the eighteen month old stepchild he was found home alone when the mother came home she nine one one paramedics arrived the police arrive the child was taken to the hospital where he died at the hospital the following day the appellant told the police in the hospital staff that the baby had choked on a on a penny and he had given the heimlich maneuver and patted the back of the of the baby  at the child when he was examined by the doctors there was no visible injury to the child at all but the autopsy showed that there was blunt force trauma to the head there was no evidence that appellant actually struck the child in the honor and and there was swelling of the brain bleeding in the brain and there was also retinal bleeding that that were not none of that was visible from just visible examination of the child these were emanations conducted after the child was at the hospital and during the autopsy your argument is that counsel was ineffective for failing to block the admission of shaken baby syndrome evidence all together right not that he didn't present they chris defense in terms of calling experts and vigorously presenting cross examination it's it's the failure to object to block the evidence altogether is that the argument yes your honor is there any indication that if he had objected that objection might have a chance of being sustained is there any case that you're aware of where the california court has precluded shaken baby syndrome evidence all together well there is no case in the there's no published opinion california in california law one where the other on the topic there's no case it says it's admissible there's no case that says it's inadmissible but there was adequate legal authority under california law for a defense attorney in a criminal case to object to expert testimony of evidence code ada one for example only allows expert testimony if it's supported by reliable science but if there's no chance of getting that objection sustained in other words if the action looking few tile then where's the ineffectiveness of counsel's performance that that's correct and that's why most of my argument in the brief was pointing to the fact that shaken baby syndrome is no longer a valid it is no longer supported by valid science and if he had made the objection there was adequate cases thirty the people versus bledsoe case for instance the california supreme court held that  trauma syndrome evidence could not be admitted in order to prove that a woman was raped what the prosecutors in those cases were doing was bringing a psychologist who would interview the woman and then he would testify that based on my interview and my my study of the way women react to being raped that in my expert opinion this woman was raped and and the california supreme court held that you cannot use an expert to prove the crime and in the shaken baby syndrome situation the prosecution is doing the same thing they're having a doctor examine the child come up with three symptoms and then on the basis of that they form the expert to pick two major expert opinions one that the child  was suffered these injuries as a result of shaken baby syndrome and two that the that the symptoms come on almost immediately and therefore the person who is last in in possession or custody of the child that was the perpetrator and and so there is a questions first of all when the california court said that it didn't make the second prong of strickland i know you're quibbling about whether but for reasonable possibility let's put that what i regard slip of the pen and side when they said it wouldn't have made a difference why aren't they saying in the context of this case that it was not admissible in the california law and that's a california court saying that i disagree  tell me why i know the words what does it mean when the court says it when a made a difference it but for it wouldn't have made a difference what they're really saying is i read it is that it wasn't admissible in my own experience for the fence lawyers to throw themselves on the sword for the benefit of their client and say yes i was incompetent so the california court couldn't say that he had some strategic reason he couldn't they couldn't say that they didn't deal with the first progress strickland they denied the hey b s on the grounds that it wouldn't have made a difference even if he had objected and my understanding of that is that it wouldn't made any difference because  california law it would have been a futile objection well it certainly didn't say that and the but forecast i don't know what does it mean forgot but for i know your argument about the he didn't say reasonable probability but for but what the court is saying in that has to mean that the objection would have been futile otherwise it would have made a difference no because my understanding of stric d is the first part of the test is did he performed efficiently in other words should he have made the objection well sure yeah maybe he should have but the essence of the answer is yes then they look at what's the that that's what they were saying and you make a fairly strong argument that if this evidence was excluded it might have been a much closer case and a much harder one to to apply you know some sort of harmless  analysis and that's why i think that the argument on the second prong of prejudice is very strong and the real issue in the case is whether the if the objection had been made whether the evidence would have been excluded and all the evidence has been excluded in other words as i read some of this evidence not all of the people were testifying and specifically that the cause of death was shaking baby syndrome a lot of the evidence was simply that it was consistent with the all of this terrible trauma which sounds terrible when you read it to the baby that occurred inside the baby's head was consistent with with either the baby being shaken or some blunt  several blunt blows to the had they were all saying that it was shaking baby syndrome and i think one of them even refused to say that it was shaking baby syndrome because he said on cross examination that he wouldn't want to say that because of the cart sure first the surrounding shaken baby syndrome and because he didn't have any evidence that the baby was actually shak shaken baby syndrome but it seems to me that much of this evidence could come then if they could simply say that the cause of this injury was blunt trauma to the head and it 's consistent with the baby had been shaken and i don't know that that was excludable well i think that would have been excludable because the evidence in the case was that the baby  had trauma to the head as a result of what the autopsy position thought was blunt force applied to the head right and then the so if you take that baby shaken baby syndrome out of it  testimony that the the devastating injuries to the baby's brain would do is a wrist are consistent with