to reserve three minutes of my time for about oh they will go ahead sir ron clark's trial centered on two issues i believe that indications and an alibi defense trial counsel did virtually nothing to was only supported by uncorroborated testimony from two lifelong friends but for counsel's farriers there is a reasonable probability that mr clarke would have been acquitted particularly in light of the dearth of any other so so tell me how we should think about the application of strickland when the dynamic when the trial dynamic is is arguably different burdened the beneficial nature of her testimony with respect to mr clarke and she did not report seeing him at all and regardless of what she had to say about mr to why the beneficial nature of her not seeing mr clarke would have been the same with mr clarke alone as a defendant or with the two of them together as co defendants but it particularly where like to discuss this with respect to the alibi there's absolutely nothing that would be viewed differently with respect to the under mr berger it is correct he does not have a specific recollection that yes i can say with certainty that i communicated this after on october seventh what it is as we set forth in the briefs is how they were routine practice evidence testimony which i think perfectly illustrates how mr berger's testimony would have been so powerful to solidify and corroborate this i would attest and excuse me alibi testimony from the question remains mr jarvis is asked and this is in the appendix at pages ten fifteen to seventeen he's asked by defense counsel essentially what is it that caused you to realize that october seventh was an important date and this is mr dobbs his response i said that almost impossible because that was around the time he had interview with the rittenhouse his then asked a follow up question by counsel and states with certainty it was impossible so i said i submit that the first answer was his honest answer he remembers generally that it was around this time and he knows that they were celebrating at home on the available in summation and the information is well for them for their consideration so is you create that having  subtly part of the course right so if the stipulation is available the argument is available to me what is that i've not seen the power of the berger testimony for a reasonable probability of a different result in your honor with respect to the first point we submit that the jury would have been specifically alerted to the fact that it was october seventh and it's powerful because it's within all of our common experience about how that routine practice we all have our habits and so certainly mr berger would have been subject to cross examination at that time but a juror reasonably could have believed and under pennsylvania law was entitled to believe that this in fact happened on october seventh and my second point would just be that as we've noted in our brief mr sidney defense counsel circulation accepted the job and so that was confusing to the jury and there is this one form basically mr clarke signed a form saying that he was acknowledging he was a part time employee and therefore wasn't going to be entitled to benefits as the commonwealth has conceded it seems likely that this plan was just simply misstated but it is confusing that there is this one october tenth date in there when everything else decide on october eleventh therefore it's reasonably probable that the jury mis understood that mr clark was in fact hired on october tenth and that really detracted from the situation itself and made it incredibly unlikely that the jurors in the street they didn't necessarily see the same things so their accounts of what they saw doesn't make them conflicting they just accounted for what they saw and since there is this conclusion by the course they were not contradictory is not  two documents are irreconcilable with one another but more importantly your honor the question is not whether these two statements are inherently or irretrievably contradictory  with respect to mr clarke counsel should have presented her or at the very minimum spoken to her as a witness i see that my red light is on your head lights are on but two things  brady materiality standard is the same as the strickland president standard and in dennis this court found that the witness in that case about whom information was withheld was a stranger to or had no not necessarily a stranger but was an impartial witness with respect to mr tennis therefore her testimony was going to be much more powerful than his other alibi witnesses all of whom are friends and family members doesn't actually  testify that she really did know him would have been contrary to her prior testimony but in addition under that specific fact in this case a an admission if she did subsequently it meant that she knew mr c e contrary to a prior testimony would not have been particularly damaging here because when she first first speaks to police she just gives a general description of we should or shouldn't say it was mr clarke right known for a long time then when she was getting out of the photo from the lineup doesn't say oh yes it's number three on the card who i know i recognize and now she just says it looks like number three so if she had known mr karr one would expect that she would have that that that the letter would unequivocally work to mr clarke's favor i mean i think you know i wonder whether you agree i want to sue do you agree with the says that she does not recall having been coached by the police and she she sort of retreats from her or declaration in which she said she only picked mr clarke because she was threatened by police but she repeatedly said during the p c r a hearing that she was threatened with six months in jail and that she was afraid as a result of her drug habit and as a result of he she is about it testifies that she has no recollection that she was ran for six months in jail if she didn't help she says she we to conclude by the fact that it's not clear and unequivocal that you know there are many ways in which her testimony could have gone you a letter or an investigator who had interviewed her were unequivocally without question have benefited mr clarke the stricken standard is a reasonable probability of a different outcome taggart essentially testified without any meaningful impeachment that ronald clark was the person who shot the victim in this case there was absolutely no inkling that the jury had that she was a severe long term drug and alcohol abuser who was in fact intoxicated on the night of the shooting they viewed her testimony as having been totally consistent without wavering at all points when in fact she had just weeks before his second trial specifically written a letter saying that she could not identify the shooter and she did not retreat from that most  letter and that she must have been prompted to write it use of that letter as a result could have as i think you're the transcript or read this could have opened up about your problems including an interior that would