looking at whether or not the state appellate court's view of that issue was unreasonable under california supreme or excuse me u s supreme court law we're not reviewing this case on direct appeal that's correct ok but the circumstances that the state court considered were not the right ones when it made its decision and therefore its decision is an unreasonable counsel to make the first decision first wrong decision and the most important wrong decision he made in this case which was to not bring an investigator with him into her you started to go for the proposition that it is always improper for a lawyer to interview a witness when he has concerns as to whether the witness will even talk to you no absolutely not it's not a person a rule it's supposed to mean there are circumstances were it would be appropriate would it not for the lawyers to interview the witness alone yeah that's my fear that having a second person there would cause the witness to clam up that's true and counsel in this case interviewed mr smith not on but four times at least without an investigator present and certainly the very first interview where he introduced himself to this man which was in the samarkand county jail and he had no idea whether smith would speak to him even acknowledge and that may have been a reasonable decision but the next thing that happened was months and months later he received a letter from smith saying hey i understand your case was over brandes going to trial i want to talk to you regarding mr silver brand at that point he fears about this witness should have been diminished significantly second of all he knew that mr smith might provide crucial information and to the very defense that was planning on mounting something with the record i understand part of the problem was the council didn't memorialize any of these interviews in any kind of a post interview memory and that's correct do we is very aware of the record where defense counsel goes through the sequence of what he learned from smith in other words i guess what i'm getting at is my experiences in interviewing these kinds of witnesses they rarely tell you the whole story or even the record is that she can't remember exactly the sequence of events with me because he didn't take any notes he knows he interviewed so that's four times she said at the second or third interview information and also the prosecution case was entirely circumstantial and in those instances counsel has a heightened obligation because each little error could have the effect of tipping the scales the wrong way here and i think in this instance the court needs to look at the record to see whether that was a reasonable finding at a minimum this court has to do that and see whether or not it was objectively unreasonable fine right but once you wade through it and i believe i mean the points about that in my brief the evidence the circumstantial evidence was not that mr sawyer brand actually committed the crime charged was not strong at case none of the guns seized from mr sumner brand either his house or his vehicle were linked to this crime and that's the point and the hitman as you know we argue should not have been admitted in this case for the very reason that you're saying mr many many years and i think i think we're getting away from the ineffective assistance of counsel claim and here and on to the issue of this book but i don't have to look at prejudice let's assume that let's assume that you're able to get over the first stric convince the jury that they convicted the right mean absolutely and interestingly in this case neither the state court nor the district judge even ever addressed prejudice because they consider counsel's actions to be reasonable wasn't inclined to admit the book then he was then he was only going to admit portions of it i don't think that that that hitman convicted mr solver brand especially if mr smith indication of something else and it's committed the crime or what was the what was reason for the van me well mr smith took the van and drove it to the location of the crime before he committed the crime but the however there was no evidence presented to the jury to explain them and how mr silver brown's man came to be at the crime scene there was some other evidence from mr silver brandy himself as to what happened which of course the carson from the initial interview at san joaquin county courthouse counsel knew that smith kirsten might be reluctant to discuss the case in the company of a third party or if the tape recorder was present like of having a witness present tape recording or anything like that right well your honor i mean first of all i think i think it's probably true that a lot of defense lawyers and defense investigators have train themselves just to rely on their mem honored counsel didn't say that that's why you know no but i mean i think i think just as an observation i think that's i think that's a fair statement and also you know the state court addressed this issue trying to do is through a series of meetings he was trying to build smith carson's confidence where he'd be willing to testify and specifically counsel told smith carson it was unlikely that he would be prosecuted that more likely the testimony on this point but apparently the state of held court was solved there's conflict in the testimony they resolved it in support of their finding that council gave each discussion information and i don't understand that rationale what's what why would a competent defense lawyer interviewing a hostile witness who he hopes he's going to be able to show with the actual killer want to interview the witness in such a way  difficult for the wouldn't it be better to just ask you know i'm leaving open ended questions and see what smith has to say i mean the lawyer knows what the evidence of the case is and decide in his own mind as he listens to the witness all the witnesses i ever interviewed either as a defense lawyer as a prosecutor right i can't remember one time when i when i disclosed to the witness that i didn't know what the witnesses knowledge was information that i was trying to get from the witness to see what he or he really should have done something about getting that evidence before the jury well let like i said your honor i mean there were some some reasonable bases for counsel to clients to to testify i'm sorry is the problem that he wouldn't have been a good witness no yeah i mean i mean exactly in other words first you know first of all there was there was counsel's inability to call details of meetings with mrs carson and also like i say i mean and this defense counsel's inability to recall details of the meetings with smith carson would adversely affect his credibility and also i think i think some of the factors that were discussed in council's decision not to withdraw from the case are also testify well i think it was i think it was during trial because i think i think that one or more of the meetings with smith actually three during trial i think it might have been fairly i think it might have been something i have a i have a censored page twenty six my brief during or sometime after the second or third week of trial smith personally again indicated this willingness to testify so so you know even even fairly late in the game even even well into the trial smith carson indicated he was willing to testify four and also the findings and recommendations say that that there was a strong circumstantial evidence of guilt and that's excerpts of record ten so that's a finding by the funny district court and i would like to to emphasize that that in this in this case there was strong circumstantial evidence of petitioners guilt and that means any deficient performance was non prejudicial i just like to mention a few of the items i mean i've listed easier than driving the vehicle two hundred miles back to five still young now presumably smith's carsten would merely have attempted to corroborate this impossible story implausible story about about how so the brand decided to take smith carson's camper truck because it had a leaking tire so so therefore council so called failure to preserve and present smith's carson statements was non prejudicial just to say a few words about the and i think i think the important factor to consider here is that you have to look at all the similarities between hitman and the presidents past in their entirety and you know they were there were twenty but i don't believe that there had been any evidence presented there was plenty of time during the prosecution's case to remedy the situation and the fact is that counsel should have done something about this as soon as he became  and said i want to talk who had in fact made it missions to counsel and if counsel really thought he was going to testify it wasn't reasonable to think this witness would be scared