pleadings and affidavits for this consideration must be taken as true and must be liberally strew in doing so so we again i don't think there's much controversy about those well stated often stated principles your testified as to the underlying actions that were these that led to the death of this child and that's the way it was argued multiple times over and over again by the state in the in their closing argument yet  the substantial controversy in the medical field regarding shaken baby syndrome and that country's having a horse and brought into the legal arena truck council d not properly investigate and retain and or retain any expert to inform the jury of that controversy of the really remarkable split that exists in the medical community regarding this this very important diagnosis and matter that is the underlying issue of course your honor it's equally clear that the petition put for thing that i believe is warranted by by the evidence in the case and by his knowledge about the deficiencies in this shaken baby syndrome diagnosis and finding an a bit longer and has numerous attachments to it articles it has written and other items it's quite clear evidence again of the remarkable controversy that exists in this area and his opinion is very simply look in terms of engineering and biomechanics and physics this can't be the way this has happened there is a substantial controversy yes but but that's  his so that's the second expert affidavit that's in this in this petition the third affidavit is from investigator william plotter who is a board certified investigator who's  of david made clear that he had much experience with it yes cases that he had significant contacts with experts in the field due to his experience with expert in those those i think are very telling him will first scott's those today one of the things i really want to point out i can't think of another area of medicine that's come into come into the legal was the original writer and proponent of shaken maybe that the child was shaken that the triad of injuries the that that is a likely cause can be a likely cause of questioning of dr ralston regarding going to that but several things first dr also and then stuck with this so he said yes there may be other people out there who don't believe that shaking the baby can cause the strive symptoms that i saw in th child but i'm sticking with my opinion here are you know with what we see in the postcondition petition and all the doctors and other people who are referenced in those documents i mean her dozens of names of medical people and dozens of studies and and the biomechanical evidence to ask a few questions on cross examination of the state's expert about you know acknowledging this controversy frankly is a drop in the bucket of what could have and should have been done so i think it was put it mildly a week effort to work toward what should a child bouncing off what's interesting about that is that there was other testimony from i believe from the mother about him prior injury that the child would suffer because the child like to jump on the couch so you know shows some interesting things that shows first of all it cooperate person more importantly it shows somebody who was terribly upset about what terrible this shows a man who who was fond of this child and who whose statements in the regard that you are you're referencing clearly go toward this is an accident of the child he laughed and lights doing this he went to bed went to sleep rather after that at that point obviously the worse the injuries to the child obviously and the reaction to this the whole you know as much as we might that's after the fact and you know certainly there should have been something else done me for two seconds and test that when the jury determined that there was some evidence of  what you're saying about the medical affidavits i don't know that i've been buffeted ever been involved in a case where i saw an affidavit from a private investigator who was not hired who then continued apparently to follow the case or involved of the case and now is telling us i mean essentially it's it's almost as if you were saying if you're in this if i had been a private we all private investigators are certified if they're functioning legally and even if you said i've investigated typically you're investigating did not investigated susan could not get an expert and did not investigate properly getting an expert so it's the use of person who is reflecting on the conversation your honor i think that the law says that just by analogy this is experts can come in all shapes and sizes in terms of nation experience and cetera who don't have to have a particular piece of paper to be able to give expert testimony i think that by analogy that this is no different this is a person who has substantial experience if i as a lawyer am going to try a case or moral i'm going to call somebody who i think has experience in these cases and who knows experts the case of to a certain point apparently on the up today that he was involved in the case he worked with trial counsel and he's reflecting on what he knew and what he could have provided to counsel in terms of the contacts and the suggestions and that sort of thing i rel knew that they had in test shaken baby they knew they had been tested they filed the motion to bar use of that at trial so they knew that it was a big deal at the trial and at the end of the hearing on that motion counsel essentially paraphrasing this precise language is in the record or split counsel essentially said well is this this is is this is going to be addition this case and i guess i'd better get an expert or at least consider it a case for you know i think that that's remarkable evidence that we usually don't see in the case in a case of this nature work the issue later is should you have got an expert of the same on the record really right before the star quotes counsel saying that he thought after all so it would be fair and and again but that doesn't make that in light of all of the evidence that is in the p c record now that doesn't make that it's necessarily accept a poll or proper strategy again i would submit that what happened i mean this week as we look at the documents and we know about shaken baby and we look at those few questions who essentially this is quite a bit i think like that case where the council had a theory you know involved in medicine and science it was about a voluntary intoxication effect of alcohol and council there essentially served as his own expert and the courts said you know if you're going to put this in an issue then you should get it so councils councils and here we know the council knew go that's i think that's very apparent and given the split yes in  initial diagnosis of the cause of death in other words dr ralston was a fair and balanced witness defen counsel's conclusion that dr ralston would be a fair witness was he was brought to fruition that's important here