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CaédasPACQOAR MRR PANN 1 Bem PRe ri Giaew 0 Fries DUP ab ay 6076F ai1171 7 wmostioaw b&b whe NNNNNN PRP PPP eee bw NrPOoOWtmdHHoO FN oO A-5913 i. CAC3PARC under any definition. It's also under Chappee in the First Circuit, and I would bet it is also effective assistance. Or it's not ineffective assistance, even though one can say that's back alley -- I can't remember the words in Chappee, but they are not very flattering. Even though you can say those things, it's got to be effective assistance because you're not going to let people get away with that game. There is a perfect example. You can have, I've done this as a grid, and you can have, if you put waiver and ineffective assistance, you can fill out most of the four boxes. There is a case in the Second Circuit that I stumbled across which is Flores. It is old enough there is a Judge Van Graafeiland dissent. Flores is one where there is a waiver. The trial lawyer I think says after trial, look, I've come across this 3500 material, this Rosario material, but it wouldn't have helped me very much. And he says it at a time when it is per se reversible not to have turned over that 3500 material. There is no harmless error standard, that's how crazy New York law was. And the First Department in New York Court of Appeals says waiver. You say right on the record you're not pressing the issue. The Second Circuit said ineffective assistance, right. How can a lawyer possibly having been handed a piece of paper which is a new trial card, how can you not play it. So there is a situation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00010168