defense counsel confirm every aspect of the strategic basis for their actions they cannot indulge in post hoc rationalizations for council's decision making that contradict the available evidence of counsel's actions that is what the was his trial strategy we're agreed whatever she proposed was a trial strategy was what he was doing with a strategy that's a tribute to him by the trial judge and by the massachusetts court of appeals is one created by that post against him and has resulted in a life sentence the st major issue is that trunk counsel conducted absolutely no investigation there were multiple witnesses eleven who came who testified at that motion from trial that  compelling picture of how good it tended resided with the alleged victim in the house one that was filled with his family members and visited by hers the basic part of those witnesses testimony is that they victim's testimony any that many of their statements were duplicative of things that were already in the record and that as to a few characterizations as the basis for its decision and it avoided any discussion of the credibility of those they disagreed with you as to impeachment we do not get to review this to know we have to ask whether it was an unreasonable application of law or fact meaning really no court could have so concluded so what is unreasonable about their view that it was because the alleged victim stated that she was allowed to leave the house on occasion and had visited friends on occasion those testimony that came out at the motion for new trial was far more expansive than that indicated that she lived a fairly normal life happy life that they did not see bruises that they did not see cut here they didn't contradict the trial testimony but that's why they were so useful it wasn't simply impeachment as it is presenting an entirely different factual scenario for the jurors ok let me see if i understand you're saying that the state appeals court mischaracterized the factual findings made by the new trial judge who these witnesses the best director the new trial judge found them not credible and the court of appeals mischaracterized those findings by stating that it was only  cumulative ignored or did not address several the crucial issues that were raised by those witnesses predominantly that it provided motive to lie one of the witnesses indicated that the complaining witness had said that she was going to accuse the defendant in order to get paperwork the witnesses that were her own by her and the victim's own family members contradicted why she came to live with the defendant how her life was with the defendant and observed her it matters and means that were not consistent with what she testified at trial all of that evidence would have provided reasonable doubt the very least or presented a different picture of this case to the jurors and would have led to a different  could you just refresh my memory the separate account on which there were conviction because it may be that some of what you're talking about that we have a connection problem judge karen is that on my end i think so but you sound fine now ok i'll turn up the video present and sometimes that helps ok how's that the motion for new trial indicated that they all believe that she was over the age of consent so all of their testimony went directly to the primary charges that resulted in the defendant's life sentence but maybe i'm still does so and there's not none of them disputed her actual age i believe that they did they indicated that she was over the age of sixteen when they met her or knew her while she resided with the defendant none of about their having reason to actually know her judgment that may be the case but that was the primary issue for the trier of fact there was no evidence presented at the trial with the exception of her testimony as to her age i see and then the question is what is lying about her age it is and then of course so you had multiple witnesses who would have presented direct evidence as to that i think your submission that you got your you don't need it now it's always your contention is that the evidence here properly understood was relevant to every town under mind every count yes your honor and and in terms of how the testimony was presented it sure a completely different version of her life one that would have trial and so the only way to get the only evidence about her age came from the complaining witness no witness testified at trial that she was over the age of eighteen  witnesses at all the prosecution put on their witnesses they were not cross examined were they about this question of belief about  age your honor there was no questions posed to the police officer who initially investigated the case or the other civilian witness that functioned as a st complaint witness as to her age i had understood that your primary argument a church was the pharmaceutical records and your assumption that the state new trial judge got it wrong when he said it's clear and again i would invite the court to look at the trial transcript because the st statement by the attorney by the defense attorney at the time was quote in this case your honor to my knowledge there has been don't discovery provided whatsoever whatsoever that would  independently verify the complainants aged there is nothing the only documents i have for example it was a medical form where someone hand writes a date of birth argument to the trial judge was that was clearly reference to the discovery that was provided to him by the  record was the same medical records that were provided to him by the commonwealth he made no statement about whether or not he was provided any documentation by the defendant or the defendant's family so there's a lines of the trial judge on that quote from the trial is misplaced it does not support the proposition that he stated that he didn't have any evidence from the defendant but the the trial judge as i read it said if he had in fact pharmacy records and a hand which actually he might have been given