exemplifies how an innocent person could be found guilty and sentenced to life in prison in this country on the one hand you have a zealous prosecutor who presents debatable medical evidence as if it were fact as if it were indisputable and on the other hand you have trial counsel who simply fails to dispute that despite the fact that he knows that he needs expert testimony in this case then you compound those errors with a post conviction review process that is supposed to give a hard look to cases like this but instead imposes a standard that is much higher than strickland's reasonable probability of a different result standard this is a sort of corpus perfect storm and it is exactly the sort of case in which this court is empowered to grant relief now i assume that my job here today is to demonstrate to this court that the tennessee court of criminal appeals th t opinion is not just iranians which it is but also objective lee on a reasonable and with all due respect to that body i think that that job is unusually clear in this case we have  exhaustively and perhaps exhaustingly briefed all of the things that we think are wrong with it but i'm going to highlight today three points the three key points that are unreasonable about that opinion the first is as i mentioned  applying as a standard that required mr davis to prove his innocence rather than show simply that there's a reasonable probability of a different result the second is that the trial court or the post conviction court failed to analyze trial counsel's performance through the lens of how important the testimony was and the third is that as as the supreme court said in  conviction court either did not consider or unreasonably discounted key evidence so turning to the first and we think this is sort of the most the most obvious of the of the problems is saying that essentially concluding that expert testimony would not have helped mr davis because his expert could only testify that this injury could have been accidental not that it was accidental this runs contrary to all of the evidence but also to strickland standard that simply requires that there be a reasonable probability of a different result here all part of whole parties agreed that expert testimony was essentially the dispositive issue in this case trial counsel said to go to trial without a qualified expert would deny the defendant his right to a fair trial and deny him the effective assistance of counsel or you're speaking to the prejudice progress now  right that's correct though i would i would encourage the court to view this error as sort of infecting the rest of the analysis the deficient performance analysis well how how so well the strickland in the deficient form analysis and this is sort of the the second point is stricken requires courts to consider all of the circumstances surrounding the representation and one of those circumstances is how important is  growing knowledge it was very important he obviously had seen what happened he got a hung jury the first time with this dr that wouldn't test the second time the question has any yeah obviously made efforts to try to find he wanted to use the same x where that expert refused let's hypothetically let's say he tries hard to find an expert who offer a certain opinion but fails is he constitutionally ineffective because he failed is it like a strict liability so to speak standard that strickland would apply to the lawyer your honor i don't believe that strickland would apply a strict liability question but it would say what if you have something that everyone agrees is the most harlan harlan excuse me he went to then whirl at harlem's own cow to ask him to help because what we're like had some experience in medical training in new doctors so he was also on the hot for an expert i mean it wasn't just that yarber all they contacted one or two people that's that's true your honor but dr harlan is is clearly not a i mean he's not someone who can testify he's not an expert he has already refused to testify at that point nor should he even as a very challenge to on cross examination expertise still raise enough doubt apparently for the first jury to not be able to agree that's correct and which again just highlights the importance of having some having an constitutionally insufficient i think that hinton v alabama is an excellent case for that out of the supreme court in which they say you know it's fine to put on an expert but you need to you need to get it right i mean in that case the i don't remember whether hinton struggles with the issue we're talking about here today which is the unavailable the how hard  trial counsel here and this is one fact that the word entirely labored under the erroneous assumption that he could only look at it in states contiguous to tennessee and that's why the only two people he spoke to were in mississippi but i thought that he himself testified that yes they had that i guess misunderstanding at the outset of their search for another expert but that they realized that that was not a limitation and in fact he talked to somebody in illinois eventually so then that's a finding of i mean is i understand the record here the t c c where the tennessee courts made a finding fact that that misperception fell away at some point in this process is that a correct reading of the record here and if so how do you feel i do not believe that the tennessee courts made any reference to that mistake of law they did make one reference to he spoke to two medical experts in other states they say most likely mississippi and illinois i don't think that that is factually supported by the record but but they that they do conclude that but and self says that you know we realized we could on a broader yes no i mean this seems like a very tough ground for you to get havey it's really i mean you have testimony in the record arguably the court the state court out altogether frankly i just don't see how it gets anywhere with the scope of the review that the supreme court has told us more times than i can count that we have well just very briefly on that the there's no doubt that they labored under that but more importantly with with respect to all of the evidence my third point this is the evidence that that the courts had had disregarded is dr opens testimony you have a medical expert an internationally known and renowned medical expert who testifies that she was available that other people that she personally knows that she's of a school of thought that of having reviewed these these sort of rush to judgment cases that that many others were available who would have testified similarly she then testifies that that you can't make a decision whether or not to testify in a case like this without looking at the file and this is another thing that the tennessee court of criminal appeals ignored entirely trial counsel failed to show anyone the five he simply failed to show any expert what was actually in the file the they of what the constitution says i mean she'd be if this was a direct appeal care you know director view that's i don't know maybe that counts or something but she just because she says i'm out here and nobody hired me and i know