check parker i'd like to reserve three minutes for rebuttal your honour's the proceedings leading up to jack parker's trial and conviction for an absolute constitutional mess really no other way that i can put it this court granted a certificate of appeal ability on four issues but in reality it was five issues because we have two speedy trial issues if a speedy trial problem both before the indictment and between the indictment and the trial mr parker wins on all five issues this was just an absolute constitutional nightmare from the beginning and the rich should have been granted below i can take these five issues in any order but i'm going to start with the failure to include a lesser included offense in the charge to the jury mr parker was convicted of second degree murder all of the charges that were given to the jury were all intent based they were all murder trial charges there was a voluntary manslaughter charge but there was no involuntary charge at all nothing based on negligence whatsoever problem there is that the constitution requires a lesser charge when there's a rational basis for it the facts of this case are clear there was no evidence that mr parker intended to kill his victim sandra  brady beyond there were some bruises on her body but there was no testimony of the bruises happened that night and then beyond that there were a couple of questionable witnesses that the state had caesar medina and bonnie flowers says are medina is a liar he there was testimony a trial that he had told another witness that he was willing to lie to get jack parker out of the area where they lived and he and bonnie flowers the woman that was in the same apartment with them changed their story a number of times when they said that they saw across the way so what was the state court rationale for denying the instruction the state court rationale for just before they found no prejudice they the state convicted of the higher charge the murder charge negated the need for the lesser included offense charge and it is just absolutely wrong from a constitutional standpoint the supreme court has said that's wrong in keeble v us in one thousand nine hundred seventy three the standard of review that we should be applying the standard of giving a lot of deference to the state court finding it were governed by a top absolutely but the deference notwithstanding the analysis was wrong even even with the deference we can overcome that standard you know what the district court said about this was that you know there was no constitutional problem because the higher charge was found by the jury and therefore it negated the need for the lesser charge right but even if the district court is wrong you a number of things first of all mr parker gave a statement that ms brady the woman who died as fixated during sex ok she lived a very rough life there's no doubt about that she had severe health problems she was a severe severe alcoholic her son testified that she drank half a gallon of the kurdi a day for twenty five years she disappeared for years at a time until her son found her on the streets  also all that in order to get around the standard all we have to show is that there is a rational basis for the instruction mr parker doesn't have to prove that it was it was negligent just that there was a rational basis so that the jury could have decided that canet connect the dots from a between her personal history and the fact that there is a god to kinetic to make her death  supposed to intentional on the part of the it's a combination of the health problems that she had combined with the lack of hard evidence of intent on that night and those two things together give the rational basis for the negligence charge there or there were it's a lack of evidence which gives us the rational basis and putting that together with you know all we have to show is that it could have happened that way you know there's a rational basis for it and that's that's what we have because we have a you know a victim who could have died the way that mr parker said that she died he said that she is fixated during sex and that you know the it's she could have had a heart attack she could have had a number of things there were there was the medical examiner testified that there was evidence of a previous heart attack i think six weeks prior this is a woman who just had a ton of health problems and that is the evidence that gives the rational basis combined again with the lack of hard evidence of it of an intentional crime that night that gives us the basis for the for the rational basis for the lesser included offense the bruising the older and newer  broken bones that are insufficient evidence of a building or or an intentional crime there was no evidence that the bruising occurred that night some of those bruises were very old according but mark some of them also on the nobody nobody could testify that they heard that night there was some bruising that you know certainly but this is a woman who again lived a very rough life and you know lived on the streets and you know she was bruised she was you know but she'd there was no evidence presented that mr parker did that to her that night beyond the people who challenge the people who said they saw him throwing water and that kind of evidence not only people who i challenge the people who defective on the case challenge the lead to active on the case richard but back to testify that there is no way that these people could have seen what they said they saw they said they saw it from across the way he said there's no one of site there you can't you know they could have seen it so it's not just me challenging it not only that they changed their story three times so it's not it's yes i'm challenging them but you know the evidence challenges them you know the the they made up their story and another