all right our second case for this morning is my kill against butler and we'll hear from this ca but court the case before this court was a very closely balanced case as the only justice to consider this issue concluded there was no physical or scientific evidence linking m to the crime in fact one of the his co defendants was acquitted by a jury and the other traded his testimony against mr mackall for his freedom from prosecution you know  evening arguably one interpretation would be at some point we don't know when during the evening of his hocks murder he agreed that he may have stopped by the mobile station and so he argued first impression because he had requested counsel for his extradition from indiana to illinois but it was an open question under illinois law at that time whether or not be in vocation of counsel for extra dition proceedings extended to the underlying charge and because it was an open question of the law there was obviously a gamble in pursuing this particular passed for relief in contrast with respect to the impeachment grounds the law was quite clear and clear in mr macros favor that he had an absolute right to introduce this impeachment evidence because it went to allen martin's bias and the trial court had no discretion to deny that this was very powerful impeachment evidence the i think a little bit of context understand why is important as i mentioned there was no physical or scientific evidence linking mr mackall to this crime so the state's case hinged entirely on the credibility on credibility assessments in particular the credibility of its star witness todd link but todd lincoln had serious credibility issues she he had made several prior statements inconsistent with his trial testimony including one entirely exculpating mr m and he also got an incredible deal in exchange for his testimony the prosecution entirely dropped the charges of armed robbery and murder against him in exchange for his testimony and not only that the narcotics charge so all of that is true but taking the taking the pietschmann evidence particularly mr anderson are it's your preferred gives me the impression that you think we should look at andersen as of the moment of the original trial and see how he might have impeached him but of course lots of other evidence comes in about andersen time and he's a catastrophe of a witness by the time you see everything i'm sorry or i'm confused anderson was the he was the individual who would have implicated someone else there was no  who these individuals were who he said he was with at the evidence sherry hearing he explained that these three boys brian brandon n j were his neighbors and his former friends and he never recanted that he knew these individuals that they were friends of his that they were his neighbors and in fact his mother testified after him and his mother is one of the individuals to whom he made this inculpatory statement she said the only aspect of it that she questioned was how he could have snuck out his window she never questioned that these three boys who were his neighbors in fact were real and i use the word boy that they were teenagers these were teenagers mr interviewer can't see anything else in this news and he didn't know them to a year later according to one of them yes by the police didn't interview j and neither and never found him as far as they knew he didn't even exist well according to the police the police didn't find him but the police also already had mr mackall and link oh and sam election custody and anderson and his mother never waver on the fact that these three men are real men and that there was any question that anderson it would be unsurprising for anderson to be hanging out with them they were his does that goes to the issue of credibility and in a case like this where all of the witnesses had credibility issues it's not enough to andersen to had credibility issues to say that his testimony would not have been material under here here's my ead no question about that though as i said by now there's been a lot of proceedings you know four rounds in the state courts the district court proceeding and when we're asked to decide whether the ultimate decision of the state courts is in violation of federal constitution shouldn't we evaluate say the prejudice from whatever errors were made in light of the full record not just in light of the record  yes your honor i am not sure but the reason i say that is because if we if we just looked at the trial and we said you know should anderson's testimony have come in should spota x testimony have come in  some of these other things have come to you of the existence of the forgery charge seems like yeah i mean there were mistakes made i don't have any problem agreeing with you that far but did the mistakes in the final analysis make a difference that or did were the state courts to be more accurate still on reasonable in finding that they didn't make a difference that's a much tougher question yes your honor those are two different questions  let me address first the prejudice with respect to the impeachment of it because that's where at deference does apply and therefore this court would be looking to whether or not their decision was reasonable but it was plainly on reasonable for five  verdict in other words that's a that's the the first appellate court applying the chapman standard which is what would have applied to in illinois to those exclusions but that's not the question that was answered by the court in machall for the only court to answer that question was justice mccormack in his concurrence and he concluded that the evidence was quite closely balanced and that's with good reason this case was entirely a credibility case and todd lingo had serious credibility issues and so did his two key corroborating witnesses shane miller and alan martin were both very important to the state's case because shane miller this stands in the direct appeal in the selection of issues