others that would have i don't know how what the foundation for her testimony is that other people would testify the same way but because that's the issue it's not just are there other experts it's would they actually say that this child's death could have been trial and we know how effective that was but the getting it getting to your question the constitutional issue here is as the supreme court has recognized when when the state courts ignore that entire they ignore all of her evidence and again this is where  t i would tell me if i'm really trying to work with with you in this it doesn't really matter if their particular reasoning is off i mean they give a merits opinion and now quote the ultimate question before us is whether any fair minded jurist could reach the same result if they miss make mistakes about particular points in their reasoning the kinds of things that you're pointing out that itself doesn't mean no fair minded jurors could reach the same merits result and so is that is the question we have to ask not whether or not sort of grading their intermediate reasoning is that is that a fair description of our job here i disagree i think the court is required to see whether or not they are essentially failing at the going through the appropriate stricklin analysis and especially if  get to the right result i mean i had this case gagne remember that and on bond case and i thought the state court reasoning was borderline preposterous in that case and i tried to explain why and that opinion was a dissent you know i mean you know there was an outcome and it just became whether any fair minded jurors could agree with that outcome and i thought and in that dissent you said the strickland standard is high or the twenty to fifty fourth standard is high but is not impossible i agree and it's true your honor i'm not saying it is but the question is whether a fair minded jurist could agree with the outcome is what i thought the question is not whether you know they they should have put more it is not something that fair minded jurors can agree on when you simply disregard key evidence like doctoral now that's fair the simply just regard idea thank you you thank  is whether the state courts determination that trial council's decision to go forward at the second trial without an expert when no expert could be found was  recognized the need for an expert the importance of an expert and how valuable in his mind an expert would be although i would point out that he testified on post conviction that after the first trial which resulted in a hung jury  yarbrough went back and was polling juror wars about the basis for their decision and at least one of those jewelers had indicated that they were unimpressed with dr harlan's testimony he had been a very severely discredited  during his testimony and had actually invoked that limit one of her only was impressed enough or you know by press about something impressed by something whether it was it whether he or she was impressed by dr harlan is unclear i just point that out because it is it is a point that that counsel that the again it goes to counsel's diligence in the case to go back after that first trial and say what did we do in that first case what can we do in the second trial and he clearly recognized it was important to have expert testimony and so then it obviously took steps from the record to secure an expert dr harlan had refused to testify because of unrelated circumstance it says and in petitioner paints that as somehow being a conflict of interest we disagree with that those were circumstances unrelated to petitioners case those were personal to dr harlan personal and professional to dr harlan and it had nothing to do with this case dr harlan participated in the first trial as a member of the defense team through his testimony and we submit continued to participate with the defense in the second trial albeit behind the scenes in trying to help him the defense secure an expert replacement expert i mean here we know in the post conviction proceeding we've got this doctor who says hey she would have said that it's possible that could have been x that being dropped as opposed to says there are many forensic pathologists that would have testified on behalf of davis if they had been i ask well if they mrs attorney the but the question is not what mr what dr haven't testifies to after the fact that the question is what were the circumstances facing mr yarbrough at that time what what was he faced with at the time and what he was faced with was never want  expert who refused to testify and who the post conviction court determined in fact may have been disqualified because his medical license had been revoked in the interim between the first trial in the second trial and number two the state court found and credited the trial courts to counsel's testimony that he was unable to locate a local doctor who wanted to get involved in the case at all and so obviously they were there were efforts to to find an expert in the local community within tennessee  elicited the aid of an attorney who through his experience his education and his contacts may be able to find someone either in the state or preferably out of the wait i'm an effort for made it made in that way at least two experts were identified by that defense team and i call it a team because i think they were acting as a team dr harlan was involved in this there was testimony that dr harlan was involved in some of these conversations with potential experts there was testimony that mr warlick who had had attend medical school and had over twenty years of experience in medical cases had attempted to encourage and persuade experts to testify and that and they miss yarbrough as well was involved in those efforts there was some question about personally spoke to two experts outside of the state i may have misread misread the record he said it was one or two you said it was specifically at least one but there were two experts that were identified and there was and it makes the point as proof that we don't even know if they were experts well i think that's that is not born that is not borne out by the record i think the record of the record would refute that argument that it's unclear as to whether your spoke to an expert or or a lawyer ok on page forty two the transcript of the post conviction an expert and he said no i think there was also a doctor ok resume a billion mississippi and then on that and then before that he had talked about a doctor in mississippi and an expert in illinois an illinois doctor he the defense counsel had made contact with two medical experts in other states with a specific factual finding but they declined to participate and that is on page id number twenty six  not involved in the investigation and was not known to mr yarbrough i think what what she may or may not have done had she been approached is is is outside of the the performance question that the performance question has to be has to be addressed based on what did mr yarbrough do what steps did he take under the circumstances as he knew them to be and what he knew is that the expert wasn't available he took steps locally was unsuccessful he