was not an intentional shot i believe that it fired with my hand he did not recall actually firing what the juror you do not know which shot the jury focused on and the problem was trial counsel hold the jury in that in order to consider self defense he had they had to decide that mr patterson's testimony was false he was telling the jury to disbelieve mr p and the deputy shot there only clearly it is him there were available experts that would his said yes that is more than likely what happened to him reasonable degree of medical certainty dr brady could have supported that  my question he even if it were a gun law you know as you say we would have permitted the simultaneous consideration of you know it was a warning shot i never intended to hit him and you know i was acting in self defense but we also have this theory that you know the nd shot was an accident why couldn't a reasonable counsel you know make the strategic judgment that you know even if these are all legally consistent with each other it's an awful lot of the jury to you think of these three theories simultaneously so i am just going to focus on what seems like the best one which is i didn't kill him that'll be my focus i mean he did have a somewhat garbled discussion of self defense but couldn't  or reason reasonable strategic decision not to focus on self defense several responses st under him it is never a reasonable strategic decision of the lawyer does not understand the law on which he is making that decision nd these are actually totally consistent offenses if you understand the law he doesn't need to want to kill him in order to have self defense and this is also a not intentional shooting he is not guilty they are not inconsistent the reason that they get garble is because he doesn't understand law on the bit so he has to argue both he didn't intend to shoot him but if you disagree with that and if you believe he did then we have self defense that's what makes it bearable they go together totally consistently and if counsel had understood the law he would have seen that and he could have prevented it coherent consistent events and you had an obligation to support that ends with a readily available that he never he acknowledged in his deposition he never inquired if a medical expert would help him he never considered using a use of force expert even though that is one of the components of or the law mr patterson certainly testified he perceived that the use of force was inappropriate but in order to establish the reasonable belief oregon law allows presentation of an expert reasonable use of force we have the ability for individuals to say i'm perceived in excess of use of force and then you have an expert coming in to say that perception is reasonable and under oregon law there were several cases in which  the only thing he's ever been qualified to be an expert in is on bullets introject or e is not an expert who can testify about the physiological response to having it a shot of gunshot on your hand  you hit me in the hand i'm going to reflectively fire that's an opinion that's not expertise and he never claimed to be qualified if you look at his expertise as he testified and that's in the supplemental sorts of record at page eight his only area of expertise is bullets interject race that is where the bullets fired that's what he was an expert in he was not an expert in what happens when you're holding a gun and a bullet hits your hand would you analysis and the st one it was my client is taking the stand and he has said that i did not intend to kill deputy miller when i fired that st shot if you believe his testimony that was accidental and when it came to the st shot his strategy was to ask the jury to believe petitioner that the st shot was not intentionally fired in order to kill deputy miller which would support  argument is that in either case the jury needs to believe petitioners testimony that i was only firing a warning shot and so if the jury believes i was only firing a warning shot there's no need to to i think the judge miller touched upon this to argue a very complicated self defense theory when the much cleaner theory is well if he didn't intend to do anything other than fire or being shot then it's not  presented as a sort of nd level analysis by counsel and they were instructed on self defense and they absolutely could have could have but that argument i just don't think they would have needed to had they believe petitioners testimony which is really what was the crux of the defense argument in this case and then we get to the nd shot again self defense doesn't make sense because the testimony was it was an accidental shot well self defense applies when you're talking about as we have pointed out in our briefing there was that theory was advanced and was presented to the jury petitioner took the stand and said i don't remember firing that shot if i did it was most likely accidental there was an expert i acknowledge hard to imagine that all reasonable counsel in counsel's position in this case would have believed that there were medical experts out there that could testify to a reasonable degree of certainty that this is what happened none of them actually experts out there that could have said that and in any event i'm not sure that that that would have really withstood scrutiny on cross examination really because it's because they they did not have the benefit of look at the strickland standard it's hard to imagine that these would have changed the jury's verdict in a meaningful way and on that note i would like to point out that there's sort of miller had not yet pulled his firearm out of its holster in fact he acknowledged that deputy miller was reaching for his radio to call her back up so i don't know that any number of expert witnesses who could have taken the stand and talked about use of force or talked about the accidental trigger pull could have overcome that kind of fatal admission by the petitioner that i fired my st shot before i'm going to even enter the picture on deputy miller's part and the reality is that face of that testimony it's quite reasonable for a jury to find that even if we believe everything you say and even if we were given the most clear self defense instruction ever that that that is a reasonable use of force to respond to what was actually happening at the moment and because of that i think it's fair to say that the  performance and very quickly i do want to point out that the expert witnesses about the training and standards that is what those expert witnesses could talk about they could talk about whether or not deputy miller whether his such a difference that it would it would be the thing that changes the trajectory of this trial and considering that the focus is on what is known to a petitioner at that moment his own state of mind i don't know that these experts would have added that much to the equation and also this again this boils down to a new issue of prejudice which is what these experts have made a difference of the end and let the fact that there was video evidence of this entire incident the jury was able to see st hand they had more than enough information from which to judge whether or not petitioners response was a fair and justified response to what was happening to him by deputy miller regardless of whether or not that complied with standards and training they were able to see the use of force that was used or whether the response was reasonable and that coupled with his testimony that he knew a gun had not been  it's hard to imagine that these experts would have really changed the outcome of the trial in any meaningful way ok thank you for a minute thank you very much ye trial counsel told the jury that in order to find self defense you had to disbelieve mr patterson that this was a warning shot you had to find that mr patterson lie because he only had a right to self defense if he  were never given the self defense and now list is under the long it was correct to analyze the contacts and they were never given the experts he would have supported self defense while ms hershey may believe those experts might not have been helpful in trial counsel may have decided not to call them who are struggling principals strategic decisions such as whether or not i call an expert or based upon reasonable investigation trial counsel never investigated a medical expert was available he did not know he didn't bother to check it out trial counsel never investigated whether or not a use of force expert could have helped he just does not call that these are not strategic decisions and they all return to the couper problem the trial counsel is making all of his analysis about something about unintentional conduct based upon and mis understanding of the law