where it would be reasonable to expect that there would have been affirmative disclosure of them so yes ok what about and i believe the facts she told a different story to that  heavy if he had under cook's and if the evidence that showed that it was truthful if there was actual basis behind the falsity of that and if it was relevant to her motive to implicate mr turner well how often and the let's filaments you when she made her alibi against mr turner having known that she had made a complaint in the past that have been proven to be false she would be motivated to not raise some sort of is there anything in the record that really even suggests that there was a false complaint other than someone else who wouldn't have personal knowledge saying that this person made a false claim before not in this record and that ok how do you how do you get that is before us to show that this was ineffective when you don't have anything in the record to actually  competent evidence to establish that there was an effect also please don't we need that first to show that the lawyer was ineffective in order to show we have don't we have to show that there was actually a false complaint i don't think so in this case because this is this particular deficiency is that a failure to investigate a failure to ask the trail for it but it's part of a pattern of neglect that we can see in this case for defense counsel not use an available player inconsisten comes from another party that has no actual malice i mean i don't know how you can say number one that this was you know not only a reasonable trial strategy but also that there was prejudice when you don't really have  of her complaint even if it were established that she had made one against someone else i would not leave our of appear in that case someone over our nature or  reputation i think we we do you know i mean even generally assuming what we know about this evidence i think given that she was in the room at the time she made the suspect someone who witnessed a sexual encounter with her about two weeks before and she was in trouble that that she was at that point she would be thinking about what can i do to get out of trouble she would know that she could things and really think that if we assume but also i think all that's still a pretty remote is a kind of it is picking a failure on the part of an attorney to investigate a possible source of unteach is in the his credibility i think that the court would have been required in seeing that she told a different story so close in time to these events to more scrutiny carefully scrutinize her testimony about what she said happened as well how about the the one who saw him in the school before you know she was there was one witness who knew him at least who recognized him from as being a teacher at the school or someone that she had met in the school associate sociate of memory in the in the first instance where she's already seen as opposed to her first exposure record look well then if it's true that she had recognized him at that trial when she wants and again she is someone who cares about us and i mean i think these witnesses may have been able to point at mr turner at trial because us had told them that this was the man in the room whether or not they have seen is there any that the lights were out there i think they turned on the light when darlene came out and they escorted him out so when she saw did she have any reason to think that it would be a man as opposed to a boy men in the room and i think it's a hurt her testimony is reasonable that she would be that's a reasonable inference if it was someone closer to us it's ok maybe she doesn't want to upset her foster mother but it's an reasonable tongue in our opinion to believe that she wouldn't tell the mother than an adult male is in the room of the fourteen year old in her very own house on christmas eve so her actions like when but didn't she say why she didn't tell it was because she was ill and i think that again i think that  if you consider those identifications which i do think they were weak in and the court should have scrutinized them they did it again this significant amount of credibility when you have testimony of that eighty was not with us when she was  argument to for any purpose in the trial i mean obviously the most the wrong purpose would be towards a in effect of assistance was this was it was any your presentation made or any argument made through the court from any of this material that it was indicative of an effective assistance of counsel and if not that was any argument made that it was a it up in that that are represent the defendant january second she said that it's trailed that she did not say that he's ok all right and that's the only comment that you're talking about terms of that one have known that they were at the school now supposing supposing that it was clear that there was no justification under supreme court or otherwise so to use that  important as it may have been were swaying the jury if there wasn't very should they attempt being made by a lawyer where he knows that it's not a that was at this trial and but as far as the prior complaint is concerned i don't want it to be understood that i do thoughts counsel has a license to inject something like he does in the movies and they may they may have actually shown that it was admissible but don't you still have to show that prejudice wrong in order to get past the ineffective assistance claim and this was a credibility case where we've argued that the evidence in and of itself was not sufficient and  made to move the press but i don't understand how you can say false complaint when you have a fourteen year old and you have a fault although i guess you would argue that that question of whether the person that was there was really an adult or was it a younger man or boy and you know someone closer in age but but under the you know under the evidence  child saying that she observed an incident you have another person not the victim saying she observed this act and then don't you have darlene in addition who actually escorts this person out of the house yes so i don't know how you're getting i don't know how you suggest that evidence suggests false complaint just an issue of was the forgetting about the the cards that have the block printing