requires the defense attorney to do reasonable in pretrial investigation and his strategy then has to follow that investigation clearly in this case by his own admission this defense attorney did virtually no investigation even to the extent of not assigning a diff a defense investigator to the case and the reason this is a problem is that going into the case there's no doubt to disclose an identification case the attorney understood that he also understood going into the case that there was substantial evidence of a viable third party defendant who he knew from the from the investigator from the police reports that there was evidence that this woman was absolutely there as to pitches because spitz did recant so there is a substantial issue regarding was she the shooter and that's what this is all about whether or not whether or not she was an intern a better to the robbery but whether or not she was the actual shooter council let's assume that defense counsel in this case had actually done what you asked her to do and managed to track down ms williams why would we think ms williams would be available to testify as a witness in the case well she may not have been available to testify as a witness however he could have brought it up with the evidence that he had that she was similar to pitts he could have brought her in and just demonstrative that he presented her to the jurors physically too for the jurors to make a an evaluation of how similar williams was to pence so that's the first thing considerations for mr pitts but if he brings her in then isn't there a risk of the prosecution would not make the deal to exclude the his confession well the the deal first of all that would be speculative the deal between there was evidence certainly of the deal made between the prosecutor and defense attorney that if the defense attorney and this was the deal you don't bring in your identification expert i won't bring in confession and so that deal does not reasonably preclude defense attorney from putting i'm as full a third party couple of the many cases but we have to think of the defense puts on a case that m williams was the one who didn't and bring in some somehow gets her into court or photograph if i'm prosecuting the case i'm putting a confession of his bits in for what i absolutely appreciate that but that's not to do that they may but even assuming the  the ameliorating context of not putting on a misfits is confession the jurors already had two pages of opening arguments that miss pitts confessed and that she confessed in order to save miss williams from having to go to jail so let me understand this let me i'm trying to figure out the lawyer strategy or non strategy  lawyer representing mr hint this deal doesn't happen until they're in the middle of trial so wrecked his investigation strategy and his initial strategy in terms of what he's going to put on trial that's all done without the without the prosecutor has a t v that i can only speculate about but my my feeling is that the prosecutor was more afraid of a third party culpability defense and the the initial six pack was skewered in that the officer asked her to evaluate the people and rank them it's not supposed to happen that way this was across racial identification bad bad for the prosecutor this was a shooting that happened very quickly probably within less than ten or twenty seconds in a darkened space although there was i really don't need to bring that the end notwithstanding the jurors are going to be instructed not to consider argument but clearly something a confession is discussed in fomenting in terms of even instructed the jurors can't put that out of their mind so wayne the values the prosecutor could easily have said you know i'm i'm not i'm not losing anything by losing the confession i'm gaining a whole lot by not having the identification be looked at down let's assume that mr his lawyer either had ms williams which i think is unlikely or had a picture of ms williams now i've read the lawyers testimony in the space of one appears like ten seconds he says i had a picture i didn't have a picture who knows when to him picture but let's assume for a moment that he had the picture ok let me just correct you a little bit on that that happened in one part of his testimony  appearance later he was put back on the on the point about that and then he said unequivocally no i don't have a picture of williams i don't believe i ever did so there's he had a chance over a couple of days i think about it and then unequivocally said i didn't have a picture i don't think i ever saw one so just like that clear you have well there's not that it's not a square but well steven very clearly what he sa appreciate that but it doesn't mean he still does it make it very clear to me with three degree didn't i see she said what he said but he says i didn't give i didn't put the picture on because put it in front of the witness is that lawyer lee judgment to which we must differ evidence of clear and convincing evidence that he didn't have a picture of the stand it if that's factual finding you would have to find that there was not clear and convincing evidence that he didn't have the photograph and in that respect you may have to defer but the equally important issue has to be that if you take the state court opinion which was clearly contrary to the district and standard when the state court absolutely articulated a post hoc justification for the defense attorneys strategy to the extent that obviously you brought it up yourself that the attorney could not have known that they were not going to bring in the confession prior to his investigation so that actually reasonably takes it out ask you about it will take you over time but don't worry about it ok i'm going to ask about the taxi driver he did not do any research to try and locate the taxi driver according to the confession mr pitts takes the taxi and pays with a credit card stolen from miss worms according to or later stories he takes a taxi they then wait at the house for williams to show up for about forty five minutes at which point williams shows up and williams has a credit card from the from the robbery victim now is there some reason to fault him for not trying to find a taxi driver no that that would reason in my opinion that would be a reasonable strategy even on minimal investigation because there is always the danger that the taxi driver that the evidence that she had  williams's credit card ties or to the robbery it doesn't necessarily tire to the shooting part of the robbery but i but i would not say that that was under the facts of this case a completely and reasonable correct however if we have shows up at the credit card that would have been support the use of financial support for pitts a story that well that's that's why i'm asking the question and because it seems to me that if it's a second story that is to say the story she rips is after after the she's finished with the confession season is not that confession of vogue that one ties william fenton let me as williams into the shooter because when she shows up at the house she doesn't have a credit card oh absolutely and that w d let me ask you again do you fault the lawyer for not investigating to try and find a taxi driver to confirm the story