good morning i would like to point out that a third justice will be participating in the discussion and reading the briefs and listening to the oral argument and tape however will not be able to join us today  also have a couple housekeeping matters these microphones do not amplify they're only for recording and the recording is not the latest generation so you really have to speak up and particularly well not only for the recording but also for us and clearly for the people who are in back of you who can't hear anything if you're keeping your voice down and the only other thing that i'd like to do is point out that we only have one case today so we have a little leeway and time and the case will be called there please the court counsel recorder here says post conviction petition identify several pieces of exculpatory evidence that were not presented to the jury that convicted him based on shaky eyewitness identifications this evidence supports harris's claims that the state  violated its due process obligation to disclose its court if they exclude the tory evidence before trial and also supports his claim that his trial attorneys were ineffective the substantial claim should not have been dismissed on the pleadings by the circuit court harris is merely asking at this is evidence going to the ineffective assistance claim is primarily the evidence of excited utterances made by two of the victims of the shooting immediately after the shooting saying that there were two offenders not one but he knew about it he did know about that but it what happened after the shooting jean and her husband know if it were the first people to arrive at the store after the shooting her husband walked in the store and then according to her affidavit right after that she saw a man walk out of the store and walk past her car her husband didn't see anybody leave the her husband then according to police reports we haven't heard any testimony from him yet and that's certainly something that can be explored at never venture here and however he walks into the store and he sees four people who have been shot so his attention would have been drawn to those four people so it's very plausible in the store that someone slipped out after him and that's who his wife saw but there's no there's nothing anywhere in the record that says that janeway says that she saw the shooting you know she didn't it's clear that she got there after the shooting but she was at this store she saw a man will leave the store and want to test her car let's be precise about her original statement was that he was sitting  had originally he said he wouldn't be the front door of the liquor here but she was clear in her affidavit which we do have to presume to be true at this stage of the proceedings that she saw a man walk out of the store she was able to see the front door and she saw the man walk out  we have we've set a lot of case in the briefs stating that when there's a contradiction between with this is testimony whether at trial or in a deposition as in this case and what this is affidavit on post can be sure of you that affidavit until you get to hearing that affidavit must be presumed to be true and that's the case here so we are at the end regardless of whether she saw the man walk out of the store not we do know that she saw a man in front of the store walk past her car and we know that she was there very shortly after parking well initially she went to the police after seeing a composite sketch she viewed a photo array wasn't able to identify one and then you know about roughly three months later when mr harris was arrested at that point she viewed a line up know so the substance of her testimony is i saw somebody in the parking lot a few minutes after the shooting i originally thought it was ricardo she saw the man her husband came out as he was coming out that's when a witness named heather duran was walking in and we know from one of his next trial testimony that she spoke to heather duran after being on the ground for only about twenty seconds after the shooting so i don't think we're talking about a few minutes i think that was her deposition testimony a police report about her testimony gives a different timeline she says that just moments passed between the time a husband went in the store and the time that she saw the man in front of the store the walk past her car so again this is identification well in a number of ways first i would like to point out that the eyewitness identification system in this case were not very strong we have two witnesses who had been shot who testified at trial that they saw the shooter from only seconds before he shot them he was armed and we know from numerous studies that when a perpetrator is armed it is much more difficult for a victim to identify the perpetrator because their attention is drawn very naturally to the weapon and not to the person's face so would be happy to in every case where crime involving a weapon identifies the person who thought that well every case is going to be different every every case is going to differ because it depends on how long the victim when christina viewed the photo array about ten days after the shooting she told a police officer that the shooter didn't look up and that she didn't get a good look at his face that's just more evidence of how poor their opportunity to view the shooter was we also have evidence showing that neither of them was able to describe the very noticeable scar that was on the right side of mr harris his face that's another piece of impeachments in addition both of them were described as making tentative identifications  array obviously i talked about christina saying she didn't get a good look at the shooter's face and she told the police officer who showed her the array that she was basing her identification on the shape of his head and his hairstyle helen told her  knight that however the officer we know from the post conviction petition exhibits that the officers documented that in a police report written at the time that they were shown the former and that's something that the police have no reason to make up for a lie about so her christina may not have remembered