seem basic but the reason i think it's really important to focus on this today in this is that we are repeatedly seeing district courts get this wrong and my hope is that this case will allow the court to once again give a exactly what the court the u s supreme court in or said not to do and what that is is the district court reviewed the trial attorneys performance of the no vote found it deficient under strickland and then simply declared that the state court of appeals decision to the contrary was unreasonable and this is yeah i think i think you're right about that that the order of battle was incorrect and we are seeing that  and and making a judgment about those merits and then testing it against a standard does that make a material difference here i think it does because in the way that the district court and mr dunn both addressed this case is to only go to the record and cite to things that supports their conclusion and that's that's with respect i don't think that's quite  right would you agree ms potts that effective assistance in this case required that the trial attorney understand what testimony the medical examiner was going to give on the issue of in order to make an informed strategic choice i think that that constitutionally sufficient for formants in this case did require trial counsel to not be misinformed i'll take that as a yes yes i think the reason why i met her go ahead i'm sorry your honor gotten although if you if you want to explain the testimony that the attorney it was it was an refuted that the attorney by the time he got to trial understood what the medical examiner was going to say  the head contributing to the cause of death right that and other things he was not under the illusion that there was an immediacy of death testimony he was he was under that impression you know all of his pretrial to give testimony that is on causation that's very different now let's you're right he says in the marker hearing yeah i understood what to expect i think it's safe to say if he did not know a trial if that's incorrect then that's ineffective but let's assume that he did know what to expect and i look through  he's trial testimony the closing argument and i'm looking for some attack on the all five impacts contributed to beth and i don't see it instead he reinforces it when he has available to him i believe an expert who would say no it's the fatal blow to the back of the skull immediate unconsciousness never wakes up he's never going to be walking talking and cetera  witnesses testified after mr dunn's slouch mr sharp winds fall so what is the response to i don't see any effective response at trial to the medical examiner's testimony that all five impacts contributed to death well that was that was trial accounts counsel's strategy at trial was to have her reiterate that there were multiple multiple different and i think that's that's clearly what his strategy was ok but given her testimony it's undisputed that mr dunn administered a slap to the correct and there's physical live evidence of that impact in the autopsy given that undisputed fact how can he how can it be effective assistance to repeat and emphasize that all five impacts contributed to death well trial counsel if you testified at the mock near hearing was under the the way that  his experts explained the medical examiners his expert that he consulted outside of trial explained the medical examiner's report is that there wasn't any obvious i topsy explained harm from the slap there were different impacts but but trial counsel strategy was to say look all we know is that the defendant's lack this guy we have no idea whether that of you fell his head bounced on the pavement that's that's the that's dunn's version according to the police right in with the autopsy shows an injury to the right side of the victim's head  and in fact the so called was that contra hue damage on the other side of the head and no response to the to the emmys testimony that that was that that was contributing to the cause of  trial tactic approach and it is not our god i question is whether that is consistent with the record of the the was before the state court given this complete absence of any response to the emmys testimony well i think his approach was to say there were all these impacts and he got this out of the medical examiner asked and i always i had to phonetically write her name down the address each he got this out of  testimony at trial that there were multiple different yes at least three different hits and i'm like that i don't come fall and you're saying that i think i think we're trying to say is that they all contributed correct that's what she said arguing this would have been a mere battle of the experts if you called his own expert but it was one to nothing on this critical issue of causation a trial but his own expert agreed with the medical examiner back or i am when back to the time when the attorney for that we were talking about immediate death from the fracture to the head right but we can't we can't look back at this with hindsight we have to think about what i was thinking ms potts i'm trying to look at the choice counsel has assuming he knows at trial the emmy is going to say all five impacts contributed to his death and the evidence is clear that my client administered one of those impacts if that's the going to be the evidence at trial i've got to prepare some response i think trial counsel testified to the fact that he did not believe that the evidence did not show that the slap actually did cause any