to be pursued which means that first of all we try to evaluate whether appellate counsel reasonably evaluated the prospects of success which sounds a lot like prejudice right in and you know evaluating the different issues that might be raised right ye so and i guess the concern that i have i've others tell you i don't i think the illinois courts botched the handling of anderson's testimony along the way but ultimately i think when we look at the record there's just pursued and trying to gauge an appellate court's evaluation of what errors might be harmless is a pretty dicey business if i had the benefit of hindsight it might be your honor in a case that wasn't so closely balanced but there was no physical or scientific evidence linking mr mackall to the crime and it was clear from the record that tad lingo had serious credibility issues and mr m not allowed to effectively impeach these two key corroborating witnesses in a trial that turned entirely on credibility determinations so under the chapman harmless error standard which is what appellate counsel would have been using deference to the choices the channels will make and we don't expect a billet counsel to raise every issue the record might present and then we've got the second layer of deference to the state courts evaluation of that issue right well in this case the final court on review to consider be ineffective assistance claims did not address defective performance deficient performance it only addressed prejudice yes but that he was going to testify directly to what their community of friends understood these men to be which was liars that is that is evidence that speaks directly to credibility and this was a credibility case brian was someone who knew their friends and their the community in which they lived and could speak to their reputation for honesty in that community and accordingly because this was a credibility case that was particularly important makes it very clear that the state cannot suborn perjury but there are what it's worth that was my first question to impeachment is on whole different line of discrediting shall we say in front of the jury and i think would have been extremely powerful for the extent i think you almost have to say martin was a useless witness and i think that doesn't fly too well in light of how this trial was going i'm just concerned when something as core to one's honesty is forgery  is is the matter issue in going down the road the state's suggesting could have been one more conviction for drugs or something many things i can imagine wouldn't have made any difference it just would have been cumulative i don't see it here well your honor certainly wasn't cumulative counsel raised in the briefs it was it was for by ass rather than for the various other avenues of impeachment had already been explored against martin but was this man's lying to you is what that's certainly true so it was not cumulative but that doesn't mean that it wasn't harmless whether it's cumulative is an adventure a determination of whether what it would stick tends to show has already been shown through sufficient evidence that additional evidence isn't really needed to make the impression on the finder of fact but it can still be harmless and the reason as hell to point out there are two layers of deference here it's whether appellate counsel on direct appeal could have reasonably determined that this claim although it was definitely clear error what is more likely to result in relief than the claims that counsel actually raised them here it simply wasn't clearly stronger even though it was an obvious error it was not a clearly stronger claim of error on appeal and the reason it wasn't was one there was a decent chance that it would have been found harmless and there's a decent chance that they'll have would be found against you to mean that's throwing in a fourth point of error isn't that hard to do and we're not talking about the twenty for not doing it because the claim was not clearly stronger than the three claims that were raised when we feel under any standard but certainly when viewed through the highly deferential standard with which courts view counsel decisions on which claims to make on the right to appeal here by and they go to the way in which a jury might give it a rather than the relevance that would be the case were anderson's testimony that he drove with the other that it had been tasked with determining the competence of andersen rather at the time of trial and also with the relevance of what his testimony would have been and it found that testimony would have been irrelevant because testimony would have been the trial court found as he had testified to the evidence you're hearing which is why we have a chambers question which is we have this hearsay statements that would clearly it as your own and point out have been favorable to the petitioner but the only way to get it in would be through well that's that's the facts that were in chambers where someone was called to the stand and they repudiation a confession they'd previously made to the crime that the defendant had been charged with and the question was were there previous statements confessing to the crime  relevance of what his testimony what the testimony he would have brought to trial at the end they say that if his testimony would not have been relevant when did he repudiate when he repudiation the court found that he first exculpate well that was the premise of the claim as it was raised on direct appeal that their direct appellate counsel based on the record on appeal had this proffer that on its face appeared to be what we had in chambers which was  a material and favorable piece of testimony that petitioner was barred from presenting went up on appeal on the machall one court said the trial court erred in not having explored this testimony to determine its relevance in his so i sent it back to to conduct that exploration and after conducting exploration