of the appeal he shows neither he cannot meet the clearly stronger test because like the claims counsel actually actually raised them directly of you a cropper claim was also weak that is because st it was forfeited where no confrontation objection was raised the trial counsel could have reason believe reasonably believed based on that fact alone that the state court would have denied the claim the claim also like merit the child victims out of court statements were made while receiving medical treatment for a sexual assault that occurred just hours earlier perhaps an hour earlier and the united states supreme court has since a clear that statements made in such circumstances are known testimonial counsel as a question about evaluating the confrontation clause arguments so jackson says that we can look at those arguments with hindsight my question in jackson hindsight significantly helps the defendant here what if we were to think that clark hurt the defendant's arguments how much did that play and in other words should we be evaluating whether the confrontation clause arguments would succeed if made today or we should be evaluating it from the perspective of the court at the time of the appeal as i argued i believe that we can take into account all of the developments since the case became final in two thousand and seven including the statements of the united states supreme court about medical statements made for the purposes of medical treatment being testimonial and that's because it's the state's  case and while it hadn't been fully fleshed out until later there were other developments too including including some circuit court cases that established that statements made for medical purposes of medical treatment are presumptively non testimonial so i think that we can take into account and should take into account later developments that  further develop what the meaning of the primary purpose test is it was established while the case was on direct review and should be taken there into account here has there been wisconsin state court cases subsequent to the appeal that flesh out how the confrontation clause would apply in this context sexual abuse and a child i mean i don't have any  any published cases on point in wisconsin that would with what address that they're my building my understanding is that there have been some published cases dealing with sexual assault nurse examiners that do not necessarily have precedential value but i do not have i'm not aware of any published cases to that effect thank you it doesn't matter if we're evaluating the deficient performance prong or the prejudiced prong if we look at the case law at the time versus the developments since  is a somewhat stronger standard than clearly stronger because possible that you would have a claim that might be clearly stronger than very weak claims but  the but still the possibility of a different outcome is still less than a reasonable probability under under strickland so i can't  that it st mention the primary purpose test which was later developed by the court and bryant and and most recently in ohio v clark but it's also relevant i think  that here we have a case that has elements of a well there's an arguable emergency here as well the the the assault occurred  perhaps an hour earlier than she arrived in the hospital and there was a need to determine who is in fact not who if in fact this assault actually occurred and much like there was a need in the high of the park to determine if an assault occurred or who the perpetrators of the of an assault of a three year old were in that case and statements that the child's made to the nurse and the doctor in the context of the medical examination may have been testimonial and others not speak specifically those giving more of the details about who the perpetrator was cetera was there any is there anything in the record to support that these questions were being asked because there was a concern about whether the mother had been complicit and therefore whether it would have been safe to release m r to the mother indicate that the mother she was the one that reported the assault was deeply upset by what she had what she had discovered and she was actively involved possible that the child certainly the we would want to make sure that she was safe with the mother but in this instance i think she was acting as them as the child advocate here  before she changed her changed her position later in the litigation  so i would argue that the victims out of court statements that were made while receiving medical treatment if you look to the look to the totality of the circumstances of the examination in the hospital  i believe that the tally of the circumstances indicates that this examination was for the purposes of medical treatment and not for an ad for forensic examination or investigat purposes primarily this what were the judge saying eve that might explain some of the questioning about the incident that she was taken to the hospital for the nine hundred and ninety nine labor day incident how would that explain the questions about the nine hundred and ninety eight assault i think that explains it because in any medical examination of the eight year old child who has just been sexually an obvious question has to be did this happen for is this the st time that this happened and that's necessary to determine what the extent of the child's injuries are what her psychological needs are what treatment is is appropriate for this child what about the last inning of who had done it to her before how would that be relevant to medical questioning about who had done it to her before yes i don't think that there's an issue here about who did it it's just a general question that we're we're talking about here about the one thousand nine hundred questions after  it it's not it's not specific to him grab his understood but then the mother comes in and asks how did this thing that you were in the hospital for where you sooner how would that go to medical treatment perhaps that question might but if i think it's also relevant to what her what her psychological injuries are you know what how does she and she and what the and i understand that it would have both a an investigative purpose and a medical purpose but that's almost always the case in these questions here but i think that it would also be primarily medical and and most importantly i think that the st question where she reveals because it occurred in the emergency room it was conducted an hour or two at most following the suspected assault the nurse and the doctor they're not forensic medical professionals same nurse they were not following some sort of investigat protocol under the direction of of the police officer while the officer