every duty that mr albright his defense attorney owed to his client his attorney bramall hamilton gave the prosecutor three defense reports he actually gave them eight defense reports we've received by public defender investigators that's correct prepared by public in anticipation of using that information on cross examination we don't know that's not something that we now the reports were prepared by the defense investigator in preparation of the defen evidence you're hearing her deposition was part of the record before the just part was the information that the investigator accumulated used to cross examine anybody in the original trial it was isn't it standard practice for public defenders to turn over reports of investigators when they invest when the reporters used to cross examine people and i was there for seventeen years watched that happen i can't tell you how many times i saw public defenders turn over investigative reports before a trial that contained information that they were going to use during the trial that certainly is something that happens and a representative of the senate their public defenders office testified that that's something that happens me in this case however these reports were so damaging that that would not have been a reasonable tactical decision the only suggestion offered by the government for what could make this reasonable was a tactical decision by mr hamilton that he would give the reports to the strong prosecutor so that you could avoid an objection first of all the law was clear then and now that objection would not have been destroyed not have been sustained that notwithstanding the facts before the court didn't show any such reasonable strategy mr hamilton gave the report for witnesses he didn't cross examine he didn't give a report for a witness they did cross examined he gave a report for a witness that no one called there's no evidence that there was anything reasonable behind his decision to hand over eight reports what do you do with this from the district court the fundamental conclusion reached here is that the prosecutor was already aware of the witnesses in question as such the basing basic information all of which concerned only prior acts somewhere to those actually alleged and proven what about all this had regardless thus there was no substantial prejudice from any error by counsel i do not quibble with the finding of fact that he was aware of the witnesses names we never have objected that there were many people identified in the police reports are objection is to the conclusion that from that information it would have been that it would have looked the same absent error by counsel there is not evidence in the record to support that conclusion the evidence in the record shows that when the defense investigator interviewed these witnesses she was the first person ever since the police to have done so the prosecutor said that in his closing argument there has been some confusion since then because he later said that he didn't review them before the defense investigator and then he said he actually didn't remember at the time of the trial he told the jury the defense investigator was the person first first person that august and september of one thousand nine hundred sixty january february of ninety seven we have bramlett hamilton's notes from the trial conference with the trial court judge where the trial judge is presented with the state's request to admit evidence of candace arising from the police report and the trial judge says that's not enough those are from bramley notes on january twenty third one thousand nine hundred seventy was a thursday the next day friday on the record mr all called the prosecutor is able to give a far more detailed proffer about what those girls would say in trial that proffer matches exactly the defense reports and not only that the proffer that he gives on january twenty fourth matches all call as underlinings on the defense reports so in twenty four hours or less he's gone from being told you defense reports it appears that he did have a strategy in mind your reaction but what strategy he didn't turn over the port report for jeannie who was a charge victim who spoke to us to determine this it is up to the court to determine that the strategy is reasonable it's not simply enough to say there was a strategy the strategy has to be reasonable to survivor view it was not reasonable both because there's no rhyme or reason to what got turned over and because the evidence i have i have public defenders all the time tell me information they found that was damaging to their case it was part of their way of presenting themselves as rational people upon whom i could rely on making clean bargains and deciding what to do with cases i public one would think if you had any sort of a strategy it would have been to give at least the report that the charge victim who cross examined at length and not a report for corinne morgan called by neither side what about the the idea that this is just ancillary stuff that the evidence itself was so strong that it really didn't and wouldn't made any difference and therefore there is no prejudice there i think to me in response is that number one if you looked at the prosecutor's closing argument it's because of the way to the evidence that i win number two if you compare if the court were to do an independent review of the two sets of testimony the charge of victims and the other acts evidence the the other acts evidence is a theory very serious the disproportionate nature along with his ability to rely on the lower standard of proof is what makes us prejudicial and i in lessons for the questions i will reserve you may reserve counsel thank  may please the court violently from the california attorney general's office for apple e marc you're actually in this case defense counsel mr hamilton provided a number of defense investigator reports to the