by his client and the client family he would have used  the didn't because he didn't actually have that this was a line of attack suggested to him by the defendant and the family and how can we say that an reasonable conclusion by the new trial judge and then the mac and accepting that because trial counsel was utterly incompetent multiple judges tha say age was one thing proving she wasn't held captive in that house was another although when she is taken to the police she has obviously been beaten up she's been assaulted is there any witness that she was kept i'm sorry that she was not for the last four years in your client's house with his family and they  benefited by holding her captive yes your honor the witnesses who testified at the motion for new trial indicated that she came and went she was paid for being a babysitter when she was there she is state trial judge eg knowledge that but not in the last found that she had admitted in her own testimony that she was paid less than the going rate for babysitting and that she was permitted to go to the park and that she was sent out on errands all of that was in the record the trial judge found that the trial requests that everybody who testified to state their legal status in the united states the trial judge took into account that they were being paid because she was being paid less than the going rate as your own or states but some of the people who were living in the house the individuals the or me either minimum wage or less than minimum wage so they can't pay full price for that family and individuals was not beaten when she showed up to the police she had one bruise on her leg so on the cumulative point which i think is what you're you're trying to get us to say that the characterization of it as being cumulative or just impeachment doesn't capture reasonably the nature of the testimony of the new to the witnesses own statement of aids and no documentary evidence of her age that would have put it to the beyond dispute what her age was it can't be characterized as mere impeachment or cumulative evidence to characterize all of the witnesses as simply providing cumulative impeachment testimony if what they were going to testify to is repeatedly that she wasn't thirteen she was actually over the age of consent i so i understand that argument could you do a similar analysis for us with respect to that new witness testimony and other peters of the case that also would call into question the she was a permitted to testify that she had been raped by a group of individuals these people would have provided st hand i witness testimony that they never witnessed any of those items they didn't witness her being bruised they didn't witness even more important it is the idea that the map could only be upheld as doing something reasonable if it was fair to characterize this impeachment terror testimony as it's not cumulative so weak or so unlikely to change things or be reasonable to think that it wasn't prejudicial because it was only impeachment testimony that it i take it your position is that even if that were true that's just not a reasonable characterization of this type of impeachment testimony that is correct your honor and to go another step further when when we look at the other errors that he made and then the max conclusion about those errors as being trial strategy it doesn't make any sense the defendant's attorney introduced evidence that the police introduced the police officers testimony that the defendant had admitted he was a gang member that wasn't relevant that wasn't evidence there be he had the police the police at the interview with your client i don't know how the st witness who testified was the police officer on cross examination defense counsel asked the officer whether or not he the officer believed that the defendant was a known gang member and then introduced into evidence the police officer's report where he states that mr king to me and had admitted to him to being a gang member on her accusations so now we're seeing the court believe her accusations there'd be no benefit to introducing that into evidence and it would not otherwise been permitted and the big piece of evidence is the same interview  admissible into court in his process of cross examining the police officer he was more about the trial judge if you continue in the manner that you're doing it you're going to open the door to the say and he said yes then when the scene is introduced he doesn't object and then when it's going to question is and that the st time around she did not make any of the sexual abuse rape statutory rape aggravated rape she came to that three or four months later you know that's why i beg your pardon that is that's what the court found was his strategy and that makes sense to me ok that even if the transcript goes and that then opened it up for the government to show the video and i understand trial counsel may have thought that the video showed her as lying on these points that he wanted to use to undercut her testimony  was not it was it was the videotape so he did not prepare a trial transcript not prepare a transcript of the same in order to use it to impeach he did not use or point the jurors to any aspect of the scene video to show that there was a contradiction the court's point which was the max point that he wants to show that there was a change in her testimony was accomplished by asking the officer she did not claim sexual assault at your st interview and when the some difference or impeachment so there was no reason to introduce i'm sorry his argument was she's a liar she's a bitch she's a liar and how dare she bring these  record the only ground for thinking it would not be prejudicial given the nature of this evidence is if it was being used as part of a trial strategy a reasonable trial strategy yes and you're saying there is no way on this record to conclude that's why it got in that it's all right with making an argument that she's a logger there is no reasonable way to read the introduction of the