with having been shaken yes that's because the science is that shaking alone without injury to the neck cannot cause this trauma to you introduce and there was a case you're on it from wisconsin people state versus edmond where a baby sitter was convicted on shaken baby syndrome evidence and then later he is corpus proceeding they presented the science the legitimate science that shaking alone will not cause the death of the baby unless there's some trauma to the neck and secondly there is evidence and you know introduced he introduced evidence i'm i say he thing i read through trying to read it carefully is that it doesn't constitute conclusive proof but the words on page twenty seven of your to conclusively prove and wanted to be admissible well there would have to be some legitimacy to the diagnosis that if you see these three symptoms it's a result of shaking and that's how it was presented and the other baby syndrome a very similar argument what you're making here in the ninth circuit held that there was no relief available in red because the science on shaken baby syndrome was mixed if you could comment on that i think i saw that case i think it was a sufficiency of the evidence they were either that are going insufficient evidence or they were offered or the argument was that the shaken baby syndrome was false testimony it was a lie and therefore it violated the trial violated federal due process it was not an issue where ineffective assistance of counsel be argued because he failed to object to the admissibility of the testimony out but i agree that there was that language that there seems to be dispute but my argument is that there was adequate case law and scientific arguments that were available at the time of the trial specifically this edmund case from wisconsin where they basically threw out the conviction on because they said the science doesn't support that these three observations automatically mean the baby was shaken the science now shows that lucid intervals exist so you can't say that the next for can't come in and say it was the last person who had the baby that's who shook the baby and that's what happened in this trial and then the final point in the edmonds case what was the there are so many other were separate so the kid had three separate bruises and different parts of his phrase which one of the doctors i think said ruled out the possibility of four and they had this sort of severe brain damage and it was good morning your honour's deputy attorney general david cook on behalf of respondent i'd like to start by discussing that edmonds case and to be clear the problem in edmonds was that at the time of the trial dispute as to shaken baby syndrome evidence had not been put forth before the jury and the holding in that case was that the petitioner wasn't titled to a new trial based on this dispute or where this dispute could be presented to the jury in our case here both sides of this dispute were presented a standard battle of the experts and it was for the jury to decide and the jury reached its verdict as to the challenge that shaken baby syndrome is junk science there is no authority to that effect and in and in fact in jimenez this court's decision from may of this past year it talks of in two thousand and six which is four years before petitioners trial there was one text book which talks about a dispute as to shaken baby syndrome evidence two thousand and ten is our petitioner's trial two thousand and eleven the theory is under challenge and i believe that's was evidence is being still being presented in california courts or has the research been sufficiently undermined such that the prosecutors don't go under that theory anymore i wish i had data before me your honor i simply  claim where the state court indicated that but for counsel's alleged ineffectiveness the result the trial would have been more favorable instead of correctly state stating fee strickland standard we now want to know really you know your honor we still have deference to the prong to analysis of strickland and the cases are clear that when you look to you look to the conclusion of the state court not necessarily whether there is precise formulation of or recitation of the rules you look to the result and that result is entitle to deference here and i may add to the earlier comments  and this is taking prejudice the prejudice prong alone i'll hold off my comments about prong one for the moment but even if we remove the reference to shaken baby syndrome from the prosecution's case we still have for the prosecution's case extensive medical evidence of profound injuries to the child's brain extent of opinion evidence that those injuries the bleeding the swelling was acute not chronic we have expert testimony that said should that injury have happened there would have been no lucid interval that had that injury happened that child would have been profoundly injured and affected up until the time medical professionals attended to that baby the out the mother left the house that same morning the baby was fine ask for a pop tart for breakfast not only that your honour's but the defense has evidence didn't hold up his claim that he dislodged a penny in a choking up a soda was refuted because of the lack of and sime that would have reflected saliva on not only the penny that he identified on the couch but the penny that was somewhere else i forget if it was in the kitchen or not but but two pennies were recovered both negative for saliva and so we have acute profound brain injuries we have a lot i by the defendant and we have the defendant being in charge of this young nineteen month old child with acute injuries even if the reference of shaken baby syndrome was struck from the record had it been objected to and had of putting aside for the moment that that objection would have been sustained we still have overwhelming evidence of the petitioners guilt has prejudice argument falls apart there also has sufficiency of the other dence argument falls apart there as well so the worst severe injuries to the child and the question really is who's responsible for that was that the person who last took care of the baby or perhaps somebody else who were  regularly in contact with the baby caused the injuries instead so it's just loose an integral that councils referred to your argument is that even without a shaken baby syndrome evidence you would have gotten the same underlying medical testimony and evidence that the injury the nature of the injury was such that the person who last took care of the baby caused the injuries is that your argument like judge korman i am not a medical professional and don't i can't speak as a medical professional in this case i can only speak to the record that is before the court under the applicable standard of review that would apply to the i a c claim in the sufficiency claim and what we have here  is is that there was no no evidence presented at the