so sort of a pleasure to be here and we'll call our first case of the afternoon and rodney collins versus secretary pennsylvania department of corrections of cases where it really does best by not interviewing people by just cross examining them is that not i mean assuming the investigation you wanted him to undertake was interviewing people would it not be strategic that you really don't do that had a time you wait to cross examine it might be and i put that up a case in this case it was not be because clearly counsel did not have a command of what the ballistics evidence mark were in the case which led him to adopt and box itself into a defense that turned out to be completely unreasonable and defeated him a trial he knew this you know this and he told the court as soon as he learned about the the lead residue tests the lead residue test on the headdress he went to the court and said this is going to require great investigation on my part and possibly some work with experts told that to the court he warned the court about that and the court said well you might as well get rolling on an expert he didn't do that he did nothing he had notice of the testing on  he not investigate because yes he picked up the file walked in the courtroom and tried the case without looking at whether his theory about the court that the shooter being outside the car which he stuck with so the end made any sense based on the forensic evidence and be inside and is more specifically said it had to be in the back and are the expert that we have our own piece r n a said that first of all was apparent that the shots came from left to right in the car from the driver's side that a gun was shot inside the car based on the lead testing is completely contradictory what trial counsel argued and it was unlikely that the shots came from the backseat if yes once was consistent with the driver and the actual pattern of lead residue on the head west went from left to right this is something that the jury never heard in this case well  i was under the impression based on history just strivers opinion that your expert perhaps of a very fine person will do a little bit on that point on cross examination that under cross he knowledge that the the gunfire could have come from that it might have been awkward to do that but the shots could have come from behind and so it wasn't quite as clear cut as they are experts would have said something diametrically different well i mean i would ask the court to look at that part of the well well just testimony p c r a and he was he answered based on a leading not did not take into account the fact that well she also testified that the shots apparently went from left to right in the car based on his review of the talent in the evidence and that the lead residue pattern on the headrest went from left to right showing that that shots could well come from the forensic evidence counsel has an obligation based on a reasonable investigation to do that for the jury this you you are you are focused in on her own right in on the lack of a ballistics expert and that is exactly what the supreme court of pennsylvania looked at they looked at your argument about we should have a ballistics expert and before us here arguing we're at least in the briefing seem to be arguing it's just that it's not just that not due deference by this court well first of all we're not saying that he should have called an expert we are saying that he should have either with the assistance of expert help which he clearly needed at trial or through the testimony of an expert as we showed it p c ira to bring this evidence before the jury and point now that the driver could well have been the shooter but the reason that the pennsylvania supreme court's decision is not entitled to deference by this court is because the supreme court didn't even look at the he didn't interview the common loss forensic expert ballistics expert despite his express invitation from the district attorney that you could you could talk to this guy as he was going to say he didn't have a report from him he didn't know what he was going to say he didn't have the car examine it didn't go to the scene he at the c r a he had absolutely no recollection of how much time he spent preparing for trial little steps he did was basically to read the discovery that he and it's clear that he read that in court when you look at his notes court and does that does that have any and does that have a legal consequence when we're looking at what we're looking at here other than the fact that you could say he didn't do a good about prejudice it it seems that the magistrate judge was in that report recommendation i thought at most you've got another shooter there with with you even if somebody bought the testimony of mr wells and that doesn't counteract the medical examiners evidence the ballistics evidence from the police so even if you had had a better investigation and you had somebody come in like mr well said give us the money you still would not have been reasonably likely a reasonable probability of an acquittal since since the trial courts presumably and certainly the pennsylvania supreme court and the magistrate judge in the district judge all thought there's not prejudice here why should we say those those folks over there talking about well none of them own none of those decisions own up to the council's lack of progression and when you see how unprepared he was you understand that the jury had no didn't do it he just stop or paranoid and basically shrugged his shoulders and say i don't know what to do with the evidence isn't scientific enough they didn't prove it to weasel