witness testified that mr medina told her that he was willing to lie to get you know jack parker out of out of the area so it's the witnesses are very credible burberry incredible and if i could ask a question i thought this was raised as an ineffective assistance of counsel claim in your brief that is close to a freestanding claim that's correct it's a strict has because the heading of your brief says that his counsel was ineffective for a failing to advocate or present to the jury and instruction so did the trial counsel even seek this instruction was it denied by the trial court trial counsel did not seek it mr parker sought it on his own and it was not yet it was denied there was an actual denial by the state trial court  or did the state trial court say i'm asking because i don't know yet i believe the i believe they just ignored mr parker i think that's i think that's par for the course throughout this case that's a big problem when you have somebody who has counsel and who is trying to do things pro s due to the state court standard is what it is correct maybe you want to address another of your issues yes your honor i'll move on to the speedy trial issues if i may mr parker spent two years and three months in prison between his arrest and indictment he spent two years  five months in prison between his indictment and his trial his rest in two thousand parole violation that brought him back to prison this crime or something different something different oh i don't know i'm sorry provirus violation was this but it was based on the previous but yeah this was the parole violation the charges in this case were a parole violation past charges correct so he's being kept pre indictment for two years based on these chart these potential charges that occurred two years later brett and nothing else in terms of any parole violation this was the par violation that is correct and the michigan court found no justification for the delay they said that you know in fact everything was so bad here the department of corrections was even sending letters to prosecutors to act ask what the heck was going on  evidence you know in the district court people acting on what the state court of appeals did found that there was some prejudice and the prejudice was the disappearance of witnesses and in but what witnesses disappeared other than the neighbors who were reported at trial by the police to have said that they didn't hear anything so there was favorable testimony about what that in soccer says would have said from the police officer which could argu even better than this is actually testifying to what is the real prejudice here well that is the prejudice your honor and if i if i may disagree with what the the police said at trial they didn't mention the ms arcos and i think that's why i say it didn't mention his arcos by name what he what he did was he excluded them from the list of people who heard something when he talked about mr medina and miss flowers he just didn't mention them so what we have a situation is he doesn't mention specifically he just doesn't include them ok and there's no way that from that exclusion that the jury could possibly infer that the contradicted medina and flowers they didn't get to hear the news articles say that they were home they didn't get to hear them say that  they would have heard something had something occurred and they didn't get to hear them say that nothing did occur the detective didn't tell the jury that in the we're in a better position than medina or flowers to to know or hear something and again medina and flowers were no position at all so it is the news arcos and the district court itself said that the testimony would have benefited mr parker's case so the district court agreed that there was prejudice they just said it wasn't substantial prejudice it should have granted the writ of soon as it plaintiff said that it's either the state secret tactical advantage or the state have all of its evidence in order and then cease its investigation without further investigation the state had all of its witnesses in line here and i see my time as  the state had all of its witnesses in its pocket by the end of two thousand all fifteen of its trial witnesses had been interviewed had had provided affidavits had been lined up by the end of two thousand and that's what manzo said this case is the case that monza was talking about when it when it talks about you know it is so it's either tactical advantage or you just because you're done and you don't do anything and that's what they did here so this case is monza this is what we're good we're talking about if there is a speedy trial violation and we were to grant a b s what would be the remedy would it be that you would your client would never be tried or would he be tried again at this point the speedy trial issue he'd he'd he'd be no he would not be tried again he's been in prison for thirteen years now fourteen years so is that always the remedy in a speedy trial violation case it's usually the remedy in a speedy trial violation case good morning we have please the court perseid words michigan assistant attorney general on behalf of the work i guess i'll start with the failure to request this lesser included in involuntary manslaughter instruction counsel's argument is way off cuba versus the united states is not a constitutionally based opinion it specifically says it doesn't it was a direct appeal case it's not binding and state courts in any way in fact this court the six circuit in bagley versus sou has specifically held that lesser included instructions are never constitutionally required except in death penalty cases michigan doesn't have the death penalty so that lesser included instructions are never required in michigan it was a question of state law whether or not he was entitled to a lesser included