that you know years later but the police documented it and they were credible in testifying about that piece of impeachment in addition you know we have to any time we're awaiting a brady violation this is about do we have confidence in the verdict we're asking is there a reasonable probability that the outcome would have been different and what that means is in light of the evidence that wasn't disclosed did we have a fair trial is the verdict in this trial w of confidence in this case i don't think we can say that's true we have a case this was a capital murder prosecution the state had three witnesses who identified mr harris as being at the scene of the shooting and before trial one of those witnesses told the state admitted to the state that she had going to testify for the state it could have been an important witness for the defense but now so right now what you represent here it's brass prior to trial extreme skepticism well i'm i'm not sure that that's the case and again i'll go back to her affidavit she said that she saw someone walk out of the store that's something counsel didn't know you know he just had her deposition all he knew is that she saw someone outside of the store who that she identified as harris and we know council signed an affidavit for the post conviction petition saying that if he had known what jane ways actual admission to the state was before trial he would have called her as a witness but you see he only does well here there would what might have happened those are things that can be explored in a lot of detail at an evidentiary hearing that's all mr harris is asking for at this point it's a chance to prove these claims to trial and let's move on also just to the ineffective assistance claim because there's another piece of e well to the point first of all trial strategy is a matter under case law that should be determined at an evidentiary hearing when there is exculpatory evidence that counsel is aware of and doesn't present and when you have a record like the record here that doesn't have any specific facts about what coun strategic reasoning was you do have an evidentiary hearing so that counsel can get on the stand secure is why i did this here's why i didn't do this and then the courts can make an informed decision based on counsel's testimony about whether that strategy was reasonable or unreasonable was your  all sided in our briefs in both of those cases they were second stage hearings in which the defendant was claiming that counsel was ineffective for failing to present exculpatory evidence and in both of those cases the court said this court said that witnesses to the shooting who both said a trial that there was one perpetrator by contradicting their account if they if they were mistaken about so i believe as fact as basic as how many perpetrators their work then that allows the defense to make a much stronger argument that their observations and their memory are not reliable those were the identifications that was the heart of this case and this would have helped defense counsel impeach them they never said anywhere that there were two shooters they never said any were to never say that they never said there were two duran told the police and this is in a police report and also in her not in her affidavit but it is a police report that one of the female victims of the shooting in this would have been home because she was the only one at this point who was walking and and conscious that she told her at the store that two black men had that did this so we have her statement at the store and then we also have the statement of one of the surviving victims so she said two black men came into the store and they appeared to be together one of them was actually the shooter and that's it that's not the statement that she made to the to heather duran it was not quite that detail did she ever say there was another shooter no she never did and that's why this is important because the statement that two black men did this would have called into question her testimony that was only one black and it's not just her sentiment there was only one gun right all the all the victims there was only evidence of one weapon and it wasn't keep in mind it wasn't just the record at this point to someone about that and so we're speculating about counsel strategic reasons and whether those strategic reasons are sound strategic it's important no strategic decisions are entitled to deference but they're not entitled to community counsel strategic decisions have to be reasonable and to make a determination of whether the reason we have to know exactly why counsel made that strategic decision and we don't have that on this record you need to have an evidentiary hearing to determine that i would like to reserve a little time for a bottle so we're oh i'll just briefly i think this kind of issues a common theme with the other claims and that is that again we're not supposed to decide factual disputes pleadings out of post conviction petition at the second stage all welcome to facts are presumed to be true and here we have experts who looked at a lot of the same evidence and then a defense expert who did additional know psychological testing would have differing opinions about whether mr harris was able to make a knowing and intelligent waiver of the right to counsel we have computer expert opinions and those those experts should be testifying i haven't actually had an evidentiary hearing we should be determining which one is credible and which one isn't just based on the pleadings they should be cross examined they should be questioned in depth about their well initially he told the trial judge when he first brought up the process of representing himself you know i decided against that he was in prison i don't have access to the law library on a regular basis and the law library is and doesn't have a lot of books and then he after he represents himself for eighteen months he says to the trial judge you know i really appreciate the risk believe it is his understanding about his access to lawyers as a rather small point in the greater scheme of all the disadvantages of council that's just one minor one and we