chance of changing the outcome of the case the circuit court offered nothing but legal conclusions i'm this question if found that the defendant was prejudiced because he was denied the right to testify about haslett maybe recantation the court however never identified in its decision what the defendant actually planned to say about the recantation and more importantly it never examined what the consequences of those testimonial topics would have been were  erroneous for whatever findings that the trial court factual findings that the trial court made and it's you know standard for its assessment of proceedings that it had that it's a napper site over that it just relied on the record and it's also meant legal is that the this is a large record with most of the proceedings judge turner who gave the ruling this case did not preside over his ability who took over the records the same as yours or mine anybody know there's a couple cases there's pendleton which discusses i whether the trial court has any special familiarity with with the proceedings and there's the harris case that discusses the  it with the ultimate conclusion of law and the manifestly erroneous with respect to actual findings of fact and i think in this case when you look at the trial court's written decision there are no finding of facts inside there armstrong these of the mr half no i don't believe he did and then i would say this to whatever extent he did it was improper because armstrong did not testify at the evidence you're hearing all we had was her testimony from the trial and the fact that she had she was off in terms of his height and whether he was slim or or not there was all evidence that was given to the during the end that was litigated before in effect to what extent the court is prison chain to his throat and they had him copy a letter or you know word from word so he wanted to use the media the main recantation in order to say well i did have a motive to attain a and that's the date that's on the letter you know they had a court date on july twenty eighth together so i mean he was off by a day and i'm so i mean this is kind of easy discrepancy to resolve i mean you have a witness who is off by a single day that they were in court and you can imagine that it has this recollection is drawn from the letter which is dated july twenty ninth which was copied verbatim by what the defendant gave to him so that that's nothing ground shaking take he was that he was off by a day that the day of the event so but you're right he says he wanted to testify but i mean the important thing is he can't use them a recantation is his excuse for not testifying you know you're not tonight the right to testify just because in your assessment of that you know the the costs and benefits of taking the stand may not weigh in your favor and that's not denying you the right has to fight he could have done it and he could've testified about his alibi without the  plenty that he could have caught taking the stand to testify and without having the benefit of the of the may recantation and that seems to be now a crutch for his reason why he didn't do it all right he didn't take the stand but it doesn't buy him an excuse for th had a testimonial grounds to do it and just saying that well you know i was afraid of being crossed on certain subjects i mean that doesn't cut it you're always at risk of being crossed on you know adverse subject when you take the stand the defendant in the circuit court characterize that that may recantation as the defendant's primary defense in the circuit court does it but never explains how he planned to use it and i think this is a significant overstatement because ultimately the may it simply impeaches haslett with a prior inconsistent statement and then score it offers very it offers little or no value hassett had already been impeached on three go to other grounds at trial he had been impeached by the july letter which was a recantation his lawyer impeach him with a prior felony conviction and he resigned his credibility was impeached by the fact that he was it minutely an accomplice in this offense and that he had  negotiated a favorable plea bargain in exchange for his testimony at trial so you know effective assistance of counsel does is in order to receive it is not you do not have it in title meant to have a witness impeached by multiple grounds i mean when they've already been thoroughly impeached it doesn't deny you the effect of assistance of counsel just because you didn't get the robust amount of impeachment that you expected and this is particularly true i live in this and used to  pardon the mace he used you know i mean she's not mention inside of it it's not it does nothing to affect her credibility and i know that that's an argument that the defense makes but i think that's misusing facts at trial when you use it just to impeach the target of the impeachment this case it's it's haslett it be shoes statement it's not anything bad that armstrong said so there aren't there's no there's no direct impeachment of her at all i mean you can say why i suppose you weaken the credibility of one witness maybe you know you're going to be alive more on the other but it certainly doesn't affect her credibility statement i mean it is a question of questions people and by the defendant all in a leading nature and if he discusses that he's right he says that he lied to the police and that he was scared but he also gave invasive in completing answers to some of the questions for example he didn't identify the people who committed the crime he didn't identify who removed actions from the car he didn't identify who removed armstrong from the car which is particularly important because that's the role that the defendant played in the crime in the july statement it's a thorough throated recantation inside there all of these questions are answered and most importantly you have the defendant twice saying that i'm the one who removed armstrong from the car and escorted her to the garage so you have a far more robust recantation in in july than you do in may so i mean the maybe can't ation itself is incomplete and it contains a face of responses which as we argue is that this is a motivation for a defendant to octane a full or incomplete  two months later particularly if you see it from the perspective of the jury that you have a superior game member who he tries to arrange with a subordinate game or taking the blame for the crying and then he refuses to do it after he's hired a private investigator or he pay you know pays for the peace for himself he writes the questions he says he has a face to face discussion with haslett in the prison where they were both house together so there's his expectations back at it while he's in there he doesn't answer several the most important questions yet it and the jury's know this you can see i mean it's perfectly reasonable for the jury to conclude that you get this ask elation from the defendant afterwards that he doesn't get past this cooperation that in july you see him take a far more direct approach where he personally along with patrick taylor that they corner him in the bullpen which point and have them copied verbatim a letter  get the side to get the does not guarantee a perfect trial but it demands a fair trial mr sanders did not get a fair trial in this case a trial is a search for truth and the way that we have to find the best way to get to the truth is through the adversarial process each a dispute represented by the boarders to come together and find out what the truth is and when one side has hampered by ineffective assistance of the of his counsel it becomes a what trial becomes