is our position that the decision the court made after the evidence rehearing in the post conviction proceedings was manifestly erroneous specifically we allege that mr pellegrini received the defendant misspelling greeny had and to show how that affected her mind and her ability to recall briefly on the facts what happened here is this was a couple who was heading for divorce your  problems on both sides but basically i believe him i'm sorry i believe her i don't believe him so i submit to you it was a close case and it is also in some stupid she was very drunk and he wasn't and this is a case about recall at trial two experts defense had an expert said this x this kind of thing can happen through consensual sex this is not necessarily even though this is a bad injury no note no dispute but even tho head injury this can happen through consensual sex and the state's expert said no this is consistent with sexual assault so it really came down to the testimony of mr heller greeny and mr pellegrini they both testified after think i either have experience with alcohol or i can see it have seen people that are really drunk and we talk about being bombed and that type of thing but the fact is there is a science think felt hey i know what drum he said it he said i know drunk witnesses blah blah blah the fact is two things but the fact finder at trial heard this woman's blood alcohol level was point eleven from the state that's just a little over again that doesn't mean that he knows she's blacked out what happens here in the science is that her short your memory is not converted to long term memory that's what dr from he said so she doesn't this one we know this woman doesn't remember but that doesn't mean that she was that he should have known she wasn't consenting for all yes absolutely that's what the blackout is and the guy who this woman was we have a video of her passed out in the backyard but people can go through their normal routines in a blackout and that's what dr from said and that's what why some of this is counterintuitive she doesn't remember and in a blackout those memories don't come back that's what dr from said is you are never getting it back but what does happen is people hear suggestions and she may very well believe miss pellegrini may believe what she's testified to but the fact is doctor from me came in and she said this was a blackout her testimony is unreliable so if we are to believe now that a fact finder that heard that testimony i out yes because we have an expert to say that doesn't mean she was resisting that doesn't when she didn't consent that means she doesn't remember what happened and so you can't rely on her testimony in this he said she said case and in fact but he didn't have the expertise that she did and he said he actually said at a couple points in near the end of the cross examination that dr from  knows a lot about a very narrow field and the state expert also said dr from me knows quite a great deal about a single aspect of brain behavior function and that's what she was testifying to nothing about slamming this victim not saying oh you wanted it nothing like that she's saying what happened in that room you don't remember and someone can go through there you can't tell by looking at someone if they're blacked out can't tell and really could not i yes it's different than being there at the end there's a difference between extremely intoxicated and being so drunk you're blacked out the next day blacked out again meaning you can't recall what you did even if someone says to you hey you were acting crazy last night you can't recall it and that's the counterintuitive thing and that's the science the doctor from me was testifying to and dr hartmann again didn't rebut her on that he said dr from you doesn't have a license  she ran away correct right and that's i understand the point but there is a difference between extremely drunk and blacking out i i don't believe no i don't believe the trial court can totally ignore unrebutted expert testimony and apply his own thought of being really drunk against the blackout if dr hartmann come in and said this woman was not in a blackout then the judge could have said yes i agree this is i agree with the state's expert but that's not what he said as i said this is basically unrebutted testimony all the expert dr hartmann was she didn't have a license which wasn't anything she's a professor of psychology she doesn't need one he said well she's an ethical to she made a diagnosis of a blackout without doing a proper clinical evaluation diagnosis and that's why she was completely ethical in what she did all he did the expert come come in and he just kind of slammed her credentials but then as i said made those statements about how highly qualified she was in this very narrow field and so  one the importance of an event that happens to someone does not increase the likelihood that that person will remember when they are in a blackout so we have this testimony that we want to add to the what was the basis of doctor from his opinion she suffered a blackout ok some of the things were her blood alcohol level and she can calculate she did she said i don't want any blood alcohol level so she got the blood alcohol level from dr blank who said between point nineteen point two three so the correct alcohol level and she said ok studies show that that is consistent with suffering a blackout what else do we know well we know we have a video of her on  passed out in the backyard we can see that and she testified i don't remember how i got to the backyard except we know the victim locked herself in the bathroom and passed out and does not recall going to the bathroom or how mr pellegrini and his friend got her out of the bathroom ok we also know the victim doesn't know how she got up to bed all these things put together then we look at things like what was the victim what was the victim how is she talked to well she the police officer said to her and that is an expert opinion and so then we go to the evidence you hearing and also if we want to talk about the competence of not calling this expert it's very telling what the prosecutor said at trial was waiting for it and i expected it and i said no it's you that's because it was clear is day to everybody who apparently defense counsel that you needed to attack the fact that this woman was so drunk now that the prosecutor was going to say that guy's not qualified to say whether or not she could recall but now there is an expert that is qualified and if a reasonable fact finder again our burden is not to change this judge's mind our burden is to show a reasonable probability that a new fact finder who got to hear this testimony that they could not rebut with all their resources and the incredible amount of money they paid dr hartmann they still couldn't get someone to say this woman was not in a blackout and her testimony is reliable they could not do it so reason i believe easily we have met our burden to show that there is a reasonable probability that a new finder of fact would find mr pellegrini not guilty o trying to pass the nd prong of strickland it to the extent it always i guess requires some level of speculation but here where we have an un rebutted expert i think we have we're we're speculating about as little as possible in this type of case secondly what leads me to believe that they won't have an expert that can say she wasn't in a blackout is because they didn't have one for the of adventure hearing they could they could go anywhere in the world they paid this man as i recall and twenty to thirty thousand dollars to come in and do this and he couldn't utter those words she was not in a blackout he did all other things he's maybe very qualified for in many many areas but the fact is from me was qualified as to the issue in this case and she reached a conclusion that was based on science and i know we're not talking about metaphysics or things like that where we understand that's a field for an expert this is one i think people might think there are there are there are experts in that field alcohol and blackouts i