it please the court i'm sandy irwin and i'm speaking on behalf of petitioner pellant hong when i would like to reserve two minutes of my time for a bottle when no one's trial counsel jamie harmon failed to obtain a translation of mr no one's police interrogation which had taken place entirely in vietnamese this was actually a double failure because first harmon did not obtain any translation of the interrogation prior to making strategic decisions about trial or even prior to trial beginning and second harmon failed to obtain an independent translation of the interrogation once she received detective transfer inflation and should have noticed material discrepancies between the transcript and the summary in trance police report the state court labeled this failure a deficiency therefore the only issue that remains for this court to decide is whether the state's prejudiced determination was unreasonable and it was the straight prejudiced determination was unreasonable because the court required the court was required under strickland to look beyond the mere impact of the jury hearing mistranslation and consider the ways in which herman's failure harm a trial by altering the evidence that was presented this included looking at the implied vouching for mr tran detective tran by the failure to challenge the translation that he had provided inadequately preparing translation the fact that she chose to not use a fabrication offense and to only go with a defense of misidentification suggests that she did base it upon the police report in which there was one significant mistranslation in response to a question from detective trust the police report isn't the issue of the translation right it's the police interview that needed to be translated correct and counsel did not have the entire transcri form her strategy before she received any translation of the whole interview yes she did and then how did the translation of the interview being wrong affect her strategy because she didn't even have it when she formed her strategy probably and that's  catch this is a double failure her first story was not having any translation at all of what her client had said this is the biggest failure actually because stricklin indicates that the sixth amendment imposes upon him a duty to investigate  unfortunately mr tran didn't hear excuse me mr know when did not hear the translation that was provided until the day before he testified when it was read aloud in court and remember that he speaks vietnamese and had an interpreter with him so what he actually heard was an interpreter interpreter for him trans translation of the statement that he had given the police nine to ten months before did he say i didn't say that he did not he wasn't asked whether he had said that or presumably  sitting next to his counsel and he heard himself quoted as saying something that isn't what he said would you expect him to say something that was lawyer my apologies for my voice today say something to his lawyer about i didn't say that and there's no indication that that's what happened there is no indication on the record that mr know when was aware of the mistranslations himself that's true but the fact of the matter is that he did not make the statement that he thought that well true his statement is something that he really wouldn't have a basis to know the issue is whether i mean whether the victim was lying about having been assaulted by someone the alternative between fabrication that is she wasn't assaulted and made it up or misidentification which is she was assaulted at age seven but wasn't clear on who did it he's not in a position to know he might know whether he did something but he wouldn't know whether she had been assaulted by somebody else so he's not really competent to testify as to what he's saying what difference  i think that's the bigger failure here on harman's part is that she me all of her strategic decisions about trial including her preparation for her defense including her preparation for cross examining the state's witnesses including her preparation of her own client to take the stand without any translation in her hand of what her high head having the translation how would that change anything when i look at it and the district judge observed it is footnote now if you're making that decision it's a hard sell to say this victim is fabricating it at age seventeen or eighteen at that point as compared to arguing that well i'm not saying she's a liar but she was seven at the time the episode took place and so it's easy to understand this a dedication from a defense lawyer that seems to me to be a pretty easy call it so why should we expect her to make the difficult call is the feel you're though in fact of the trial even if harman had not changed her strategy she may have made the same decision after she made after she had received a translation but the fact of the matter is that she could not have made any reasonable receptive to another defense or you know sure there's something in the record indicates that if that were the only problem with the with the failure to obtain a translation but as i said there were other problems harm receive the copy of the translation that detective tramp produced until after trial had already begun and after jean and lin had already testified she could not have cross examined them about the allegations of fabrication that were raised in mr owens interrogation on eight separate occasions he indicated that jean or lynn or someone else may have had reason to frame him that still would have helped counsel to prepare for cross examination because that does support and misidentification defense but wasn't there enough incriminating evidence in the correctly translated part that a misidentification defense was going to be difficult i mean it seems that there was contact between this victim and your client of some sexual nature and he admitted that he admitted that there was casual contact with not necessarily sexual contact i think it's actually the detective tran in the state who uses the term sexual contact repeatedly or that there was any or even that there was the sexual curiosity that word was never used by mr noah and he didn't suggest that this was sexual contact he suggested that there was but that's a matter of interpretation he admitted contact that others could view as sexual even if he was saying it wasn't and it seems that once he's done that it's pretty hard to change it to have a different theory and he's just sort of in a bad situation no matter what happens at that point he isn't a bad situation this again is why he was prejudiced by his counsel's failure to tina translation of the entire interrogation before she prepared because she would have known that thirteen separate times before he ever came up with the story detective tran had asked him whether any incidental accidental or even you know purposeful contact had been made by jane with his penis in every writing of different situations and he continued to follow up each of those with this idea that i don't really believe that this happened that jean story is accurate and if you give me something to go back i can go back and time another conversation with her and clear this all up mr newman was under the impression that if you gave them the right story that he would be able to end the interrogation and even the entire interview and  into these allegations he was looking to restart his life and he had never been before been alleged to have done anything similar to this this came out of the blue for him and i think he was floored by this accusations would you like to reserve the find that performance was deficient through this i mean i was surprised by your argument i think i look at the record and it seems to me that it did look if you are forty seven i initially thought the same thing and i looked at it again and what the state court actually says is that appellant raises deficiencies it didn't say it found that they