instruction he was charged with open murder which gives him first degree murder as an instruction second degree murder and struck as an instruction and then the judge also did give an involuntary manslaughter instruction under a simple assault theory so people doesn't apply because it's not a constitutionalist isn't also the people case there were no lesser included instructions given and in this case there were two lesser included instructions that were given so it couldn't possibly be ineffective assistance not to ask for a second kind of involuntary manslaughter as one of the options of the jury be given counsel could clearly have chosen not to ask for that when they're already being given an involuntary manslaughter instruction even though it was on the basis of simple assault as opposed to gross negligence is there any evidence in the record as to why they counsel didn't request this instruction going right now and i don't even think that the defendant asked for it until after the trial was over or maybe when the jury was deliberating at the earliest and so you know what counsel's request controls obviously what the judge will choose to rule on or not rule on right but as i'm understanding this the defendant himself did make a request at some point i believe it was after the jury was already deliberating so that would mean too late anyway the point is it was a question of state law what lesser included should be given and the michigan court of appeals held as a matter of state law that this instruction was not required because a rational view of the evidence did not support the instruction and he did have two other lesser included instructions and i mean we're back to the pre indictment alleges in the case the count was just mentioning this man's overseas edwards that's a not quite the same as saying we find as a matter or anything like that piece of you know from the record we're not seeing a reason for it but it doesn't matter because we're going to move on and find there was no is generally a regular court says it appears that something wasn't done and that might be in the south we try death the greatest way for finding that you just didn't do what you should have done well i don't know about that because you know there's an obligation to arrest somebody in case law is very clear on that they don't have to arrest you as soon as they have probable cause they're allowed to investigate there was a lot of investigating that  on but the real problem is that this person is put in jail on a probation violation according to your opponent it was the so cause for the placement of him in right that's not correct or ok i would be interested in knowing if it were the sole cause is it your position that the person could be held in jail indefinitely because the state for whatever reason it may have is not ready to indict so it could be ten years that the person could be in jail well i've got several responses the first word i would like to point out that the united states supreme court has never to the best of my knowledge ever found a pre indictment delay violated the constitution so by your giving me this type of answer and i don't know i think and i'm inferring that you're saying it's ok to do i did what i would you know which is totally appalling well certainly but i would point out that there are things that are like cold cases where charges are brought twenty years that somebody is in jail on this and that's why i said what counsel said was wrong he wasn't in jail because he was arrested for murder he was in jail because he beat this woman up there was a demo assault charge filed and then they his parole because he was on parole he's drinking alcohol he's you know doing various things he shouldn't be doing and that's why he was sent back to prison it was not because he was charged with murder or he committed a murder they didn't even decide that they were going to charge him with a murder until two years later so he was not in prison because of a murder charge but you say because of a domestic violence that there was a domestic violence charge well i don't know if a charge was ever brought but i think the police took him into custody because the woman had clearly been beaten up and so they took him into custody they violated his parole as far as i know nothing ever came of that they didn't need anything to come of that because he was now being held on the parole violation so so sorry that i don't know state law the way you do but he could be held indefinitely  parole violation as opposed to having a parole violation hearing at which point there would be a finding that he violated parole and the determination of what long he should be in jail on that right well you know the record there's not a lot information on what happened but we do know that he was returned to prison on a parole violation for an earlier felony and when you violate your parole you're picked up and there either is a hearing or a waiver of hearing i don't know what you're curt here but he was held only i earlier crime for which he had violated parole he was not being held for those two years on a murder charge so the prejudice is the failure the asserted prejudice is that failure to find these neighbors and get their testimony perpetuated in a way that could be helpful to him that is the only asserted prejudice and as you pointed out the defendant was probably better off with the police officers testimony but your opponent corrected me and said that the police officer did not actually testified to that effect well the closing argument by defense counsel he specifically said you heard the detective he said he spoke to a bunch of the neighbors and the news arcos were interviewed and they weren't called and he said anybody that wasn't called didn't hear anything that was in the defense counsel's closing argument was the defense