prosecutor mr arcola appellant claims that from these reports mr all call up to get information damaging to the defense the district court held an evidentiary hearing in this case and from that  the prosecutor saw two police reports that showed that there were other victims of similar lewd misconduct by this very same appellant one was in one nine hundred ninety four from an expert witness who said that this was a strategy that is often employed by defense counsel to turn over defense investigators reports if they think that they  using these reports in the course of cross examining prosecution witnesses and they are obligated to turn over these reports if they are actually going to be referring to them otherwise there would be an objection by the prosecutor in this case the prosecutor testified at the hearing that had mr hamilton not turned over these reports to him and then he used them the prosecutor would have objected in front of the jury which doesn't particularly look good for the defense counsel wants to know from the trial record that the defense counsel did actually refer to a defense investigator's report in cross examining one of these girls and i can't turned over possibly more than what he needed to turn over means probably that he was speculating that he may have needed was going to be using them for cross examination than he actually did me with the record i just want to remember what i can remember from the record the government turned over a witness list to the defendant before he turned over these the defense records the prosecutor  ne week after the preliminary hearing and me turned over to deliberate or sent to the defense counsel a witness list that included one of these girls named in the police reports which just one of the council's actions question please were the reports turned over or about the same time that the witness list was male you know this is your honor this is where it becomes quite clear that the prosecutor knew about candace and sharman and had the information that was in these investigative reports long before the investigator even interviewed these girls we know we know that the prosecutor had information about candace and sharman in may when he read these police reports we know from his testimony that he understood at least two girls one potential corroborating witnesses and one of these police reports turned over to the defense attorney the  the police reports were always available to all the parties i believe that's always available but does that mean this everything is always available well your honor the bit telling us that there were police reports that identified these two ancillary witnesses when were they turned over to the defense you are were they not turned over to the defense you know what i'm talking about you're talking about the police reports or the defense investigator police reports police you start out by telling us they're police reports that identify charmaine and this other person right when were those turned over to the defen i don't have any information about the date that the defense attorney a team those police reports or is it clear that they actually got the reports as well in or one of those reports is actually the turned over to the defense well i you know i think again that's not part of the record but i certainly soon the defense counsel would have the very police report that is involved that generated the charges for which he's defending his client but we do know that the defendant investigator did not interview starman in kansas until september of one thousand nine hundred six this is many many months after the prosecutor was already informed by the police reports about these two victims i we also know from the prosecutor's testimony at the hearing that he most likely interviewed these girls along before i did the defense investigator in the interview them in the ninety five police report jamie a charge victim stated that her friend charmaine told her that abdul rauf he did the same thing to her and candace that's in the air scarf sort of record so that's the kickoff police report detail you know what there are when exactly when and where you interviewed a particular witness but we also know that these particular two girls sharman and candace the lewd conduct that was involved therefore this is not going to result in some kind of prejudice to the defendant you know that the charge victims talked about actual touching you know one thing we know that the uncharged victims sharman and that mr hamilton would have been obligated to turn over the reports if he intended to cross examine the witnesses the law was clear he would not have been obligated it might have generated an objection which would might have been  to maybe not produce a jury that is a potential reason but in this case it doesn't make sense he turned over ports for witnesses for a witness to hear who he never even cross examined and he did not mention the defense report except one players always turn over more than the last are frequently turned over more than less and turns out then you don't you don't use it but let's go back to this ninety five report the report early original police report in this case identifies these two witnesses is that right and those are always turned over and so is it supported the trial court's conclusion that the prosecutor knew of these people and would have talked to him anyways to port of by the record i don't believe so for a couple of reasons first of all the police report charmian as the sister who corroborates what candace says it clearly didn't rise to the level to go on a on a witness list that generated at that time the defense reports are significantly significantly more detailed  also quibble quibble extensively with the state's statement that the prosecutor talked to the girls prior to the defense this together but that's very thank you the case just argued will be submitted for decision