i since judge fisher and judge smith are in the courtroom i wonder if judge fisher would be kind enough to reside in court i'll be glad to do that application stricklin and also based on an unreasonable determination of the facts i'd like to have you focus for just a second if i may on the second prong for purposes of our discussion we say that right now also raises issues with respect to the investigation i'm concerned about the president's problem as i've read the record in this case it seems very clear that this defendant has had a lot of experience  state indicated that he said you were in the courtroom one two three four five six seven times before then and various other cases is that right and your client said that's right did you have an attorney in other cases yes you talk to the attorneys about the facts of those cases before you pled guilty to those offenses no i didn't never talk to a lawyer no not one in one thousand nine hundred eighty seven i spoke to my innocence in that case to you pled guilty to was the question i think guilty to it for the sake of the outcome question to take advantage of the plea bargain answer to take advantage of youth when when you were charged with murder your manslaughter is that right answer because that's what my counsel advised me to do question that would cut your liability or your exposure or the for the amount of time you were going to do write a answer exactly what i'm concerned about here counsel is your client obviously knows the game if you know what i mean and in this sense it's true that  mr daly didn't interview some people but how in was your client prejudiced here he made a he made a decision of going from what was clearly an indeterminate sentence potentially if he lost a trial to one where he got seventeen years he bargained for that if you will he had time to consider it according to the record there was like two hours two and a half hours before we ultimately went out and played when he was not with the other defendants how do you respond to that well the proceedings here he was screaming i'm going to send he was screaming i'm innocent i want to go to trial and he kept telling the lawyer that he was convinced that he was uncertain up to the just before he pled and he wasn't certain about whether he was going to plea now under those circumstances how could the attorney not interview one of the eight additional witnesses to the offense then read and then gives as i'm sure he says to his lawyer i'm innocent i tried to break the fight up he was consistent throughout the whole process in claiming his innocence the declaration and so can you can hear me ok see is there an affidavit showing that these fellow prisoners and the ones who were in the fight were available to the lawyer for an interview and that their names were given the ones in the fight of course the lawyer could find out about the various other friends of that fact khorassan go i don't know if he could or not is there evidence that the lawyer knew about them or was told their names and also that they would talk to him well it's an it's hard for me to imagine that a lawyer who took the time to go up and visit the crime scene the yard the prison yard would not  also want to know who else was in the yard of the castle if you evaded my question here i didn't ask about your imagination i asked about the evidence in the record it looked to me as though the affidavits were somewhat artfully worded but i might have missed some affidavits and i want to know what is there to show jane if you'd only interviewed me i would have said such and such and then underhill versus lockhart the supreme court the defendant my show there is a reasonable probability that but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial so i also need your reference to the excerpts where it shows that had his lawyer tried to interview these witnesses they would have talked caressed the would not have pleaded guilty and would have insisted on going to trial i think arrests go says that and you know i don't have that side of the tip of my fingers but i would be happy to supply to the court afterwards as far as the witnesses say that they were never they were never contacted by counsel korea oh and and col bell i think of the two the two witnesses that supplied declarations after the fact that indicated that you know they were never contacted by counsel in addition in the hay viewas lawyer that didn't mean anything to me because when i used to go over to the prison interview clients there are lots of prisoners there may be a couple hundred three hundred prisoners in our little local prison and how do i know who to talk to unless my client tells me well that i'm sure that i'm said well who knows what i need the reason i need something from the record rather than assumptions and imagination is i frankly cannot imagine telling a client take a chance on thirty to life you've got some fellow prisoners will give good testimony when you can get seventeen ceiling without with which you do that without investigating potential exculpatory witnesses  the are you there was an investigation and there were by the prison officials correct well they have this fight i mean they have this all went down a guy was videotaped was a well the videotape was entirely unintelligible well according to my point is though that there was in fact evidence of the fight for the lawyer to look at he knew where the fighter curdie knew absolutely so did he interview the victim that that that in fact right and also the other people in the arbor presumably on the tape i mean the lawyer had access to all the stuff they knew they were there were some of the people who would exonerate him his codefendant i'm sorry were some of the people who would exonerate him the co de claim that if you had simply talked to people readily identifiable he would have received more than one statement that karasu go was trying to