have a lot of evidence  that the true reason for his waiver of the right to counsel were these delusional conspiracy theories so if we look at all the things that he said before he would counsel if we just take his statements about a while a very nice elation and don't consider these delusional conspiracy theories i think we're getting kind of of a limited viewpoint about his mental capacity at the time he made that decision we can't just look at one circumstance to the exclusion of all others you have to look at the totality of the evidence about his mental state and that's what the experts here did and they came to different conclusions and it should be up to the circuit court in the first instance to hear testimony by them and to make a determination based on all of the open and stop just a few statements mr harris made in isolation was it just a few statements it also include the depositions in the motions that he filed while he was representing himself which appeared to be lucid and again at the same time that he was doing those things he was continuing to press these delusional theories about his indictment being forged in his  ns of fortune things like that you know he continued to press those theories at the same time that he was doing depositions so i think that creates an open question about just exactly how confident he was at this time the trial judge did order an exam correct i understand the nature of the charges against me those don't give the whole lot of insight into actually what mr hersh has mental capacity was we have an expert who after trial has done rather extensive testing on his  neuropsychological and cognitive abilities and had a lot more information than the trial judge had at his disposal well acquittal services report however friends of clinical services didn't do any of her highest neuropsychological testing either the doctor salzberg just talked to mr harris reviewed some transcripts reviewed his some of his medical history but didn't do of the testing that dr hamlin did on post conviction review so again we have competing experts we have an expert who did a more thorough review of mr harris and came to a different conclusion than the state's expert and that is something requests that this court remand his case for the evidence you're hearing which is entitle thank you this morning honors may please the court counsel there are a lot of facts that have not been elicited by the defendant before the score that i'd like to clear up and if it's ok with this court i'd like to start backwards with the waiver of counsel issue first of all this there is no remedy for the waiver of counsel the defendant only preceded pro se for about eighteen months there is no other way allegation that he was in any way prejudice by his pro se proceedings there is no underlying stricklin claim that counsel could have should have read opposed anybody or redone any of the things that were done when he was pro se since there is no legal underlying basis there is no remedy available for this these kinds of cases are usually reserved for the types of cases in which counsel has been completely denied that in cases such as this where this record is absolutely in order to allow the defendant to exercise his constitutional right to proceed pro se his constitutional right a bedrock of law had judge stirred by denied a constitutional right i would undoubtedly be before this court on another constitutional violation of the other end of the star game i'm the trial court in this case clearly found and properly so of course conviction that there was no reason not to let this defendant proceed pro se dr cells for prayer performed a very comprehensive examination judge stomach didn't even need to have this judge p c s but in an abundance of caution and after months and months of repeated admonitions in he just office a contradictory opinion there is always going to be an expert that can offer contradictory opinion and the post conviction hearing act does not allow a third stage hearing because somebody is offering a contradictory opinion in order for a third stage hearing curriculum the tape in no way indicates that he's ever made this evaluation before that he's from oh you're with the standard or that he understands what he's doing just because he's a psychologist doesn't mean he's an expert that's competent to offer an opinion in this field i'm not bringing in somebody a medical doctor who removed my gallbladder he may be an expert in that but he's not an expert in the us and he doesn't undermine dr self in any way shape or form which makes this a reasonable doubt argument which is improperly proceeding pro se he didn't review the eighteen months of the pro se litigation including the depositions conducted by the defendant the motions filed by the defendant he only reviewed the sentencing and three court proceedings  further he didn't even review dr subsequent sixteen page psychiatric summary that in a nutshell is not a credibility finding at the second stage those are findings of fact these things are just missing and below judgments we need more properly originally appointed came in to do what would in effect be a sort of a crinkle hearing the defendant refused to cooperate they conducted an investigation they wound up holding a hearing without presenting evidence that was denied and they w forced to rest on the pleadings and in a rather apologetic way as well it was clear from a clear record on appeal that these attorneys were embarrassed to go forward with these proceedings and yet with all of the time that assistant public defender con of capital litigation people these are not some fly by night mr near assistants who don't know how significant it is to have a person fit for trial as a client that is also very telling in any event under strickland came claim mr fay she and mr mcquade were reappointed the defendants case about three and a half years after the arraignment this case had been repeatedly set for trial when he finally wised up and decided i think i'd better get an attorney this is a capital case they moved heaven and earth to prepare for this trial they went through all of the evidence in the guilt phase in