system failed patrick h gage was accused of sexually assaulting his daughter years before he was charged in court and there are several key parts of these failures i'd like to focus on today  st as to the substance here gauge received ineffective assistance of counsel is lawyer interviewed zero witnesses was charged with one of the most serious offenses in the wisconsin code and his lawyer didn't interview anyone and that left two critical witnesses on the sideline at trial only one witness testified on behalf of the defense and that was gage himself second in reviewing gauges ineffective assistance of counsel claim for failure to paragraph of analysis of the failure to investigate claims a few facts it actually did consider with while you know it was flawed and finally today i hope to be able to talk about the reason  the fact that because a wisconsin court of appeals applied the wrong legal standard for prejudice this court should not give it any deference under so moving to ineffective assistance of the state be important for the court to consider first and it think it's critical to look at what did that what did the defense lawyer know prior to trial about the two witnesses i've identified here which is counsel knew they all lived together every single time h g visited patrick cage josh gage was there and at least during the times when the visits were to nancy ages house nancy  was there specifically counsel knew that josh had told the police enter in a police report that he had never witnessed any sexual abuse or anything suspicious to that and he also knew that they also left in the same general area he knew that nancy was very close with h g and yet she didn't do the basic minimal work of a criminal defense lawyer you have two witnesses who were with each g m package every single time they were together and and each to claim that almost every time patrick age sexually abused her and yet the lawyer had some preview with respect to josh not nancy but the lawyer had some preview of what he might say to the police reports and it wasn't necessarily favorable to your client why wouldn't that be a sufficient basis for him not to interview josh well i guess i would disagree with that characterization in so far as he did have an indication that josh had said you've never seen any kind of sexual abuse that was in the police report to me as a defense lawyer that's an automatic interview that particularly with the nature of this case where the allegations were so far in the past and your lines of defense are so limited you have to go interview that person even if you might have said well i'm upset with my dad because of this it doesn't mean you don't interview them i think you have to go interview them i want to know good and bad as a defense lawyer i know that i can't sit at face value a police report  i've looked at plenty of police reports in my sixteen years and you can't take them at face value and so your job as a defense lawyer is to investigate that lead and at worst i get the answer in the negative right that i determine ok josh is a dangerous witness i'm not going there but in this case the defense lawyer didn't do that and i think if the proof is in the putting in terms of josh's testimony the post conviction hearing you don't know unless you interview someone investigation and it wasn't that they were entirely omitted from the defense attorneys investigation the defense attorney and states that even though it had the police report about the investigators interview with the brother with josh and  d the defense attorney and you based on conversations with his client or at least he said testified that that what the mother would generally say and we determined that neither witness would be helpful and we now know and this leads into the prejudice analysis but we now know that these two witnesses would not have  much given the really care of their cat on it which is to say that they were in the same house during the relevant period of the years when the victim and her brother visited your client  and that they didn't see anything that that's of marginal evidentially value so given what the defense attorney did know the failure to conduct a more formal interview and it's my understanding that he testified that he he spoke with both of these witnesses but he didn't do a formal interview them i actually disagree that that's the an accurate summary of the a police report is an investigation i mean i guess maybe that's part of it as well i don't see it that way and i think to i guess i disagree with the import of their testimony and i think it's critical to look at that and this is  mostly looking at it in the context of the state's prove here the state's proof all it was was h g saying hey to between too many years ago i was sexually abused by my dad almost every time i visited him and so that leaves mr gage in a position years later where he has no potential to have an alibi witness no potential for an eye witness no physical evidence his only real defense is to say i didn't do that and to have two witnesses to say look i mean for josh in particular he narrows the time the window of time frame where this could have happened as he said hey i stayed up late i stayed up so one  in the morning thank videogames every night nancy saying hey i went down into the basement to my sewing room my cooking room until eleven o'clock at night i would go down and that's where they were sleeping and even nancy's testimony about hey i'm going to really close relationship with h g and i never saw anything amiss i never saw any strange behavior should a normal father daughter relationship the jury heard none of that all they heard was package saying i didn't do this and i think that given when you're when you're when you're comparing the state's evidence which is just a single statement by h g to that type of testimony i mean look the state put on h g s mom so she wasn't alone when you compare those you add those up sure in other types of cases in the context of other types of cases where there's physical evidence eyewitnesses alibi