of the impacts that contributed to death and he talked about that the mocking and based upon what in response given what the m e was saying well the  what whether or not the slap was one of these contributing impacts and it definitely didn't cause a significant contribution and we can argue about that all day if you want to but i think that really in some ways distract us from that happiest we are not here to nd guess trial tactics we are we are here to to protect constitutional rights here at this at this broader level and to make sure that the state court did not violate strickland when it assessed this claim and i think the state court's decision in that case very reasonably looked at the evidence looked at the mosque near hearing testimony and the unrefuted mock your hearing testimony and said look this guy this trial attorney he had a reasonable strategy here it might not be one that you or i would have done and i think it's this is exactly the type of case for double deference on that front is so important because it's so tempting to go in and want to slap to the side of the head and the full givens the autopsy evidence of the image from that blow to fail to attack the conclusion that  well i think your question is based a little bit on a premise that i don't think trial come to would have agreed with which is it was trial counsel's belief after he talked to his expert that there wasn't explicitly in the autopsy a direct link between a slap and the brain injury is involved now his strategy was to say look there were at least three different impacts to this guy's head my guy only admitted to slapping him you can't find him guilty that is not enough to find and that was a significant cause of his doubt and that is reasonable when you look at the medical examiner examiners doctor  testimony where she she she could not conclude precisely the significance of each of the smaller impacts she could conclude that the main cause of death was the counsel still believes that the medical examiner was going to testify about the media see of death upon the impact to the head she testifies that at some point before trial started she realized she was nat going to give that critical piece of evidence but is there anything in the record that we could get closer as to when he learned that she was not going to get that critical piece of evidence that was critical to his defense you know that's a good question we can't we don't have a lot in terms of timing of life when he had his aha moment here but we do have is his examination at trial it is i believe very consistent with his mom her hearing testimony he does not go into anything about immediacy of death with the medical examiner and you know she had already done her direct testimony so maybe he changed his mind during that but his testimony as prepared and as performed at trial does show that he was focusing on a different strategy he was focusing on this strategy saying look this guy had at least three impacts to his head you cannot there  trial counsel knew from his own expert who he a consultant with from the university of wisconsin that were his expert who would testify that death would have been immediate from the impact to agree with that i wouldn't just based on the the mocker hearing testimony where trial counsel explained that that was his expert's opinion initially but by the time he talked to his experts the nd time his expert told him that he agreed the expert agreed with the medical examiners report and he believes that the mock your hearing trial counsel said that that's kind of when he realized that he needed this other approach  that his expert and the medical examiner neither of them could say with certainty that the skull fracture immediately would cause death so he said he didn't feel he needed that and that i think brings us into a lot of the other issues in this case where he felt that he in some ways the immediacy of death argument undermines don's own testimony so you think it's a lack there hearing that he he go so far as to say that his own expert changed his opinion about the immediacy of that yes i do i you know i i know he talks about what's the difference between his conversations in the st and nd and i  mean i would have to go back and read the language again specifically but he used he specifically brings this up that initially he believed his expert would say immediacy of death but then by the nd time he talks to his expert his expert is basically saying that the medical examiner is correct and we can get a lot of help on  trial but doesn't that amplifying the importance of the late breaking information about the curtis sentence experts well i think and wisconsin court of appeals didn't address didn't address that took a very narrow prism information yet we don't have exactly a timing on when trial counsel corrected his perception of the medical examiner's testimony we had his testimony in a mock your hearing that was on refuted that he did he didn't know what she was going to have by that time and i think that's another thing i would just add just keep in mind as you review the record is that there were problems with the immediacy of death theory by itself there were problems with that that undermined dunn's testimony the growth of the parking lot gravel in the hair there were issues the drag marks there were issues with that it didn't look good for a dime so i think we have to you know in hindsight again it's so easy to want to go back and retry this mary dunn was not guilty of felony murder because it it broke that