n is there a case out there that says the mere he put it in his terms pejoratively put merely undermine witnesses the testimony of witnesses that actually well she undermines and she refutes in the sense that he says that he saw the offense and she says that he has always maintained that he did not and in i believe it was you would you would you concede that it would be different if she were a witness and she saw things differently than he testified to but here she is simply saying that the witness told her i was with them we were all together undermines it corroborates and as was held right here you have an admission by the witness or at least you have the statements by the witnesses consistent with what this other witness would have testified to he's already told the police that i didn't see anything bad before the jury already but he has he also testifies you know i took it back i was afraid and that is why i initially gave this different version i believe that street justice i thought this might harm me i certainly thought it might harm my kids and aaron wells as the mother of his children said you know that is actually not the case he has always told me that i kids were not in any kind of danger let me let me ask you this is that what a father would always tell the mother of their kids know the kids were never really in danger when he himself is really thinking there is a possibility that something could have happened to my kids but i'm not going to tell that to the mother of the kids i'm simply going to give her the the best possible version well i think then because this is for a state i think i would be something that we would need to develop and that's why we would need erin wells to come before the court and explain what is the context of these things the time mr has been telling you how soon after that he say these things how do you know that that was actually the truth we're just looking for an i q of zero basis and i think we can i see you yes here this would have undermined time mysterious testimony certainly the jury had trouble with the witnesses before the court how often do you think that sort of scenario that you just laid out for us could happen him in a criminal case seems to me to be that sort of thing could happen  petitions are really meant to address but i don't think it's contrary to the special that we have laid out that it only needs to be arguable that it only needs to not be fantastic it just needs not needs allusion oh it's arguable in the sense that it could have made a difference she confirms that she corroborates that i'm not sure that that would have made any difference and so you know it's not arguable in that step i don't know that we can be sure but the same time we know for sure that the jury had something there's something about this case that truly bothered the jury there was something about the state's witnesses that they had a hard time believing they couldn't come to a unanimous decision and the first day they got sent home they came back the next day they were still not unanimous they got had a fact on the way the jurors viewed their witnesses they obviously had a problem with thomas first as i mean they obviously had a power with david butler because these are your two occurence witnesses and the jury still had a hard time coming to a verdict  to the second issue douglas also alleges that the concept that's a consult with him about his arrest and therefore she did not discover that he immediately invoked his right to counsel when he was arrested and therefore she did not know to move to preclude testimony about defendant should say my lawyer was ineffective because he didn't ask me the right questions so that i could have told him about what really happened includes affidavits from people who would have said yes he invoked we know that he invoked his right to counsel because the cab driver was present the cab driver contacted the mother and that that is the key is  and without that affidavit you know as the trial judge said it's all hearsay but i think the argument is that counsel did not infest the gate and so we don't know whether the trial co would have been able to locate this cab driver or just even get the framework of what happened and i know your theory know whether the trial would be any different the second time around your camp driver was not located since his conviction no we don't know what we do know is that had counsel known that defendant had invoked his rights account so immediately then any kind of answers to police questioning that defendant may or may not have made there was a basis on which counsel could have i guess that doesn't come into evidence anything he may have said after he was arrested and in fact it invoked his right to counsel should not have been should not have been brought before the jury because it does strike you as a little unusual for a defendant who is sophisticated enough upon being approached by the police tells the police i am invoking my right to counsel and yet when he's talking to his own attorney regarding what his or what his case is all about to be fine focus right to counsel immediately upon being approached by the arresting officers and he'd have the presence of mind to say that to his lawyer but he did i don't think we can is that defendant did not testify in his behalf so to bring in these statements that he may have made where he shakes his head and laughs or he supposedly says that he doesn't know anything about this person he's never been in this area this paints him as a liar to the jury and they have to it's a credibility determination and all they have is this testimony from state witnesses that they clearly have a problem with and what you have about the defendant i just these very general statements that paint him as this heart this person someone who dies and because these statements could have been challenge then there could have had an effect on the jury's ultimate decision that's what the problem is and surely it's arguable had counsel known about this had she made motions to you know we can't let these needed to be present but that the point is that counsel did not know about exactly when the