such stress on the witnesses mind as to preclude him from making a free and momentary choice whether or not similarly mrs whately was threatened she would lose her children if she did not believe her daughter and in any way supported mr whitely and not has there been a factual contention by the state in this case that the department of human services always did not threaten the mother no i believe that the state has conce actively discourages a witness from testifying through threats of prosecution intimidation or course of badgering in one thousand nine hundred three the tenth circuit in the u s versus net recognize that warning defense witnesses can violate a defendant's constitutional services the joint investigation occurred between you know the police department and the d h s s dad so they were gathering information together and sharing with the district attorney's office there's one particular district attorney's office record to where it was when the da just workers witness the white meat leaving the courthouse after hearing observed them kissing and hugging each other for eight minutes as it was on may thirty first two thousand and six one of the excess workers called assistant district attorney tate to report the incident information was shared and they were working together the mr whitely has clearly been wasn't there the question is was  example first of all i should demand in the position of being afraid of what the effects of the pressure would have on her the pressure from the department of human services should not have existed in terms of the shower incident and it's our position that  is it your position than ox trial counsel because of the pressure on mrs whiteley he was basically afraid to ask her anything favorable for fear she would turn on him in an effort to avoid the consequences she might get from d h s is it i mean is that your position absolutely or why clarify that for me because i thought your argument was that she was pressured to say things favorable the prosecution and not say things favorable to the defendant she was a pretty big but you have you have argued both in federal district court and in your briefs that the issue was that the pressure and imposed exerted by de h s resulted in defense counsel not deciding not to ask her questions ask the questions it's hard to see how we can know that there was actual prejudice because maybe i think you know c c s position was that there regardless of where there was coercion we tell you the problem i'm having with with this part of the case is that it's it's like retry the thing you know yes maybe it would have been better to have your own experts say the cross examined the showing in state court his conviction or earlier that particular witness an expert witness would have said things in addition to what the and second interview doesn't need to go further and show that if there had been the proper preparation by the defense expert the defense expert would have said something more helpful or that you would have got more helpful information not just that the expert didn't do a good job preparing just that the attorney didn't do a good job of selecting an expert but that if everything had been done right you would have excuse me you're not going to be allowed to rebut things that are presented by counsel so if you have something to say on the merits i think you better get it done then it's not fair to the state or you  investigation but that's that's pretty minimal wasn't it on a on a case that house potentially serious medical questions in a i found out that it that there might not be any physical evidence so i didn't look any further i mean the corollary to that is to find out if there might be and it's very frightening i agree but i think the other issue that came out was that the state's expert conducted an exam and exam showed no physical injury and that was favorable to attempt to show through the states on x her that we have th said it did not happen and don't don't give me some inference from their grief i can't i can't answer that accurately in a yes or no question because the thing is and the state's position absolutely there was pressure due to the concurrent deprived proceeding but the problem is that pressure would have happened whether there was a criminal case or not the d j s and the pearly wouldn't it wouldn't have happened because there was no criminal case there would have been any pressure for mrs whiteley's interaction with the h s was related to her inability to protect her child her willingness to not report it when her child told her she discovered that the child w that pressure would have been there whether there was a companion terminal case or not well i mean the pressure of leds did in this case is that she was pressured basically not to testify in support of him you agree with that i don't agree that that was pressured sort of the pressure exerted was attempting to secure permanency for the victims of the sexual abuse and to resolve the custody issue those two things were not department of human services personnel were calling the prosecutors and reporting to them things they were seeing between the white ladies absolutely and that there could be not not and regards to the criminal case we don't know that it could be that this is quite nice treatment plan which we have some of it through the post conviction records required to discontinue her relationship with a man that was ripping her child that's not exactly an unreasonable request by the stadium or trying to reunify the child with her mother so embrace strike for a period of eight minutes or what i believe this isn't ok so that that's obviously they're coming across it is the same prosecutor handling that the custody proceeding that can happen in oklahoma your honor was i was or if it did in this case ok so it would not be so you're not saying that that wasn't related to the criminal case you're saying that there you don't think there's evidence to show that that they allege coercion was directed at it fearing with mr whitely that tempt d to present that specific testimony from his wife no i don't think that has anything to do with it my point is this is what we have a choice to make and that choice would have been made whether she was whether mr white was being prosecuted or the state's efforts to prosecute a private person eating concurrently with a criminal case the somehow interfering with the defendant's right to person a defense you know this john to go to the me understand in a more global sense is what you're that concept into a criminal case if there is a criminal case you have sure but the effort here is to protect that child and get that parent to support that child and protect  i would also point out that no evidence was developed during the post conviction proceedings that the h s is handling of this case the deprived proceeding the sexual abuse proceeding was in any way different and this is why this case then it would be  a case that there was not a companion criminal case that would be the kind of evidence you would want to present a conviction evidentiary hearing and it was not  what about the expert because money then thank you to this court have any further questions on that or anything that you would like me to put in counsel make some pretty good arguments i thought  how do you justify the defense of the press and i think the state for correctly recognize that the parents aren't sure you could do something different there are a lot of different ways to defend this case the strategy the trial counsel employed was not reasonable and there was an in effect there was another component to the ineffect assistance claim that had to do with evidence having witnesses testified to the lack of credibility of the victim and one thing that was confusing is who were the witnesses that were called the the stake trial judge in the post conviction proceedings the first to a certain group of witnesses and it's different from what the federal district court was considering and i was unclear what the claim was regarding what essentially friends neighbors family efficient that a different cluster of witnesses from what the pedal district court was considering because the names don't seem to match you know i did not notice that in my review   also petitioner's father testified at trial and showed pictures and gave testimony about how some of the child's explanations were not physically possible as far as her being able to hide under the bed or in the closet that the indication of this in there it's in the record there's elgin incident in the shower in then there were some vague vague references to other things other bad acts recall that i would not say that you're correct but i believe that the main issue was the sharon stone and then and mom finding out about it the jury never heard that those those were completely excluded as far as mom knowing  there were other incidents of bad sexual behavior by mister whitely other than this all did incident and of course things seem to be i mean if you can't do all right you know the only the only thing that comes to mind i know you this being tried for a rape but the victim also alleged that he would expose himself and i don't recall that was part of the allegations to indicate for there to be supportive of the child yes if if that can be read as saying you have to adopt one point of view or the other in this case it was read that way committed counselor excuse