went outside the state was unsuccessful and it's at a certain point counsel made the decision to stop and to change tack picks and to go forward without the expert and his in actually testify that once that decision was made he then started to prepare for that cross examination he was i had already tried the case  reasonably successfully wants was very familiar with it but that he took information from both mr warwick and dr harlan in order to prepare for that cross examination so that was a tactical shift was made at that at a certain point and it's our position that given what he had done to that point and the results that he had gotten which was refusals to get involved refusals to support the theory that that that was it was reasonable at that point for him to stop to change  position that that's an up well i operable case on the facts like this i was actually unable to find a case the now hooked that talked about not being able to secure an expert despite repeated repeated attempts however i think what we do know from strickland is number one that a tactical decision by trial counsel made at with that that is informed and made after reasonable efforts is almost done challengeable on hey b s in under the strickland standard strickland doesn't require perfect representation doesn't require perfect trial everyone agrees that an expert that would support the theory that the defendant had had put forth as to how this access how this accident how this death occurred that would be preferable everyone agrees to that but even even criminal appeals addressed this that that testimony with respect to the prejudice prong the court of criminal appeals created to the factual findings with regard to mr yarborough's performance and efforts and tactical decisions and as to separately and looked at dr op harben in terms of the prejudice prong and determined that even even assuming there was some deficiency on the part of mr yarbro testimony would not have made it differed and there's it would not have made a difference it was speculative ok but part of her testimony doesn't go just prejudice part of her testimony is he could have found me he could have found a lot of people like me that seems to go to form but it may just not address that they did not they did not address that that testimony in there in the performance prong because they correctly looked yarborough's performance from his perspective and that's what we think that is the appropriate view when you're looking at counsel's performance what did counsel know what the time had to counsel react to it and was he it was was that were those actions and decisions made in an informed manner based on what counsel did now counsel just step back and say well dr holmes not to testify so i guess we just got to go for without an expert that would be different because obviously if everyone understood there needed to be an expert it would it would be unreasonable just to sit back and say we're not going to go forward because this expert has said has said we can't do it but counsel did more than that and that's it and that's what that's what the court is what the state court did as with the lower court credited was that council took measures reacted in response to a situation that was unfortunate but was a reality and trial counsel deal with these realities every day and they make these adjustments every day everyone wants to have the perfect for if it was a village in africa then you're in trouble well perhaps if it wasn't diligent then we get to whether or not dr op pavements testimony actually would if it would have had an impact in our  dropping well in we think in order for her testimony to have any impact whatsoever she has to say something more than well it could have been an accident well it could have been a homicide i don't know how it happens or greater than that number of ways i don't know how it underst was a non she offered it respectfully a non opinion that's what the right i'll just do is raise a reasonable doubt you've got the burden to prove beyond a reasonable doubt that it was a murder if she says could have been a murder but it could have been an accident that raises a reasonable though actually she didn't really say she did she did not opine as to anything she said it she does not know how it happened alright that's all she said that's enough well it  it wouldn't necessarily be enough to overcome and that's the question how balun it i'm not saying that it would have had no impact whatsoever the question is where there's a reasonable probability it would have resulted in a different outcome and when you look at the strength of the cape of the state's case as a whole the two physicians who testified the defendant's shifting accounts of how the accident happened the court was absolutely correct that that testimony would not have been sufficient to rise to that level now that when the absence of the first trial you might get somewhere with that not that helpful in the first trial and in fact mr yarbrough thought that it may have even been a little over half to get a hung jury we don't know we don't know why there was a hung jury indeed i think it would be it would not be appropriate  factor speculation about why the jury came back as it did in the assessment of prejudice but that's you know that's i just offer that respectfully but and see that my time is running out but if they're in it for the questions we would ask that the court affirm the judgment  i just want to mention briefly i think this is the first time in this litigation that i've heard the suggestion that this was a tactical decision on trial counsel's part that to go to trial without an expert disagree profoundly tribal council plainly said that this was necessary plainly said that it would be i think i thought i heard her say change tactics realize we're going and that we're going to cross examine is going to be get to relief in this case under twenty to fifty for the th gilman just suggested were the efforts enough or not on the performance side and i have this question for you i mean they didn't move heaven and earth here it appears i will grant you latitude the states court state courts have right i mean that's you know part of it is to strickland's a pretty general rule and we don't seem to have that many data  points how much searching is enough on that more specific question we just don't have much this isn't about you know you should've made another argument on appeal or something most cases don't tell us much about the the reason is that we do have specificity with regard to how to conduct the analysis and the doesn't even come close they fail to look at trial counsel's actions through the lens of how important it is because they have already dismissed it as unimportant they already said this isn't important they also fail to consider any of the evidence that's relevant to deficient performance other than what trial counsel says he did and so when you combine that with their failure on the on  the prejudice problem the failure to look at it through the right lens they have they have failed in their analysis entirely hundred and under twenty to fifty four d this court is absolutely empowered to grant re