into the butt of a veteran police officer at trial the state had an expert witness who told the jury that there was no way kendrick's gun could have fired out pulling the trigger but because kendrick's counsel never sought an expert on the technical issue the kind of the right text for testimony was still evolving or do you think it's just an objective that it was always this duty that existed and what it existed even like when the eighty's in the seventy's in the sixty's well your honor the supreme court precedent that determined whether or not counsel was ineffective under the th amendment is the supreme court precedent that was in effect at the time the court rendered its decision which in this case was beforehand and  you know i would note that in his and i i don't remember the exact date but i believe the trial had been sometime in the eighty's so you know well it may be true that expert evidence is i'm increasingly more important but the pm court has been clear cases so you know just like in houston where expert test expert evidence from the state with that future problem in the case was part of the core of the case this too is like that situation  expected that officer miller would testify consistently with his prior statements freighted statements to the other officers and statements to the investigator so given that why was it unreasonable for him to fail to seek an expert the only reasonable strategy he had here was to hire an expert in this is a case about accidental discharge  he had to show the jury that tender gun had gone off without pulling the trigger no guns are not supposed to do that they're carefully designed in fact not go off without a trigger and think that if he had testimony from a he believed he was going to get testimony from a police officer that said this gun is capable of firing without pulling the trigger because in fact it happened to me the officer why does he need an expert to say the gun is capable of doing that when in fact he would have very credible testimony that in fact it did that after miller's testimony which of course counsel didn't end up expert who testified that it was mechanically impossible for the gun to go off without pulling the trigger but i guess i'm wondering if just because the state has an expert that says this is impossible if you have a fact witness that says what effect witness employed by the state as a police officer who is willing to say well it must be possible because it happened to me why is it constantly ineffective why wasn't that sufficient testimony in other words if that was what he had been admitted would you still be claiming that it was ineffective because there was no expert absolutely your honor i mean this is under henson this is one of those cases where the only reasonable and available defense strategy was to employ an expert witness the this was an inescapable technical question even the law is such that if that attorney pursues an alternate strategy it doesn't have to necessarily be the best strategy it just has to be a reasonable strategy and i would suggest that this strategy here was plus the fact that i don't know the judge talked a lot about you know could be even gotten a read an expert to listen enough money to pay for the expert all those kinds of things and i don't  disagree on this you know again whether or not this guy fired accidentally is is the kind of thing that the problems of an expert know guns are machines are carefully designed and you have you know if you have an expert who is able to explain to the jury look this gun has a defect it's capable of firing it has been so in the past that turns it into an entirely different case and two to the state courts observation that it was entirely uncertain that congress would have been able to get an expert in one thousand nine hundred and four on the record clearly contradicts that the suggestion the state court think which he said was in arkansas we couldn't find anything about that case despite our efforts to track that down even though we have google and what's on lexus and all that stuff and there was less than lexus and ninety four dollars but not the not google so how can the state court made a finding of fact that he probably couldn't have found the expert so what's your evidence to contradict that because case in the same year as the trial right that's what it says yes if you don't know about the issue for decades and you know there was a table what he knows about and what another lawyer might be able to find out about  record from both testimony shows that this wasn't a niche issue and the main basis for the state courts mr contrary speculation was simply the fact that trial counsel himself as that he was the miller with firearms  have personally interviewed officer miller rather than sending his investigator to do that but you've never explained why that would have made a difference why do you think it would have made a difference if miller had done the investigation personally rather than relying on somebody on his staff i'm sorry phil had done the investigation st first your honor the evidence in the record is by no means clear that anybody spoke to miller you know counsel testified with conviction hearing that thought that counsel had spoken with and that he was somehow where miller's earlier statements miller said the defense counsel never spoke to him none of the other officers said that anyone from the defense team had spoken to him you know at boston state court make a finding of fact that he did that miller spoke with him i think it was under the circumstances a reasonable lawyer should have spoken to the other officers should have done more to shore up that testimony since he was hindering the entire defense on the fact that miller with say that his finger was on the trigger when   it certainly a legal conclusion for the court as to what counsel's obligated to do what the constitution requires that kind of the the universe of no will facts or no what information that's more of a factual issue and and you apply it to the facts of the case what counsel reasonably expects to be presented in that trial based upon his investigation of the proof and what he needed going into trial is this was a case that the state would largely fine on the firearm but even there his opinion was based upon his testing of that weapon it was not highly about any other rimington rifle other than the one he strategic decisions that are made after a complete investigation the court has repeatedly said are essentially immune from inquiry almost but it's not clear to me he knew that this expert was going to testify before trial but it's not clear to me that he did much of anything to see if you could even obtain any type of expert testimony i recognize that there were many more constraints that he faced in and so apparently he had some type of investigation prepared to cross examine that really wasn't fleshed out in the post and diction so we don't really know kind of what specifically but we know and i think this is what's more important is he made a strategic decision based upon his review of this evidence that that strategic decision might be deficient when you have a case that rises and falls on expert testimony something akin to an end where the only work here i mean you have the issues about could be the van this type of evidence but the claim is a very not just he didn't consult it was an expert but he did find particular evidence regarding this common trigger what they need to look at in this case specifically he reviewed the statements he spoke with the daughter of the victim who was four years old at the time stated just by the calling in that call he was able to question her he believed that he could cross examined and undercut the credibility of any proof or listed to the state's direct examination and we had that in the record where he did thoroughly cross examine that witness how would you how do you respond to our that was an arson that necessarily turned it was the least the nd were on expert proof to establish whether it was or was not of course i'm is a very specific whether this fire was in fact guilt to establish the premeditation how he brought the gun to the location he asked the victim to come outside it's the use of a gun xterm was to respond to a defen case maybe the same choice the choice was between disputing whether it was in fact arson or trying to shift blame to the arson to the husband and so counsel had the argument that the husband had it it has it was i think some evidence out there has been a potential right to an arson in other ways or something so i guess there was there was a choice that was made there that defense counsel was just going to rely on the shift blame descent defense rather than there was no arson sense and so you could make the analogy that that's kind of what counsel that here by relying on miller rather than an expert ry i mean all of these obviously rise and fall particular facts and distilling on collateral review determining what precisely was not only what was available the question is does the constitution require you to find an obscure expert to create a battle of experts where you have a great familiarity with guns and you've heard nothing about problems with this particular trigger mechanism when you have a fair way of the available evidence and some of the record supports that he considered everything available to him and made a strategic choice regarding the knew that from the very beginning he knew it was the only defense he knew about fights testimony and at that point hinton says he had one reasonable to build strategy now to hire an expert by testimony was a critical part of the state's case we have here our officer miller's pretty extraordinary incident where you have a twenty two year old veteran who's used to handling firearms and the gun discharges in there was one defense available and that was to hire a firearms expert even if you even hint and the defense counsel employed other strategies to try to get around that the expert evidence that linked the defendant to the gun you had alibi witnesses he had people who testify that the defendant wasn't there during the robbery the supreme court in hinton said that's not enough this is the kind of case that needs an expert is also the kind of case that needs an expert officer miller's incident was a critical piece of evidence but it wasn't enough especially in light of mr feit testimony if there you three pray about the response so to that extent a persuasive persuasive explanation by this court of the cases that ultimately matter under that standard because the same court cases so you know hinted at persuasive but and it seems to me you're asking us to apply by insisting that there is only one way to do this that you're asking us to apply almost an absolute standard i don't see much differential