was present in the room for the beginning of the examination he had left the room by that time and just the declarant but it's also the investigating officers in that case or here would also be the nurse doctor and the officer that we also look at their motivation but putting some more weight on the declarant and how do you think those factors play out when the declarant is a child of her thinking about clark's admonition that children have less of an understanding about how the criminal justice system works that even if the nurse  some desire to try to get on the record some information that might be used in a later prosecution doesn't matter if that would have been unclear to the child yes i think those certainly does matter it's hard to imagine an eight year old child in these circumstances an hour or two after being sexually assaulted by her father scared in an emergency room having any sense of what she's doing is going to  car she's only eight years old at this time and i think that that matters to the analysis greatly especially after that case i see that i'm up to my fifteen minutes here i'd like to reserve unless there are other questions i'd like to reserve  convicted in large part based on hearsay statements that weren't tested by cross examination now your honour's of asked a number of questions about some of the law in two thousand and five the law now  on the confrontation clause but i don't think that this is the case where this court kind of decides that particular legal matter for a couple of reasons st of all both fifty two thousand and six when the direct appeal is pending and also now this is not like a pure question of law the way that the stated setting it up is this you know any statement that is in the course of medical treatment is not testimonial and therefore you know mr ramirez obviously with his it's a highly complex you will analysis and each case is going to be a little bit different in terms of the sort of interviews that we're talking about here where we have medical personnel talking to somebody but that somebody was driven to the medical personnel by police officers who understood that she was part of a police investigation and they were collecting evidence at the same time they were also performing some medical duties it's a complex analysis that has to happen that's highly can textual and then the nd reason  think this court needs to be too concerned about any distinctions in the law between then and now although i'm not sure there are many is that it is not for this court to declare that the primary purpose of the questions that were asked of of injury in this case were for medical or were for legal the question is whether there's a reasonable probability that if mr ramirez finally got the appeal that he is entitled to competent counsel representing him if there's a reasonable probability that the wisconsin courts would rule in his favor and that's false because that's what the law says and it's really consistent with the whole idea of hey vs with comity between courts and federalism we need to this court stronger standard for evaluating deficient performance and prejudice could you think that an argument that across that argument here was clearly stronger yet still wouldn't have a reasonable probability of success on the  s i don't see why that wouldn't be possible i mean sure you could have a claim that is it is clearly stronger than other claims but also there's no reasonable probability of a different outcome it i tricky because this court has said that even in the prejudice analysis to some extent it's a relative analysis so if the claims that were raised had a zero percent chance of winning and the claim that was not raised that's clearly stronger he had to put a percentage on it but let's say had a you know thirty percent chance of winning then i i think that's highly relevant to the to whether there's a reasonable probability of a different outcome and i think this case is really the poster child for why it doesn't make sense for this court to kind of put itself in the role and part time like it is the wisconsin court system either in two thousand and six or wisconsin court system now because we have so many layers we st have what we've already been talking about this highly complex rule analysis of a forensic slash medical examination where somebody was driven by police officers to the hospital to collect evidence on a you know a suspected sexual assault at a time when the perpetrator had been arrested ready so there was no i'm going emergency so again not an easy question reasonable jurist could certainly disagree and in addition the state has repeatedly raised this state law matter of wisconsin forfeiture doctrine which know as you can see from the briefing which got pretty lengthy and in all the briefs wisconsin forfeiture doctrine it's pretty unusual and it's complicated and it's a state law issue that is really not for this court  make a guess as to how how individual judges might apply it discretionary doctrine in a particular case particularly where we have the weirdness of you know are we looking at the s and i think that's where this court has to say that in the president's analysis what we're looking at is this is a significant and very serious issue that his attorney should have raised it was clearly stronger than the issues that she did raise and because she didn't raise it he effectively did not get an appeal and he certainly didn't get an appeal with competent counsel and now this court can you know as judge peterson ruled can turn this over to the wisconsin appellate court to rule on this substantial and serious legal controversy determination that the they were either not testimonial or they were harmed why shouldn't we defer to that determination well i mean that determination is something that the wisconsin appellate courts would review the novo the analysis the circuit court made its pretty muddled a lot of it seems to suggest that because it's an t legal argument golf in the circuit court and for the appellate courts and so it would be it wouldn't make sense for this court probe look at what a decision has judge made in a pro se case that would be reviewed to novo anyway and the entire point of mr blair is this claim that he was denied a competent attorney to help him through his direct appeal and that's that's all we're asking for this is a case and there are circumstances certainly where determinations are made where we give it where the claim is been addressed i understand there's a rotting petition here in the knight petition and we may look at them differently and it's been brought up through the night petition but if you focus on the rostering petition why wouldn't we do that and give the deference to the circuit court