and i think there was for the reason that the prosecutor challenge the defense counsel to present what evidence she said there was no evidence there were simply a mr freeze were able to testify or were able or willing to testify that it would be this and that the scenario that the deceit and was in an aggressive posture when he was shot was at least as likely and perhaps more likely than the other and i think you have to remember what this case and what to the other person said the other person said you can't you know really couldn't say yeah but you have somebody that's coming in first person you have to put this case in the context that  he was able defend the defense counsel was able to get instructions basically allowing for accidental an accidental discharge of a firearm and in that context  when the prosecutor says there's no evidence and all you have is an argument of counsel if you could bring somebody in to say no no no that's not quite true we have diagrams we have this we have that to show that it's equally likely there's overwhelming evidence blah blah blah what they said was essentially what this looked like was a horse race you know there were two competing arguments and how much would it take to tip the balance that's basically my argument you're on that's why i was you know and you may disagree with me but but there same thing that the forensic evidence in this case was not hopeful it did not show one way or another what position the victim was in when he was shot and the fact that they're trying to play with the language just say equally likely maybe not as likely that doesn't change the actual underlying evidence and there can be no prejudice or no deficient performance for counsel's failure to present testimony precluding the prosecution theory but and you had some argument about prepare see her what she said which i did not find very persuasive but well your honor i think i didn't investigate it but i don't have any reason i can't tell you why i don't remember why i wrote he said to said i do not remember a tactical reason for not right but certainly has a better than at the representation that she didn't do it by any ordinary reading of that sentence but that sentence seems intentionally confusing it does not say i did not contact an expert it does not say so mean because everybody knew what i gather but it did say that she didn't recall why that's what a set didn't recall a reason for not doing something yeah but but that doesn't necessarily say affirmatively which is petitions burden again just that's where you can and this case very easily because forensic evidence from both the prosecution expert the defense expert say that might have been a subtle difference and then i gather that the hay b s evidence read and that evidence your honor we would argue is inadmissible because it seems that the forensic statement was very simple can't tell what was more likely but then the defense expert went on and said i read the testimony read the witness testimony and based on that i thought that the prosecutor's argument didn't necessarily track that witness testimony i saw but that's how she wasn't testifying that's true it was not right and that's not something that she would have got to do a trial she would have been able to give her opinion on the forensic testimony and then would have been presented with hypotheticals basically if this was what the evidence was what do you think and she would have been able to say well the forensic evidence doesn't tell you what when where the other it's possible but it's not more likely it's not less likely council have a more fundamental question as i understand it the experts only are about  how those four shots were fired it doesn't change the fact that four shots were fired like isn't that enough isn't that aren't the is this even an important question when you get into the whole facts of the context of him casing the victim out and walking up with a gun and then firing the shots and sharing the crucial evidence in this case regarding intent regarding intent to kill and how this happened actually took place at the initiation of the conflict basically the petitioner rolling by the victims looking and staring at the mad dog and then was the term that was used and then stopping pulling their car  approaching the victims pulling the gun out before the initiation of the confrontation and turning to the accomplice and saying that this is the person we're looking for in much harsher terms that's the evidence that indicated he was there to kill and regardless of exactly how the subsequent confrontation went down he fired four four shots three of them that hit the victim and one of  i do have a couple of things to say first of all i don't think it's correct to look at this as what we think the value of the evidence that the experts  were proposing to make whether or not that would have would've swayed the jury that's for the jury to decide it's not a sufficiency of the evidence question it's a question of in a case where the prosecutor is saying there's nothing except an argument  all agreed upon and so forth and so on and they propose to come in with an expert with models and forensic mock ups and so forth we might think gee this doesn't really add anything but that's really for the jury to say i mean and i think it would be sort of invading the province of the jury to sort of evaluate that and on that basis alone we could say it was clearly not cumulative clearly cumulative that's one thing but it really isn't if you really look at it if you look at what freeh says and if you look at what particular what when she says i'm going to take a second look at this after viewing freezes submission she says i conclude to a reasonable degree of probability that it's more likely that the decision was in an aggressive posture and i think that has to to me there's a there's a fundamental difference between a battle of experts and somebody coming in with their own expert or about a battle of attorneys and somebody committing with their own expert and saying look we've got this diagram we've got this who knows what the jury would have done and i think that's enough to give him another bite at the apple ok thank you thank you counsel matters a minute at this time