penetrating his six year old niece's rectum with the qur'an the district court found the counsel was ineffective because he did not further investigate and call an expert witness as this court knows strictly a strickland claim has two components deficient performance and prejudice and the failure to establish either prong precludes really not the last reason state court opinion in this case is from the michigan supreme court and they held that counsel's performance was not deficient i'm asking this court to reverse because when the michigan supreme court ruling is reviewed with double deference that stricklin it at require it cannot be said that the michigan supreme court ruling was objectively on reasonable and analyzing deficient performance the supreme court has said a quarter supposed to look at the top at the time of the year all the circumstances and do not use hindsight review that is for a bit in hindsight review this is not a case where counsel failed to do any investigation in fact the record establishes counsel did quite a bit of investigating originally the prosecutor listed an expert witness dr okola and defense counsel then contacted three different experts defense counsel revisited the issue should i call an expert dr cambone defense counsel mistakenly think that he couldn't contact dr oakland because he was a prosecution circuit opinion that specifically says that there's a good reason why defense attorneys frequently don't contact the prosecutor's expert and that's because you don't want to give away what you might want to ask them about on cross examination didn't the defense counsel know that the prosecution was not going to call oakleigh at that point only when i was talking about prior when when she was on the list for as a prosecution expert that would be a reason up and then between weeks before trial it's right before trial weeks before trial prosecutors indicates they're not going to call then the mistake that the defense counsel made seems to be a critical mistake showing deficient performance with no no basis for it well actually your honor counsel had an expert he was ready to call an expert and then the prosecutor says two weeks before trial not going to call an expert so at that point he stopped and he said well what should what should i do here because i was planning on calling an expert but now they're not going to call an expert so he could have gone ahead with his expert that he had or but he was concerned because his expert dr camp l had told him i'm going to have to admit some things and one of the things i'm going to have to admit that the ten year delay in reporting a criminal sexual assault is not uncommon for the defense counsel could have contacted dr oakl state expert the prosecution's expert and realized that the reason why the prosecution wasn't going to it was because she was going to have very negative testimony for the prosecution i don't believe the record supports that the record shows that she had not even formed an abductor oakleigh had not formed an opinion when the prosecutor chose not to call her and never even sent her the primary examination transcript or either of the interviews in the illinois interview or the monroe county michigan interview so dr oakley really didn't have an opinion with reference to this particular victim right but we have to be wondering what should the defense counsel have thought when the defense counsel hears that the prosecution is not going to call a doctor i agree with that in defense counsel says his thought was this is good news for me because dr camp bell tolling that he and dr okola both would had testified as experts that delayed reporting of sexual assaults is common and it does happen and he thought a jury would be skeptical of a ten year old report and he didn't want expert testimony for the jury to hear from an expert that that's not that unusual after all and also keep in mind this is two weeks before trial what are the chances that you're going to be able to contact an x worked send them a two interviews and get a report back and yes i'm willing to testify all within two weeks when he's busy trying to get ready to try the case that's based largely on alibi so i think that there is a reasonable argument the council he weighed the pros and the cons in fact there's testimony that he spoke to co counsel from illinois about the pros and cons of calling an expert when the prosecution was not going to call an expert and he also discussed this with his client mr brandon several times and mr br counsel not to call the expert and that is what happened here now counsel is entitle to a heavy presumption of deference and in my argument the district court did not grant know who was defense counsel defense counsel have been a ttorney over thirty years he had tried over fifty criminal jury trials he'd been three years as a prosecutor and he'd had an expert ready to go who said my testimony is going to have some good and some bad in it and the bad once again is these delayed reports are not unusual it's not a sign that it's a false accusation he said he didn't want to be the person that provided it testimony because he thought the jury would be very suspicious of the ten year delay so he made a reasonable strategic decision i'm going to go with alibi and the ability to argue that you shouldn't believe the victim because of the long delay and because she changed the year of the alleged assault and she added details after her first telling of the story think did you or anyone else not you but sure the defense attorney or the quarter whatever ever discover why the state had backed up on calling their experts you know you're on the only thing i