good morning honors i am very pleased to be here today and i thank you for your time and attention may it please the court my name is justin her around i represent the appellant mr francis reed mr reed was charged tried and convicted for the aggravated rape of his two minor step children and a case that involved no physical evidence no d n a and no corroborating witnesses trial in this matter was what the state of louisiana termed to be a classic credibility contest it pitted the credibility of mr reed who testified on his own behalf against that of his two teenage accusers the defense theory at trial was that mr reed was a strict disciplinarian and that these two minor children contrived and conspired to contrive allegations of sexual abuse in retaliation for or in response to mr reed's strict discipline into this volatile mix facts at trial cell criminal defense gold manna from heaven your honors in the form of an april two thousand and six interview between the oldest of the two teenage accusers who was fourteen at the time and this bethany case an interview with the children's advocacy center in slidell during that interview the older accuser confessed to miss case that the last incident of alleged abuse had been fabricated she indicated that when she had spoken to law enforcement she was quote veering around the truth that quote nothing happened and quote she was seriously just upset about being sent to her room three years later jury that that last incident of abuse which i should hasten to add is an important incident because that's the one that allegedly leads to the disclosure of the abuse the investigation the arrest indictment trial and conviction of mr reid at trial the accuser reverses herself and now says that if it did occur under louisiana law defense counsel had access to that two thousand and six c a c interview but he chose to do nothing he did not impeach the accuser he did not correct her perjury her statements that counsel knew or should have known were false he allowed her to simply sit up there and invent an entirely new allegation of abuse pertaining to his client while counsel did nothing but the duct tape also include other incidences that you just buy but other incidents she did testify about other incidents and the tape did include  the entire range of things that she said occurred and the state's main contention in response to this action has always been that well defense counsel simply didn't want the cac tape to come in no defense counsel wants t cac tapes to come in obviously under louisiana law the cac tape if it is properly recorded in certain parameters are followed is admitted into evidence but it is not typically published to the gerry if the defense in the state can agree by stipulation to the consistency of the evidence which is what occurred in this case now i submit your honor as a close reading of the record highly suggest that mr edward laverty the trial attorney in this case stipulated prior to the skinning the accuser's testifying at trial but be that as it may he did concede to the consistency of the case the problem with the state's rationale is that the constitution doesn't say except a one size fits all defense we don't have perform a defense is where you simply scratch out the last defend its name and add a new defense name every defense attorney is shards by the us constitution to make an independent assessment of the facts in law mr reed because the situation is these tapes contained not just in consequential contradiction not just a conflict as to as to a date or time or the exact parameters a description of an event these tapes included a tactile significance substantive confession that dovetailed hand in glove into exactly what the defense theory had been to not introduce it out of fear of the other allegations that might be included in there and to allow the offender apparently skipping the accuser apparently to have free rein to say whatever she wanted because counsel was under no circumstances going to impeach or going to allow that cac tape to get it was simply on reasonable had to take come in and it would have shown it would have demonstrated to the jerry felonious perjury this young woman took the stand put her hand on the bible swore to tell the truth and then invented an act of abuse that she had confided in private during the cac interview never happened so whatever councils concerns about other allegations i don't believe any attorney any attorney could have sat on such a that have opened the door for the prosecution now to come in and play the tape of this fourteen year old girl going into details about the assaults that were taken place so you would show that in one incident she lied but it would also show other incidences of assaults taking place isn't it sort of a double edged sword that yes you might show her lying in one incident but it it it repeats what she said in person now fourteen years when she's a fourteen year old three years earlier and repeating the assault so it can help but can it also hurt i  believe under the circumstances its advantage to the defense was so incredible and its damage to the reputation of this witness so complete that in this situation using an analyzer on the facts and  this case it would have only benefited the defense yes your honor i do believe having impeached this young woman with her own admission to fabricating abuse having now revealed her perjury at trial the state of louisiana could in theory have chosen to replay the tape in its entirety but now the proverbial shoe is on the other foot typically defense attorneys have to engage in that debate as to whether or not there is enough damage enough benefit from certain conflicts or contradictions or or nuances in the cac tape to risk running the gauntlet and having all the evidence come in this time it would be the state making that decision once counsel impeach this young woman  so that once again the jury can see a fourteen year old girl confess that she made up an allegation of sexual abuse because she was seriously just upset to be sent to her room or would the state now refuse you know take what they got circled the wagons and not admit the tape i don't believe this is the type of situation where there was a significant risk to the to the defense to simply have this confession perjury this confession  fabrication played for the jury twice i think in this case it was the only thing to do this was a pearl and defense counsel simply didn't grasp it and he didn't grasp it to the detriment of mystery we fre scenarios where you know later council such as yourself indies cases you know i hesitate to use the term twenty twenty hindsight because i don't mean it has t in any ill way but you know in the heat of battle in a trial is an understatement to say that this kind of a case you know with children being abused etc is delicate difficult and where other words one might put to it so counsel on the ground makes what would be labeled a tactical decision weighing