witnesses maybe this testimony wouldn't have been valuable but in the context of this particular case i think it was critical and i think you know you you saw it look to the jury acquitted on the count one there were issues here i think with each use credibility and any any evidence any witness statement that would tend to hurt her credibility or help mr gage his credibility was critical and the defense lawyer really did nothing i mean at a time just as testimony you've noted the that he testified he was up into one or three every night playing video games but g said this happened at night after they went everybody was asleep what else is it about josh's testimony that you think conflicts with h g s well i think in particular and i think testimony only relevant to count one which he was acquitted on that that in particular yes but josh said i usually slept on the couch his his testimony about the cabin i think was very critical as well it's a one room cabin with a lot and he said i want to heard everything i hear people talking there's a creaking ladder and the allegation from the cabin you know i think it look it's it goes back to mr gage is not in a position where he could say hey on may th of two thousand and two this is what was going on it was not was because allegations were that specific and so any testimony that would cast some doubt on these two story was critical and i and i had that's why this the trial counsel was deficient and that's what we've already covered which is the couch versus the bedroom two you know it didn't consider that josh generally last went to bed last night and was it was at one or three in the morning didn't give that level of detail  o'clock at night to go into her quilting room and so i don't think that there's any substantive analysis in the picture an opinion from the wisconsin court of appeals that would that is worthy of this court's deference discuss the cumulative nature of the testimony from the n c and josh and it left out as the district court quite a lot of pieces of that are testimony that that are important particularly when you consider them trial attorney completely disregarded two key witnesses but the problem with this case is that the actual record tells a very different story and with that in mind there's two main things i want to address this morning basically just clarifying the two prongs of strickland to this case one i want to briefly discuss prejudice because this case can begin and on the prejudice part of strickland and secondly i want to take a little bit of time to talk about efficient performance from our perspective because that is  prong about which i think a lot of the facts in the record and a little bit distorted and it's the problem that i think the district court simply got wrong by not affording proper just deference under strickland to a tactical decision of trial comes so i'll start with prejudice and i will and i think this is the pond that this progressively comes down as we all know to be mocking or hearing testimony of josh and nancy and what came out at that hearing it is the state's position that the in significant nature of that testimony of joshing nancy's testimony made it well within the confines of reasonable for the state appeals to determine that their testimony did not create a reasonable probability of a different result a trial and one of the one of the key facts in the record i think that really bolsters this finding and does decision by the state court is the fact that an act closing argument trial counsel consciously and expressed that he pointed out to the jury that neither josh nor nancy testified on behalf of the stay so what trial counsel was doing and we know this from the mark you're hearing testimony by trial counsel is he was raising for the jury the fact that josh and nancy could not support these charges so the jury knew that and we know from the from the mocker hearing testimony from attorney burgos as well that he did this consciously because he thought he could get the same benefit out of that inference that he could get by calling them as witnesses without the possible detriment that those witnesses could cut so we know that the we know that the jury heard that we know that the jury when they were deliberating knew that neither josh nor nancy who would support the state's case it and i think that's a real in both sides attempt to exploit the evidence  through they did they both used it in their own way the state also said well you didn't you didn't put them on either but i think that what that shows for a jury is that they didn't have something to provide and what we see in the mocking or hearing is exactly that played out josh and nancy as testimony ended up being precisely what attorney burqas thought it was going to be and i think sometimes you know mr gauges ate a good job trying to really hurst out and find any possible discrepancy between josh's testimony and the victim's testimony but when you really go back and you read that transcript josh is testifying in a rather reluctant way he is not offering up alibi witness testimony he is not offering up the any strong defense of his father he is he is being led by bo attorneys and basically says you can see him and that is something that the jury basically already knew because the state did not use them and so i think that just adds to that is a fact in the record that adds to the reasonableness of the state court's decision and i think it is important to remember that we are under a a for this that we the credulous probably draw that conclusion though that the jury made that determination when i'm sure they were instructed to side this case only on the evidence presented in the courtroom and sure you're talking about attorney argument now there was no evidence presented one way or the other about what josh and nancy  can we draw that particular conclusion you know we don't know you're right your honor we don't know exactly what was in the minds of the jurors when they were considering this evidence but what we do know is that it was brought to their