all right our next case for this morning is cook against foster may please the court nine years ago the trial judge who presided over mr cook's criminal trial and post conviction hearing term that mr cook could not receive the assistance of counsel the th amendment guarantees in fact he couldn't recall seeing such a serious combination of errors in twenty years on the bench and shook his confidence in the result of the trial to determine that there was a reasonable probability of a different result absent these errors so we thought they'd have to do the whole thing all over again we're here today because the was constant court of appeals unreasonably reversed that determination and i think what would be most useful although i'm happy to answer questions about deficient performance would be to talk about what the trial would have looked like well the trial would look like without the errors and also what it looked like because of the so without there's this is what the trial looks like essentially four points st the case is based primarily on the testimony of two accomplices but they have motives to implicate mr cook and they're very close with ringback david hall who is the person that mr cook believes was  the nd intruder here nd the jury actually would have learned about david hall would have been there to testify it knew a little bit about a strong connections with the accomplices apps in the areas but it would have learned that he had a gun resembling the gun used in the crime and also it that he was present in town on the night of the crime had been there for about a month or two and that in fact it helped case the harper residence which is the scene of the crime the jury did learn about certain purported last state court opinion which is the wisconsin court of appeals opinion that you're attacking so it would actually be helpful for me if you could focus on either you know legal errors in applying the supreme court's law you know i know whether it's a contrary to or it's an unreasonable application situation so one of the things i wondered let's take the undertake much of an investigation of where hall was he there were a lot of steps he could have taken but he in fact didn't that's right she chose showed he basically did nothing in fact he asserted to the trial judge at the time of trial when the judge  if it is if a responsible lawyer would have undertaken an investigation it's deficient performance to fail to do that and of course then you would move to the prejudice issue in your arguing that difference anyway but it's not i'm not sure whether they are conceding that it was deficient performance to fail to follow up on hall and we do have the post conviction testimony from paul himself that maybe he would have come i don't i think the court with respect to haul is the wisconsin court of appeals as is making a determination both on deficient reports and on prejudice but what it's doing on deficient performance is a saying it wouldn't be unreasonable believe that whole likely would not have shown up or that he would have refused to testify but you have to try i thought i read from the other supreme court decisions that you have to investigate you know as it does i can i completely agree your honor that's exactly the problem here so and prejudice of course is evaluated with the benefit of hindsight the division performance is not and here if you actually look at what the wisconsin court of appeals did as it said well we we know what happened and how helpful might or might not have been and he was an absconder satis and these other things of course going into none of those things he perform whatsoever and he had a duty under under strickland to perform an investigation so he didn't even take the initial step to do that so to make this hypothetical conclusion about what counsel might have found is just some reason to think that you still say your argument has to be that that the example the failure of playing in to recross examine to recross examine one of the two accomplices about this gun that hole might have had the night of the crime and they just moved right into prejudice but to go back to chief judge woods question about don't we have to errors they looked at many of them and they said well this that or said it made a conclusory statement such as this error doesn't undermine our confidence in the result or this said with respect to the hearsay which i think is a good example this wasn't the most damning evidence against mr cook  defense counsel this is of course at the trial judge's prompting and this happens st outside the presence of the jury because the judge says hey what are you doing like don't you want to bring out this this but tensional motive of the witnesses to  to wisconsin court of appeals thinks that that aspect of things isn't a problem because in fact there was no formal immunity agreement i think everybody it doesn't seem to me that there can be any doubt about that there is no formal arraignment is your point that if these witnesses were testifying under the understanding that there was going to be lenience you know prosecution that that itself should have been brought out this is your honor i mean at the end of the day i don't think it really matters whether there's a formal agreement if you have witnesses who are laboring under the impression that they won't be charged for providing this testimony and so even though langham brought a little bit of this out what he didn't do is he didn't put this much less equivocal cross examination he conducted outside the jury's presence was now very important before the jury where she basically says yes say i someone told me that i won't be charged by testify here and add to that the fact that we know that both of these accomplices are actually friends with david that comes out more clearly when david hall shows up to testify at the post conviction hearing and all that langer needed to do is create a reasonable doubt that cooke was the nd intruder did have an uphill battle on the evidence though i mean there you know he's got the margaret harper right who i mean that testimony is a little odd but you know in the last identified him in court you've got the d a the defendant's d n a in the getaway car i know there i know you have an explanation for that or you know before and then you have the defendant saying he's with that the night before and he admits to being in the wal mart parking lot i mean it's it's it's not an insignificant prejudice hurdle you know i mean i think you've done a terrific job on the deficient performance but you've got a hurdle on the on the prejudice aspect of a so your honor i would want to make two lines of responses the st is that we just seem to make sure we're asking the right questions so the argument here is is not has nothing to do with whether that evidence was sufficient to convict mr coke it's just whether trial counsel flying in had he made these objections that he performed properly could have helped the jury find reasonable of the state's case was the testimony of these two accomplices they had motives to lie that's the argument they were lying about this ok so whatever you think of the reliability of the identification the problem with mrs harper's identification is she doesn't have