but it grew of scientific certainty and that's absurd aren't the letters problematic for your client the letters are not problematic because the first of all there was an actual handwriting test done at trial that they were not on they were not in our client's hammer any one of the letters come from i see just the letters came from somebody setting up mr collins the driver could clearly have said mr collins and his mother  good afternoon your honor as it may please the court molly lorber from the philadelphia district attorney's office on behalf of the us the question properly before this court is whether the pennsylvania court's applied strickland an objective and reasonable manner in rejecting the claim that collins submitted to that specifically that claim was a layered claim that appellate counsel was ineffective we're you probably should for my purposes let's talk about a claim about trial counsel well certainly on it as i think we're talking about trial counsel the supreme court talked about  district where we want to talk about trial counsel so let's let's get past the layered stuff and ask the question we posed by your opponent how could we give deference to a supreme court decision which doesn't even address the lack of preparation go straight to the strategy without talking at all about this guy did nothing to arrive at a strategy well i think that the the record is not as straightforward as my opponent would have you believe in terms of a lack of preparation one thing that my opponent really neglect mention is that it is in fact if you read the whole trial transcript is in fact quite clear an important reason that trial counsel had for not focusing his defense theory on implicating kevin koe for now let's back up you said the record is not as clear as your counsel as opposing counsel would say in terms of lack of preparation what is the record clear about in terms of what preparation mistress of you know did do well your honor that respectfully clearly he i think the p c r re record is clear that he reviewed the evidence that was provided to him by the commonwealth but you know if you have a client a couple couple of reports i'm sure it was more than a couple of reports i mean i must say with all candor that and this statement which is this person did for chile nothing they the this the commonwealth offered to have their people interviewed by the afridi we're going to give you our police officers particular case the counts that the the course of action that opposing counsel is currently advocating simply would not have worked given the realities of the trial which trial counsel clearly knew about now all of that before you go on and maybe you get into this when you say there is no way that he could have addressed savina could address what are you thinking about a specific kind of evidence you talking about medical examiner when i think about yes i am and i'm getting to this right now your honor the problem with the course of conduct advocated by opposing counsel is that it's a course of conduct which says we're going to focus the defense theory on pinning the crime on kevin cofer to the exclusion of anyone else the idea is if i'm understanding what i mean i don't think that's just i think it's if you had decided if you had figured out what the evidence was and the ballistics you could have figured out what your possible arguments were and you probably would have abandoned your voice from the bottom argument well and maybe you wouldn't want to get a cover you might come to something else but you certainly wouldn't have major main thrust of your argument that it was from outside the car respectfully and i think that counsel had no choice in that regard because his own client with telling him it can't be an inside the car shooter theory in the record columns they were absolutely from cons your honor and i'm glad you mentioned that because i feel that unfortunately my posing counsel is mischaracterizing the evidence in that regard the police in the record that she points  as saying that there was some sort of conclusive determination by a handwriting expert that the letters were not written by paul and they couldn't conclude for sure they were they couldn't conclude one way or another of the piece in the record she points to is simply collins's testimony that he didn't man me to another clearly meaning oh for the statements them broads made me nothing so to clear us both you must sign and fill out this form and return it to me because i didn't know anything to tell the police so i refused to  strong by the way in which his own client one of the case presented no your honor he doesn't he doesn't go quite that far but you have to remember that the p c r a hearing took place many years after the trial in this reality that his client was non poor with it and if you had done more to paint it as exclusively a kevin koe for did this he risk the fact that kevin costner would have gotten up on the witness stand and instead of doing what what he did which was clam up and say nothing he would have testified in accordance with his preliminary hearing testimony and his statements to police that directly implicated mr collins you know there seems to be this undercurrent of  one who killed the gentleman by shooting from outside the car well that's yes well in your your honor with you know in all fairness as i said mr said you know as a busy defense counsel he tries who knows how many murder cases a year in the p c r a hearing happened investigation by mr collins attorney i mean are you had positioned to say well he's been faulted for not carry out of the investigation that he didn't even understand