because the most well settled principle in this case is that which witnesses to call or not call is a matter of trial strategy and won't won't support an ineffective assistance of counsel claim people versus patterson specifically states that whether or not to call an expert witness is a matter of trial strategy that won't support an ineffective assistance of counsel claim patterson's main support working for concluding that defense counsel wasn't ineffective in that case was defense counsel vigorously and extensively cross state's expert the same exact situation in this case council decided that instead of sort of focusing on the controversy or are much of a controversy it  is instead of focusing the jury on this highly technical highly medical controversy it was going to sort of focus on the realistic lesser included of involuntary manslaughter here they got the lesser included involuntary manslaughter instruction into the into the jury's hands without over the state's objection so clearly that was a more said as i just stated it sort of would take the focus off of the actual facts of the case here or the actual intent of the defendant in this case  either make it a battle of experts whether well it could confuse the jury and cause them to go for the class three a felony and so the murder i think i think a sound strategy is that is to focus is to not focus on the controversy there as i'm putting my defense counsel's hat on in this case which it should be it shouldn't be a matter of hindsight in that in that in that situation if you get another expert it will only again focus on the two extremes which one will the jury believe as a defense counsel i would assume the likelihood a first degree murder verdict if the jury would believe the state's witness or if the jury believes the defense expert witness it's kind of a an all or nothing thing at that  and probably i did it whatever i did was an accident and i just don't really know very much about the science stuff all i know is i was taking care of the child and i did things i would be already fighting an uphill battle in terms of credibility there and that again like i stated the credibility of the expert would be basically all of what matter at that point as as a patterson and defendant noted is a second district case that is rife with the hindsight analysis well it would have been better if if counsel did this it would have been better counsel this i mean going all the way back to strickland thirty years ago they say that that's not the way you analyze and ineffective assistance of counsel argument of course hindsight is always going to be twenty twenty here it was not just a matter of negligence on defense counsel's part to not call an expert witness in fact even the investigator him self stated that he was contacted by counsel for trial to get a list of potential expert witnesses if anything that already has the uphill battle of fighting their credibility or the man who actually personally observed the injuries on the old body and personally did the autopsy so here th theory was clearly this was an accident i was roughhousing with the with the boy and nothing was intentional should be involuntary manslaughter this is a sound trial strategy and of course matters of trial strategy are not matters or be ineffective assistance of counsel since counsel's performance wasn't objective when reasonable first prong strickland fails here clearly the second prong would also fail the prejudice from as just spoke pointed out defendant made multiple admissions in his interrogation with the police including roughhousing pretty violently with the child and at some point shaking him whether he was unconscious or dead at the time he did say that he should shook the baby violently also if we're going by the outcome of the proceedings being different again the state the state's expert actually performed the autopsy as hamilton pointed out in my brief just because a we can't assume just because the defense calls an expert that it will automatically be beneficial for the defense why strickland warned to not look at these cases through the lens of hindsight so here the outcome of the proceedings would have been different even if we assume that counsel should have employed and presented an expert ineffective insistence even were doing so may have made the defendant's case stronger because the state could always call its own witness to offer a contrasting opinion some of the things that just a mention the cross examination defense counsel elicited the testimony to course there are medical experts that believe retinal emerges don't occur from shaping he admitted that his first diagnosis initial diagnosis of the broken cla e was either inaccurate or now he just had a different opinion he admitted that although not likely the clavicle could have been broken by jerking him out of his harness he testified that numerous other types of injuries because the girl even tell moses and admitted he of course didn't know whether holden's injuries were as a result of an intentional act so this wasn't and effective and extensive cross examination and a matter of sound trial strategy as justice turner there is always the there is always the possibility that of course an expert may have been more effective in counsel cross examination closing argument or we cannot say that failure to produce such an expert fell below an objective standard of reasonable the same could be said here as the record clearly reflects that this was not a matter of negligence just a matter of a trial strategy that was ineffective best defense counsel  circuit court doesn't hear that testimony and to reject it is not credible that's not a matter obviously but this case could end in terms of a direct appeal which is sort of in affirmed in his conviction appeal now without any trier of fact the jury or the court at a third stage evidentiary hearing hearing about this compromise hearing medical evidence about this because i think that would if the defense puts on an expert experts which say shaken baby they're proceeding on that on a theory which we in the medical field have have great controversy and great questions about it a lot of doubt about the reasonable juror certainly did say states trying to sell us this shaken baby belugas this these experts sound pretty credible and so maybe we should think about what he said about accident or about recklessness based on throwing a child playing with a child roughhousing with a child that's they put forth a theory most important thing to take from it is why would counsel the strategy was purely let's go for involuntary ok shaking babies in command let's go for involuntary why ask any questions at all even though we had he knew here pretrial he asked these questions during trial he knew that this was an important thing it was their whole theory of the case substantial theory of his and that's why he went there he just did it weekly because it was too late in the game for him