attention that they were not used by the state in support of its case and this kind of also touches on the diffusion performance problem which we can get to in a minute but but this came out at the mock your hearing that this was a conscious decision by trial counsel to alert the jury of that fact and i think is that you've got a performance prong as opposed to a prejudice prong argument yeah you're right it's related to both of the attorneys decision to raise that we the jury goes to his trial tactics and how he wanted to present that evidence but i think it's also important to know that there was a discussion by both sides in front of the jury that highlighted the fact that josh and nancy were not told that witnesses and what that relates to is just more generally that everything that was said and basically everything was testified to by nancy and josh basically comes down to we didn't see anything we didn't know anything was going on that's all  there is there's nothing more in their testimony except for small discrepancies between what josh describes you know the layout of the house and i think in some ways i think those get very overblown in the briefing because when you really read the mo hearing transcript you see that josh is that if knowledge is he speaking in generalities you saying generally i don't remember every time so he by no means says absolutely every time i step on the couch or absolutely every time the victim flopped on the about now cumulative impact of both josh and nancy saying that they didn't see anything i think you would agree this trial appears to have come down to credibility do they believe h they believe mr cage why wouldn't the cumulative impact of jascha nancy who from all the testimony were around or in the home at the time this was going on a sleep but in the home why would there cumulative testimony impact the prejudiced a couple of reasons the st is that from reading the trial transcript you see how credible the dumb comes across she gives a lengthy testimony she is right she is articulate she is in a way that josh is marking or hearing testimony is not her testimony it's just far more specific and substantive even going down to talking about how her dad psychologically changed over time in terms of the so there is there's a lot of there's a lot of substance to her  testimony and nancy and josh again i kind of referenced the fact that the jury was aware that they did not testify on behalf of the state i think it's pretty fair to assume that they could then assume that they weren't they couldn't say they saw some g and so i think the critical the critical components of their testimony we were already a waiter or before the court that the truth of the jury was already aware of them so i think it was very reasonable probability that their testimony would have affected the outcome and i think that has to do with the lack of substance from josh and testimony in general i think it has to do with the  the credible nature and the substance of the victim's testimony and i think that's what the court saw as they just saw that after the mock your hearing they everybody realize that josh and nancy testified to pretty much exactly what attorney court of appeals was wrong and i'll tell you i think that what the cases say that find incorrect standard being cited is that the court is applying an extra burden on a defendant to show that the trial or the process was fundamentally unfair on reliable what the court state court did in this case was basically saying what is said in stric which is it's rendering unreliable the outcome and i think the difference is outcome of thermoses process so well i i completely agree in the state agrees that it would have been better for the court of appeal  component of fundamental unfairness imposes a heightened burden in a way that praising a standard as one of the on reliable verdict is not a heightened standard i would agree with that and i would i would add that i think it also is relevant to talk about what is unreliable if it said that the trial itself is unreliable somehow as a process i think that adds another level of burden  but bringing into question the credibility or the reliability of the conviction is absolutely what strickland wants you to do it it's we're not asking the defendant to show that it absolutely would have had a different outcome no it's it reasonable probability of a different result that means is it going to affect the outcome is it do they have any effect on the outcome and that's essentially what the court stated as that standard and then it it's from the state's position that even it applied it to the evidence from trial and it decided whether it was going to have an impact on the outcome and it decided it didn't now i'm not going to say that the court of appeals decision was the most thorough and well analyzed decision that we've because it did exactly what strickland wants you to do which is look at the new evidence in light of the old evidence and what kind of effect does that have on the uk or so many backup argument is that even if this isn't contrary to strickland piece of testimony from the trial and the mocker hearing you can hear them all with the court did it is it if it looked at them back to give a kind of global view of the testimony it pointed out some specifics that it said look most of the testimony is fairly consistent some of it actually corroborate each other there's minor differences but nothing significant so that is what they're supposed to do they probably could have done an even better  was when it found and this is a quote this was a credibility case and nancy's testimony if believed by the jury would have undermined the credibility of h t and then it said well gee we're not going to sit here and say well gee whiz maybe he should have called or maybe things would've been different that's not the test this course court has to follow that's exactly what courts should do on a post conviction motion like this and that was the judge who sat there and watched nancy and josh testify and judge their credibility