the state didn't take into account the infants skull fracture you will see that at page of page two ninety there was no skull fracture and this case and yet the post conviction court relied on the state's arguments in denying mr foster the post conviction relief petition a significant error in a case involving alleged violent action against a child that error itself stood on top of the prosecutor statement in rebuttal closing argument that had no basis in the trial record of the case that the reason that the defense did not call the expert who had sat in the courtroom was because counsel provided ineffective assistance in essentially botching the medical case m b half of his client that expert who was out of town until after the trial started  deposition let me jump in because tell me if i missed conceiving the case but as i see it in order to get around the deference that we owe the state coroner you would have to show that the trial lawyers reliance on that letter that they had from the expert was basically unreasonable do you agree with that characterization of the issue well the trial counsel that or is actually sets forth exculpatory facts the letter that was tell you where i'm at in my thinking of the case the trial lawyer has this letter that you know the expert says hey i'm willing to testify to these facts which are going to be helpful to your client's right and that's at least as the explanation i suppose for why they didn't meet with the expert beforehand before before trial right the state court seemed to make a finding that the experts turn of you know what i called it but you know change of heart was completely unforseen and unpredictable and i guess i'd like to hear what you have to say about that again no absolutely your honor and again point you especially to the arguments in our reply brief why and our belief why these findings should not receive deference on that point but most compellingly explanations by the defense counsel are flatly inconsistent first he says i didn't call the expert because i felt i had essentially done enough damage to the state's case in its medical case through my cross examination all capital i was going to capitalize on the weaknesses he absolutely does not do that course of the case entirely and says well assuming everything they say is true my client panicked and inflicted those damage those injuries on the child but not i know but the sticky post conviction court doesn't the court and that making basically amounts to a credibility finding but under taylor versus maddox the court cannot ignore significant ratable evidence in the record that undercuts the findings and the there is evidence in the record that contradicts a reliable evidence his own declaration as well as the initial declaration of the co counsel that says well we didn't call the expert because we felt it was unnecessary unnecessary implies that you have something else yeah i read that but then during the deposition the lawyer says the expert came up to me and said if i were you i wouldn't call me as a witness if that's what happened no no co know that's circumstance would nonetheless put the expert on the stand just so that she could say oh actually i agree with the prosecution well then here's a good defense to lawyer at least had to do number one he's going to meet with the expert before hand  cannot concede guilt and that's affectively effectively what he did here when he initially promised that he was going to call an expert to supply a non criminal caught hate i'm sorry and non criminal cause for the child injuries he just did it in a panic and in fact in one page of the transcript just see the word panic about four times he and effect buries this client with an admission that it happened it happened at his hand and he just didn't do it knowingly even if we were to assume that there was a deficient performance and by representing that he was going to but still have to show prejudice right and address that for a moment first of all it wasn't the state put on a pretty strong case circumstantial evidence they had prejudice requires a showing that had or not had you not engaged in that deficient performance it's reasonably probable outcome would have been different so if he had presented let's say he actually presented dr is it reasonably probable outcome here would have been different if he supported his own client's testimony if he had at least engaged in cross examination that pointed out some of the weaknesses of dr greece your doctor say that it was recently probable that the outcome of the trial would have been different and if so give me the argument well that's a standard less than a preponderance of the evidence if he contested the state's case would undermine the one hundred percent conclusion of doctors i'm all through explanations of some of the triad of baby shaken baby syndrome that were presented in the state's case and then d presented an affidavit as well that again may not have covered every aspect of the medical symptoms that exhibit child exhibited but did provide exculpatory alternative explanations that were reasonably available to trial counsel at the time of the criminal trial as you understand what she said in her affidavit what were those i would have to go back and remind myself exactly what are continuing to the child points out the discovery violation and either seeks preclusion of testimony regarding them were at least asked for time for the expert to consult the literature or other evidence pertaining to innocence evidence as well but i can say well you can do that now if you want if you're running out of time you get  the court carolyn alexander