in the courts determined that his testimony when true when explored under oath was that he had once made up a story that he and three other boys had driven to a gas station they made up that story to get back at them for beating him up five years later right but presumably the truth remains the truth and the only the only time that that anderson testified under the the oath which we presume causes induces people to tell the truth or they might not otherwise that's why we minister it the only time i ever testified was that i was at that hearing and his testimony was that he had once made up the story now that doesn't mean that the prior story can't come in and constantly and doesn't mean that the state court was correct to keep him out to begin with i mean the state is more than happy i'm thinking of cases like hardaway against young to convict eleven year olds who are perfectly happy to have been interrogated without adults nearby and yet you know here's a young person who is ready to testify against their will he's got mental health problems you know which we're not going to let him in so you're stuck with the second best of the proffer  five years later who knows what that skis would look quite different if he had come if he had been able to testify when he should be able to testify it it may have been that had he been called and put under oath he would have given the story that was proffered what the state court found that story would have been perjury and additionally was not entitled to the benefit of project testimony and there is no reason to to overcome the state courts factual determination that andersen would have testified incorrectly but in a way that it was on an unreasonable application by the light of any any jurist and we submit that mechelle too had not been recently applied chambers had cited chambers and went through the four factors and based on the four chambers factors the court and have a preliminary investigation by the judge to see whether the judge thinks their testimony is believable and only then and let the testimony and that's the jury's job you know it's the job of opposing counsel to impeach  entirely new trial based on whether this testimony would have been one offered by a competent witness and two relevant where there was some question in the judge's mind that it may not even relevant and he might not have been it's not unreasonable to remand for that limited hearing rather than send it back for the entire new trial and find out at trial that in fact he wasn't competent or that he would not have testified consistent with his proffer as the court here discovered that the proffer was inadequate but even if the proffer had even if you had gone back even if he had testified consistently with his proffer at the hearing and then sent it back for a new trial and he testified that if it wouldn't have been there was no indication that j existed he said that in his statement to the police that the murder occurred in august in turn october he said the strike at a house at midnight the murder occurred an hour before he left the house the boys were a couple he said two or three years older than him at the time he was nine so they were between eleven and twelve years old they got into one of these eleven or twelve year old boys cars at midnight and drove to the gas station one of the boys murdered someone they got back in the car drove back home and that was their night in addition at the time he dishonesty that's a part that worries me more than anything actually so misunderstanding or misapplication of the strickland standard this court in the supreme court have repeatedly stated that we're a state appellate court has properly and not seated in the district on standard the fact that they subsequently use inaccurate two quick points your honor one with respect to maher in that one with respect to anderson with respect to martin first of all after the air fact of assistance hearing counsel testified she had no strategic reason for failing to raise these issues  addition the martin forgery charges there were eight of that and they were found the charges they want not just to hate deception though they were crimes of deception they also went to why he was beholding to the state and in fact after he testified the state dropped be eight charges against him and let him plead to one count of misdemeanor that's in the record at doc twenty four dash thirty three id five zero one nine so clearly he was beholden to the state this was powerful impeachment evidence now with respect to anderson there are reasons why anderson might have recanted even though he was telling the truth about his original statement in between the time when he gave his original testimony and when the police approached him about recanted he had been convicted of a home invasion robbery and car theft and he was on probation at the time that they approached him and therefore he had reasons to give an answer to the state that would be pleasing to them that's in the record at doc twenty four dash twenty five id three eight one one and additionally when he testified at the evidence here hearing to his  dating a relative he was dating a relative of the victim that is in the transcript in the record at doc twenty four dash twenty five id three eight six seven through six eight so there are many reasons other than the fact that he was lying about his original statement that he may have given a recantation finally the state largely argues that the errors were harmless but harmless error should not be misapplied in this case to excuse the cloaking of the truth the truth that anderson what have identified another person as the shooter in this case the truth that the two key corroborating witnesses were unworthy of belief in a case that turned entirely on credibility determinations these were important truths accordingly the exercise of their is warranted thank you thank you very much and we appreciate you in your for accepting this