commissioner question i'm more focused on the admission of the evidence and i am on the closing argument because of course the evidence that your client asked to speak to a lawyer was in evidence at the time of the closing argument which the prosecutor in this case then referred to but why was that just not part of the trial strategy though that it seems to me that mr dodd objected to the statements that came in after your client said mom i think we should get a lawyer those statements though i don't think harmed your client i don't think they added much here but he mr di did object to those statements but it seems like he deliberately allowed the evidence or the question that the statement to come in i would like to talk mom i think we need to get away or in fact on your client's cross examination and direct examination he kind of explained why he was asked cross examination why after you had consulted with an attorney did you feel that you should remain silent and sir i followed the advice of my attorney so it seemed to me that what mr dowd was trying to do was allow this evidence in so that your client had an explanation as to why his statement to the police differed so much from his testimony at trial so it was all part of the trial strategy and why was but richard oh yes but mr but mr dott explained that i think when the district judge the at the issue in front of the end of the district judge the issue in front of the trial judge was with respect to the exclusion of the statements after mr dott asks for an attorney the district that the trial court judge and mr dodd were not discussing the statement mom i think we need to get it turning it seems like everybody wanted that in evidence including mr dodd mr dodd explained here on your appendix page two hundred and ninety four dollars he tells the judge the defendant consults an attorney relies on the advice of an attorney he may not know why the attorney is giving the advice but he relies on it and now what he's he's questioning what the guy's actions actions after he consults an attorney that was referring to what the prosecutor is trying to do but it seemed to me that what mr dodd was trying to will we would he was saying here is he we want that  want the mom i think we need to get an attorney so it explains he goes then sees an attorney attorney tells of don't say anything to anybody at all until you get up on the history and i guess during cross examination we didn't question the strategy but it seems to me that that was the strategy it was it not i guess what is it was it not the strategy that's my question of course of course that's an impossible germination to make and i cite object reasonably oral objections no pretrial objections but oral jackson's and i feel personally that that means the lawyer put it before the trial judge and was not ineffective in that respect i do understand at the closing argument his actions that night you know we doesn't say anything he wants a lawyer you know what kind of a guy would want a lawyer than somebody who's guilty but the fact is this is just a piece of a fairly lengthy closing arguments i understand although i'm not sure that we have the whole thing in the record and more importantly we're supposed to evaluate these things at this point in light of the record as a whole there is a acoa look at that you know they're jacking to this couldn't a rational lawyer have decided to just live with it since the jury's already heard this information not perhaps but the fact remains that th in this debate of objecting when the evidence comes in and the closing argument i would have thought the thing that would make the most sense would just be an appellate argument based on board of may please the court thompson has failed to show that he was to deny the effective assistance of counsel at his trial while he can't show deficient performance or prejudice from his alleged instances of  not effectiveness i will start with the prejudice the evidence for the one i'm not at all convinced on the performance side that course if you can show no prejudice then that's enough to  the the scene of the crime where the victims were the damage to the house indicated that two people were involved in the crime because the victims here had an alarm system and had a telephone  and he could not have been struggling one person cannot have been struggling with mr hillward and left mrs hawthorne alone and her not being able to either call someone or push the panic button that would have let  possessed the two knives that were consistent with the murder weapons thompson cleaned and oiled one of them after the murders blood that was not thompson's but consistent with the hill burns was found in on his glove in his coat in his house house shortly before the crimes and was seen with dylan after the crimes and thompson and dylan had money after the crimes to go buy marijuana tonsils alibi is not corroborated at all by any of the physical evidence or any evidence in here or any and most importantly he provides no theory as to why his best friend would include him in a crime in a way that does not at all make the make dylan's role in the crime less in fact dylan takes responsibility for the murders it's important to note that the state always proceed against thompson here as an accomplice and under a felony murder theory  never claiming that thompson was the sole actor in the murders this was two quick references by the prosecutor going closing argument in the middle of a sixty five page closing argument a very lengthy closing argument do we end the record mr coe the i we looked in the district court record do we have the full transcript of the closing argument in the state court i believe the state court record was submitted to the district court whether it was