they hold that such a failure is ineffective assistance of counsel and reversal is required particularly when the case is otherwise close and the prosecution evidence is weak as the state's own grief acknowledges the prosecution evidence in this case was not strong the case was very close and direct appeal that's all that would need to be said this case arises under and so the question for the court is whether that fact alone compel an entirely different result it does not the state contends that this court must defer to the result reached by the california courts even though those courts never offered a word a single word of explanation for their decision i looked in several that is the definition of an alibi defense not to mince words the fact that in that case they actually put on affirmative evidence and here they didn't in some ways make the evidence that he was presented isn't enough to sustain that plane because they are unkind predicted the state has had ten years ten years and various wells of review in which they could have gathered evidence they could have interviewed witnesses they certainly could have gotten a declaration from trial counsel with other cases has been more than willing to give the state declarations to describing his former client's case when it ends and he is to the case those alone were together i believe require a revers focus of the trial then the closing argument would not be are you going to convict a man of murder based on these four we can't identifications then it would be the prosecution saying look at the weakness  was true it would be really easy to get a declaration from the attorney to that effect and then it would be a slam dunk it was the strategic decision and the story so why was there such a fight to not where they only went to a certain point and then there was something more that they could have discovered none of the declarations none of the allegations in this case have ever said here's what more he could have discovered if he had done something else it was all there so he knew everything that they are now stating he should have done he clearly was aware of the alibi and based on that evidence he made an informed tactical decision not to present that now are you claiming that there is no think even more to the point he thought that the better tactical decision would be to make the case simple are you actually going to rely on these four reach canted witnesses that this shaky prosecution case that was his approach now i'd like to go back to a question that dr robinson asked about the nature of the evidence we have i think it's important to remember that strickland says that there is a presumption that actions are considered for sound trial strategy and so that presumption applies in every case whether it's a direct appeal case or an a p a case or whatever and in this case the record clearly shows what the trial strategy was so you don't even really need a declaration from mr dallas because he is on the record opposing counsel point was the alibi witnesses were not inconsistent with that strategy you could have  representation is an art and it's not a science and in this case even though it might not technically have been inconsistent it was a simpler strategy to have the focus on the weaknesses of the prosecution case instead the alibi case and it's our position that the alibi would have been very impeachable these were all friends and relations the telephone part of the alibi actually was consistent guilt because he could have ordered the shooting spared a mile and a half away and been at the house to answer the phone call and the prosecution would have made all these points too so instead of allowing the prosecutor to turn did in that case there actually was an evidentiary hearing ordered in that case i don't recall if we got the declaration at that point or if it was earlier in the game and that's that's certainly possible but again there's a presumption that his actions are that have been discussed i think at length in the briefs and they were mentioned here in the initial argument those are cases where the defense attorney made the decision to present the alibi so once you do that then you have to effectively presented then you can't leave your client hanging out to dry and just have his testimony alone saying well i was with these other people and then not told the other people and that's what happened in every single one of those cases but let me ask you are there there were several things the attorney did it would lead me to be worried about this case for instance he did not investigate the testimony of the witnesses now he may have ended up not putting him on the stand but how could he make an informed now say in their declarations that he had gotten discovery and in fact that's how mr parker remembered his alibi he had first he said i don't know where i was that day and then they got lucky sure wades police report and he said oh yeah not there's going to be something more that has to be done especially when there is a weak prosecution case in appealing the teenager's mother who would say that immediately after had a drinking problem so that was certainly that's one reason that's obvious on the face of the record why he would be leery of hauling her imagine if she had shown up from his trial i mean if she's actually not a holic it's going to be hard to get her to not drink on a particular day and it could have been devastating to the case if she had actually been drunk at the time well and the jurors have seen that but even beyond that the jurors could have seen her testimony estimate plea a mother's attempt to downplay her son's role in this because the defendant is so dangerous that he's going to come and get us and that was that would also have emphasized that the reason why all these witnesses recanted there was evidence  the record that that's what happened mr parker came back