court my name is jennifer blag i'm here today arguing on behalf of who is fairmont is the defendant appellant in this case this case presents this court with a fairly straightforward argument that being was defense counsel ineffective for not hiring an expert in his the defense case in chief to counter the state's two experts testimony in the state's case the appellate court found that defense counsel decision was reasonable strategy because counsel listed similar information on cross examination that the defense counsel's expert would have testified to he also the appellate court also found that mr greer munches was not prejudiced because the evidence against him was overwhelming the factual theory will just say that it was this violent beating that caused ultimately caused the death of sandra his wife and the more holes he could punch in the experts story the more the possibility that the trier of fact would decide that mr your mom says that the state had not met its burden of showing that mr was responsible for her death beyond a reasonable doubt and so it seems to me it's a very common and very pro create defense strategy to try to sow the seeds of reasonable doubt well i respectfully disagree with in the fact that he presented evidence to support the holes in the defense case so that mosque examination right i mean he gets them to admit that it could have been the cocaine or i mean they concede a lot of things on this cross examination don't they well yes but that ignores that what they don't concede and that he doesn't have the burden of proof of showing it was cocaine he just has to make the jury think that the state has failed and in meeting its burden right it but then it would so i would say what did the few states experts say when he said it was her cocaine usage have changed your analysis on her cause of death no both experts soundly rejected defense counsel's attempt to say that cocaine had anything to do with her cause of death but is the same time they do say cocaine can cause brain swelling and cocaine can cause high blood pressure and cocaine can cause a series of other things that were going on so yes and you're right the experts do for the ultimate question reject the thought that the cocaine under these circumstances was a causative factor but a jury weighs potentially contradictory statements from  well yes that would be relevant if he had presented ringback any evidence that cocaine contributed to her death which is to which a defense expert would have testified to your honor's question also ignores another ringback key point in this case and the key issue in this case was how much force caused the victim's death the state's expert both testified that it was significant force it was a force that can to make or cracks a force a can to it fall from a ten foot building and what a defense expert would have testified to is actually no when you look at her injuries it could have been a relatively minor insult that caused her death and more importantly a reasonable person would not have know that her injuries would have resulted in death in other words the state defense had no basis no expert testimony to rely on to say hey look with these injuries and me she did not have injuries to her skull she did not have a skull fracture didn't she did not have skull lacerations in cases where there is a major insult to the brain such as the state's expert testified you would expect to see these things but maybe not actually one of the problems is that there's not a skull injury because what happens is the brain swells that's the a demon and it doesn't have anywhere to go you know because the skull is a pretty hard bone so it starts squishing down with the spinal cord but this isn't kinda like a shaken baby case right where the state's experts say the only way this baby could have died was fit from significant blunt force trauma and there is no expert to contradict that here so the key issue is what it's not just was he guilty or not guilty of st degree murder you have to look in this case your primary strategy in this case as a reasonable competent defense attorney would have to be to argue his client did not know that his actions would likely result in death how do you establish that he was stabbed was that only through an expert who would have testified cocaine could have contributed to her death refuting the state's experts deny all of that the injury could have been minor not a major insult refuting the fact that mr very much as should have known that his actions recently would result resulted in her death in other words if he presented ringback an expert he would have been able to obtain a jury instruction on involuntary manslaughter which he was not able to get in this case specifically because of her injuries conviction core look to dr blom and didn't think that his testimony would have made any difference it didn't go affidavit says what they did was gloss over the key points in his affidavit which is what the respondent does in their briefing as well which is how much force was necessary defense counsel's arguments in closing arguments are not evidence the defense had no evidence  zero evidence to support that this was a minor insult to the brain that he did not have a reasonable probability to know that the outcome of his actions would have resulted in her death zero evidence that cocaine toxicity contributed to her death and there's one thing the courts ignoring that the that's right and more importantly dr blum would have testified that the fact that she had lymphoma would explain explain the bruises on her body d because you bruise easily with lymphoma it doesn't necessarily mean that all those view bruises were attributed to excessive force if you like even if you establish it to the deficient performance prong turning to the prejudice prong in light of your client's own testimony how can you establish that the result of the trial likely would have been different a key admitted to the severity of the beating he testified that he threw over a table into the refrigerator causing her to hit her head really hard  own testimony how could