break up the fight rap part of the fight correct your point is  jeopardy as you know for the rest i know he wanted to he actually wanted to show up at the change of plea hearing and say you know coruscant was not involved in this he was trying to break it up he's trying to pull me off and they upon his not being able to testify he was not able to testify that his declaration exists says exactly what you know that suggests what you just raised is an interesting and serious issue but it's different from ineffective assistance by caressa goes lawyer it's testify and actual paid your client this is one instance where clearly he was not in a position to testify because of the deal that had been made i think that kleinfeld raised the question earlier is there any affidavit any declaration from any of these other people that they would have been willing to testify would not have raised the fifth amendment that their lawyers had agreed all that sort of thing i know some said they would testify but they didn't say they wouldn't raise the fifth amendment  that was that's entirely possible that their counsel at the time would have said you know like i really don't want you to testify because even though if this issue is cleared up they may charge it was something else you really can't say anything investigation aspect i got so many of that maybe i just see if i can make the question clear what what troubles me is that we have supreme court law albeit in capital cases but it's been implemented in the circuit in non capital cases where a lawyer has a duty to investigate and there is no question here that there was a fight and the question is not resolved  apparently whether roscoe was in there as a good samaritan if you will or an assailant and he's saying throughout i was there trying to break up the fight and the evidence comes fo sees striking motions going on for sees the fight and starts yelling get down start fighting i believe in prison when you are ordered to do something you are to do that well that's why but that's just begging the question my question elz he's got a different perspective he's in the middle of this mill he's not the nine the question is what was he doing he was as it is now is attorney didn't present  any option for anything other than what you're presenting to us that's true but that's the problem is mr very short of the issue is why do why isn't the attorney plainly at fault for not doing a simple investigation there's no question of who those nine were there was no difficulty in finding their names their numbers whether they would talk to him whether they appeared credible whether they would in fact be good requirement of and also judge fisher just detail the whole thing with maybe a second prong issue but isn't it clear that mr daly did not fulfill the requirements at least night circuit law in on the other side of this equation you got all these people some of whom were not involved in the fight we don't know what they would have said it's entirely possible that they might have said well they were clear to us that karasu was just trying to break this thing up he was they if you go to an officer involved shooting are just going to take the testimony you the officers you're going to look around are you not i hope after all of the problems we've had with excessive force suits that the regime is to go out and look for witnesses who will counteract or confirm the law enforcement officers account of why the guy was shot and grievously wounded or killed so what is so so difficult in this case as a lawyer not to have talked to any of the people who were on the ground closer than the observing off  you know at the end of the day the guy's got to decide whether to plead on the facts that are his attorney has made available and there's no corroborating witness to back up his testimony so doesn't that affect whether he decides to play or not i think it could affect that your honor but at the same time he did speak to the clients the attorneys were all there they probably heard their version and whatever information that their own clients may have provided then in addition to the investigation of the yard viewing the videotape discussing the videotape with their clients so your view of things that perhaps the other problem getting over the hurdle was to why an attorney under strickland and under the supreme court jurisprudence about a duty to investigate gets away with not bothering to go check to see whether witnesses would exonerate client and they've got affidavits from five who professed to say that they would i'd be interested in your take on the aiding and abetting concept that was raised in the  in the responsibility that one an aider and abettor would have for the acts of other persons is that the law he talked about answer yeah i believe so yes so mr bradley discussed with you the responsibility of all protists been for an incident that is what you were talking about yes it is the position of the state that the defendant in this case even if he were there if you will trying to break up the fight could have been held liable as an eight or in a better and just stabbing and slicing if you were there to break up the fight your honor i don't believe that he would be found to be meeting a barrier but if he was part of the  that he could have been found guilty as an aider and abettor if his witnesses had held up yet officer barnhart whose testimony they had tested at the preliminary hearing the case is that that is what happened to be having  statement after the fact in support of holman's and caressed those petitions that they did not attack him is simply not credible the same may be said for the declarations of the other sale once and witnesses to the attack now that finding of fact after some of the declarations i am unclear though as to which declarations they're looking at and which declarations we can confirm that are what i recall there