invocation of counsel happened and therefore he did not know that she could move to preclude these answers to police question well i don't know i don't know i don't know if you need to i don't know if he needs to concede that he did make those statements but i'm not even sure that he did see that he made those statements it comes with presentation i think she's arguing  failed to say the defendant had been the victim was home five days earlier on appeal you base new claim his attorney was ineffective because he didn't say in the affidavit mail was found in the victim's home and it was old mail the point is in both cases and in this case they're not just different they're diametrically opposed they were just details some to try and go in the yellow illinois supreme court found that was sufficient to find that the defendant forfeited the claim because they were different here the defendant and that's a major difference to say how do you make the statements and then all right i did make a statement they should have been suppressed under par trying to go s forfeiture so it's forfeit oh oh is that is that the  counsel on appeal serve much like counsel at the second stage where they get a pleading prepared by pro se defendant and then they try to put it in a good form for consideration by the crowd and so why isn't counsel acting in the sense in that ma i taking threads of what he alleged and finding a valid issue that should be addressed by this court and his forfeiture and i think it's something we try to avoid because let's go on to the merits me whatsoever at trial in the case of english which i say the defendant claim the discounts it was ineffective for failing to investigate his alibi defense but no one including the defendant ever came forward to tell the tourney about the alibi so the court found that the attorney was not the mission as the court knows even if defense counsel had known of the statements that the friend made or didn't make the decision whether to file a motion to suppress is a tactical decision you really protected by strictly other hand he never made a statement the defendant can show prejudice either because even if the statements additional on appeal had not come in the evidence of his guilt was absolutely indisputable what are we talking about here c'est money you had the testimony of muriel brewer who didn't see the shooting but she saw the defendant in her home minutes earlier so there is absolutely no question that it was the fenton who committed the murder and in the face of that the fact that defend when he first was arrested his name was cortez it pales in significance and i would add to that that when he told police that and they confronted him with the picture he laughed so he didn't he didn't act like someone who committed a murder and he didn't really didn't think it was serious so you have against the statements that the defendant would want to suppress really are minimal and would have had absolutely no effect it's not even arguable moving on to the second claim this one is bar equate with the evidence being close this court said the evidence was not close in our judgment neither butler nor brewer ever wavered in their testimony that it was the defendant who killed over george and wells this evidence her testimony is completely humility of to what brewer testified he only admitted at trial that there were he told police different stories and he told the jurors why and his stor why make absolute sense that his he was torn in this loyalty he said he was conflicted about what to do and he finally decided that he'd rather tell the truth than have people mad at him for a lie so explain that to the jurors and you don't need aaron wealth to say that he told conflicting stories because he said that himself so her testimony would have been totally cumulative and it is certainly well settled that attorney is not ineffective in choosing not present cumulative evidence and for the same reasons it can't be said that defense counsel that the case of the that the result of the trial would have been different with the admission of this testimony because for the reasons i just said the jurist already knew from the horse's mouth so to speak  defendant side state in support of the evidence that well she's been called to testify but in that case the defendant failed to call three alibi witnesses it wasn't cumulative testimony the defendant cites in that case  were not in the petition here if you read that was this petition he says that there were incriminating statements and immediately after that the first of the detectives testimony about what he said after he said what his supposed name was and what happened on the by the he knew the street or the people those are specific and again we have a pro se defendant and like you said it is the job of  e that is a third stage case where whether or not these witnesses ever said anything to the lawyer came out and i think i'm sure hearing we're not at that point right the first stage we're just trying to get appointment of counsel to see if they can make it finding that you know this evidence maybe it was put before the jury we don't know what was what their hang up was but they had a problem with the evidence it may or swayed them one way or another and i think that's different than saying that it's overwhelming evidence that there was no prejudice view just need under direct appeal that counsel did not make the most ultimate use of the in consistencies between brewer and bile there is certainly different than saying counsel did not bring forward a witness who would have impeached one of these people that's only says that time is true or told her that he did not see the offense and also as the fact that she says that he told her that he was never afraid for their children and if you're a jury and you're listening to this news thinking why should i believe this person why should i believe them now when before he said that he gave a completely different story about not seeing the offense it didn't take it to heart that he says i was afraid for my children and then the mother of these children come forward and say that that was never the case it's not