you establish prejudice here well so that's i appreciate that question because i submit that there are numerous times that people hit their head equivalent to hitting their head on the refrigerator and you do not suspect that the reasonable outcome of that injury would be death so his testimony in no way conceded he was guilty of st degree murder i don't think anyone would expect that there's a reasonable probability the outcome of his actions would be death based on that more importantly the district court disagree with the appe court's ruling that it was a reasonable that the finding on prejudice was reasonable the different point in court pointed out the jury was deadlocked six to six after extensive amounts of deliberating came back they asked for the medical records showing how critical this defense expert would have been there was evidence of the district court also noted there was evidence of cocaine toxicity in her bloodstream she bruised easily because of her cancer treatment and she was responsive after the incident but even so even with that disagreement the district court still said under that a france which we have to give on the prejudice of both promise but on the prejudice pronk that the decision was reasonable i think she disagreed on the prejudice problem this is a court disagreed and found that the evidence was not overwhelming faced on those four factors and here's what's most interesting about the district court's finding that the evidence was not overwhelming two of the four things that she cites as a basis for believing that the evidence wasn't overwhelming were established by the defense expert and the jurors never heard it the jurors never heard she bruised easily because of her cancer treatment the jurors never heard the relevance of the fact that she was responsive after the incident and what that would mean to a reasonable person and how it would have supported involuntary manslaughter so it is apparently unreasonable application of the facts of this case to find the evidence against mr egremont just was overwhelming especially considering how the jury struggle in this case and especially considering the two theories that defense counsel chose provocation mutual combat manage victim shaming it amounted to him saying it's her fault she's did not i didn't reasonably understand the outcome of my actions would be death all right i think we better stop here since you're nearly out of time and  that there was with respect to whether the evidence was overwhelming or not but it did not disagree that it was reasonable to find that there was no prejudice that's crowned now turning to was outside the bounds of reasonable differences of opinion for the state appellate court to determine that there was no reasonable probability that the outcome would have been different petitioner can make neither showing and that's particularly from an expert that cocaine was the cause of death but in fact has produced no expert that would so testify the entirety of dr bloom's statement in the affidavit is that that cocaine can cause the bronco pneumonia that was the cause of death but if i mean if there is mis blood says having acknowledged that amount of cocaine both of the testifying experts very clearly have testified differently dr blum doesn't say that the cocaine likely caused the death dr doesn't say that the cocaine here contributed to the cause of death dr bloom simply states that   the victim suffered from this complication that could have led to excessive bleeding or bruises so again counsel has a petition has not presented any experts who would  and his affidavit aren't enough is that inconsistent with the notion that it was ineffective performance to fail to find anyone at the trial level well  testimony it's certainly not clear that it would have been advisable for petitioner to remain silent and have the trial simply be a matter of the testimony of other witnesses that petitioner had confessed to beating his wife argue for jury instructions for lesser offenses and he uses that testimony to argue that to the jury that petitioner was not guilty of st degree murder so for instance in doing so she hit a table a kitchen table and then he elicits testimony from the experts on cross examination that this exact conduct her hitting the table could have caused the from similarly keep elicits testimony from petitioner that in throwing her off at him she hit her head hard on the fridge then he elicits testimony council does from the expert that this it ing her head the victim hitting her head on the fridge could have caused could have been the cause of death again it's a very tight connection between the conduct that  respect to infidelity with respect to whether the the texts and the photos that petitioner described the petitioner discovered actually constituted acts of adultery  emphasize the fact that there was no evidence to support his strategy st of all the two defenses that he pursued had been legally rejected the provocation offense the illinois supreme court soundly rejected defense counsel an appeal had to rely on google search of an article to support that theory of the case that cannot be reasonable strategy in a case like this when you could have heard a defense expert who would support your client was guilty of involuntary manslaughter the experts in this case absolutely pooh poohed her cocaine usage they said nothing in sandra's presentation at the emergency room pointed to anything having to do with cocaine that was the r doctor the other said would the cocaine have any input impact on your opinion of the cause of death quote not in the least and the defense counsel does present evidence he talks about cascade effect that we call swelling in the brain there was nobody that testified for the defense about the impact this cat's gait effect could have had on her brain and caused her death so i submit that the appellate court's ruling was an unreasonable application of law in fact and that the only strategy here pursuant to hinton and harrington and richter was to call an expert thank you all right thank you very much thanks to both coun