the same type of motivations or same relationship with mr cook that those accomplices did or the same relationship with david hall that those accomplices did and this is an incredibly unreliable testimony it's very suggestive for all the reasons we've pointed out in the brief and all the sun miller she's been unable to identify mr  wisconsin trial judge found a lot of problems with it he found a lot of problems but he didn't focus sharply on the question of prejudice he there he said he cited he said when they were handed a perfectly because prejudice isn't would you when prejudice is your confidence in the verdict undermined which we have seen which the supreme court never mind what we've said on important that which the supreme court has said certainly doesn't mean a fifty one percent chance it's way less than that you know and yet we focus on whether counts performance was reasonably competent and you can we can agree that could have done a few things differently the district judge found some areas where he was deficient but also areas where he was not deficient but mr bryan i'm o'brian i'm mystified that you want to dig in on the performance so i only thing minute courtroom you have eyes i remember identification of one of the victims and also the cell tower pangs and also you know the other said that was decided five months after the trial that there but there are plenty of cases that suggest that wisconsin courts for many years have had the authority to monitor evidence that is relevant but and paragraph fifty three dollars which says generally constitutionally admissible surprise identifications like this one are to be admitted and submitted to the jury and not excluded they can be cross examine the witnesses who had promises of leniency you still had the failure to object to the cell phone records which the government couldn't bethen to kate and that and again all but the through bapak that she wasn't charged it was under sputum that neither of not not when trying to the jury in this way and the cell phone towers the government or the state failed to list any witness from the companies that operated these things he couldn't have gotten these records in the trial judge is absolutely clear about that the wisconsin court of appeals does not disagree so how do you hear it is consequence of appeals wrong too no but again we also had testimony from both the women at the scene that cook gave them a cell phone and they they used that they were called as soon as the robbery ended and that and we also testimony through cook's girlfriend that she in fact got him a cell phone so really important than seeing a the four a and you know cell phone record with the call and the women that you're talking about where those who at least one of whom this often happens and with defense attorneys they put an absolute person on trial and assuming hall had some involvement in this it be it benefited him to say look the state didn't bring in paul we don't have paul stephen a we do have his photograph and he looks very much like mr cook and he presents that to the jury so these women are covering for mr hall that all came out at trial but y i can ask you a question about one of the one of the things that i focused on and i'll tell you i'm confused about it is exactly what statements the defendant made to the police i'm focused on the nd interview in the nd interview and specifically what was in front of the jury and so in your brief on page twenty two and twenty three you say in his statement to the police cook denied any involvement in the home agger sent did not tell the police haul was involved and then you have a series of citations and those citations appear in two other places in the brief i've i've tracked every one of them down and it's not clear to me that that's what he said to the police but what is clear to me from the trial transcript only comes on two pages it comes on special appendix page two  into thirty four and and this is the this is all i can see that's in the trial record as to the statements of the defendant it comes through an examination of the detective where the detective is asked isn't it true that before approximately forty five minutes or so this kind of interrogation he the defendant finally said ok i was in the wal mart parking lot or words to that effect the answer i believe so all right he admit going to walmart no did he admit going to the harpers home no is the answer did he admit to doing anything other than being at the wal mart parking lot in here the  detective seems to backtrack what i recall he admitted to being i don't know if he named her again but at babbitt's house now that's the entirety in the whole trial transcript that i can find if ok i but if that's what the record site shows i i guess i was missile if that's true i guess i was misled by that's my question to you is it accurate or inaccurate i mean there's a lot that hands yeah i  the jury as to the defendant's statements and is it beyond what i just read i will i would assume not and i might have misunderstood the undisputed point that he was at the house before they went to the wal mart and thought that the officer also said that he admitted to being at the wal mart that ate that could that i could be wrong now that the other witnesses all testified that he was at the wal mart no question about that but i'm what i'm focused on because it matters to me for the prejudiced analysis what did the defendant it mit to the police letter responding to this question might be the most efficient way to handle sure that said please do that but again you know focusing on the the prejudice component that there is it was reasonable for the wisconsin court of appeals to conclude that there is no reasonable probability of a different outcome even assuming deficient performance in some or all of the respects alleged in light of the strong evidence of the fact that mr hall was present both before and after him in this trick of mr cook was present both before and after his d n a was found in the getaway car he went to milwaukee after that it's not as damning i think as the state suggests and in any event doesn't distinguish mr cooke from mr hall which is the point here and i think as you judge what you said i don't believe hall's d n a was tested but of course he also in town at this time and there's all the information came out both between the trial and the post conviction hearing and only the post conviction hearing i believe that he had case the harper residence as well so the scene in marin county is a lot different than what's in the red brief so th reasonable probability of reasonable doubt this created in the jury's mind the jury is hearing this and it's not super clear to them and then what the detective actually says one is further developed as well he admitted he was in town and that's it then i would then i think you have to look at that and say well what effect also did this invocation sounds have when you add up all these different things i think you have to say leaving aside the question which is not the relevant question whether the evidence was sufficient to convict would all these errors or if you didn't have these errors would there be a reasonable probability of a different result and i think that's the