thirty days they were going to a capital murder trial within a year this evidence and this record could not be more with the fact that they were chasing down witnesses in mississippi going to the second offender theory they were flying back and forth they had second investigators out the first investigators out michigan looking for mitigation evidence there i was near a stone unturned  but as far as i'm counsel said earlier that strategy is a matter for a third stage hearing that is absolutely untrue matters of trial strategy are very well recognized in this law is matters that can be dismissed at the second stage as it was in this case counsel is just incorrect about that for the notion of the two offender theory is forfeited this claim was never litigated below in the post conviction claim and it should not be heard for the first time before this court now the two offender theory however it should be noted is only alive because there are a few want police department reports which have the two offender notion in them specifically there's an  report regarding larry lozano where he claimed he approached the rear of the store and he observed one of the male murder victims bleeding and he was trying to comfort one of the potomac men who were  the gunshot wounds he asked the victim what happened in one of the patel brothers stated that two male blacks did this that is in the police report that cannot be used to impeach christina or helen says next who never stated that two male blacks came in and shot up the place that is in fact in an oakland police department report were how they're doing and apparently told an oakland police officer that she went into holland at the front of the store when she first came in other i've been shot there are three more people back in there two black men came in and shot everyone however what counsel has failed to tell this court this morning is that in the pretrial statement to a public defender investigation or investigator how they're doing on again said i ran into presumably howling at the front of the store she told me she was shot and asked me to call the police i cannot remember what else she said statements because she was shot up pretty badly in the back of the store and was in i c u for a few weeks so that claim to christine has absolutely no factual foundation there's no foundation for how it is other than this police report which cannot be used  defense counsels and was ultimately called the trial he was originally in the liquor store this is before christine and how and even got there and he noticed an african american man with a fishing hat and a lazy eye who had gone to the back of the store and he was asking for the little bottles of alcohol which he said he thought was suspicious because everybody knows the little bottles are sold out in front by the cash register and apparently there was also a hispanic man in the liquor store whether or not they were together nobody really knows but the african american man with the small liquor bottle requests was kind of catching his attention and there was ultimately a composite sketch that was made by mr levy of that man who was never a suspect but only a possible  witness this was another issue that was raised by the ineffective assistance of counsel that goes to the two offender theory as well there were three composite sketches made i believe three of them were done by mr lee and those composite sketches were all ultimately determined to be potential witnesses not a founders and then there was a composite sketch made i believe it was two days after the shooting by helen she made the original composite sketch of the defendant  which was originally air so my timeline the way i read it is mr lee left the store and i wondered also under the impression that these two men are either in the store or have left in front of him he also noticed mr  when he the liquor store that there was a white buick in the parking lot with another african american in it which is in the police reports too so there was apparently some police investigation about the white car in christine right so presumably everybody is out of the store they pull in and they're like large van in the parking lot and they walked in and according to them other than the the patel brothers there was nobody else in the store the shooting took place and somewhere around this time how they're doing and is driving down cicero avenue looking for cigarettes she sees two african american men running down cicero again in what capacity we don't know she identified one of the first ones because i noticed that one was definitely african american he was wearing a green sweater and kicked the pants which doesn't match anything about what jean janeway said she tries to gas station down the street cigarettes are too expensive so she it's about five minutes from the time she saw the african american men running to the time she gets to the liquor store as she's walking into the liver store mr janeway is coming out he's telling her don't go in there you know it's a bloodbath she goes in any way in apparently that's where she runs into hell and at the front same call the police i've been shot and then sometime after that there's a canvas of the neighborhood and people in the trailer park are interviewed across the street about potential witnesses anybody and nobody really has any information it's really unknown you know exactly how to defend off the store which direction he fled in didn't run was in a car there's no evidence about any of that whatsoever but there's the timeline hearing way was coming up an album would have been in the store or yes i believe he was i think he was fleeing the store as father was coming out that's my interpretation want to said due to mrs jane wa that he was in the store for two minutes helen says she pretend to be good for twenty seconds and then she talked to heather so you so where's the other minute fifty seconds mr janeway where what happens now i have no idea  and the entrance of the liquor stores over here and she testified at her deposition that she couldn't see the entrance of the liquor store because it was blocked by christine and howard's van ok and that once