thank you frank broyles lawyers failed to present a single defense witness not the known employer who testified that his records show mr burrell was at work for over two hours on the night of the shooting not the known community well the judge is wrong i'll begin with the boon to explain why the judge is wrong when you look at the performance prong the law in illinois is very clear that when defense counsel not the st interview a witness that there can never be attributable to trial strategy the trial court assumed the defense counsel because he didn't know precisely what it was that david boon was going to say and didn't understand that that was going to be as powerful exoneration evidence as  was that it could be that it was excusable not to present mr but the law is extremely clear in illinois that that doesn't excuse it this is a witness who was on the defense counsel's disclosures he showed up to talk to a defense investigator the defendant had told his counsel of this witness he did everything he possibly could so the court's st mistake with regard to mr bowen was saying that this is not sufficient for performance under the clear law in illinois it obviously is with or goes to prejudice the court made another error this is unquestionably evidence that would undermine confidence in the bird in the verdict mr boone was a fabulous  his own initiative and he saw the state's chief witness mark davis in the days after the shooting surveying crowds and trying to figure out who shot him now mark davis took an entire month before he named the shooters to the police and he named three people that he knew previously that he had known for six or seven years and that's a pretty long gap and it was it's pretty inexplicable to to wait that long and david bloom would have made sense of that testimony david boon want to show mark davis was using that time to try and figure out who he was going to pin this crime on and davis is testimony was pretty shaky to begin with remember he didn't tell mine eleven dollars that he knew who shot him he didn't tell  that's not a man that nobody wants to talk to police that this is someone though who did talk to the police he gave a description of the car he gave a description of the shooters however they were they didn't match until a month later when he's like oh yeah actually it's these guys i know who are who are in my gang and at that point he needs but at the end of the map of the shooting he said i saw the car it was silver gray and then later when didn't fit the facts he's changed it to white and boxy and in the aftermath of the shooting he said i want to participate he went to a lineup and then wait a month later and during that month david to make sense of what happened during that month during that month he was going around the neighborhood saying who came at me and trying to figure that out  the jury heard that that unquestionably would undermine confidence in the verdict in this case because you had such a shaky identification from mark davis to begin with and this is a view from his own description of the shooter  he described that he said a stop sign a car he's up in a truck tire a small car with tinted windows pulls up and the shots we know hit renee battle from behind so the shooting happens before the car comes head to head with him and he describes it in two seconds he's trying to protect his young son protect his girlfriend and drive away i'm in the aftermath he told the police he didn't even know how many people were in the car or whether there was more than people one person in the car and that testimony makes sense you know until a month later suddenly he's pointing the finger at somebody and david bloom was crucial testimony to make sense of that to make sense of right why it took a month david boon had no interest he had no reason to make the stop all he was doing was trying to further justice he before redeploying in the military he writes a pro se affidavit because presumably he's worried that he won't be able to share this information he's just seen an injustice happen in his neighborhood he has no motive at all in this case he's the only person who's not a player he's not in a gang and he saw mark davis going around the neighborhood trying to figure out who shot  very troubling evidence and if and again this isn't a we're not trying to win an actual innocence case or all kind says defense counsel sort of presented it you know frank bruno was doing his job he was saying somebody in the neighborhood can help me please shooting now robert mac and is a disinterested party he would go into business that made hollywood movie trailers for thirty seven years he had nothing to do with this crime it's there's no plausible reason what time i mean that would that wasn't there nobody ever said that that happened and mr mack specifically testified if that had happened they would have noticed because this was a dust sensitive business this was a very professional operation and if the garbage hadn't been taken out the floors were clean and everything was in dust and they would have noticed soon i have no idea how well that car could have gotten stamped except what mr mack says which is that his regular course of business is to have them stamped and to that her car who explained how her car was not the one used in the shooting and in any case mr burrell had never used that he found her credible the court found you know malcolm credible he was the uncle who said that all these people showed up to talk to the defense investigator and the defen investigator failed to show so those are credibility findings the court doesn't need to make credibility findings the with regards to what the court needs to make is the legal assessment of whether or not the court  manifestly err in finding that there was no deficient performance and then finding that there was no prejudice based on it does not make sense with her ok great so you know when you apply the performance pro president's problem again to this evidence that mr brown was at work defense counsel specific strategy was to impeach hatcher and morton and mr mack and the time card at work certainly would have further that strategy we know defense counsel knew of these witnesses and there was no downside to presenting it i mean there is no possible down pat side even if this evidence doesn't convince you one hundred percent they only convinces you ninety percent to have an employer say this was a reliable employee who had a great work ethic he always showed up he never you know punched him when he when he didn't do his work i have every reason to believe that he was at work on the night of the shooting there's no reasonable trial strategy for not putting on that evidence and with regard to the prejudice