these options and makes a decision and then moves forward then later erstwhile counsel associated you know what a child witness i mean that's pretty strong so that any that you know mark within my question is that when i read this i read it the question that the measured judge considered when reviewing the trial judge etc was that there was the proverbial tactical strategic decision made by counsel on the ground not to reopen is so to stay would play the full tape in the jury hears oleson on and on and on but  you saying that this was not a tackle you're saying this was not a close issue is this what i guess you're saying you know i'm saying i believe this was a kneejerk form a strategy well i've read it that there were inconsistent  you're saying almost wholesale recantation of course we've got some excerpts of the transcript and we'll end up you know looking at it all but i guess embedded with my question what difference if any is there to the sort of tactical strategic decision made even though in the light of today one might say well i would have done something different i mean does that auger up at all or is it as you say such a case that you know i did right was wrong and plain omissions in errors that have no basis in the record no strategy nothing that this court can glean from reviewing the materials before it to say counsel made an educated decision based on all the facts and law in front of him or in front of her this is the latter case there is a kneejerk reaction when we go cac interview there you know the younger witness and she's going to be or he's going to be recounting events and how harming that is and juries don't want to see what your typical case doesn't involve a child who is a confessed to making up an incident of abuse and he has now going to be caught having changed her story again on the stand this child took the stand at seventeen and said yes i was abused that day at fourteen she said no i was during around the truth i was seriously just upset when i went to bed or when i got sent to my room this is not the case where there is anything on the record the record is silent and strategic decisions cannot be condoned by this court based on a silent record that not does not bear out counsel position counsel his inexperience with these types of cases he came in following a series of nuts and bolts he cracked the spine of that criminal defense one on one hand with the morning of trial saw that cac interviews are generally favored and said that's the policy i'm going to follow that's the strategy and even if counsel terms that strategy that's not sufficient counsel has an independent constitutional duty to review the facts to review the tape to review the tape and go wow look that significant and then when a witness deviates from that it is such a degree as to border on perjury counsel has an obligation to respond to  that the french counsel did or did not know before it is speculation on my part your honor but i believe that the record bears out strong and disha that council never looked at the c probability that this would have that the verdict would have been otherwise i mean did was not address on the state court level my recollection honors that it was not address my recollection and i could stand to be corrected but i believe that the trial court i'll start with the standard of review on the twenty to fifty four the petitioner has the burden of showing and on reasonable application of clearly established federal law as determined by the supreme court of united states he clearly steps luckins from strickland versus washington which has the familiar performance prejudice problems and so the allegation is that counsel was deficient the deficient performance was  inadequate cross examination of a minor victim of sexual abuse and my reading of the record indicates that neither the state district court nor the federal district court addressed  at this point i'd like to direct the court's attention to the state court record particularly volume four page eight hundred ninety eight lines eleven seventeen it's part of trial counsel trial counsel's closing argument where he says i've been practicing for forty five years when you start crying on the stand you leave them alone i had a whole lot of other questions i had but you leave them alone because people just don't like that so cross examination of minor victims of sex offenses is particularly delicate and the record at least in the form of trial counsel's closing argument suggests that he was inexperienced he knew what he was doing and he curtailed his cross examination for strategic  that you read that he said i have a whole lot of other questions but basically people don't like it you know i would actually need the jury if i beat up on these girls least at least the idea that this guy picked up a nutshell book and walked in didn't know he's doing he is at least the guy has been practiced before for forty five years now as far as whether or not that would mean that he's handled you know these kind of cases we'll i'm not picking with huge issue read to quote you know i was expecting more play more out of the quoting you did in you you went from reading it to say well it means he made a strategic the briefing the argument from your side is you know this there quote inconsistency between the various statements as there frequently are in depositions and any time someone gives a statement multiple times but aside these are children but the argument brief says that yes they were inconsistent was it tuesday when it happened with the daughter not a but not of the manifest the coun absent argues no it wasn't just inconsistency so that truck out so didn't want to run the risk of turn ease using the words there was you know palpable perjury in other words a wholesale recantation of the state which is a long way between just inconsistences and so my question put to you is when we read the full thrust of it all will we find the large scale not just in consistency but difference in the you know she would have had an opportunity to explain but she didn't because she wasn't asked i mean the question i guess is would the jury ultimately have been persuaded to acquit based on her explanation  the respondent and so we've got limited excerpts of who they still exist it just it take yes and all right given the magnitude of the allegation and at the tapes exist and it is state court and nobody else looked at him what would be the state's objection to it going back down for somebody to look at it and make a firm determination based on reviewing it all rather than the argument about what was and what was that sounds like i don't know that it is i mean me counsel has got to have the right to make optional determination well of course and in the limited transcript that's been produced if you the electronic record on appeal page one twenty five and this is going to become a graphic for the audience a little closer hears you would have a video of an eleven year old girl