for the state of oregon i'll start with the exhausted client as this court appears to recognize we have a doubly deferential standard of review and if nothing else this case turns on the standard of review as for the exhausted claim we have a doubly deferential standard of review under and let's talk about dr graced for a minute s the circumstances are critical and the facts before the post conviction court are critical in this case melman davidson and pat davis who marchand replaced in the middle of a trial preparation retained dr greased from new mexico six months before trial she offered a favorable opinion for the defense at the time of trial there was a storm and she was delayed and didn't arrive until after trial had started dr gray's set at counsel table and the trial transcript clearly shows she  defense counsel from the minute she got there she heard the state's experts the retinal images were delayed for some reason the defense didn't have those images and told dr grace arrived in after trial conviction trial that christ changed her opinion and said i can still offer my original opinion but if i'm pushed by the prosecution on cross i'll have to agree with the defense experts prosecutions i'm sorry with the prosecution's effort to wreck ok i mean we got that but i guess in my mind even just the scenario you just did i mean this is just it's it's beyond malpractise it's in my mind not maybe to fail to meet with the expert beforehand right because they did have the letter but if you're going to stand up in you opening statement and make a promise about testimony from an expert whom you've never met with you never discuss to never gone through any prep to see in fact how they might hold up on cross examination i just don't see how any reasonable state court judge could say that that didn't constitute deficient performance and so i'd like to hear what you have to say in defense of that comes yes your honor again i think it turns on the facts so hendershot replaced davis and now that gave us davis and melvin davidson prepared grice for trial they understood her opinion to be favorable there's nothing before the state house conviction court that said that i think that's correct your honor there is nothing in the record than it is out there in front of the jury when she gives her opening statement right after the prosecutor gives her opening statement as dr grice will give you quite a different explanation for her medical condition how she could have gotten in that medical condition and at that point she believed that to be true even why aren't you imagine that a lawyer would do that i mean testimony would be federal there was nothing indicating that it wouldn't be and it really comes down to prejudice even if trial counsel had met was with grace she wasn't saying anything different at that point it was until after she heard state's expert she couldn't of waited till closing argument to talk about you heard something different you know i suppose arguably they could have waited but there was nothing telling them that they needed to wait at that point so it wasn't until after the state's experts testified that greece said no wait a minute i'm changing i'm changing my mind harrington versus richter is probably our seminal case in dealing with trial counsel an expert and what's reasonable for trial counsel counsels use an expert so after greased says don't put me on the stand she continued to sit counsel table and advise defense counsel how to cross examine the state's expert under her interest richter that's reasonable but again it comes down to prejudice so how trial council not agree she wasn't saying anything different then so i mean the prejudice is from having made the promise th then deliver and we have two cases from our circuit that are quite strong on that point right ceci or how we say that and our chief judge's opinion as a city as a district court judge you don't make a promise to the jury that you're not one hundred percent sure you can keep and i don't see any basis for them being one hundred percent sure because they had never even spoken not even on the phone with the expert whom they were promising the jury you know would give a very different account of the medical evidence so then we look at prejudice from a different lens which is had they put on dr greece what would have happened is it reasonably probable that the outcome would have been different  dr grease couldn't account for the ribs fractures she said she would have agreed with the state's experts if pressed it wouldn't have made a difference  but speculation when you're dealing with their jury you know it's a very very delicate situation and it may never know what's going to turn the matter one a great river they work too much these days with all due respect your honor it doesn't matter what i think or what any individual judge thinks about the competency of coun expert to testify in his defense given the fact that dr grease changed her mind during trial where he could have asked for a continuance he could have made a record on that mark and a shot testified that this judge would have given him a continuance of twenty minutes yeah but he should have had a record on it because that's what the judge did you know that was what would have been a very courageous harmful ruling and i just can't imagine the case like part of the case is all about the medical evidence well yes your honor just circumstantial case regarding how it happened largely i think that's correct your honor his defense counsel said yes it is this is a case about experts  she said she would have in the in the post conviction case and not on cross