goes straight to austin's car hits inside they drive off and when austin is subsequently detained a few blocks away he only has seven point one grams of cocaine in one bag that's double the amount of drugs that searched him austin said it's uncommon to not have any of the stuff in the right field so certainly all the detective carla heard shingle say was he said she called austin and asked again april certainly since there was prior time they set up this deal well in advance gyngell could have certainly called austin for some other reason in the past and said he'd meet me here for this reason and then she could have called and hung up his defense counsel argue the trial or even if she  id at that time say i need to buy an eight ball of ice and could have easily met her just intending to go help her find a file that makes more sense than him showing up with double the amount in that case if he was just going to help her find someone maybe his own drug dealer  the amount the put the drugs he possessed would not be with an intent to deliver and therefore he would not be guilty so there was some problems with the state's evidence however both the council's errors completely remove those problems obviously when she gave an alternative theory of guilt then the jury didn't need to pay no attention to the problems in the state's case at all it doesn't mean you fight pick the state or you pick defendant he's guilty as a prosecutor said over and over again yet even if there had been any any chance that the jury was going to buy defense counsel siri or whether or not it was going to reject defense counsel theory the one thing the defense counsel theory hinged on to say you absolutely had to rejection rules testimony so coun error in allowing the state to unfairly bolster shingle could have changed the outcome of this trial when the jury was in that deadlock all it takes is one juror to say you know what she did this before she knows who these drug dealers are so let's resolve this case in her favor we've got you know it just goes turns on that so that's similar to the prejudice analysis of the court used in simpson where defense counsel allowed an inadmissible hearsay confession from the defender the court after the court found counsel deficient in doing so court said you know what the prejudice question in this case is close yes this was a damning confession from the defendant but you also have two of the defendants accomplices who said he was there and you have an independent eyewitness who had identified the defendant before trial but the supreme court recognized maybe they use this confession and that maybe it was enough to require a new trial the same thing should be said here there's a substantial risk can't tell if this case came down to the jury leaving imposed on you all defendants must be proportionate to the nature of defense twelve years for this offense is completely outrageous this was not a case where christopher aston was out on the street screaming rocks rocks trying to get people to come by his drugs in fact he did not even tr get shingled about his drugs it was the police and shingle the confidential informant who induced him to commit this offense and then he merely showed up with a relatively small amount of drugs the equivalent of what he used maybe a gram more than what he used every day and it was never going to the public it was always going to go to the police it is outrageous to put someone in jail for twelve years for this kind of action there are also several statutory such a jury mitigating factors that existed in this case the first and well it literally they were going to the police so they weren't going into the community but also in this case it was someone he already knew to be a fellow drug user so i don't think you could contemplate i mean if it was someone over he did not try to flee even region one that that time he never had a gun no indication that he was violent also as i touched upon his conduct was induced by someone else and even if you agreed that he was showing up that day to sell shingle drugs the fact that he had nothing come into drug dealers and double the amount she requested without any means to give it to her kind of shows that this isn't something he normally does that he might not have committed this offense but for being induced also his character in attitude indicate that that was all submitted he wrote the court a letter prior to sentencing that he continued to say i did not intend to sell the shingle i was only going to share my drugs with her but he wasn't outreach she didn't son i have nephews they're all looking up to me i want to change history has shown that when he is has proper direction in his life he can be successful although he first started using cocaine at the age of fifteen or sixteen and dropped out of school around the same time he went to live with his father in missouri for about two years after that plane at that time he obtained his ged he got a barber certificate after completing cosmetology school and he works part time obviously he came back to illinois and found some trouble he was committed  case there is no history of violence and the difference now is he has reason he says he has reason yes a clear plan to rehabilitate himself he wants to open a welding business he learned how to owners well know there's two parts to being a trial attorney there's the science of the law and then there's your strategy this arch aspect of the law the state's position in this case is that given the case she had in front of her defense counsel did an excellent job with bad facts that got thrown her way as the course of this trial went on defendant himself testified and for all intents and purposes hand criminate himself when he testified now is justice holder i pointed out we don't know if there were discussions between defense counsel and her client before the trial her saying hey i really don't think you should testify he's told me a story and i don't think you should go there and say that the record is not clear if that ever happened in this case but the fact of the matter  between counsel and her client beforehand whether he should testify what he was going to say and we don't know how she advised her client at that time she did make reference to this argument and her opening statement and then when the defendant testified he basically adopted a defendant's testimony and said you should believe him don't believe that confidential informant that was kind of the crux of her closing argument was she required to listen to testimony the incriminating testimony you heard and reading through or her testimony or the defendant testify testimony he told his story i think that this idea that she was listening to you share it if you saw that's not really what happened in this case she asked him what happened to this day what's your side of the story and that's the story that he told the states this as that she was then in a difficult position and she couldn't just ignore his testimony then and her closing arguments that would you know arguably before a lawyer in and of itself but then she couldn't go testify her and her closing arguments then say oh i don't believe what he said about wanting to share the drugs and undermine her own club and specimens mean what council did and what the staple of she did very well as she took this case and total o really really made