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1 what was said was, look, don't be stupid, it can't be her, to
2 do any more would be a waste of the court's time. That's what
3 I think happened. That's what I think the record shows.
4 The other is, let's be smart. She'll be a great juror
5 because she is a suspended lawyer. Or, let's be smart. If we
6 leave her on, we get two bites at the apple. The latter two I
7 think are strategic, but be careful in the following sense.
8 The first is a choice. It is a choice to do nothing. You
9 cannot have a case in which there is not in a sense a choice if
10 it's coming up in an ineffective assistance claim. I can cite
11 you to Breakiron and Johnson v. Armontront. In our brief
12 lawyers are making choices. In those cases the question is are
13 they informed choices, are they reasonable choices, are they
14 competent choices, are they strategic choices. And if the
15 choice is don't be stupid, it can't be her, that is not a
16 strategic choice, that is a tragic misjudgment. Implicit in
17 the word "misjudgment" is that someone's making a choice. But
18 if it is a tragic misjudgment, I think it's ineffective
19 assistance.
20 The next thing I'd say is this. We're told that there
21 can't be any doubt that these transactions were effectuated so
22 that there would be tax lawyers and tax losses in the prior
23 year and it's ludicrous to think otherwise. Of course that's
24 why the transactions were being done. There is no doubt that's
25 why these transactions were being done in February or March.
SOUTHERN DISTRICT REPORTERS, P.C.
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