determination about the challenge  statement well the parties agree you don't give deference that because the last state court to rule on the issue ruled on it in a different way and a way that we both agree was unreasonable and so you know the look through from the from one decision to another just simply doesn't apply in this circumstance that's kind of the technical reason but in addition in a practical sense again because the entire purpose of this case is the denial of effect of counsel on appeal he was raising an issue under rather ng that should have been raised under eight or nine hundred and thirty two h where it would been in a completely different posture and it would have had a legal analysis by a lawyer and so but again i don't think that there's any question that this court does not need deference to that decision you know like any other decision whether it's you know wisconsin trial judge or you know an th circuit decision that this court to the extent that thinks something is persuasive it can certainly look at that  you know the the decision on the rather notion this case is is not at all persuasive and it's not surprising given that it was an order entered on the basis of of an uncountable pro s how sure the d n a evidence that clearly linked mr ramirez to the crime impact our analysis of the prejudiced process especially with respect to and ninety nine dollars incident i think the parties are in agreement that the relevance of that evidence is in whether the wisconsin courts would hold that a confrontation cl violation of was harmless under the chapman standard and so if the wisconsin quite like it there's a reasonable probability that he did it it may have granted relief on the claim if not for harmlessness i certainly think it's relevant to that extent it's not relevant to this case is so complicated because of all the players that's not relevant to the prejudice on appeal except for i think harmlessness and but the response to the potential harmlessness argument there is simply that you know this case d n a evidence does look you know generally pretty negative but in this case everything was really unusual where you had a mother testifying that she had coached her children to lie that she had lied that this was all this scheme to get back at her spouse who was cheating on her and had embarrassed her in front of her family and so in the context of the entire case i don't think this court can feel the sort of certainty that the wisconsin appellate courts would up was entirely plausible but about and then you know it's not about the mother's testimony that she adamantly denied planting any of the evidence she did recant her statements but the physical evidence that the d n a test was taken from adamantly denied that she had anything to do with toying with that or planting sure i don't know if i would use the word adamantly she certainly she denied it on the record you know the defense suggested that given the sort of problems that would create planting evidence like that the jury could believe that were not true and then of course the other thing that's kind of lurking in the background of this case is that prior to the trial happening both the da and the defense counsel noted on the record reasonable probability prejudice standard but then looking at would be wisconsin appellate courts find a confrontation clause violation harmless i think is too uncertain for the court to rule in that way i think there's still a reasonable probability of a different outcome here and again when this case is over then the the court will turn this over to the wisconsin courts so that mr maritz can have a counsel appeal and we can sort through all of us and you know the state is making a whole bunch of different arguments regarding this case and it will have the opportunity to raise all of those arguments in the state courts it's just that this court is not in the best position to decide them all this court and it's the side is there is a reasonable probability of a different outcome from i guess just one more thing i'd like to mention that your honor since not had too many questions about wisconsin's forfeit your doctrine so perhaps you are in agreement with me that it's just this court is not in a great position to decide how individual judges might rule on that but one thing that hasn't come up at all in addition to it is just you know there are really three things that would be absolutely in play if the state were to have raised forfeiture or if the state were to raise forfeiture in the future and that's that there's absolutely room to argue it's not forfeited here that wisconsin conviction feature is just so unique that in a lot of cases people are able to raise and preserve issues at the eight or nine hundred and thirty two h motion model which are heard and then not deemed forfeited and then also the discretionary nature of the call and i would just ask so just like to respond to a few things here because the question really i think we're both in agreement that the question is whether there's a reasonable probability of success on the merits or that  in the trial court that it can't be raised in the appellate courts and that was the united states supreme court has indicated that punt preserve trial errors are generally not or plainly not going to be a stronger grounds for a seventeen one counsel counsel could have reasonably believe that the court would deny the claim as forfeited and so i'm not saying that this is necessarily the end of the analysis but i do think that it's highly relevant to whether the claim is in fact clearly stronger and whether there's a reasonable probability of a different outcome i would add on the d n a and analysis  think if you if you read the mother's testimony it's inherently incredible and it's while she has while in the we've talked about how she she says that she coached the children and such her primary her primary response to the statements that the child made in the medical examination that is her statements about what happened in one thousand nine hundred and ninety s an hour or two earlier and what happened in one thousand and eight is just to say well she never said that she never said that to the doctor she never said that to the nurse it's not primarily that she coached them to lie it was that the child didn't actually say those things in the examination and and that's just to believe that you would have to believe that there's some conspiracy involving the doctors and the nurse and such and it's the wisconsin courts who have had little problem finding that the  statements would have been harmless because of the d n a analysis because the lack of the really total lack of credibility of the mother's version of events and on top of that that there