same video as part of that trial strategy because all the record shows that the trial judge was just was stablish that she was a liar which she could have done without the same interview coming and then just c liar and instead for reasons that serve no function at all he went on to actually have the video come in which rather than bolstering the claim that she's a liar would you could make it up the video undermines it but also adding in all this prejudiced leavens that the idea that is the idea your honor and everything else that he does also undermines that in terms of introducing that the court brutally treated issue of restraining order in terms of either listening prior bad acts or other prejudicial evidence from other witnesses or  and didn't use any of these pieces of evidence that we're seeing at the macklin or trance tragedy and national strategic where you keep saying he didn't use any of that evidence you just mean in his closing argument  anyway judge for example no what do you what do you mean that the evidence came in and he says later he says i was using that to show that she's a liar but then you said but he didn't use it so you must mean at closing he didn't reference it at clos honor if you wanted to use the same to impeach or and this was testified to during the motion for new trial the normal way the logical way you get a transcript of the same you asked the witness on the stand did you say this or did you say that during the same interview is  the st time are you the same for some sort of impeachment value he doesn't do that he doesn't talk to her about the same he didn't get a transcript of the same he doesn't confronter about the same so there's ways of using this evidence may maybe misguided but he doesn't do that it's not like this was a conscious theory it seems to be a reaction to the court telling him if you proceed with one person or cross examination you're going to do this prejudicial evidence and he simply says yes without thinking that through and when he sees the repe like you're making it kind of subjective claim about what constitutes trial strategy so that he actually had to have embraced it one way of understanding some of the questions that are being put to you as to whether that's the right way to think about it and whether instead we're supposed to look at it jacked away given that it's in there and what happened does it matter what his state of mind was with respect to calling her a liar once that in i don't know how to think about that  objectively there's just no way anybody pursuing that trial strategy would have proceeded to sway judgement i'm saying that objectively there is no way the problem is that since he never actually states his trial strategy what we're looking at is the map where the trial judge proposing presidential straddle strategies and when they do that when they come up with a trial strategy post hoc the one that sort of shifts to me to say no that's not a strategy because if  you do with the conviction expert defense experts testimony that that was could be considered a trial strategy she didn't say that i didn't invite you to rea as judge karen mentioned whether any reasonable counsel could have considered this reasonable strategy layered on top of whether that was a reasonable application of strickland so in this  case as the trial judge did a very extensive and careful evidentiary hearing a four days listening to all these things in terms of the witnesses that weren't called by defense counsel and she them all testify as to what they would have said at trial all of these witnesses were in somehow linked or you know either the petitioners family or friends had some sort of allegiance to the friend and or the petitioner and none of what they well a lot of what they said was as has been stated similar to what the victim had already set she was allowed to leave the house she could go out to the park and do errands the remaining testimony which was really just impeachment was sort of a subjective opinion on their part that they were you know a normal happy none of them could really talk about what happened behind closed doors whether she really was raped or beaten they really just talked about how you know she was part of the family and they were a couple that really didn't go to the heart of the the crimes charged here which were rape and statutory rape and assault and battery what about you know my memory of it went back and read the testimony of the witnesses at the eviden hearing my memory is that they did not testify as church age at the time and again that would be just a subjective opinion on their part that she was above the age of consent my memory is that that they didn't talk about that with it but i mean it may be a ways talk about it they didn't talk about it but if they did talk about it i don't really understand why it's just a subjective opinion i mean she gave a testimony about her own age there's no documentary evidence regarding her age how could that not potentially affect the trial of these was the do you believe what she said about her age of ten people testifying she was over age we all thought she was over but how can a jury not reason we say well i don't i mean if you don't have any documentary runs and aids all these people they didn't talk about her i invite the court to look at that to confirm that but my memory is that they did not talk about the you know the fact that she was over the age of consent or stover sixteen in their  confirm that so there was really no evidence of that the uncharged conduct about the gang rape in witchcraft this was again petitioner says it wasn't really clearly counsel never clearly stated that this was his strategy but if you look at his closing argument that that's all that it's about the victim was lying there was no physical evidence of what she said occurred there was no info about her age no witnesses backed her testimony except these two testimony put forward on behalf of the defendant in terms of witnesses no right so i guess and other hand we have