of the name dani and two and the phone which you intended but it's the the giving of the telephone that would be indicative of an adult they're black letters and they and they just don't look they look very childlike and so and you say look at all the evidence in this phone is perhaps the greatest weakness in the state's case because us certainly did testify that mr turner gave her that phone she said that he brought it over to her house one night at a night when her her family members were home that they didn't see it she also testified though that this christmas eve encounter was the very first time they had ever met outside of school so  he hadn't brought her this phone prior to these events her own testimony conflicted on that point and that was again how would this relationship discredit have developed between these two individuals it's just the only evidence that we ha in the cards were create or part of this before the incident or not everything they followed from the twenty fifth she said she said you dropped all the kurds some greeting cards off that night and she said the notes were passed and so if you record our best saved for post conviction petitions post conviction proceedings if you're not open up that argument here have you can't simply be of the impact on what that mean argument that drove us to be included in this brief because he's this is where his records were his or he won't have access to those records in a post conviction petition and that's why we suggested given the unusual manner if this court does not find enough evidence or whatever other criteria she might use you think that's going to involve a full length trial and that the judge is going to have more than one afternoon that this is going to occupy well excluded record you're talking about a record placed under seal a given to counsel is that right no that's not correct ok let's hear so so let's talk about that for a minute i have to say marsh is my fifteenth year as an appellate lawyer just as was amongst the most challenging and the reason is that i originally had a redacted record was sent to defense counsel a quote that required g c f asked to provide an underage acted record to the  quote then how is it true that the rejection simply consisted of the omission of names but not of events but you see the claim here is ineffective assistance of counsel ineffective assistance of counsel requires us to consider what did coun half during the time of trial i don't know how to describe knows what counsel's redactions work without a record showing read the letter tension that there should have been more  well if this isn't what do you think in what might be that what we do here is the record from february thirteenth two thousand and nine what's contained in the word of these materials that the public you know what happens is when there's a privilege of confidentiality some interest asserted in a record this subpoena goes out the record is returned to the court is this court is well aware the trial could then reviews it in camera f s the council you believe there were presidents and where the witnesses to those incidents had their names blanked out i need to know what you were talking about so i can move to determine whether or not it is something i should turn over to you now the s makes several requests the court goes through each of those requests there's a lot of confusion because apparently the crew has fifty three pages defense counsel has already had a record that number sixty two pages and so they go through it the co a party wishes to make an appeal the process is to take that sealed file and ask the appellate court to allow it to be filed under seal and then make whatever arguments you wish to make and the appellate court just like the trial frustration that in fifteen years i've never tried to respond to an argument that i can't figure out what we're exactly responding to you see the argument isn't that the trial court made an error the trapper didn't give me my in camera inspection the trial the court made these errors in which case the appellate court can say trial court you need to look at this trial court you need to hold them in camera inspection that is what happens in the majority of cases this is not that argument this argument is ineffective assistance of counsel and the standard for ineffective assistance of counsel is to say well to track counsel now or at the time of trial so to think not just bad at least if i hear your opponent correctly and i think i did and there are some echo of it in some aspects of the law it's not the just what he had but what he failed to get and the reason that this whole argument is being made here is because  counsels up curiosity in the terms of his legal in terms of his duty to his client should have been profiled to the extent of pursuing disclosed at an interview earlier but he didn't have the names so you don't have to look at the way you have to look at the federal research in two thousand and nine transcript because you see now that the door has been open now that we are live through th post conviction proceeding if it doesn't succeed here all or do you think that that bad behavior was for ever park well to the extent the council is trying to make arguments about witnesses that were never presented and we don't know well we do know from the record is that beverly jackson's name was given to the defense counsel and the purpose for which beverley jackson is claimed to be important is passed under me i care issue and the fact that example that in the area of mental health of the law hasn't quite caught up with the with the requirement of that there be professional testimony but that of the palin expert be qualified in every aspect of mental health so the question remains open i suppose whether a social worker who seems testify to mental conditions that credibility as opposed to character well you know on that point i say to the better case and in the back or case  function of the trier of fact or of the jury so that you don't want every tom dick and harry to be able to testify to someone's truth telling abilities but we're talking about the past that we don't give a  casual situation here we have of bipolar youth miss behavior in the past which is in itself not admissible but which kulish sure but i wouldn't categorically foreclose