he had a need to do until we're actually and the reason is because that was just one small piece of evidence in terms of a lot of different ballistics evidence that was available at trial so it was pretty  i would say it was consequential in that it made an inside the car shooter theory even more likely but the medical examiner's testimony be i witness testimony from kevin costner who later climbed up on the stand but we had his statement to police and his preliminary hearing testimony was all that collins was the shooter he was sitting not directly behind the victim but in the middle of the backseat and fired shots that traveled from back to france the medical examiner testified the shots went from the back of the victim's head to the front of the victim's head that's certainly not consistent with the shooting that happened from the driver side and well back to front wasn't total it was behind the ear and then the ah that's not that that's not that tough a distance i mean that's not that radical you know a line is well you're on i mean i i don't want to argue with you or quibble with you about ways that you could possibly interpret that i think certainly the medical examiner's testimony along with eyewitness statements clearly implicated her and this is just i'm sorry does that actually cut against you if if the medical examiner's testimony is so significant and it's admitted that he did nothing to prepare didn't consult another medical examiner didn't seek to have any kind of brief cross examination discovery is that does that actually play into the idea that there was a lack of preparation here which was you know completely undermined and appropriate the fence in a capital case well well your honor i'm not sure that the argument was ever made that he should have consulted an additional medical examiner and i'd just like to bring the court the pennsylvania supreme court's decision was it wasn't ineffective to not get a ballistics expert that's the question they posed to me answered they did not it seemed posing the answer the question were you ineffective because you utterly failed to prepare and that's the argument that's been presented to us now now you've made a pitch i understand that hey they sort of shifted the ground a little bit in way they're presenting it but for sake of discussion let's take it as given that they reviewing state court is silent as to a portion of a federal question presented to it but the lower state court did address that question then the lower state courts adjudication of that issue is do walked into court and he decided to wing it i'm relying on myself that's my strategy while you're on i think i would have to take a careful look at the p c r a court's opinion which is in the record and if you'd like me to submit supplemental briefing on that i'd be happy t o but you stand here with us you did you don't have anything either from the supreme court or the trial court that addresses the broader question that ms dolan is telling us they've been asking all along well i think your honor that the way you can read the state supreme court's opinion is that they consider the entire question before it and they read it that the thrust of the question was the ballistics evidence and that's what they focused on they also not to beat a dead horse were constrained in that they had to review the claim that was before them which was an appellate counsel ineffectiveness claim so they looked at the claim that was before the they said you know we're focusing on the ballistics evidence which seems to be the thrust of the argument and we can't say that appellate counsel was ineffective for raising other claims rather than this claim about the ballistics ev think as i already alluded to the medical examiner's testimony is certainly problematic for mr collins we also have evidence of witness intimidation that the jury was clearly aware of and which made an impact in this case not only in the case of kevin cofre but also monica small who told police that she had seen collins with a forty five caliber handgun the day before the murder and then testified at trial consistently effect because that would be just as consistent with a person who is who is innocent and is just really anxious to get to the jail because they didn't do it and they want people to to own up to you know what really happened because there i well but with all due respect under the at the standard of review the question is whether the state court could have interpreted all of this evidence in such a way as to reasonably conclude that there was no prejudice here it's not th collins now that's the benefit of every doubt and all evidence should be seen in hindsight as going his way the question is really was the sea court unreasonable in finding that the strickland standard was not met here was collins got out and testified which as we know is his constitutional right so not anything that's of no can necessarily control he testified completely incredibly he on the night of the murder came rushing into the coxes house and said there were guys that pulled up and shot at the victim from outside the car and killed him and here we are oh my goodness and then when he talked to police he said oh no no i didn't see it they dropped me off you know around the corner before the murder even happened and then when he was cross examined about that at trial he told the cop in the story about well i was worried that my girlfriend would see me getting out of the car and she has a cox's house and be jealous so the jury was really faced with evidence of witness intimidation completely incredible testimony by the defendant the medical