agreed with the state's experts and has she been able to account for the rib fractures in addition to the tr baby syndrome i think that would be true your honor but there was some critical mistakes or at least on missions or just glaring absence of a fax in dr grease opinion now that probably begs the question should defense counsel have gotten another expert but under this court's law it's not required she gave a favorable opinion they relied on her and bac melvin davidson testified i wanted her to testify and any of that and i tried to talk her into it she kept telling me don't put me on the stand really t didn't he gave he gave a statement in an affidavit then in his deposition he clarified what he meant by that given dr gray's position with her assistance and cross  he decided that was the best use of his expert in closing argument he did argue that b s injuries were caused from birth trauma you could make that argument but dr silverberg the state's expert radiologist gave him in during his testimony to also say and it could have been unintentional because no matter what no defense expert could account for b s ribs fracture and petitioner got up there on the stand and demonstrated how he shook her with his hands around her ribs if your defense counsel you have to do something with that because otherwise a jury is going to convict you have to do something and i think we're richter is a good opinion to explain what defense counsel has to do as a constitutional matter in a situation similar to that the court has no further questions thank you so much runners i would dispute entirely sorry i would dispute entirely that the explanation that was provided in the deposition by trial come full is simply a clarification it stands not only at odds with a different explanation for not calling the expert i just felt it was unnecessary because of the weaknesses that we were going to have and point out in the state's case he then contradicted his own explanation by the manner in which he presented the defense in his some ation when he embraced the state's experts didn't point to one weakness in the state's case much less weaknesses and instead offered an explanation that was not only entirely damaging but was damaging in light of what his client had testified to and the statement that mr foster demonstrated the shaking again as has stressed in my reply brief and in particular  appendix rice set out the testimony shake that he did explain and describe was not causal of the injuries that what he was explaining was that after the trial had gone lim and the arm dropped in the eyes roll back in the head he did a movement in the courtroom to show what he did before he brought the child up to his mother's that's different than an explanation regarding shaking the baby causing the injuries and i only have a minute left and again i think this gateway should apply here it's been briefed extensively both in the district court and on appeal in retrospect perhaps i should have sought this court's permission for an oversized brief but in that i did not i would ask the court to specifically review excerpt of record five with the declarations of some passingly qualified and unbiased specialists and experts including the expert credited by the courts and don't preach which i cited in the twenty eight j letter is the chief pediatric newer neural radiologist  lucile packard children's hospital at stanford university medical center and he offers an opinion that is highly unlikely if the injuries here came about i was shaking i think you did a very competent job presenting the new expert testimony so i don't think you need to feel that you were changed the court in any way on that but i guess i came away from reviewing all of that feeling as though well the state came back with new expert opinions of its own which you know or less neutralize reasonable juror properly instructed do with this new evidence and with under the new evidence we not only have dr barnes is x medical expert opinion the experts opinions of specialist including radiologists an ophthalmologist ophthalmologist forty five years of experience what you have to ask yourself what would a reasonable jurors hearing this alternative explanation  in the jury room and they would find it reasonable doubt it's an alternative explanation which it every turn the state's new expert opinions replied well even if they then on direct testimony rebut it a reasonable juror would hear contradictory testimony from those so called rebutting experts point out a few if i may and i know i'm running over but i think there's some key points here that i think respond directly to your honor's question in two thousand  doctors and all supplied a declaration in the district court in the hague vs case and he said the group fractures are due to squeezing a crushing of the chest that's not what he testified to that's not what the process shushan argued he said those injuries were due to violent shaking so he's contradicting himself the jury wouldn't necessarily say well doctors then also got an expert opinion they would look a reasonable juror would look at the contradicting expert he had miss something incredibly important in the december twenty first and he said oh if i did realize that the head measurements were that's significant that the head was expanding that would worry me a reasonable juror hearing the doctor testify to that in cross symptoms of the so called shaken baby syndrome triad the existence of the file both doctors venally and silverberg said that the infant suffered the most in two thousand and ten when the very very good arguments matter the matter is submitted