do know is that for a year and a half the charge have been that the crime occurred in the summer of one nine hundred ninety six and then like a month before trial may change they filed an amended formation inside it was the summer of one nine hundred ninety five so the prosecutor's case had changed quite a bit because there had already been a notice of alibi as to the summer of ninety six so it could have been somehow related to the change in the data as to when the alleged incident occurred but i don't know specifically  why would that affect the ex calling the expert well it it's one more thing what you mean for the prosecution's perspective it's like they're sort of regrouping oh my word for you know the farm plenary examination the victim said summer of ninety six our regional information so summer ninety six now we've had to change to the summer of ninety five there's a regroup as to how the prosecutions go forward and maybe they thought the doctor would not look favorably on the you know the fact that they changed when the incident occurred i don't know that's only speculation so the michigan court of appeals reached the opposite conclusion of the michigan supreme court what what's wrong with the michigan court of appeals analysis well if you read the dissent in the michigan court of appeals the dissenter specifically says that the majority was using hindsight review and they have forbidden and under and under the case a hey b s court is only to review the last reasoned decision and the last reasoned decision was from the michigan supreme court and in the last third of amazing to think of the michigan supreme court decision being a reasoned decision when it is one paragraph long and one sentence on this topic and reversing their own state court of appeals the majority of two which you've cited the dissent in the michigan court of appeals but obviously there was the majority which had a different right but they did give a reason i mean they laid  decision he contacted the expert he discussed the idea of delayed reports and then he made a reasonable decision not to call because he was afraid the expert would provide at least some testimony that might help the prosecutor that's a reasoned decision i don't think there's any doubt about that and i don't think that's objectively unreasonable under the circumstances where counsel was ready to go with an expert two weeks before trial this is not you know this is you know getting ready gearing up for a trial this trial lasted four days the fans council called for witnesses he introduced thirteen sets of documents to help prove his alibi he was a very active you know defense attorney and he made a reasoned judgment that it might hurt me more than help me to have an expert witness especially when the prosecutor is not calling an expert and i don't think there's any u s supreme court case that has ever found that a defense attorney was in effect or for not calling an expert especially when the prosecutor didn't call an expert himself now an alibi defense that's a strong recognized defense and arguing to the jury w defense counsel did you got a ten year delay she didn't even talk about the crane incident the first time she revealed what happened here and then she changed the year that it happened these are reasons not to you know find my client guilty beyond a reasonable doubt what are the arguments o competent defense attorney you know i probably shouldn't say this but i wonder if the problem with everybody's you in this case is this was a single incident  was terribly unfortunate it probably affected this child but a twenty to forty year sentence is a pretty stiff sentence for what was involved here well if that occurred today it would be a twenty five year minimum sentence in michigan because it's first degree and it involves a child with penetration and that in michigan under current law to twenty five year minimum sentence and also the defendant was a repeat offender he had just gotten out of jail for serving on four counts of criminal sexual conduct in the fourth degree as to another relative of the victim in this case so he was not this was not a first offender situation and this was the most serious kind of criminal out on a surprise that there wasn't some kind of plane to go here it would have the other relatives a victim now the district court was clearly influenced by the testimony of a doctor oakland doctor can't delegate at the get their hearing but as i've argued when you look at deficient performance you have to evaluate what caught what the attorney did and he did it and this testimony did not exist when he made his decision to go forward without an expert so that testimony from dr oakland dr campbell may be relevant to the prejudice component but it is not relevant to the deficient performance component and unless the michigan supreme court ruling that council was performance was not deficient is objectively unreasonable you never reach the question of whether or not there was prejudice here now other attorneys might have handled this case differently they might have gone ahead with dr campbell but the supreme court has said even the best attorneys will represent their clients in different ways there is no one way to properly represent somebody and you can't criticize the attorney because a reasonable strategy doesn't bear fruit some fair minded jurist could agree with the michigan supreme court decision and under that pavia supposed to be precluded so the state would ask this court to respectfully ask this court to reverse the thank you ok thank you he's claiming that there was a reasonable decision made by the defense counsel at the time he was told that the