please the court my name is jerry spurling and i represent jeremiah felt and mr felton was convicted of intentional homicide based on a one sided medical presentation the physical evidence did not align with extreme forces this was a minor accident could have been consistent with a bump into a door  material opinions that were never heard by the jury mr felton's experts the thrust of their testimony was the evidence supports the conclusion that this was an accident whereas the state's expert could not have been an accident that is the material issue in the case but in strong as the state unchallenged medical presentation was there was still room to doubt in this case and that's because the medical experts could not establish who did it it still left room for several potential suspects and that is at least until the informant this she knew it would do this because before trial when she found out the informants going to testify she asked her to injure him adjournment to regroup and she said at that point she realized just how critical a defense expert was to the case but it was explanation to that well to be fair counsel didn't really explain at that adjournment the need for an expert she was asking for an adjournment to deal with the informant and the court said you've got plenty of time to listen to the you really clear if she hadn't been aware that there was this informant because it was it was in the police reports the detective had testified earlier in the case about where they had learned of this confession it's not clear why she seemed surprised week before trial when the state issued its witness list and the informant was on it but she seemed surprised but the prosecutor argued that this important for m jury was devastating the district court said it was very important perhaps the most important piece of evidence in this case to try mr phelps into the death and of course  as a wheeler dealer and they did counsel tried to present some evidence that he had been operating with an attorney a deal he had met with the detective here that the prosecutors but the prosecutors in closing deny that there was a deal but they also denied that he could ever get anything and this is the point carol tried to point this out she didn't object but in her argument she said he can always you know you can go in and get a sense modification the prosecutor again comes back in a bottle and says he can't receive anything for his testimony at this point and he won't gain anything just a liking of his conscience and the prosecutor hid that from the jury and yet the statements of the prosecutor he could never get anything for this testimony were untempered they were under about it and they were the last word the jury heard that but the but the critical thing is in closing in in rebuttal the prosecutor misrepresented that and said he could never get anything for this and so that's the critical point i see i'm running into my well i'm sorry go ahead please but that's the critical thing is that they were presented with evidence that maybe he was trying to work on a deal he and the prosecutor both tell the jury there is no deal there's no way there can be a deal and there's no way he can go get any benefit from his testimony this is just the lighting of his conscience he's risking himself to come in and talk to you  a house his credibility was significantly challenged by defense counsel defense counsel brought out that he has a reputation as a jailhouse that he has nine to ten prior convictions that he tried to work negotiate a deal but i'm successful posing both personally and through his lawyer in this case this was all brought out the problem here and i think and i think that  counsel's absolutely correct his testimony did clearly align with the medical evidence but that doesn't favor mr phelps position that proves the lack of a reasonable probability of a different outcome had the jury been told in addition to all of the attacks that counsel made on his credibility that oh yes he could also somewhere down the road seek sentence modification first cooperation in this case and as counsel infected point that out in her own closing argument so the argument here is not that counsel failed to point out it's that counsel failed to report it out with an objection to the prosecutor's rebuttal argument and counsel said she strategically chose not to object because a she had already laid it out and b she didn't want to really get into such a side issue on when people can move her sentence modification and why that she felt she had adequately made the point and and i don't think it's on reasonable for the court of appeals who agree with that in the district judge found that that was not a reasonable and you know again if mr houses please look at what mr ho j in the tub at about two o'clock that afternoon and he slipped between my legs and disk head on the tub and that's exactly what he told mr house  however it and he told mr house that j j got soaked in his eyes when he slipped and fell in the tub and was crying uncontrollably and then he added the detail of mr house that he didn't add to the witness statement to the police that in the right side of the skull just above the year which is exactly what the medical findings are so house houses sex more both corroborates the medical evidence and is corroborated by the medical evidence so it is significant it is important but that doesn't again help mr felt because it shows the lack of a reasonable probability that the jury had been had counsel objected and say i repeat he can get a sense modification motion if he wants somewhere down the road that that would have the jury's view of mr house's credibility and would have caused the trait to disbelieve him and not be with the term and whether mr felton was the one who killed j t or one of the other people who briefly the murder felons case was referred to the district attorney by the police the day before that after the investigation had gone significant significantly enough to charge him so he was charged to twelve and i would point out the prosecutors opening argument did argue that to the jury regardless of mr house's motivation whether it's out of the goodness of his heart or whether he wants his reduced or sentences reduced the important point is mr phelps said this to him and it's up to you to decide whether to believe it whether it's the truth so this issue was laid out significantly for the jury and yes the jury is instructed that the arguments of accounts are not evidence you are to decide the case based on the facts and the law presented before you and so again we're talking about reasonable probabilities here was it reasonable for the state court in again not received this modification i think the argument would be less colored here i think when in hindsight which we don't do in strickland but in hindsight yes he did apply  excited because the state took no position and i want to make one point we'll put it right here there never was any secret deal that he percents modification and will stand silent judgment that there was no secret deal and that was conceded by gotten in his attorneys in the state court that there were no secret deals there were no promises so this was done and felt its own to seek some spot a case in the state took no part in it that's entirely up to the discretion of the trial court whether to gr with this significant information without having received any promises without any deals knowing that the state couldn't give you anything or wouldn't give you anything in exchange for your testimony and yet you came out and provided the significant consult the jail yes house and the i'm not only had the had the reputation of being a jailhouse snitch but it which maybe felt didn't know at the time that it's too bad for him but he did know that he had the reputation of being a jailhouse lawyer and sure in the end that that is correct and that he then presumably went to him for legal advice because again he was charged the case was officially referred to the da the day before and he might have said i need help now  probably the most important thing in this case and i wouldn't i don't necessarily go with that it's the most important but it's important and it but yet again because not only does it corroborate the medical evidence is corroborated by the medical evidence so yeah they're intertwined but they're both significant their significance is in the detail of the houses testimony which again because that has inherent credibility despite all of his credibility flaws thanks argument requires you to rely on the credibility of the prosecutor ever lie on the credibility of a longtime formant and there's no doubt there should be no deference here that the prosecutor misled the jury several times during the closing argument that there was no possibility of a benefit it calls into question the entire trial that te and the informant they can't stand alone the medical case doesn't say who did it and the informant cannot get this evidence again unless it's corroborated by something and here it's only corroborated by the medical