time that these injuries were so were chronic they were acute injuries there there was mention in the defense case of a an episode a story of some kind where the mother was seen driving the car the child was not restrained the mother stopped short the child fell or the child cried and i don't recall when that was alleged to have occurred there also was testimony on the defense side that when the petitioner went into the room where the baby was allegedly choking the baby was on the floor that evidence could be seen as possibly a fall or possibly some kind of inter inside the car episode but the prosecution experts almost all unanimously testified that the injuries that they saw were not consistent with an accident or a simple fall or even choking and one of the medical experts who had experience with victims of drowning even said that the injuries that were seen were not even consistent with drowning well he also said that he was apparently choking for fifteen seconds that would be enough i could hold my breath for more than fifteen seconds yes you're right and i mean  s to consciousness of guilt your honor petitioner did petitioner was interviewed by law enforcement and at one point the officer challenge the petitioner to say well these injuries don't seem to match your story and petitioner's response was see everybody blames me any time someone any time the child has a scratch or something it the blame goes on me and if and then went on to make a statement something of i didn't shake the baby because i know that would cause brain damage and so even the petitioners own statement to law enforcement has some consciousness of of of an episode of shaking or some kind of trauma not choking not his claimed alibi or excuse if i may your honor just make one last point there there was extensive discussion in the briefs about the kelly test and whether it would apply to to shaken baby syndrome evidence and i would like to just reemphasize that this is expert medical testimony direct opinion that comes directly from observation of injuries kelly applies to a new scientific technique in this case there is no scientific technique no  device no process that comes between the expert and the examined injuries on the child kelly simply doesn't apply in this case the cases which did discuss kelly in context of shaken baby syndrome evidence the goal was to make sure that the jury in fairness to the defendant had before at this dispute that apparently has occurred in our case in petitioner's case that dispute was before the jury classic battle of the experts and the jury reached its verdict accordingly i unless the court has further questions i asked that the court affirmed the judgment of the just  process violation of the human as case does could be read that way that for example sometime in the future if if this if shaken baby syndrome or some other kind of type of evidence like does the witch float or or sink yes i was a one time apparently was thought of as a as a way to find out of some of the world which i think we are now agreed that test is no longer  yes i do i've been with my office for over twenty years and i do remember and i don't exactly remember when it was but i remember when d n a evidence became there was a time when a lot of old cases were reexamined because of new d n a evidence and testing and so i can't stand here as a member of the prosecution side of the criminal justice system to say that there will never be an opportunity for some theory or type of evidence to go without challenge in the future i can't say that but there are mechanisms in the a d p a for second successive petitions for actual innocence claims and for other types of things i mentioned in him that is there is there a is there a second successive that is there bart a second successor these petitions in california  i suppose you want to raise the argument i mean that the law review article that i alluded to that was published in two thousand and twelve to a layman me seems quite persuasive could he go back and argue forget about shouldn't have done it was just a two process violation well and then as answers that question that were there you know pretty going i mean i understand what you're saying could you go back to me now and make this argument in california the answer to that your honor is no no because again the dispute well there's nothing quantitatively qualitatively different about the disputed the sides of dispute that wasn't already presented this petition in california that would raise an alternative argument instead of an effective assistance of counsel that junk science was introduced i'm using the word well i guess and in him as they talked  a constitutional component of due process that evidence is is i know but could he raise it now and i'm trying to say is for example in a federal court you get one crack and maybe as certain exceptions there's no second successive petition is there are comparable bar on second successive petitions in california in state court yes oh i'm sorry your honor i misunderstood i thought you were referring to federal court it is my understanding he could he could raise it whether the state court applies a procedural bar i don't know but the law that law's there again your hono haven't read the dixon case in quite a while but i think that's a dixon bar  and then just in response to what the nature of the objection just shaken baby syndrome is that certainly the prosecution present could present all of their medical evidence the autopsy report the physicians attending the  child but the problem we have is that we don't know how those injuries were inflicted the autopsy says there was true traumatic injury to the brain by some sort of an impact and we don't know how that happened and so the shaken baby syndrome expert witness provides that in his expert opinion he tells how the crime occurred by shaking and who committed it the person that had the last possession of the child and i think that if the scientific w from in the brief that one one who testified to beyond a reasonable doubt this was shaken i know maybe that should have been excluded but was it but there's all this other evidence and they started experience and everything it was about the case that the unconsciousness would have occurred within thirty minutes to sixty minutes of the infliction of the trauma and so i think by that expert testimony we were using an expert to say how the crime occurred and who committed accused of these crimes and convicted on the basis of expert testimony saying that the expert knows how this happened the mother shocker and the expert knows who did it because the mother was the last person with the baby so those are the dangers of a shaken baby syndrome and and  that's the problem there may come a day when that's no longer the case but it's a tough record for you but i thank you for your arguments and i thank the state as well for their arguments thank you the matter