some of the medical records and other things that were not submitted to the state court and were not part of the state court record that when i considered by the district court as well now on the issue of these this quote that i read to your from the state court of believe that that clear and convincing evidence has been provided by the appellant in this case so that would mean that we take it as a matter of fact that mesa and the other were sailing  file declarations in the state court where lying of course i suppose caress coke might win an acquittal on lies as i recall there was a supreme court decision on whether the possibility of winning acquittal based on lies or misunderstanding of law would establish prejudiced do you happen to recall the name of the decision i don't at the moment i do not your honor i'm sorry not at this time but i investigate or discover potentially exculpatory evidence the term the determination whether the error prejudiced the defendant by causing him to plead guilty rather than to go to trial will depend on the likelihood that discovery of the evidence would have le counsel counsel to change his recommendation as to the police this is sussman in turn will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial that's what i'm interested in your response on what we know he didn't investigate but we also have his testimony that his he was very concerned that the officer was going to testify that it was indistinguishable who was doing what they were all just there in the ball together the video doesn't show one way or another but it clearly shows he was in the mix the counsel was an experienced lawyer he was concerned by his testimony that his client was gone down for life potentially and he raised the issue with his client and said like you know he was aware of these affidavits at that point i mean they were there at least they want not the two that came afterwards but the ones the they came after it may be institution perhaps oh yeah he was not aware of any of that stuff and he didn't have enough information and in fact with respect to whether he would have pled guilty right before the hearing right in the beginning of the bandoned his client and i want to die i'd like you press your question you put your question had to do with that what was the spade's basis for for for coming to the conclusion they came to the facts and the conclusions which i believe are objective  through for a few minutes before or after the hearing because he viewed the videotape which was we know it was unintelligible because he went to the prison yard i don't know because the person your wrists mol how that would have made any difference and because he talked to him before he pled the facts that the state court highlighted to support three barnhart a done a fight khorassan go is being among the attackers we know that's not true eight times at least eight times in the record barnhart admitted he could not tell who was throwing blows who's attacking couldn't make out faces anything number two barnhart restrike saw striking motions was supported well where do you get the completely unsupported from well borrowing the at the plenary hearing bard got up and and he made those statements well you know they were all involved in the fight and then through through many pages of cross examination he was completely impeached and that's no so you're not saying it's completely unsupported you're saying that it's testimony to that effect was in your opinion successfully impeached completely successfully impeach times that he admitted he couldn't if he couldn't tell what was going on just to clarify what the state court of appeal did not have before any of the exonerating affidavit have by my recollection of the record and your statements about it you said that the state court the state appellate court did not address the declarations and i look at page thirty four their decision at forty seven in the  they do they say that mesa statement and the declarations of the other sail and some witnesses are not credible and then you say that barnhart basically admitted on cross that he could not see that was attacking and i look at page seventy one of the preliminary hearing and he say asked did you notice if anybody over there wasn't fighting he'd already identify grass go as one of the ones who was over there and he says no everyone was fighting you're pretty sure that i pointedly positive they were you saw them all throwing blows i saw all arms moving what basis could they make draw that conclusion the state of public or number one number two even the district court looked at the videotape and said it was unintelligible and even daily preliminary hearing based on our hearts testimony stop the proceedings and said he wanted to take them on board ari said wait a minute mr daley your testimony is inconsistent with the videotape image those parts in the beginning where he says well everybody was involved the fight where you couldn't tell could you but ultimately as judge kleinfeld points out mr barnhart made certain statements you think they were impeached but there was evidence there you're you're make a determination that in reviewing barnhart's testimony in terms of evaluating the prejudice prong and what mr daly would have done had he been aware of the testimony potential testimony of these other witnesses whether he would have so discounted barnhart's testimony that it would have required would have effect compel him to recommend that his client go to trial as opposed to cop a plea in that right that's correct soundly impeached and admitted eight times i would i would can refer to each one of those times i think we've got the ok point i think that's critical i think that it's interesting to note that when the first tear the the two of us afterward as we confer so we're get not going to wait any further on this case we'll talk about it and the cases submitted thank you