prosecution was going to proceed with that expert testimony the problem with that argument is he never found out what that expert testimony was going to be because he was under the mistaken belief that the opponent apparently agrees was mistaken that he could not talk to this expert under an attorney client privilege and as the district judge notes in his opinion any loss student who took so and he took a civil or criminal procedure class would know differently so it's quite surprising that he would even come to that conclusion but the bottom line is the appellant's whole argument is the testimony at the get the hearing did not exist at the time that the quote unquote reasonable decision not to call experts was made by defense counsel why did it not exist at the time because he never bothered to contact dr okola he never bothered to contact her when he could've interviewed her as a potential prosecution witness and he never concluded or found out for that matter that dr okola was never given any discovery materials in this case to even form an opinion in the first place so when he was consulting his own expert dr ter campbell dr campbell was basing his a conclusion that he would give both the good components and bad components if he were called to testify as an expert based on testimony that dr oakleigh apparently gave in another case he was not basing this on any opinion she may have formed on this case why didn't she form an opinion on this case apparently the prosecutor never gave her anything in defense counsel never followed up but even more importantly as judge moore indicated when defense counsel became aware that dr oakley was not going to be called as a prosecution witness well even even under his mistaken belief that he couldn't contact her under this so called prevail she thought existed well apparently that doesn't exist now so contact or find out what she would have testified to and if you find out that she was never provided anything provide her with everything you have that's the whole basis of pretrial investigation why isn't given that we have to give deference to the michigan supreme court's determination that this was a reasonable strategic decision to forgo expert testimony  why isn't it something that we have to defer to the defense counsel decided it was better to go with that alibi and other witnesses in the questioning of witnesses as opposed to bringing in experts whether it's bringing in campbell or finding out what ok what would say and then bringing her in two things number one the decision by the michigan supreme court as your honor indicated is extremely brief and basically boils down to their conclusion that he made a reasonable decision not to call expert testimony because he felt his own expert would give testimony unfavorable to the prosecution well had he engaged in any reasonable investigation in finding out what dr oakleigh would have testified to it would have been clear that dr campbell would have given no testimony that would have been favorable to the prosecution how is that clear told is that the prosecution and intended to call dr okola who apparently was pretty prestigious in this particular area and he indicated a couple things one that he knows who dr oakley is and based on what he reviewed when she testified in an unrelated matter that he may have to agree with some of the things she testifies to but it was never clear what dr oakleigh was going to testify to in this case because dr as the app indicated never reviewed this case so once the defense attorney becomes aware that she's no longer a prosecution witness it was incumbent upon him to contact or find out if in fact she would have testified why couldn't the defense counts to make a reasonable decision a strategic decision that it's better to go with the alibi and drop the expert given that campbell was equivocating a little bit and given that the defense counsel didn't know anything about what oprah was going to say i understand that you could say it would be better strategy to figure out what oakwood was going to say and maybe if we were the decision makers in the beginning we would say we would go with the michigan court of appeals to judges well because presenting testimony through this experts would have no way undercut the alibi defense because the bottom line here the only thing the prosecutor had against mr brant was the testimony of the complainant so presenting alibi testimony coupled with expert testimony that tends to undercut the believability of the story that she is giving to the jury but the problem is it wasn't just the alibi it was the alibi plus the the attack on the victim's credibility because of the delay in reporting it correct i mean those two things go together quite nicely and if he knew that this one or both of these experts had testified and other trials that yes it was common for such a delay to happen i mean he was walking away from that as fast as he could  but yeah so i mean that wasn't going to help him if he could get somebody in there that said well a ten year delay is a terrible thing she might have come up with all kind of fantasies in those ten years that would have been helpful well i think that's exactly what the experts were going to testify to i thought they were going to testify to the fact that ten years that a ten year delay is not unusual not they were going to testify that due to or age her memory capacity at the time of the alleged crime  failure to disclose all of the details of the first telling it adding details that each additional interview and more importantly the manner in which the victim was interviewed by the detective in king county  added to questioning whether