first let me take care of one flame unary matter a supplemental authority that was filed with the court today i found some research and i thought it was appropriate especially if there is a nice circuit case on the matter of heal after trial ok this is a case about credibility and it's about credibility of the complaining witness as a mother but i think that i'd like to focus at least initially on the pretrial hearing in the state court level and the reason being for one the district court admitted that if the pretrial hearing had found the hearsay comments in admissible there would not have been sufficient evidence to go to trial and to obtain a conviction there were three here say witnesses and in order of presentation they were the mother  over a period of time which admittedly at least eight hours for the full disclosure to come out it was the next day about four o'clock in the afternoon i believe that there was the interviews of the three year old child  critical determining whether or not the hearsay and state of washington is admissible there we're looking at basically nine factors and i have made the argument in my paper that if further information that come before the trial court at the pretrial hearing the hearsay would not have been admissible and specifically if comes to the issue of the credibility of the initial hearsay witness patti sue cally and the potential impact of actions upon the testimony of her son who was then subsequently interview evidence was presented at the district court to show various elements the young man and particularly i draw this court's attention to two names in particular who did not know how to kelley before this whole episode that would be patrick dixon a part of the social and health services example in the subsequent testimony to dr stirling and detective folsom there was that every language and every word that pilar used to describe the legs of the ear allegedly described the events of that day use the word penis and yet she specifically used and it was documented that the word the change described that tyler said to her for these two individuals who speak now we cannot expect a trial president that would be absurd but we can expect when this documentation is part of the discovery package bet these people with this very important critical information would be called to bathroom now most of the other testimony suggests that the alleged incident occurred in the bedroom but that of course subsequent tests and what our subsequent statements to us in the kaylor said otherwise the point is  not the statements were consistent and that really is the problem here because if the trial court had been presented testimony to show that they're basically inconsistent or that had to kellie is critically impeachable on her veracity and if it had been shown that for example that her and my client mr sanders had an animosity  and that is really the initial issue and i think it's critical because like i said they don't come in there is no case now even understanding that there is some similarities then that goes to the question of you know a young child three years old so perceptibility you know it seems like i mean to me anyway it's a distinct possibility that over a period that's the problem because if if you take a look at the transcript of the decision by the trial court judge at the pretrial hearing you can see that there are some real you know it  depended heavily on what was presented which is right but he had no option are no opportunity to consider any other evidence because defense counsel didn't do anything i mean pro ssor straight testified as an expert for mr sanders and specifically made the point that at that point in the trial process there was no downside his mouth and yet that's no where else in the testimony there's a real inconsistency because you would think that a young child who had had that happen to them would have expressed it again and again  raises real questions about you know how little how consistent the statements are  there's also an issue in the rhine factors if the court gets beyond that point which requires corroboration now this is discussed in a couple of different cases and it really you know we all honesty i mean this is an issue for that the trial courts have a fair amount of leeway and i'd be the first to admit it because i have to but let us look at what the cooperation  precocious knowledge however the question of what was the precocious knowledge if the statements were inconsistent that kind of raises an issue when the court even admitted on record that this war is a crime racial that was a tough that where was this where was this questioning three year olds soft ability it's just resurging your point here the testimony given by the officer to the trial i as i recall reflected the conversation or the the question the discussion he had with the little boy and that seems to me would have reflected exactly the leading nature and i'm not sure what it is that you're saying the lawyer should have been bringing out about that well what i would say is this is that i mean i understand i think your point being that the judge who's obviously a trial judge would have the opportunity to see what a leading question is or not and more not evaluate when you have a discussion with a three year old the odds are pretty good you're going to be some leading questions in there but you make an evaluation as to how reliable the responses are and the judges sitting there making that evaluation i'm not sure exactly what it is you're saying the defense counsel should have done about that well i think that that i mean you know judges need help we all need help and that sometimes there's things that we mess that can be brought to their attention to our attention that would assist us in evaluating the evidence and so if you know it's not prior to the judge's attention they may may they time to pinpoint the situation with this very young child and i think that is i think that's a point well taken i mean the point of you know we did have an expert in child interview techniques as the evidence for a hearing actually was a week africa's event of the hospital but here's that type of expert i mean it's a very difficult thing dealing with a three year old trial i mean what's truth what isn't truth what's your what's your level of grass what's your level of understanding you know as well as your expert brought up in this testimony use the word sprinkle where did that come from i mean that's a fairly complex word for a three year old these kind of questions i mean the words which words are used around the house the fact the child can identify the word buttocks when shown the picture i mean and so yes i do i do believe strongly that an expert in a situation like this would be cortical i think that that point was well make and by professor straight who had exam the surgery and put together a protocol precisely for