have been a risk however that just leads to the need to investigate this come straight out of strickland we can easily sniff this court decision in showers here strategic decisions are only reasonable to the extent they are formed informed by reasonable investigation and if we look at ms taggart's testimony at the peter hearing specifically on this whole question of whether it was engineered she would sort of a very vague indication that someone must have said something to me about this in order to get me to because you were scared she says no that's not true i can't say that and in reality this has been presented as this horribly nefarious thing that somebody serpent her up to this under threat it's really not all that different from what mr bell testifies to right back to milly comes to his third statement implicating mr clark he says well i spoke to my grandfather and he encouraged me to tell the police it's not that different i mean there's no reason to think that it's really any different from his taggart it could have been as simple as that and the commonwealth isn't suggesting that mr bell sesame honey is somehow infirm because he didn't independently decide to go to the police for the third time let me ask you this acceptable outcome if you're a defendant your employ the same strategy but you could a different result how is employing the same strategy fortunately  different result supportable i see how do you how do you balance your honor i would suggest that the mistrial is indicative really of the weakness of the loss case not of any particular strength of the strategy that defense counsel employed if it were the case that any time in this trial is attained we gardeners of what defense counsel did the first time around regardless of how little investigation he did then per se the strategy was reasonable and he should not have done anything differently that there's just no suggestion in the case of that unaware of that merely because a and adequate result i suppose in the first trial was attained ultimately an unsuccessful result mr clarke was tried convicted and initially sentenced to death that there's any reason to suggest that counsel could not be ineffective when he could have done so much work at both the first trial in the second trial and he much there's a reasonable probability that he would have received an outright acquittal at the first trial and there's no the second trial would be would never have differently that's natural but it has to be avoided in this case i think my best argument as to why counsel wasn't ineffective is that even with the benefit of hindsight twenty plus years in all the investigation the truck council supposedly didn't do why counsel was ineffective and i wanted to address some of the points that came up during during my friend's opening argument when he said that that there wasn't a distinction between nigel bell deciding that he wanted to to to to come clean and t investigated we see from the transcripts even though i imagine the trial counsel wasn't provided his or his entire file to look at until just before he wasn't entirely familiar with everything he'd done ten years before he's worked through his notes of a telephone call with the defendant's mother who was the one who believed the letter to counsel and care and counsel obviously concluded correctly that the letter was both unreliable and radioactive radioactive in the sense that it indicates a very strong connection between the defendant that released the defendant's family a very close one and the witness which is exactly something that the that shape or says that she sees white with the relevant un on the way in and sees white as i recall no umbrella no gun on the way out so have many prosecutors who wouldn't gladly have made that tradeoff were defense counsel i'm not i wouldn't say counsel is necessarily ineffective for calling nicole shaffer as a witness because the range of reasonable fresh all systems is supposed to be testimony is consistent with and reinforces a reinforces nigel both testimony against all of the attacks on his veracity and credibility because he's made prior inconsistent statements and in particular there's also the statement here today i don't i don't know it as a fact to be true that's not that's not that's not right if she testifies to that and there are again they're all wrong for proof as to what she would testify was in her point was in her police statements and they said well and if she that we know that with that call you know that and the other counsel me to determination this letter is can this letter is completely unreliable and it's and it's writs radioactive and we also know even with the benefit of hindsight it's correct because we have those can't say it was my practice i did this usually i did was regularly your honor it's consistent with my practice to leave my keys on the arm while when i come home every day and if my wife were here she would tell me that does not mean regularly it doesn't even mean more than half the time it means it means possible and maybe in we even within the room of plausible outcomes but it doesn't it doesn't mean always doesn't mean it related sometime around october seventh so that the argument was possible and yes your adversary was saying well you know the stipulation wasn't as flexible as that increment been used that way that more importantly i think the affidavit there offer proof to the state courts about your favorite testified doesn't add it any material way to were successfully established by stipulation which again thanks thank you and thank you satisfy the pennsylvania standard for habit or retain practice evidence that is incorrect this is from dr gene matthews the pennsylvania standard it says to be admissible usage must have sufficient regularity to make it counsel can stand up and say we know that this happened on october seventh because mr berger is practice was to call and offer the job on the day he checked the references here all counsel was able to do is say we know it happened on october seventh because mr jarvis and mr stewart said so and we know that the job must have been communicated at some point between the sixth and the eleventh so there is an absolute substan difference between being able to point to mr berger's testimony about his practice specifically and just being able to say well it's in the range so you should believe mr clarke's roommates so that was the critical differen there and that is a reasonable probability of a different result particularly in view of the dennis case where just this type of corroborating information from a disinterested witness that doesn't itself establish the alibi but makes the testimony of the friends and family open to a charge of bias is if you're thinking about the woman on the bus in dallas it was very precise there was a date and time as to where dennis still could have committed the crime even with her test and that same thing could be here true too because mr burke couldn't say where scott was at an evening that he supposed with his friends he can only say what he t