the husband got inside the liquor store at some point she looked up and there was an african american man between the store and her car he seemed to be surprise and he hurriedly walked grey and fled however you want to characterize are accustomed to the rio presumably back out so originally she's the one who calls the police but doesn't offer any information to the police when they respond to this double murder and double shooting she shows up two days later on her own oh i recognize that's the guy i saw in the parking lot in front of my car ok well then she wants a photo id ing the defendant's photo when she identifies him in a physical lineup in august when he's apprehended in north carolina in a deposition conducted by the defendant she says there was a black man in front of the store i could not see the entrance she described the defendant as five ten five eleven one seventy mid thirty's short hair brown pants  this is in complete contradiction to her deposition testimony when jean jean weighs affidavit her post conviction recant affidavit is submitted almost all the time you're you have to assume that to be y s that evidence is positively rebutted by the record in this case it's not just positively rebutted by the record she's telling the court i didn't just make a mistake in identifying the defendant i  earlier justice ok let's say we disposed to mr mcquade and mr fahy we have jeanne janeway she's coming off the united who's going to present her the state's attorney is not going to present her she was originally listed as a witness but was never called as a witness because she didn't see anything she's not material she didn't see the crime who knows what she saw in front of her because every time an interview with something completely different she's not material in any way and because she's not material in any way because she cannot impeach christie in her helen because she cannot impeach the specific glads that was found which was really a significant linchpin in this case jean jane ways affidavit or everything  this appears because she's not relevant because she can that change the outcome of this trial which was noted by the lower court and her ruling christine and how men were very specific in very certain of their identifications no of the allegations about how they were shaking their it's absolutely untrue christine identified the defendant at the first opportunity when the cop showed up and show her a photo spread that she hadn't seen anybody she had talked to anybody she was a nice you completely isolated she picks out the defendant's photo two days after howland was out of the hospital she was out like in a day or two she comprises a photo compiler a composite of the defendant bullets to people such as the armed guard in michigan which was designed by the defendant so this case was not just based on the identification of events of christina and how on there was overwhelming evidence of this case there is no credible evidence before this court that would warrant a third stage hearing on any of the allegations before it there was no brady violation there is in no way a conceivable credible claim of in effect of assistance of counsel and there is no credible claim that the defendant improperly waived his right to self representation or that there should have been a hearing for his fitness to stand trial barring any questions from this court the people respectfully request that this court affirm the post conviction dismissal at the second stage of the defendant's post conviction petition before the circuit court has repeatedly said that jean jane weighs affidavit need not be deemed true at this stage of posts we can proceeding because it is contradicted by her deposition testimony as i pointed out many times that is wholly inconsistent with the only supreme court explanation in people versus coleman of what it means to be positively provided the state has not once addressed people versus coleman in any of its arguments and coleman held quite clearly that even though yes when evidence trade hearing is how we can  again given the timing of the state recognize that mr janeway saw this person before heather duran spoke to her when she was nick about twenty seconds after the shooting so given that timing we know that it must have been pretty soon after the shooting that she saw someone sauntering around them or not necessarily sometimes you notice and there's the idea of hiding in plain sight kind of you know not drawing attention to yourself by running this we don't have any evidence but given how how soon that it's just seconds after you know we've already we a guy in the parking lot as the time that she was identifying that person as harris the state was treating her as a witness she was listed in their answer discovery they were not seemingly troubled by the timing of those observations they still some thought as long as she was willing to identify that person  parking lot and as long as she was willing to identify him as that man as harris the state was treating her as a witness and as to corroborate the identification of helen and christine we excuse me i'm positive that we could go on this timeli remission we never have a gun found to actually match to the murder weapon if he had a gun that matched with mr harris's friends we would be here probably not but we don't that he had the same category the same type of gun and board that were used in the shooting but we don't have a direct mass we just have a circumstantial match and that is tied together by a guy who tried to extort the police in exchange for his testimony so we don't really have credible evidence and when you take into consideration all the weaknesses in the identification of events and the ways in which jane jane was to money could have been used by the defense to challenge that identification evidence we do have at least at this stage  substantial showing that this was not a verdict that is entitle to confidence that there is a reasonable probability that the outcome would have been different had the state disclosed in this capital murder trial that a witness admitted to lying when identifying harris as a man that she saw at the scene of the