a case in which the record depends entirely on people believing she's telling the truth it just seems a little odd to say there is no prejudice from not having anybody support your account that she's lying and you just say all of that is cumulative or all of it  is just impeachment it just doesn't seem to grasp the reality of what the trial would be you have a person who says all he did all these things to me and then you have this trial strategy of she's lying she's lying she's lying and not single person who was present for any of it gets up to say i agree i don't believe any of this i didn't see any of it and i just say well that's just cumulative or impeachment that doesn't seem to really grasp how it would work in front of a jury to me but maybe i'm missing some but again i would emphasize that we're under the hate the standard which really looks at whether this was recently application strickland and not whether this court disagrees i mean there well if they're inherently incredible or they were they are they have nothing to say i understand why that wouldn't create prez's those witnesses when anything but if the witnesses were around them a lot and have this to say how could it not  jury positively how would be admissible who just wouldn't have any effect on the jury i just don't see that well as i stated earlier none of them could really attest to whether these acts which you know arguably happened in behind closed doors in their bedroom whether they really happen that they just talked about what they observed of about you know about petitioner in the victim and whether they were you know a couple or  not they really didn't talk about you know they weren't there let that's often the case with rape cases there are no eyewitnesses to what actually happened in terms of the sexual assault allegations and in terms of the battery we have physical evidence that she came to the court house with you know physical prius's and marks on her and as well as pictures of bruises and marks on her son turns out that i mean reasonably when you look at the fact that all of these people were aligned with with petitioner and all they had to say that was different from what the victim said is they were a happy couple they were fine under the hey be a standard i believe that could that was reasonable conclusion by the state not only the motion judge of the trial judge but also the appeals court then in terms of the pharmacy record or think it really does turn on whether the fact that the trial court believed what it petitioners counsel said at trial and really what he said is the only evidence i have are these medical records i don't know that we  can say that you know that the only discovery he received what he said is the only evidence i have is just handwritten or medical records for this handwritten date of birth and if he didn't have these pharmacy records he couldn't be he could have been ineffective for not using them so i think that that kind of resolves that issue unless the  now ok mr misfire you have one minute thank you so much your honor so the issue here is that this characterization of the other people in the house as be cumulative again is not accurate it's not a reasonable look at it st of all it was true the trial lawyer didn't investigate anyone so when you don't investigate then you have a problem about trial strategy because you don't know if these people could or could not be helpful to this portion of it is prejudicial you know as just as karen has pointed out though the feel of this trial right is a lot more then whether or not somebody can specifically view a sexual there it's on the record you can point to where the age was this gun i can help you to a letter to that i apologize such that i can't i can i can tell i can tell the court from my memory as the person who did it i don't believe anyone testified to a specific age i believe they all testif that they thought she was over the age of sixteen or over the age of consent but so that goes to that point but it does go to the general feel she's testifying about being trapped as a prisoner in this in this tower and being repeatedly assaulted no one would have seen it inside a closed door bedroom and so therefore all we have to rely upon her truthfulness as to the sexual assaults is her testimony so impeachment of her in any way shape or form comes to the heart of that so it's hard for the government to say well it's just a mere impeachment testimony when the entire case relies upon her credibility but to the court's bigger fact for the jury to see or hear one person saying i live in this house this is what is happening to me repeatedly and here no one else to discredit that and then contrast having and not just people who are associated with mr clinton ear there as his family members there are women who are married to has been remembers there was a landlord who came to the house from occasion and then there were her sisters who took the complaining witness the sisters who did not live in the house for all of them to paint a very stark picture of what's occurring in this household would give the jury pause and i would submit would give that reasonable doubt as to whether or not to defend it was really guilty of the crimes that are that he's accused of and to say that it doesn't dramatically paint a very different picture it does it is almost expected by the jury that if he lives in this household with lots of people then clearly he has lots of support to come and say this didn't happen but that didn't occur and the commonwealth takes advantage of that in their closing by saying she was not contradicted that everything she said was never contradicted and it doesn't work in shift but it certainly raises the specter that if you had witnesses that could testify to something differently he would have thank you international questions from the court now thank you counsel thank your honour's that concludes the argument in this case attorney must farah an attorney read and you should disconnect from the hearing at this time