transmitted up to the th circuit i'm not i'm not sure about that in the record but i believe it was submitted as part of the return in by the state ok look further but you said it runs sixty five pages correct and that was the initial opening statement by the prosecutor and then there's thirteen more pages of rebuttal closing by the prosecutor where he does not mention the right to the attorney the prosecutor's theory here was that dylan told a consistent story there was crime rate by the evidence and thompson told a new story that was not corroborated by the evidence those were the consistent theory that the prosecutor put forward and defense counsel did have the theory of trying to explain why thompson would lie to police when on the several times he talked police before before being arrested why he would lie and then why he would not come forward with that evidence of a different story that he was not involved and and the the defense counsel chose as shown by their their closing argument that to pursue a strategy that they would say that the reason he didn't come toward is on the advice of counsel so don't blame him for the fact that you're hearing the story for the st time jury blame is not just that the problem with that that i have is that we're looking at this initial conversation that he's having with the police while his mother's there the whole point is he doesn't have a lawyer he's not making these statements with the advice of coun he's making these statements either because he's not really in custody and the police get to ask him up a bit given him a miranda warning and they've told him he might be facing the death penalty and they're scaring him but whatever is happening at the problematic moments is not being done on advice of counsel so that seems to me this is a little bit off the point but i think that that would be an argument about whether counsel strategy was a good one or not a good one i mean how so telcel is trying to figure out what to do with statements that mr thompson made before he has a lawyer when he makes those you know i think we need a lawyer or whatever he actually says it twice and they do finally stop asking him questions the  time but that what it whatever that is that's not being done on advice of counsel and that's that's what enters into evidence over the objection of the trial lawyer and that's what's alluded to at the end so really it's just the lawyer trying to make the best of a very bad thing that we're looking at the original error occurs when they just keep talking to craig but but thompson had already lied to police about not of not being in petersburg and being with i wanted to know not even not on advice of counsel he just lied because he lived right right he lied because he lied and he and he came forward on direct examination to say that the reason he lied was he was afraid of don't and so that's why he lied and then he didn't come forward after he had counsel and could be protected from dylan because because he was still scared of dylan and  so counsel brought forward that testimony to say no the reason he didn't come forward is because he had an attorney now and we told him not to and so i ask you to follow up on this a little bit i'm t right there's no prejudice and also no reason after objecting to it to do anything further with it i guess is it wasn't that the that the trial attorney had to deal with what happened afterwards trout with the trial attorney had to deal with was how do we explain why thompson lied to police and initially in which he admits on direct examination that he lied to police in the st three times he he spoke to them how do we explain that he lied to police when his reason for lying to police was that he was he was scared that he would be implicated in the crime and so the  the cross examination to that was well if you're a school after your employer implicated in the crime why didn't you come forward and say i didn't do anything and and in response to that trial counsel was saying because we told them not to and that was our reason to that to give to the jury as to someone who is not involved wouldn't correct their lives but that seems like a huge problem is only because that's what you're saying translated is because we told him to continue to exercise his right to remain silent that's what you that's what the lawyer apparently said don't make another statement don't try to exonerate yourself don't try to do anything just keep your mouth shut between now and the trial to correct the original lies that he told the police and apparently the lawyer said you know you now have counsel don't say anything and i'm see i see that as advice of counsel to maintain your permissible constitutional silence and that we're going to take that as evidence of guilt is a problem with every defendant the defendant who may have a right to silence play he can either open up the door and testify for example and give a new story that opens himself up to cross examination or he cannot testify at all in continu silence and so you pick pick your poison and here trial counsel decided to provide an explanation to the jury rather than just leave it out there unspoken as to what was going on ok think we'll have to call it there anything further mr thompson briefly so about this trial strategy reaction remember but the harm here was the simple facts not his education was used against him not necessarily the tie and its original statement and his last statement but the fact that he asked for an attorney that was years to impeach any credibility that mr thompson thank you thank you very much and i understand you took this case by appointment and the court very much appreciates your efforts so thank you and thanks as well force the state the court will take the case under advisement