or not she could remember in this good detail the details that she alleged occurred ten years ago when she was only six years old no testimony was offered to explain any of that away and couple that with the fact that the officer in king county testified at trial apparently has the prosecutor's own expert that the delay in reporting is not unusual and there was nothing offered to to either attack that or to show why in this case the credibility of this particular complaint is seriously called into question and the bottom line is because the manner in which the defense counsel conducted his investigation  the jury was never able to hear to any of this and as this court is aware every tribunals that has appellate tribunal that has heard this with the exception of the supreme court has all agreed this is ineffective assistance of counsel let me just ask this so  i understand all right the problems with her and her memory and her subsequent testimony that did get into the record didn't that she had changed the story and all of that came out yes it did come out through cross examination but i think when you're dealing with children as victims which any jury that comes in as has severe prejudice against any case involving children to begin with it's incumbent upon defense counsel to explore all avenues that would undercut the credibility of that child victim because there was no other evidence in this case no physical evidence no additional witnesses it was the bait the case rose and fell on the believability of the complaining victim of complaining witness in this case and as i indicated before alibi and expert  defenses were not conflicting defenses they would have totally complemented each other and in fact dr oakleigh testified at the get the hearing she would have testified favorably for the defense which is i think the answer to why the prosecutor the sudden decided to dump or two weeks before trial so i think the bottom line is was this a reasonable strategic decision and without following up on reasonable investigation i think the answer is no as all of the tribunals the think this is so obvious that they only need to write this little bit and that the only separate justice is kavanagh who would have denied leave to appeal which is in favor of your client then right but doesn't bother to explain anything so so you know given the supreme court's direction to us to look at the last reasoned decision and there is a statement of reason here that the michigan supreme court does not think this is deficient performance and again i think that also calls into question the issue of prejudice whether there should be at and over review as to that we have to decide whether there is deficient performance the deferential standard and based on the supreme court's own reasoning i think it's clear there was deficient performance because the reasonable strategic decision they are claiming defense counsel made was not an  objective reasonable decision because he did not engage in the appropriate pretrial investigation of these witnesses to make that conclusion he didn't interview oakleigh he interviewed his own expert based on incomplete  the record clearly establishes defense counsel discussed issues of delayed reporting with a potential expert witness and made a reasonable strategic decision to forego expert testimony in light of the possibility that the witness might also provide testimony favorable to the prosecution so the michigan supreme court arguably is not deciding anything with respect to deficient performance be to be ok is that right i agree yes the question is was it constitutionally compelled to speak to dr okola either before or after the prosecutor you know decided not to use her and the answer is no a do we have a reasoned decision  be deficient performance by the michigan supreme court on the question of whether there was sufficient performance in not investigating dr okola i don't think that the claim was ever that narrow it was like you should have called an expert and here's what you could have done but you know in defense counsel's mind he had an expert the real question was am i going to go with my x we're not am i going to get a second expert practically when you know that one side has contacted an expert and then they decide they're not going to call the expert most of the time people would assume that there was a problem with that  they might be so i really sorry they might assume that but we actually learn from the get their hearing but dr up i had not formed an opinion with reference to this case at the time the prosecutor dropped or did begin to hearing explore why the prosecutor dropped her she said she did not know and of course the prosecutor doesn't have to explain and did not that's what i was wondering with the prosecutor there was no explanation of the nation of why here there was not an explanation given i speculated perhaps it was when they changed the year of the incident that they were regrouping and said you know maybe we don't need a prosecutor made an expert but i have to contradict counsel dr oklo specifically testified page id twenty one forty seven i would have been able to testify that people do frequently delay the first reporting and that's based on research with adults as well as children so that testimony would not have helped that although there was some mention of the fact that the cite the same reports i would and then they actually got a transcript as part of defense counsel's investigation he got a transcript of vocalist testimony in a different case and i actually spoke to the attorney from that other case they said that was oakland that that reference was to as it was the other