strenuous argument that this confidential informant was not reliable there of course was some discussion about the reliability of the confidential informants testimony but the fact that the cia testified that she had with police before that was beneficial to counsel and her strategy that testimony that they're complaining about now today on appeal because had she not testified that she had worked with police before then counsel on her closing would not have been able to argue that one she was working off charges as a paid confidential informant that was a big part of counsel strategy don't believe her because she has an axe to grind she wants her charges to go away and to she was being paid as a confidential informant counsel argued strenuously don't believe this confidential informant she's being paid by the government and she will throw anybody under the bus that she can that testimony that was elicited then by the state was very helpful to defense and to defend and strategy throughout this trial moreover council made significant argument about the telephone call that face the church single place again undercutting her credibility arguing basically that there was bad police work in this case the detectives didn't record the phone call they couldn't hear what the defendant sad on the phone with her so there was a significant argument outside the small scope of whether he was sharing the drugs with her is  over the confidential informant that he wasn't going to sell her drugs they were going to do drugs together who did testimony in detail with the prosecutor saying throw out when i'm presuming to you would only consider with the defendant has to s defense counsel here was trying to make of the testimony that defendant gave these are our drugs that we're going to do together now obviously that strategy was not successful because defendant got convicted by the defendant is entitled to reasonable representation and mistakes in counsel strategy don't render her representation incompetent that's what she was trying to do here following unfortunately not great for her testimony by her own clients are the confidential informant again the information that was a listed from a confidential informant by the state that testimony was helpful to defend and his counsel when she then profit her closing arguments that he should i believe she's getting paid by the police she wants to work on charges that are pending against her and for all intents and purposes they kind of leave her alone to do drugs herself that was the argument back counsel really put out there to the jury in terms of the jury instructions that went back the say secession is that the most compelling evidence that console had adverse you know really thinking about the issues in this case is that they did struggle over this case they were back there they were first question they asked where was the definition of delivery and the delivery instruction that went back with seventeen point zero five and both parts one and two then they asked another question they asked if they could have a transcript of the testimony of the detective  a confidential informant that's evidence that counsel's argument about don't believe the confidential informant was fall place their third and their third question they sent back was that they couldn't agree that if they have to do it they couldn't agree on one of the two right and appeal to the juries sense of justice in terms of one of the right your honor you know violence right and your honor in terms of that definition of delivery that went back to the jury both parts one and three went back and part one of the instruction reads the word delivered means to transfer a confession or to attempt to transfer possession so the jury is just as easily could have been confused about you know this transaction was not completed what role does that play in this case there was no actual exchange her money however there was significant evidence clearly the jurors did find tracy cho single to be more credible than defendant on testimony and she testified that she called him she asked if she could purchase an eight ball she's totally incredible they can say we don't have to think about that and i don't like her i don't think she's telling the truth but he admitted to us he told us that he intended to shoot us down right and situation if there are questions about why counsel did what she did what the defendant thought maybe defendant was just that said i'm going to testify i'm going to tell the story you're my lawyer you work for me that's what i want to do it that's his choice he chose at least acknowledging that this is where this is where he's going to go it could make him look more credible to the curse if she if she finds that in her opening statement knowing be based on their attorney client discussions which this is all hypothetical because i have no perhaps it does that again your honor i think that if this is this is something the council should have an opportunity to address herself on the collateral attack on a post conviction hearing if she did the state's business and she did a good job this was a hard case his testimony was incriminating there was significant evidence against him the confidential informants testimony along with law enforcement and he was found with a significant amount of crack cocaine honest person this was a hard case and she had jurors who arguments today those were arguments that were expressed made to the trial court and the trial court heard those arguments and on the record stated that he considered the defendant's criminal history he considered the defendant's pre sentence investigation report considered the financial briefs i took up all my time they are fine thank you just a couple points let's assume that everything happened worst case for counsel that arson testified against her wishes she did everything she could to try to stop him she didn't elicit the testimony that he gave which i think the transcript supports an argument that she did let's assume all of that at that at that point at least be honest with the jurors tell them what the law says and say you shouldn't fight him guilty under that law because this was a de minimus amount because he was only going to share a little bit with her that shouldn't be how you apply this law of you don't tell the jurors the wrong things about the law that it requires an intent to sell because the prosecutor did say over and over the law will not instruct us to what she's saying she's wrong so then i would suggest that a very plausible reason why the jury asked for the instruction was because the prosecutor had said the judge is going to instruct you on this and you'll see that it doesn't say you need an intent to sell when the jury got that instruction the only real choice for them was do we apply this law or do we know how to play this and as chandler said when you leave the jury with no legal choice but you convict the defendant that's deficient and then one other point i would like to make is counsel did not say these are our drugs and try to fit this within coots she specifically said if you have a glass of alcohol that you were drink if you have a cigarette that's your drink or that you're smoking and you hand it to someone else and they take a drag or they take a sip that's not delivery she was very clear it wasn't within this first two succession that she was