again mr back his credibility against davis friend mark davis the statement says friend and a fellow high up gang member who heard mr davis looking for work who shot at him and heard mr davis admit that he had no idea who shot him michael foale celt davis is other fellow gang member who heard that this was all just a that they didn't know who did it that mr burrell had tried to do right we tried to leave the gang he was taking care of his family he was working and when somebody leaves the gang they're going to beg races and the gang decided to pin it on him  not receive it could not prove that he received ineffective assistance of counsel after hearing all the witnesses defendant cannot meet his burden and show that and demonstrate the trashcans decision was  up to see how the time mark might be yours he spoke to someone be on or presumably mr mack based on mr mac's testimony about the time part if you look at the time card it is very very mr mack was that he was a credible witness but that he did not have information that was valid but what about and mr burrell if he hadn't been there the facility one of them clean all the things that  according to the testimony mr mack wasn't even at the facility that week anyone could have cleaned it he could have mister great questions for cross examination  know the full we don't know the full extent of the conversation that counts on this tour murphy had with mr mack we know that he did what he was supposed to do which was that he had a conversation with mr mack to determine to talk about the time she that he didn't believe that there was anyone saw a defendant there at that time and that he didn't believe that it was good the presumption is that counsel performed reasonably under the circumstances we don't know the full extent of this conversation and we admitted that he wasn't there during that entire week and that he had apparently had a conversation with an attorney for defendant during that time it is fair to say confused so with marcus apologize that he saw him get out of a car and ask a number of people who tried to change me which was slang or is lying for who tried to kill me and that he  interpreted that as who tried to you know who was the shooter throughout the case davis explains the fact that he didn't come right to the police because he was concerned about exactly who were the killing basically most this is potential impeachment the judge our position the judge found that this wasn't potentially this wasn't of sufficient this wasn't correct prejudicial under strickland this potential impeachment would not have made it would not have made sufficiently undermined the case and that was a correct finding a defendant cannot show that that was nana fastly erroneous because all it does and it's only impeachment testimony st of all this isn't and there were reviewed everything again when i say all the records i mean the trial record to and then issued a written ruling explaining his ruling this was not an off the cuff or a careless decision this was a thoughtful decision that deserves that kind of  that's a proper role in a proper exercise of discretion defendant's uncle did not have any information that would have been useful at trial and the judge made a correct ruling on that point plus defendant's  also able to identify who else is in the car one of the reasons it took him a while i think also had to do with the fact that he was he knew the he knew who the people were getting other proper names and all of that and that take that probably took a little while for him to put together but he information it doesn't matter and that was that man that should return to your original question about mr mcnamee and the car the evidence the card and booster max testimony he could testify the defendant was a good defendant because he was family with the family that's why he hired him he knew different he knew defendants and mr boone was a close but i think a pretty close friend of defendants because defendant after all attended his  about whether or not the evidence was useful brings us full circle to your initial question when i stood up which is what was the trial courts where the trial court in assessing prejudice kind of asked would this have convinced me on a more subjective level instead of asking the objective question of whether or not you know under strickland the standards are bad which this was the subjectively unreasonably havior and particularly with regards to prejudice you know the objective question of whether or not there's a reasonable probability that the result could have been different instead the court was sort of imposing its own personal value perhaps because it it had its see in the trial court it went with the subjective standards of the objective standard and was was inadequate investigation or the failure to present either way council's decision not to present that evidence was objective lee and reasonable that was deficient performance with regards to the prejudice remember it doesn't have to be a one hundred up and why he thought that now could they cross examine trying you know prove that there was some some contracting going on and somebody else in the janitorial industry was doing it for mr burrell they could try it's far fetched it's you know in my mind sort of wild imagination but the fact that they can come up with some way that they might have been able to poke a hole in one cross examination does not undermine the objective prejudiced standard that this court should be looking at that he was there and mr mack discusses the regular course of business you know he's president of this successful company for thirty seven years presumably you know we can try to argue a trial should we get one that mr mack had no idea that the place was a mess but there's nothing in the record to support that the record he says is that he would have known this was a very sensitive business it was a very professional operation he would have known if this real wasn't showing up and doing his job talk about that you know it most this was potential impeachment obviously this very powerful impeachment evidence of the law in this state it's clear that that can't be enough to support ineffective assistance of counsel the other two witnesses the council was  it so it's really one of their witness but both of them were accused of the murder themselves and then got off scot free when they pointed the finger at mr burrell certainly having someone like mr boone a business owner a nine gang member a professional in the community saying what he heard would undermine your confidence in the verdict i would ask the court to reverse the post convict this missile the post conviction petition and respectfully hope that we could see a ruling like that ex