to the scene of the shooting the next day and said you youngsters better not be snitching and it was after that that they started to get cold feet at the that all the other cases in this case are in that case it was so people who would have said that they saw the victim who supposedly had been killed that they saw her the day after the killing was supposed to have taken place so it wasn't that they were going to and so for that reason the fact that he had not personally interviewed them and he misread the record the court found that that was ineffective not to present them and so i think this case is distinguishable because there's never been  decision before that not to present a defense at all and the question is was that reasonable could can the court say that no reasonable attorney would take that approach because that's what the kind of deferential approach requires and it's our position that exactly what he hired his attorney to do to make those kinds of decisions and decide how best to present the case to this particular jury under these particular circumstances seeing prosecution case came in and stealing witness after witness to say i didn't identify i didn't even have an interview at all with the police i don't know what you're talking about and then relying on that and keeping the focus on flaws in the prosecution case instead of bringing in all this other evidence that would have allowed the whole focus of the case would have changed at that point and i think that clearly distinguishes the case from all of the circuit cases and i don't think those cases can be fairly read be read to say that in every case where there is a potential alibi the difference attorney must put it on i think clearly that's the kind of decision that a defense attorney has to make  the potential alibi witnesses declarations as anything new to what we know mr bell us knew from personally interviewing the witnesses that he did and from reading their police reports there's no fact that has ever been pointed out that is the brand new fact here's the smoking gun here's what he would have discovered if he had done something further there isn't anything so he was fully aware of what the potential alibi could have been but chose not to present i always love to come up with with it johnson all of the alibi evidence that the council referred to were had to do with a round robin of telephone calls one to another  remind johnson wasn't part of the round robin of telephone calls he stated he declared that he was with eric parker all day that day that they were together at the apartment building his his first declaration had all of these details except that he did not he did not specifically state that counsel never interviewed me that's the only that's the only thing added in a second declaration  as well i couldn't let you know i guess i don't want to speak outside the record i will say that for me to get a declaration from trial counsel we depend on trial counsel's willingness to cooperate with us and we do know for a fact that in the past he's shown a greater willingness to cooperate with the state in these cases and i will leave it at that the the really essential point that the opposing counsel kept hammering is you know this was an informed decision but never talked to her about the alibi that's clear from her declaration he never talked to look if she weighed he never talked about the belo he never talked to remind johnson in what way was his decision that they did their testimony could somehow force of the evidence and riley versus pain these court cases have consistently said you don't have to have ironclad evidence to have some obligation first of all to investigate it and second of all to put it on if it assistance for failure to him to investigate was properly denied because he didn't have to interview everybody but he did have to investigate and it didn't happen here that counsel said that the round robin of telephone calls of this consistent with his guilt i think is really stretching it it would have been difficult if not impossible under the you know under the evidence the difficult opposing counsel is brief you start off by looking at how strong the case was against him and as responded to three points out there was no physical evidence connecting parker to the murder each of the four eyewitnesses who identified parker recanted in whole or in part and the identification testimony was presented primarily through prior inconsistent statements if you add to this the paint and reliability and self interest of those witnesses the l deliberations the jury's difficult in reaching a verdict those are all traditional indiction of a very close case and put on the other again the combined effect of putting forth actual witnesses who would say he was somewhere else at the time they're awfully similar to the case of bar there are differences that can be found the question as always you know appellate review is is there a principle distinction that can be made i submit there is no principal distinction to be made between this this case precedent the point about the mother's testimony could have been devastating i beg to differ she was not she wasn't coming in it's an alibi witness for what it's worth the investigator didn't say she had a drinking problem he said expectation that she would show up drunk and that would somehow devastate the defense i don't see how that would happen she wasn't showing up to prove some point affirmatively for the for the defense she was showing up to say what her son impeachment of the prosecution witness i have one more thing to say which is spoke eloquently about this being an art and not a science but  art if you want to call it that was one practiced in the future of this young man's entire life and this practitioner of the art was lazy in his art and he was sloppy in his art and his client is spending his wife in prison is a result i