that pits tells the second time yes understanding that part of the question yes he he should have investigated the the taxi driver it's much like the situation in the we didn't case that in order for him to have discounted that theory or that or discounted the theory that getting the taxi driver is bad for pitts he would have had to have known what the taxi driver really has to say and again that's a strategic choice that really was made without the investigation  could not have heard pits you had what happened if you were being taken over time and i'm sorry he finds a taxi driver and the taxi driver says oh yeah remember mr pitts your client got in the car and when we got to the house he paid with a credit card that what does he do with that information can he just keep his mouth shut and say to the taxi driver thank you very much thank you for your time is one hundred bucks please go away absolutely and that was discussed in did but the prosecutor does his own investigation no matter what he does and so there's no there's no strategic advantage for have actually not to investigated the taxi driver let's hear from him side and we'll give you a little time to respond i please the court telling us to build deputy attorney general for respondent this nurse claim fails on prejudice if her trial attorney had done anything other than rely on theater be evidence her confession would come in and the jury would have her for themselves petitioner say that and there's no version of the defense whether it's straight but to do you was if you put on the expert on to bring in the confession the deal wasn't if you show a to the jury that most of the items found the car belong and williams and thereby shown that anna williams could have perpetrated this crime answer sure but then i would have been relying on the state of the evidence and the people would have brought in the confession which is just what we talked about and then with regard to the cap but then you see that his testimony leader about what the deal was yes when he's in court describing the test of the deal that's not the deal that he describes the deal that he describes is  if i don't put on my expert then you don't put him so as to the deal that he described in open court was not the deal that he just described but he described later on it was just he didn't mention that part of but i think in the context of when he said it at the mr his lawyer describes in open court on the record what the deal is the deal he describes as the confession want coming out if i don't interview if i don't put on the stand my expert on cross to i'm supposed to trust what he says later on when he's defending himself rather than what he says to the judge in the courtroom at the time of trial i think you can believe that but again i think the scope of that agreement has to be taken into context in the context was at that point you still in the prosecution's case in feet so i'm saying that when he's talking about it he's talking about the confession coming in at that point in the prosecution's case and he they hadn't rested yet talking about the rebuttal i think if i understand the question correctly i think you saying that the rebuttal was still a possibility that there were still the chance that if this idea of introducing that someone else committed the crime was out there the rebuttal case was alive and well that the deal  rebuttal and even after the statement that judge white your mentions they both the prosecutor and the defense attorney continue to talk about whether they're going to bring in the confession whether they're going to be any expert that was still an open question and it wasn't until the prosecution rested that that part of it was was done but even after that defense counsel says let me talk to my client maybe we might bring in the expert witness so it's still an open point it's still an open issue at that point and but once he once the prosecution rests that's the end of that and once the defense gets up in the way he talks his client he says ok i'm going to rest and then that's when the deal is done and it wasn't just on the one time that he said he had to rely on the evidence again it's in the most from the trial but he did mention it again with regard to the cab and that's on six ninety six about not bringing in evidence about the cab that would also allow the prosecutor bring to bring in the so again the the overarching reason why petitioner's claims fail on prejudice is because the confession would have come in and likely would have come in if petitioner had tried to bring in any third party culpability evidence so what do you do with the argument  advanced by your adversary that the jury already knew about the confession because the confession had been admitted to and at least in general terms been described in mr pitts opening statement right every practicing lawyer comes you know you ring the bell and you're trying to bring it in yeah ok i understand but on unprejudiced reglan talks about the original probability that you're not going to it's not proper to assume that the jury's going to disregard their instructions you can't ask you can't promise that prejudice binding on them disregarding that and then you know taking what counsel said in opening argument opening statement to you know damning yes your honor and i was going to if it's different to reference the confession she confessed and then he goes on to explain but it's different hearing her confession as i'm sure the court saw it's very long and she very clearly says i took the again that doesn't really carry much weight when you've got that confession in evidence and then with regard to looking at the photo kelso already believe that petitioner and williams look similar he didn't need to look at the photo were back to that point but he said assuming he had had the picture he wouldn't have used it and so and so again we're looking mainly to prejudice because it can't be based on speculation it has to be you know then because the confession and whether that would have come in seems to be a substantial issue let me first of all just quote what was the counsel represented to the court during that that for hearing and the counsel said quote subsequent to the court making this ruling i confirmed with the people that they would not be offering to tape the confession the statement of my client if dr fisher did not testify if expert did not testify the people would call one more witness and then rest that's that's the basis of that deal and to the extent that if he had then started pushing on a third party couple ability defense without calling pitts to testify the court would reasonably had an opportunity to say no here's the deal this is the deal you witness expert testified that confession by their deal i would not have come in and so i would just like to and the one of the thing in terms of speculating as to what the trial would have been or what the prosecution would have done in the rebuttal that that was discussed in i think the browning case and the weekend case that you can't speculate as to you can take the evidence that may have been available the trial from the defense side and factor that into your evaluation but it's unfair to speculate what the prosecutor would have done to rebut the evidence that