a one sided affair this is particularly true when the in the fact of assistance of counsel concern has the ability to cross examining cross examined one of the main witnesses for the state we give the way that we get the truth in our system of justice is through cross examination you have like witnesses testify before trial or fact you're able to cross examine that witness with evidence the jury in mr sanders case only heard a part of the evidence and that was because this course found mr sanders counsel was not just ineffective but ineffective to a constitutional reform level now of the standard view that we have here is that mr sanders does have the burden but he must only show that there's a reasonable probability of a different result on a retrial and he's done that here because stated another way is in any error to be harmless must be hair error must be harmless beyond yes but the amount of cross examination was diminished and the impact of the crossing that examined the nation was diminished because of the inability to cross examine mr has that on his prior statement and let me go to explain exactly why that was so important in the ripple effects that failure had here it would have allowed mr sanderson present a neutral witness this is a third party investigator to be able to testify that has  had recanted to him as a neutral party non interested person not mr sanders and the center spoken but a neutral party is neutral with the questions he gave them written by you're right they were investigator mr sanders did mr lott was on loan mr sanders paid him the state talks about the difference being whether this could be used for impeachment or substantive evidence and i submit to the court that it doesn't matter because either way mr sanders has an extremely strong case one let's say that mr has that on the stand had the nine ever making such a statement and the state is then saying ok he can only be used for impeachment purpose i cannot imagine a stronger piece of impeachment evidence if there is a third party neutral witness on the stand saying that this man this or has that recanted to me and said these things and subsume evidence as a state concedes and under that scenario what you would have on the record this before this court is that mr has but never heard of any of the system states attorneys that he made such a statement we weren't him mr sanders was not able to impeach that portion test my by saying wait a minute you testified to a neutral third party or you gave a statement to a neutral third party two months prior and you never claimed to the state's attorneys they were course into making that me recantation and we know that because the prosecutors in this case took the stand and testified back in two thousand and six and said they knew nothing about in the next question is say he says that he is the person who performed the action but the silence the refusal to answer you can be inferred guilt from the freezer to to make a statement in response to a question and that's  ordered the victims to be shot and moreover we have guns of the part where in conjunction with this mr sanders would have been able to take the stand had this evidence come in three thirty and been able to testify and the problem that he had was if he took the stand and testified he would have wanted to say the reason i didn't course mr heston's making recantation enjoy is because in me i had already put mr sanders name to the case he had that information and when you're on the stand in front of the bell jurors who are watching if there is evidence that you would like to say to explain your actions but are prevented from doing so because you'd be counsels ineffective assistance of circuit court found that mr sanders ability or decision to test by was impacted by this concert by his counsel's error and that prevented mr sanders from providing is strip searched before they go to the bullpen so church after they're in the bullpen including removing your shoes shaking at your shoes and bending them to ensure that no weapons no contraband up brought to and from court  an acceptable explanation for the discrepancy in her testimony her testifying in addition to her testimony standing alone might be sufficient to convict but it is not sufficient under the analysis that this more this court must employ to prevent a fair trial from being held and that's all mr sanders is seeking he's saying that he's innocent he's alleging that all he wants to do is have the opportunity to prove it at a fair proceeding with where all of the evidence can come out because the post conviction act talks about the balance between banality and the need for penelope in our justice system and the need for a just result and sometimes issues upand now he must give way to the need for justice and this is one of those cases when you re identification of somebody that you know and a stranger identification of somebody that you never seen before she's brought from the car to room and a dark building where it's so dark where there's a nice to have in any  there walked along with a she is she is there's nothing that happens in between the time that she's taken out of the car and then brought into the there's no like stopping for a great period of time she's brought directly  to view the offender's ites because she is standing as she testifies face to face with them she testifies that or she described one with bender says between being between five foot five five foot seven and sixteen years old can't be rodel sanders because he was twenty nine years old the pan and the other guy the guy who was a fender number three was tall and thin and that fit jermaine haslett profile but she was never shown a photograph of jermaine has that he was never put in a lineup to show to her and he maybe can't he she would have also allowed the sender's defense team to be able to attack the police investigation with more vigor because you've got a situation where the miss armstrong was shown brutal sanders photo even though he's five foot eight and stockings when she's describing a guy who's six foot tall and slim and if you research that once the eyewitness has made an identification and then gets feedback that this person has been charged with a crime that witness becomes lumped into that story and that the competence of their identification becomes much much stronger the key show them a picture of a real perpetrator they're much less likely to be able to pick up that person and that's why you look at their very first description of the offender because that is the most reliable indication of what they actually saw before there's any outside court look went through the testimony as a whole we have in the record evidence that the court did review every piece of the trial testimony and then heard the live testimony from mr sanders and in conducting that hearing was quickly shuttled into the garage i mean that's that's not accurate every day he defended me several demands for her to get out of the car while their emotions in there when they get out she has a face to face encounter with them right outside of the car they didn't walk across the street they stop there under street lights to defend it ask her her name they have i don't know what she says to him but they stop and they have another face to face encounter they walk down the alley and then they stop again where she's going to be searched i mean this is a long walk in there was based opera longer with this way she just wasn't taken out the car and then brought into the into the you know the pitch black roger you could see she had plenty of opportunity to identify him along the way let's try to see any of the questions we