next argument this morning is for you i mean against robinson breaking his promise to the jury that mr klayman would testify and the answer that question is is that yes counsel was ineffective for breaking that promise st there's can be real no did promise that mr thin would personally testify in the transcripts certainly bear that out and in fact defense counsel exhibit that when he testified at hearing on the motion for new trial so there's no real dispute that the defense counsel did in fact promised that mr ben ami would personally testify and of course there isn't any dispute that mr graham did not testify and so this court has held that when a defense lawyer promises a jury that the defendant will personally testify and then unbelievably breaks that promise by not calling the defendants but that there is both objectively reasonable and prejudice all to the defendant we we may have some difficulty with multi drug talk on this line anyway this is judge easterbrook i have a central question for you about this line of argument about what this court has hel unreasonably applied the decisions of the supreme court of the united states no matter how highly we think about our own jurisprudence we are not the supreme court of the united states so why do our decisions matter can and reasonably apply that rule or apply it in a way that's contrary herein supreme court case law even if it's a green court did not address it exact actual circumstance involved in the case and that is  function of the look at our circuit case law in fleshing out general standards and it got summarily reversed in a decision that was i think quite harsh toward that approach is is when the supreme court is giving examples of what would be contrary to established supreme court case law to use as an example the strickland vs washington standard and they say that if a state court would apply the prejudice standard in a way that required the defendant to prove by preponderance of the evidence that without the unreasonable attorney performance the case would be  the outcome would have been different but that is an application of circling that contrary to i think if you limit it strictly versus washington to exact it's is the so specifically in this case given the fact that the illinois public court applied strickland in a manner that is contrary to strickland by misapplying the prejudiced standard then there is clearly articulated supreme court case law on point that allows this court to revert because the illinois supreme court every time it laid out the president's standard  conviction relief opinion i think you i think you accurately describe it to one extent but the court of appeals does does a couple of things that i'd like you to react to one they cite the prior decision in people versus evans and there's no question that people versus evans accurately outlines you know in a very literal way the full dimension of the strickland problem to prejudice  inquiry and then nd i'd like your reaction to this it sure seems to me that is a substantive matter that the illinois court of appeals when it transitions into the application of fact to that standard was was clearly applying the right law in other words they were they were looking at the strength of the case against your client in substance asking whether the evidence was so they say quote the past is not whether defense counsel fulfilled every promise made during opening statements but whether in the air by counsel was so great that it had not occurred the result of the case would likely have been three and that's the st time i can find the statement about counsel's performance in breaking a promise to the jury about the defendant testifying and it says the results of the case would likely have been different and so  strickland this court decisions and was st a short standing vs bartley and sussman b jenkins are just positive on that question in those cases the court found that the state court's decisions were consistent with strickland even though the state courts had used the shorthand cases never focus on the inclusion or exclusion of the undermined confidence in the outcome definition of reasonable probability and in fact those three cases didn't even cite or quote that language in the opinions at all and incredibly stressful and there is no reason probability of a different outcome here as judge you for pointed out the supreme court has never said that broken promises are per se prejudicial or prejudicial at all  never addressed the question when we look at the evidence in this case and we look at the effect of the broken promise on the journey it is clear that petitioner was not prejudice we haven't shows this is not an accident evidence to demonstrate his intent in the absence of jake to share had a history of using deadly chemicals and losing control in a relationship and he has learned from past experiences to avoid detection he ordered the odorless tasteless toxin but when ingested in small doses causes symptoms that mimic hundreds of other diseases such as shares accidental poisoning theory also just also fail to explain how cortez making that alice's nephew was poisoned cortez consumed nothing from mouth problems and instead only drink juice that's to share had spike in the possible alice therefore could not have accidently posing for ken as just like she did not accidentally poisoned herself and the rest of the victims going to react to one observation that i had i was surprised in part two of your brief on page thirty eight to see you try to defend what defense counsel did here and oh how in the world can a defense lawyer commit to his client testifying in a case like this with evidence like this out there or that's going to commit trial and most especially against the backdrop of the pretrial ruling that if the petitioner chose to testify that into evidence would come the books in the papers found in his apartment discussing how to kill somebody with poison focus on my question against the backdrop of what happened pretrial i'm sure on the nd one rd of the evidence that you just quite a billy outlined how in the world can this be defended on problem one i know why you want to get to problem two and i would do that too but it did surprise me to not see your brief end on page thirty seven well the trial of volved in certain  yes so that in the pretrial ruling the trial court had actually admitted the evidence the books and notes that were in such as nursing home i'll note that on the very st day of trial before opening statements the on including a salt shaker and two feeding containers as well as it's criminal trespass i don't want to get i don't want to hang you up on this it sounds like just from your response that you're you're not prone to disagree with the observations i made i'm i think council was in a tough spot and so he had a lot of evidence against that there was a lot of evidence against detention or he wanted to pursue a different theory which was to point to deliberate poisoning by petitioners girlfriend he was dating two women at the same time alex and this other woman maria johnson and just a rejected that and so he they went to an accidental poisoning theory and we have to remember that just this in c we still do look at the course of representation and coun here throughout the entire course representation was reasonable he continuously objected to evidence that the trial court had said would come in and he explained he was so successful even before trial and even during trial and he did broke the promise he was stuck with having excluded very damaging evidence during the course of trial and dies in petitioner based on what happened during trial and so applying t appropriate deference we do think that counsel was not constitutionally deficient within the meaning of the th and that meant that of course the ts and in our opinion on prejudice as a state court reasonably found that there was no you had about thirty seconds what i'm just saying in holland versus jackson the supreme court said that a state court can kind of get the benefit of the doubt with the local shorthand statement  when the complaint strickland standard as elsewhere was cited and i don't think that was done here and if you apply that sort of an exception to broadly then you're getting to the point where the state court you could never find a state court applied it contrary  to establish law and i would end on that thank you very much the case is taken under advi