that possibility well i would simply say that the better case pretty clearly says that one witness cannot go around commenting on the credibility o another and understood we certainly understand that the experts that can testify under certain conditions circumstances shirt other than simply person of the person you tell you wish we all know in our private life that we say somebody is a lawyer somebody is telling the truth but obviously a pretty people who should do that in a court proceeding i think try this effect jury sure and say when you get into the issue of just being a credibility and the courts already noted brain it was in the room she had because she was scared she knew he was a teacher she knew him as a teacher and that's why she got behind the baton skit and she was scared and asia came up she didn't know who this guy was he's a smart guy if you look at the record he's about five foot seven maybe one hundred twenty nine pounds not very big so she's condom a boy she sees his head between the victims legs she doesn't get starry brainy considers it her opportunity to get out of the room she she fires asia down the stairs during season everybody supports him out of the house this is not just about this kid this letters thing letters talk about the individual being a deep and intelligent man talk we do have what is thirty six year old educated person invading a fourteen year old's down a side shirt on christmas eve with family presumably present to basically s are known to happen and there was ample evidence that they occurred in this case i make a couple of comments beyond the record out of the court with carefully at my arguments with regard to the record i think i've made those arguments very clearly i think that there's a process for this that this is not the process this invades the court to speculate and your question to me as to whether there's post conviction to the extent there are matters outside the record illinois supreme court has said when you don't develop the record in the trial court but you have these claims a claim that that should have been testifying are there some information you can make those claims we have a process for that it's called the post conviction hearing and with regard to the player inconsistency and i would just point out to the court that the cross examination with regard to the hotel it actually did come out that the victim said she told the police but she also admitted she didn't tell her mom so to the extent that it was that she didn't tell somebody around the time or at patricia who was a foster mom such an extent that she didn't tell someone that came out the record that was before the trial court in this and trial with regard to the motive to write i think the cruise made it very clear that cookson require certain elements if you're going to get around this general reputation point there has to be a specific threshold indication i either a fuse or lying for some reason against cops and an illinois supreme court said it's not admissible it's not coming in because it's unrelated whether she was abused or not by gaston has nothing to do with creating a motive against cookson and do naturally so the argument was more she does want to live she does want to go back which is basically the argument here that somehow her living situation is really the right of this mo z could occur or if it wasn't easy maybe there's a way out there that was written by someone outside this campus of this quote that is not the purpose of this appeal that our processes for this this is not the process and that is why this court has to spend so much time speculating that around the world because we don't have the record that actually fits the elements of the supreme court and cooks and size of the elements and puts is pretty close to being on point where there's there's some sort of prior allegation it is unfounded encryption says it doesn't come in it does not it's even if you agree that this occurred and that this occurred falsely it doesn't show motive for this individual and we have way more than puts and cooks and it was just a little seven year old here we have all kinds of witnesses that sarte this right we knew him she knew him from school she was scared of him this is not someone who just felt sorry for us and years later showed up to court then we had no idea who this guy was and she didn't see a sex act she's not in on the conspiracy responsibility of being the responsible adult at eighteen years old and she goes up to the strange man in the house and she escorts him out the door with her yeah exactly so my point is only speculation about maybe if what i have could have should have none of that is relevant to this appeal and i think if the court looks at the record and determines what is in this record it well affirm the trap court's decision thank you thank you of i guess the first question i would like to make is is the implication that i went to the trial court files and sealed records that's absolutely not true that child court preserved these records and the clerk preserve them in the when they would have confusion over the fifty three versus fifty two the trial court would hold both of them in his hands and his quote is well you have the same report that i am looking at just that they don't identify the name that's exactly consistent with what the statute  questions that he was asking he was saying things like who was the person on this page that said d o f said that or that he was clearly referencing the same pages it was the names that were redacted and then in my opinion when i looked at the transcript salt sealed since the information her already been released that the sealed information certainly was the names of the witnesses that certainly information and to the extent that i made a mistake and that it was a mistake  very very very few so our decisions are based on a function harker as it comes to us from the court below now if you have names that were in the and tell us the supreme court think that that is more appropriate for post conviction proceedings rather than direct review well we we haven't relied on the names as part of the basis we were really relying on what this record shows the defense counsel that the complaint be it's the relevance the substance of that document that we're relying on not correct and