chain of causation between the slab and foley parking lot and the victim's death hours later on the concrete patio behind a building and instead with your client and your client wanted to proceed ahead with trial and didn't want to delay it how would that factor in and how could it be ineffective if the client to saying i don't care i want to go forward because defense counsel himself didn't understand the import of that information at this information would be the only information an expert testimony and it would break the chain of causation and defense counsel after hitting a parking lot and that the medical examiner will say he died immediately therefore there had to be a nd time that mary at the head hit the ground after larry dunn slammed defense counsel is then asked experts said mattered because i thought that we could establish anyway that there had to be another hit and i think it's important also to note that same arthur hearing offense counsel specifically asked did you talk to your consulting expert after receiving the six coquetry report and he said no why not well it's in my e mail response is e mail response again is our theory has always been that the medical examiner will save then and i'm sorry that and that this its strategy was reasonable a strategy that was based on this quantum of evidence known to defense counsel at the time what spence counsel never picks up the phone to speak with the state's expert for trial never calls his own expert in forensic pathology testify and doesn't want to wait for the exculpatory reports next wisconsin court of appeals falls into the same mistake at defense counsel by suggesting other scenarios it could have caused these injuries and these other scenarios are that the victim fell on the concrete patio and cracked his skull there because it is acute intoxication or that the victim was assaulted by the african american african american patrons who were offended the victim's use of a racial slur or that the co defendant's salted the victim behind the building the problem with all of these alternative scenarios is that none of them yet larry don i'm sorry get the victim out of the parking lot without parking lot police ten to fifteen minutes and then was seen sitting out we're seeing coherent semi coherent and talking mumbling grumbling it was help to speak now that it's cutes and th responsible for any injury now this is just wholly incredible it is terribly misguided because we've got three immutable facts one larry done it myths that he slapped the victim injury because there tim was knocked out for ten to fifteen minutes and then he went in to talk to the bartender and said he was concerned about the victim being in the parking lot so it's simply not credible for defense counsel to argue and adopt the strategy that murray does not responsible for any injury so under those set of circumstances what i should add that defense counsel himself then undermines these any injury any injury strategy in closing argument because he says well maybe some of the injuries could have been obscured by the baseball cap that the victim had in the parking lot and that's why the bartender may not have seen the injuries at that time and he also says that the medical examiner said that some of these injuries take a while to show so he undercuts had very strategy urge this court not to be blind to what happened in the co defendant's case and this court has said and it shouldn't be blind to that information what happened five months after their the verdict larry dunce case is that the prosecution offered to dismiss outright the felony murder charge against the codefendant in the codefendant ends up pleading to would have contradicted dunn's own testimony your own account of what happened that contributed to making this a reasonable strategic decision and also if you address well the st thing i would say is you know the jury was never presented with that opportunity so i think this court has to look at know what to do but defense counsel can say look i've got to make some strategic choices here i've got my client's version he's going to testify and i don't want to  one comment that was made is that it certainly seems odd that there's this pitney that the defense counsel has shortly before trial moments before trial a information to his consulting expert and asked about that before going into trial and the record indicates that that final conversation with from the state's own i'm the eight years of confinement time for the felony murder charge he has about a year left on the theft from a person conviction he is out on bail released under his own racine county district attorney's office for re indictment re prosecution it's not clear what would happen and thank you thank you thank you and that's your time has expired but you may have one minute you so much i think i'll just leave the court with a couple things one the statement from richter that reminds us that even a strong case for relief does not mean the state's contrary conclusion was unreasonable and i think that's particularly relevant to this case i would say that i think we're we're getting to the point where we are starting to nd guess trial tactics for which there was a reasonable explanation in the record and that is why the i c this case is really challenging the application of strickland to the facts more that the way i feel it was it was framed on he vs and i think that the it was gone to court of appeals applied the correct law applied it correctly and that there are facts in the record to support it