were actually deficient i understand that that's a little ambiguous i thought it was worth making the argument i think it's worth making the point that counsel had no reason to get another translation there's nothing i mean this decor goes on from this noticing the deficiencies to immediately a prejudiced analysis so how what i mean you can't read it as saying that they reached a conclusion that the performance was good and they certainly don't say that so why do they go on to approaches analysis unless they are at the very least assuming that there was a violation organising the deficiency wasn't the selection of strategy the deficiency was the failure to obtain a translation for and you can argue that it wasn't necessary to do so but there's not  affirmative reason i can think of where she would want to not have the translation and so it's not like which path to go down in defense it's was it insufficient to fail to go down that road at least a little bit and at this point i suggested maybe a spend your time on prejudice because that's that's the one where the when might be your back right ok well i will take your advice as far as prejudice goes there really is nothing in the independent translation that made a fabrication defense more plausible than the chosen identity defense i mean this is solely appellants words it doesn't prove anything about the victim jane it doesn't prove what she was thinking so it doesn't there's nothing there that helps well he was in a position to know her yes and he did for at least some period of time live there had a relationship with her it's sort of a side door character or reputation for veracity type testimony and so it has potentially an impact i think on a trier of fact to have the person who's being accused does the defendant say well i don't think she's lying and rule out the possibility of fabrication which your own brief acknowledges is a plausible defense that no doubt harmon knew about and gave thought  to so why isn't this a translation problem that might have encouraged attorney harman to go soley for the misidentification and not make at least some kind of fabrication argument that might  successful well i mean when appellant said i don't think she's lying what did he mean did he mean i think she's telling the truth absolutely not he meant i don't know what's going on here  lying is she mistaken this is the other but fabrication defense if bolstered by whatever else they could come up with with regard to his relationship with the mother that sounds a lot more like lying and so statement i don't think she's lying kind of ways affirmatively against the fabrication defense except that you know when this is all said and done and detective tran was like ok i understand what you're saying he's saying i think what you're really telling me is she's lying so i mean he conveyed that he said literally like five or six different things i don't know where this is coming from could be you know her mother it could be a mistake it could be dreams it could be you know she saw me having sex i don't know he's but he's not really saying i don't think she's lying he's just saying i'm guessing i'm putting out these things and whether he said i don't think she's lying or she is lying and it didn't really change the tenor of what it was saying which is i don't know why she 's saying this but it's not true and that comes through loud and clear and that was a message that trend got and i don't think the new translation changes anything and i don't think it would've changed anything because you know again lot of emphasis on that statement i don't think she made it up i mean it was a pretty big deal oh well my recollection is that he did refer to it and say you know this sort of summarizes my argument which is that she didn't make it up i don't think he was i don't think he really said this is an admission and this is the end of the case because he admitted the prosecutor did not use it that way the prosecutor is that like you know by the way this came out and that really captures the truth of this trial which is you have all this evidence that jane is reliable she says she doesn't have any reason to lie she's a young girl she's going through all this trouble going through the prosecution you know she has this letter that's corroborated by her mother and stepfather you know and on the other hand you have appellant who has a letter she didn't have the letter right they don't have the letter but they have testimony about it so either you know lynn and brian are lying about the let her and it never existed and three people with a conspiracy to frame him but that would be the fabrication defense right that you know so i don't think that you know i don't think that was a viable i don't think that was a better defense i think harm an made a reason one choice saying we're going to go with identity because it's a lot easier to prove or because it has reasonable doubt that you know she was seven she went through a traumatic experience she might be mistaken about who was there's men coming in and out that's a lot easier than just say well this this young girl is just flat out lying so i think it was a completely reasonable decision that's why thank you counsel  i just like to make two quick points in regards to judge ailments question about whether the prosecutor used the mistranslation that was provided to him extensively in his closing argument he did he made arguments he said he prefaced all of his arguments by saying that mr knew and had said creepy and crazy things and he used the specific mistranslation of i don't think she made up by saying you're darn right because you're the one who did it he used it extensively in closing argument the other point i'd like to make is that this isn't only about making a different trial strategy this is about herman's failure to any translation at all before she made any trials physician so i could have asked this question earlier but i'll ask it now so the this it seems like you're depending on a rule that you need to obtain an independent translation of the defendant statement and i don't think you have a supreme court case that says that or even a ninth circuit case that says that yet so i'm wondering even if we assume we're outside  whether we have a t v problem i don't think that the only issue here is that there was an independent translation is that she didn't obtain any translation before she made her decision about trial strategy do we have a case that's already in existence that says in every instance what even if there's a police report in your client isn't objecting to it that you have to get an independent translation of an interview you know but again strickland indicates that the sixth amendment imposes upon trial counsel a duty to do adequate investigation and a says that that includes making reasonable efforts to taint information that you know the person that the trial counsel knows the prosecutor is probably going to rely upon that was evident even from the police report that police report was five pages the first page and a half of that summarized detective trance efforts of forty hours investigation the last three and a half pages three plus pages was devoted to the statement that was made by mr know when that took fifty one minute this was clearly the strongest piece of evidence that they had before them even detective tran testifies on the stand that all of the allegations made by jane doe that he had to he had taken note of were very general so they were relying upon mr no one statements to corroborate jean's story and that would not have been the case if there had been any translation obtained by counsel and that's the failure her i don't think there has to be any new rules made the prevailing professional norms our next case on calendar is united states versus sanchez seventeen dash one zero five one nine seventeen dash one zero five two eight and eighteen dash one zero one one three each side will have fifteen minutes