examiner's t that hey this is paraphrasing this is really important stuff i'm this could be highly significant case i've got to do something this court says you're right i guess you better do something with that and then he does nothing nothing does that well your honor i would say i would say what i was racially he was boxed in by his client's decision to testify he was boxed in by the fact that if he had pointed to co then you know kovar could have gotten on the stand and implicated his client instead of staying mum so i think really we have a defense attorney who was hamstrung by the circumstances of his case and that under the deferential at the standard of clearly there is i think you can you know find fault with what's to be you know sat at a p c r a hearing many years after the trial when he may or may not have remembered his reasons for doing everything but the important thing here is whether unhelpful analysis that he would have disclosed to the to the prosecution which obviously is completely wrong it well it's not that what was really driving his just in fairness it's not completely wrong there's the rule is that he would not have been required to turn that over in mandatory discovery but he could not ensure that the trial court would not upon motion of the commonwealth issue a discretionary discovery order if he was going to call the witness to your honour's that you'll see it again be just because it's faster to find at this moment your honour's you'll see in the state supreme court's opinion where they reference the p c r a court's ruling the p c r a court said on the prejudice the piece very hearing testimony of lieutenant welch conceded that the ballistics evidence could support the commonwealth's theory that the shots were fired from the back seat of the taurus consequently the court not difficult but there's no investigation it's almost difficult to analyze that the prejudiced piece because you have to kind of go back and say well ok if you looked at  things what what would he have done differently and when there's just a total lack of investigation it seems to me that perhaps that the pressure the threshold for the prejudiced prong she should be lowered somewhat because it's very difficult to figure out well i think also your honor i'm i'm wondering where anywhere in the record there's a finding that there was a total lack of investigation i think you know that's an argument that i was in counsel is when he didn't what is in the record of one of  did do that's not our burden that's herbert i know but but the point is she's trying to figure that out and if she had found something you obviously would have would have reacted to it but there's there's really nothing that you've said that she overstates it so having said that you have to you have an obligation to tell us how she or she overstates the proposition well iran i'd be happy to do you further research for you this this particular aspect of the question was not the focus of briefing really at any point up until now failure to investigate such that he could put forth this defense theory that was different from the one he presented well that's what i think oh figure out that the prejudice because you kind of shouldn't the apples in the just to address the prejudiced point again it's our position that because the supreme court didn't rule on prejudice you don't need to go to the underlying court but even if you did if you look at the p c area court's opinion it's a one one seven  driver was in the car shooting and that's took that's just not supported by the record so even if you do go to the p c r a court's decision on prejudice i thought reasonable because it's not based on the record and remove the prejudice analysis it's not you know look at who've reasonable doubt as a pal in this case it's the evidence have influenced the jury's appraisal and it was there was a probability that the outcome would have been different and we have weighed the scales well says he what did the jury hear they heard kevin koe f shot could have come from how how do we i mean our obligation at this point it's not that you haven't raised interesting discussion points it's at this point we were under  that was an appropriate handling of the case well they didn't address but i just said we can't look to them for that so as for that other evidence the you know the medical examiner wasn't called to testify and where the shots came from i mean together with circumstantial evidence that's why they had to bring the letters and that's why they had to bring in the thing about the forty five which was which was you know not conclusive that was all the circumstantial evidence that they were raised with had problems with it  my colleagues here with me the pennsylvania supreme court seems to go out of its way to indicate the ground has been shifting here on pic review they say  there's an acknowledgement by mr collins that the theories or arguments in support of the claim for but the claim itself is one insane so i guess my question to you is if if the arguments were shifting can we fault the supreme court now for focusing on the question of whether a ballistics expert was chosen or not and not for answering the broader question that you're emphasizing to us at this point well i mean the argument that counsel didn't prepare for trial was never has never shifted that's always been a part of our pleadings that's always been a part of our briefing in the case so yes we can't fault the court for ignoring that was he was his trial strategy was more dictated by what you didn't do them by what he did do and that is just not effective representation all right thank you