talking about something of a quote whitish creamy color it went into my mouth and i spit it out it's like nasty it made me get sick and then she spit it out on the floor and then the the argument that there was no physical evidence is not exactly correct there was a seminal fluid located in the g bedrooms that for which the petitioner could not be excluded and the defendant actually cross examined about that on a believes volume four of the state court record page eight thirty six a difference in overturn the conviction are you saying that there was sufficient evidence there to to convict with or without the cross examination of the showing of the videotapes that you know that is information that reasonable counsel may want to not have the jury hear in light of the information that's been presented  truck but i mean just as a general matter you've got i mean i as the state district and federal district court judges put it these are double edged evidence yes they may provide additional fodder for process emanation they may also be incredibly damaging and when it comes to to whether or not to present those things so getting back to the standard of review the question is not whether this court would disagree if refuting it in the first instance it's whether it is so on reasonable that that people could not disagree about the validity of the trial court's decision and even if it's debatable you know the the decision of whether to stipulate and thereby avoid the admission of the evidence or allow it to be played for additional cross examination purposes is not that is something about which i would imagine if we did a survey of defense counsels many would disagree as far as defense counsel's viewing of the cac take the defendant in his testimony references himself viewing the cac tape several times and under louisiana law that it's given to the defendant he's representing himself otherwise counsel has to be present when he's viewing the things and state court record pages eight o nine and eight fifteen she it's you know that's what she she said that the tape but those sorts of things i think the court can fairly infer that counsel was familiar with the contents in and i think and keep in texas and in mississippi the attorney general's office takes many of these cases but in louisiana is it the individual district attorney can the district for that handle the cases all the way up to to the federal courts so under our state constitution the attorney general has no authority over criminal cases unless the d a is recused the d a requests assistance or the a g goes into district court saying the d a isn't adequately representing the interest way back when you know about this this man i regret to say i do know that that's ok ok well it wasn't mentioned in reference which i assume means it wasn't best not ass given that there was a state court and he did submit an affidavit was made part of the state court proceedings that affidavit did not address regrettably this particular issue here however counsel did address his overall performance and indicated in his four affidavit that he felt he had grave doubts about the competency of his performance in this case i understand he was not well versed in coming on matters and he was doing the best that he could but i think that leads to the larger point that i want to make with my last few minutes which is simply because counsel has what he or she calls a strategy does not make that a strategy for purposes of constitutional law and that everything gets paraded under the umbrella of strategy and simply because we can label it as such doesn't make it  and i want to direct the court's attention to this court's ruling and deltron be cockrell which is cited in the materials and beltran we had a state court conviction at a texas we have a defendant who was convicted of armed robbery and murder collateral proceedings resulted in no relief at the state level his ineffective assistance of counsel claim was denied or recommended to be denied by the magistrate that recommendation was adopted by the district court it comes before this court this court reverse why because counsel at trial had a strategy he had a strategy not to impeach a witness who identified his client mr beltran as the culprit unfortunately that witness had also  another individual at least tentatively prior to trial during the investigation stages counsel was well aware of that had been a fixation but he didn't want the jury to be aware that he felt the identification created an association between mr bell and this other suspect in association that he thought could be in copa toy or incriminating so he avoided at all costs the fact that the witness had a defied somebody else as the suspect in the murder and in the robbery and in doing so discordant held it was on reason it was not merely a disagreement with his strategy it was an unreasonable strategy it was not as the law requires based on a thorough review of the facts and the law of the particular case and therefore it was not to be condoned and it was not to be held up under the sixty minute standards of effective assistance of counsel i submit that that is what's happened here we can talk about academic discussions that occur in any other case that involves children and  this case we had a confession that the child fabricated and instead of abuse and i think the question before the court in deliberating on this matter and considering this matter is how many things could this child ha fabricated how many things in a cac interview could a child say i made that up i made that up i was seriously just upset about being sent to my room before there becomes an onus on defense counsel however many reservations he might have or she might have about that c s e tape that they admitted into evidence that they impeach that witness because that's the situation we had here counsel knew she was perjuring herself she was giving a false demonstrably false statement in a tribunal under oath counsel had the resources to expose that counsel chose not to perfectly with the facts of this case would it have been sound for any attorney in this situation in these circumstances to allow a witness to perjure themselves on the stand sitting on a bombshell that could have revealed that perjury and a case built upon the theory that these children are manufacturing incidents of abuse and no i do not believe any reasonable jurist any reasonable attorney could have condoned such a stretch what about the testimony of the others i believe your honor that the impugning the testimony of the older sister impugns the testimony of the younger sister these were not too distant victims they were not children of parishioners at a church picnic these were sisters within a year or eighteen months i believe in age apart and it was  motivation to collude to conspire to invent and the younger child did make comments during her testimony that she would lie if asked would have considered lying if asked to by older sister