this very that and the concern i have about the fosters testimonies of seem to me he presented not the broad range of professional competence type tests the strickland gives us but what should be done and we have testimony about a protocol to be utilized in dealing with child witnesses and at least somebody within the county was familiar with that and used it as that seems to me to be a far cry from testimony that establishes the broad range of professional competence which is the standard we have to deal with here let me just put it in a very broad fashion what tells us that what was done by defense counsel here is in any case there general way in any case involving a child who is three years old that is what i was talking about that's the quit of the crux of the question and one of the questions you know the other thing is is failed to adequately impeach miss kelly that all the trial hearsay came in and as a result mr sandwich was convicted i would respectfully disagree with that contention for a number of reasons first that the focus of a ryan hearing is to determine the at whether there is adequate in just over liability for the child hearsay statements not the reliability or credibility to whom those child hearsay statements are made tyler's core missed by counsel i hope this court does not miss it is that peggy sue kelly was not the only witness at this ryan hearing and the reason the child hearsay came in and the reason mr sanders was ultimately convicted was because of the trial hearsay statements uttered to dr sterling and detective folsom and detective false testimony at the evidence or hearing made clear and i believe also at the trial is that many of tyler's spontaneous nonverbal his right hand now if he's to kelly told him what to do to achieve is it reasonable to infer that she also rehearsed and orchestrated a nonverbal movement like holding a three year old will hold out his hand  corrected dr sterling on two occasions makes clear that there was an adequate issue of reliability as to the child hearsay statements offered to tyler would submit that even if miss kelly had been constantly impeached at the right hearing that impeachment would only have addressed one ryan factor and that's number five and that's another reason why ms kelley is not the crux of this case even if she had been in mr karr's words adequately impeached that knocks out one ryan factor and that's the fifth one the timing of the declaration and the relationship between the current in the with us so even if arguably mr producer had adequately impeached miss kelly and showed miss kelly to be about as non credible witness as you can find well we've knocked out one ryan factor of the no and the state is not required to tyler tucker sterling to use a cloak we all phrase has been around the block in terms of doing sexual abuse investigations as a pediatrician he was tyler's pediatricians i would have a separate conversation with  apply to my office approach in that regard the rather witnesses it ryan and i was on the testimony of sterling and falls on the hearsay came in and there were questions offered to mr karr's before as to the fact that looser testified to through his argument to be made he would have made it if there wasn't then you were left and he was left with that and what mr sanders cannot show is prejudice he cannot key testimony you need for a conviction so you're focused on what the result of the hearing itself would have them well as the supreme court has told us to lockhart first script will be prejudicing crew doesn't and with an outcome determination along he has version of tiger's testimony was excluded so so fundamentally the argument now is that the trial judge would have reached the same result after the ryan hearing that he did that's that's what you're basing argument on make an argument which on its face has no merit i think you run the risk of alienating the court and stronger intellectual credibility before the court there are obviously arguments that every attorney can make in a particular case and one of the jobs of an attorney is to exercise his or her judgment determine which of these arguments as merit do i want to get up there and my goal is essentially just to make an argument so i could say well i tried everything i could said but i could have even though i know in my heart that argument is baseless and and there's no indication in the district court found this that even if mr the juicer had had a more aggressive characters and all the pens whether three year old charles put up to something by the mother or not i would think you'd be able to put in some kind of a defense you wouldn't  i don't know that if a lawyer a lawyer can do something in every case i don't know if that's really borne out by the reality of trial practice when i get in this case just even looking at the transcript of the trial the evidence the d n a issue for got to put on any evidence at all well you could bring in a d n a expert and then as the district court correctly found you then break it really emphasize the d n a evidence and you also emphasize the fact that mr sanders wide about now you are new you would ask the dr i think you had mentioned before an earlier question of why couldn't they bring in the stuff about what she had done before about making the stuff up before fabricating well i didn't refer to that specific incident and i referred to the sister in law case i would agree with the contention that if the hearsay statements had not come in then the state would look would have been left with minimal evidence with which to proceed to trial in that sense they would agree but on this on the other hand as i said before for the reasons i stated earlier the to the clarence statements she was the one that had sole access to that individual for twenty four hours we don't know what happened but the point that i'm trying to make here today is that in the context of the pretrial hearings there was lots of things that that the trial court could have done and i would call the particular witnesses cindy taylor i mean daniel sanders who testif about you know masturbation and where although there was no evidence the court was aware of that mr dixon officer down somebody to testify about where the d n a was found i mean i  a expert on this issue is beyond me but even more i mean then it goes to the issue of with he had interviewed him and found out that this issue of degradation was what the state was going to raise then of course it would be absolutely critical to have a  expert to be able to refute another expert's testimony regarding the degradation that is beyond me i don't understand that and to me that kind of evidence goes right into the the fact that there was no f in that removes that nexus right out of the picture and that is critical to provide physical substantial testimony or it's evidence about physical or testimony about the school evidence that would go