yesterday it appears that dr meredith who had provided the recreate for us had put that diagram in the d v d s so there's there's not a paper diagram but there is a diagram which is sort of laid over have seen it if it were lived in the record in the state court which was then by some mistake or other was not said we had to get it from the state yes so obviously the district judge here who was judge lloyd yes could not have seen it unless she went over to the state courthouse that's that's interesting you as part of my affidavit i don't know if you've had a chance to read what i had filed the motion i have family in that area my wife is from that area so once i just wandered over to the mercer county that's a good question to which i know as a matter of course and maybe as case is the attorney general's order to to provide the record and ph i believe it's fifteen ninety five is the actual unquote that contained the recrimination it could just clear up right now what was the d v d in evidence in front of the district court did you attach it to your documents if you mention it in a document did you attach it or not well my assumption is that it was in the record so you did not attach it yourself i do not attach myself normally if i if something is in the record i'm not going to attach it unless the judge would say i had no idea that there is no there's no d you then your position is the d v d was in the state court record yes and i think that's where you're referring to how you happened to go over to the mercer county courthouse and you happened to look at it oh yes you have the supreme county but i wanted to make sure that it was there because my co counsel had i had had him file it so i wanted to make sure that it was still there thank but the district court i don't know i had mentioned issue your position is that in that this case should be remanded to the district court to yes go into the record and look at it because the district court basically followed the race judicata theory and the of the state court this then sort of as an aside said well maybe on the merits doesn't amount to anything either yes i i'm sort of surprised that it wasn't there but i think that would be the remedy is that without this crucial piece of evidence the district state's contention well your honor i think we we set out sort of our position regarding the the state of traffic laws in regard to this case in our brief and i cited a number of statutes and for judge douglas question my understanding is that your opponent's position is that the law of ohio is that if your client failed to yield after stopping to the on coming car that did not have a stop sign that your client is liable and is that a correct statement of the law of ohio that you can't get out what we have argued and i believe what the law is is that once you stop and make make it certain that it's reasonably safe to go forward then you can do so i think in this case with the tree cover and the the night conditions and other things that made it difficult for him to see the car and by by the time he did it was too late so i think so you're saying your opponent's view of what the law of ohio is yes i think in the situation i believe is there any evidence in the record anywhere that when the speedometers of the two cars are found locked in at particular speeds your clients being at a very low speed and the other drivers being in a very high speed that that means that that was the speed that they were traveling at when the accident occurred yes and what is what is the evidence in the record there is an a conviction petitions so i had dr marable produce an affidavit so as part of the affidavit he talks about the speedometer and the fact that it would indicate that that would be the speed of both cars but that's the way cars what he said yeah yeah yeah and and they're and is there any competing evidence from the state side saying that it's not in fact which we talked about and had some issue with of sort of turning away the ohio state highway patrol and who has the expertise to to deal with accidents and has the soft word deal with accidents and and the use of a used car dealer to determine that there are they're not called this but we were heard of them as black boxes in the car and this this evidence that would have came from the black boxes was destroyed by the government in trying to read them instead of going to somebody that maybe knew what they were doing they want to use car dealers so in terms of competing evidence i don't know of any because there was no investigation in terms of determining other than this was a t bone and that's all that happened was this kid was drug use that in no use that cocaine in the system until later but they certainly ascertained from a number of things that he was intoxicated but other than that investigation there was nothing that's the race you're caught and i'll be brief about that we would say that it's nearly impossible to raise the sort of outside the record evidence on direct appeal i don't know and maybe i'm not very smart but i don't know how you would get this type of thing into the record and make it part of the direct appeal without having the trial judge look at it first but this is the first one of the first times i've run into this i've certainly an other post conviction matters but in terms of i should have raised it on direct appeal when the only matter in direct appeal was the plea of the sentencing i just don't know i'm sure the well the state did not produce an affidavit from their witnesses there is an affidavit from the petitioner himself and his family members who said that or maybe it's just  he said that the expert that his trial counsel did hire said that the speedometer the stocks but ometer readings had no value so that would support the state's position that  were reflective of the actual speed he does opine that those are the right speeds but he does not as judge merit said say any reasoning any analysis as to why reflect the actual i don't believe so because essentially what it be saying is ok meredith says one thing and heard says another thing but was trial counsel deficient in accepting his expert that he hired in that position was that deficient and there's no evidence there's no case law there's nothing that says that trial counsel is required to go beyond what his own experts said and track down additional experts who might disagree with the expert he hired i just want to ask fundamentally in this case why should we clapped him back when evidentiary hearing to fully develop the record and find out the best you can what really happened because a lot of questions based on the record as it stands now i don't think it's necessary based on the record as it stands now because petitioner had ample opportunity to present all of the evidence that he had in support of his case and he did he presented his own self serving affidavits as family members affidavits and the affidavit of so right don't you have you seen i have seen it and i do believe that nothing in that i believe the experts reconstruction is completely meritless it doesn't well but i mean you can look at i mean you look at the pictures of the accident and there's no way the accident could have occurred the way the expert says because the expert if you watch the t v version the expert shows the true car coming out into the middle of the intersection and the red car hitting