think it's very myself included everybody well everybody knows about alcohol but that isn't the case there's a science here that she knows from must remember that a medical expert testified dr lockridge know this can happen and this leads into another thing that happened at the post trial level there was an allegation of ineffective a different type of allegation ineffective assistance of counsel where we allege that the court should have found counsel ineffective for not supplying dr locker with the articles his client gave so that dr laughers opinion supported by the literature that was not done and also the victim's records including records from the mayo clinic to show that she was predisposed to this type of injury should have been presented and that was not done and in fact the court did say that may have passed the st level of strickland it might have been ineffective not to do that but again the court found no prejudice i'm saying that you throw all these things into the mix now to a new finder of fact there is certainly a reasonable probability that a new outcome would be found and we are not are you of course an insufficiency of evidence here it's different than that but again while the medical evidence it seems and they were married for a long time and it was it's pretty undisputed that this was this was heading for divorce they were not getting along and again bat would be a new finder of fact would be very reasonable to think that when this happened did not like him and this was used and i'm not saying this is speculation but a reasonable finder of fact may certainly could reasonably infer that that formulated her memories she didn't like  and so when she's trying to fill in the gaps as dr from me said dr from me said hey when you can't remember a thing it doesn't make sense even when someone suggests something to you about what happened you don't remember it what human nature does is we fill in the reviewed the testimony and that type of thing and i will say that i asked dr hartmann because he suggested that the victim had to be interviewed and so i said well did you interview the victim then you said no and then he what seems relevant is what was happening at that time and i can't emphasize enough at closing that again this fact finder heard that her blood alcohol level was point eleven and it was likely in the neighborhood of point one  point two three and that is whether or not that's bombed out of her mind is one thing but the fact is it's a blackout and those memories don't come back and for my client's position and this was consensual sex and then there i believe there's an issue as to whether it's life threatening injuries or not of the i thought it the i just looked just reviewing it i thought at the post trial hearing the judge suggested that it may not have been life threatening after all but either way i cannot tell you if that is exactly my client's defense my client's defense is that this was consensual sex between me and my wife and unfortunately this occurred but i think like i mean i think they have to look at more importantly the medical expert testimony and decide can it happen through consensual sex and there was testimony on both sides there and councils stated that how could it again i can't emphasize enough yes doctor from me is testifying to a science we all can look at someone and see if they're really really drunk but that does not mean we know if they are is she testified that they're in a blackout or not if indeed council is stating that she she can't do this under any circumstances that really sounds to me like men they needed to attack her qualifications and we should have had a fry test or something like that but we didn't they never did that prior to the evidence or here and the fact is she said long term memory i were talking about his memory here and the point is absolutely that just because misspelling greeny was very drunk doesn't mean that she couldn't consent and doesn't mean th pellegrini would had any idea now i will grant you that this is very unique what have we have here is an injury i do believe this counsel is exactly right that it was deemed life threatening at the trial but i do believe that after the trial the judge shifted a little here that's correct but i think but i think it's relevant to see if he says it was not going to change my opinion i mean it's very clear this trial judge and he believed what he believed but we didn't have to change our burden was not to change his opinion our burden was to show that there was reasonable probability that a new finder of fact would change their mind and let's just just to recap briefly and then i'll stop but  basically that a blackout is that means that short term memory is never converted to long term memory which means that it means that whatever happens let's say during that alleged assault during or that consensual act certainly our position obviously this victim is never going to remember because she's in a blackout not even minutes later and again this that's where the divorce in the rocky road comes in there's no dispute this was rocky so and again we are not saying this pelligrini lie we're saying that she doesn't remember and dr frank he said so what happens is you fill in gaps but there is no flight misspelling green because one of the issues well you don't remember so much about coming home what you were doing in the backyard what you were doing locked in the bathroom what you did when you passed out there how you got to the bedroom you don't remember any of that how  common sense you've taken alcohol out of the equation if alcohol is out of the equation i agree with everything you said about you don't remember what you did but you do remember getting stack and that's what a jury would think even if alcohol is involved if they don't have an alcohol expert to testify surprisingly and counterintuitively it doesn't matter the specific nature of the event that happens if you're in a blackout you don't remember it and your honor they chances are i don't know that's going to do it that's how plaque out consistent but she got to the blood alcohol level a point thirteen dollars and she's basing it on this woman also saying at one point this woman says i blacked out and she actually says i blacked out at one stage and whether or not ok well no no the expert said you can't determine by looking at someone whether or not they're in a blackout or not but i don't know that she would say one can completely discount someone saying i was blacked out now this is only for one specific instance that doesn't carry the day for us we are not here saying hey look she said she was blacked out so you got to believe that everything there are gray outs and black outs correct that yes we have to know exactly what she meant by black and very different than an expert saying here's what happens in a blackout and here's what it was and also we're talking about what miss pelligrini said the st responders she also at one was asked what happened she said i don't know another time she said he was too big and he got stuck so she did not give a consistent story about what happened as to the porch light if we were sorting to porch lights on and off i think that shows the closeness of the evidence and again while we do listen to the trial judge just fine you're reviewing the finding not the reasoning it does mean something i believe that the judge made a short opinion after the bench trial saying i believe her i don't believe him and did not say there's just no possible way this injury would have occurred absent nonconsensual sex because i think the judge probably cancels out the experts again there were experts on both sides so i think there's a lot here the victim's record showing she was predisposed to this type of injury the literature that supported the doctor's opinion that he rendered the trial and  think the fact is when you have an expert like dr from me to say what happens is people fill in the gaps of their memory when they're in a blackout in the far more likely inference the jury is going to draw is that she hates this guy and so she's saying