it at the wheel well of the driver's side portion of the car if you look at the pictures that didn't happen it's clear the front of the car hit the side of the victim's car if there is this that's what he says but the recreate shows the car in the middle of the intersection and the red car hitting it at the driver's side really well herbalists recreate right i mean if you watch it on the two d version that's what it shows and then it shows the cars coming together like this at forty five right after they've already hit after he's already the red car has already hit the white car and then they come together at a forty five degree angle and then go off and do what they the expert of creation doesn't show what happens because there's a ditch in the road that doesn't show what happens as a result of hitting the ditch presumably the cars went airborne it doesn't indicate any of those but look at the pictures it's a front end collision it's a the petitioner's car hit the victim's car on its front end and it went in embedded itself into the red car those are the three through eleven that you can look at that were supplemented the picture versions because the black and white persians weren't as easily able to be seen additionally in the police investigation they found that the petitioner bumper was stuck to the side of the victim's car and they had to remove it to get the victims out and the license plate fell off in the recreate there's no way for the bumper to get stuck to the victim's car because it hit really well and i mean you can look at you look at the video you look at the pictures and you look at the investigator finding that the bumper of the petitions cars embedded in the side is stuck to the side of the victim car and the expert to recreate it doesn't help you determine any of that if i can take you to that legal question i was asking your opponent my understanding and correct me if i'm wrong or where i'm wrong my understanding is that your position is it doesn't really matter because the defendant here was responsible even if the victim was speeding massively right and we disagree about where we're where do you what law do you rely on for that principle that the victims because the victim had no stop sign and had the right of way that a little even if the defendant here did stop and even if he simply inched out that he would automatically be liable not e other core that's a factual question i don't know the answer to i don't believe that that's true as well because i mean even then as we argued in our brief that you have the obligation to not go only go so far as you can see around the trees and it was at night the lights were on on the vehicles you know there's no reason why he shouldn't have seen the car but for the fact that he was intoxicated and on drugs and we don't believe he stopped but my question is going to something that you're making as a legal point which i think many drivers would be totally shocked that even if they were being as careful as they could be and and even if they did and i understand you think this is a hypothetical even if they did stop and we're inching out that they could be convicted of this crime and up with a substantial jail term even if they were doing everything they could profit so you're really saying it's a strict liability criminal statute but i believe i mean i don't know about strict liability but i mean it it all if there's no defense except you have to have been the s mean you can believe you're being as careful as you want but by virtue of hitting somebody you clearly weren't it's the same as like when you're being as careful as you can on an icy day you still get charged with failure to control the police clear somebody is traveling at an excessive speed and they close that gap before a reasonable person would have had to flee the car you're saying there is no the friends that if an accident occurs that obviously means that somebody  with that position in this case was not being reasonable and you can show i mean you can view the re creation as well because the expert did do recreate based on his determination of how the speeds were going but even then he should have been able to see but for him being intoxicated but again and the tribal councils performance tribal council got expert that expert agreed according to the petitioners story that expert agreed with the state's theory and said that the stock speedometers have no value i found articles and i law to the contrary i know you are looking primarily for that support your position but if you find anything with her i found in like a civil case where they said it was a matter for the jury to decide they let it in it was like an evidentiary question so they let it in but there's things out there to support what petitioners councils experts said and petitioners counsel relied on his expert who he hired and that can't be deficient performance and if you could just clarify for me when you're saying to counsel relied on his expert you're referring to that original expert record and where are you getting what from it's petitioner's affidavit can you give me the reference  the expert we have affidavits from the trial attorneys they do not even address this issue of whether they were ineffective in their experts evaluation additionally we don't expect experts to perform necessarily their own analysis going to challenge the us to produce everything requires us to produce very specific things and we don't often produce d v d s or you know peer samples or things like that if the court once it will produce that but ordinarily we don't produce produce manual copies but in addition the question here is not factual findings the state court be reviewed this they ruled that he could not establish his claim and this court and review is bound by that state for determination is the state court of appeals issue or merits ruling something we can we can i want to say i don't want to misspeak i want to say that they both of their decision was on the race to the cottage which would mean that there was no marriage issue which obviously means those babies petition i think the sentencing issues because they were in the direct appeal they took a look at those but i believe they may have done one of those expert that they did read they did hire initially because they're experts in their experts and this is an ex cop who didn't go to the scene didn't take his own pictures didn't do any calculations and according to the  davits in our state post conviction was brought in to get my client to plead guilty and i think if we look at a somewhat  expert turned out to be a good witness for the state and this court overturned a mr ricci's capital conviction on that basis so i think just the fact that they hired an expert doesn't absolve them of being ineffective affidavit show conclusively that when the two cars came together that the petitioner's car struck directly into the side of the  boy's car and not at any angle as a as a just a matter of you can see that from the record yes what's your response to that  dr meredith as to what that means i i have no independent knowledge of of these types of things and that's why we hired dr meredith to sort of explain to us what it means and for me to sort of gas that should be this or should be that i think all these things are questions of facts and i think you go right in terms of them and ensure hearing and i think ultimately