counsel as opposed to the police are as well but on the basis of the police officers testimony that i've interviewed all the neighbors and anybody that heard anything i call them and when they testify it's opposite testified to that's correct now as to the speedy trial claim which is based on a six month allays based on the fifth amendments important to keep those distinctions i would point out that a united states versus howard to eighteen and thirty page five sixty four this court said only those periods of delay attributable to the steed are relevant to the constitutional client judge moore you were on that panel and here the district court specifically said only eight months was attributable to the prosecution so is the district court correct is the basic underlying question and why why is it more attributable to the price accused in this case but i believe the district court properly calculated it out and the united states supreme court has said there's not even us a speedy trial issue at all if it's less than a year and here the prosecutor is ready to go to trial at ten months and what we have in this case honestly is a classic whipsaw situation that of venice is i want to speedy trial a month before trial i true whether counsel is retained or assigned and then they criticize they were virtually a vermont supreme court for attributing to the state delays caused by the failure of several assigned counsel to move his case for that seems directly a political here to me later but until it was reasserted for all that prior time the waiver should control and once again you end up with less than a year that is attributable to the state so help me with that hypothetical if the defense counsel says i waive the speedy trial rights at this particular point in time and if the defendant is sitting there and says no i don't want to waive my speedy trial rights what constitutionally should the trial judge do well here the rapper is represented or represents himself unless there's a change of counsel on the basis of this breakdown in whether or not there should be a waiver counsel his decision controls that's the law in federal courts under the united states speedy trial act as well so one issue in this case is the appearance of the defendant without counsel at several pretrial hearings right there and then as i understand it at several of these hearings this state trial court decided not to do anything but to postpone until a month later or so should those delays be counted against the state or should those delays be counted against the defendant or or what should be done with the well the first three of the four hearings the delay should be town it against the defendant because under their case and i decide anything attributable to defense counsel if he didn't come to core then the delay is attributable to the defendant and the very last one at the fourth hearing the prosecutor did seek a three month delay and the judge did adjourn trial for three months so that one would be chargeable to the state so why would that one not be a critical stage that coun is missing from right if you look at the critical stage case law and it's all over the map quite frankly of the various different editions as to what can be a critical stage or is in a critical stage it seems to be there has to be a great risk of something really significant happening at the hearing before it's considered a critical stage and here this hearing this november eighth two thousand and four hearing the transcript is only four and a half pages hearing lasted less than five minutes the only thing happened was the prosecutor says could we please have a delay of three months and the defendant says i object and then the judge grants the adjournment so the defendant didn't lose anything because he did object and so that's the only thing counsel would have done if if  major argument well legal argument you could have but also keep in mind that all that he needed to preserve his speedy trial claim was to make the objection and that did occur and there was no risk that anything of consequence at trial was going to be determined whereas the timing of the trial was at risk but nothing else in the case law seems to suggest that there's going to be something more than just the timing being at risk so what case would you say is a good case for your case a lot of principle there well i mean i did find an unpublished six or case from couple of years ago where they say there was an adjournment because the other attorney didn't show up and you know what that's not a critical stage but i would also point out you know it's not my obligation to point out the cases there are obligations say at the state court decisions contrary to clearly established supreme court case law and they have cited no critical stage supreme court case that was in fact violated when the michigan court of appeals and the district courts this was not a critical stage type of hearing so even if hypothetically the supreme court is that you have a right to counsel at critical stages you're saying you need to have a supreme court case saying a pretrial hearing in a criminal case is a critical stage i would think so and i would also add that the district court pointed out in coleman versus alabama three ninety nine us one they said if in fact there is a critical state of violation at a critical stage a preliminary hearing it's subject to a harmless error test which would be different than if it had occurred at a critical stage like when the jury was seated you know in that kind of a situation put if it's a pretrial hearing and the attorney is not there at all coleman versus alabama says you apply a harmless error well this would be harmless error for certain because nothing of consequence happened except the trial was delayed three more months and then when they came up for trial the defendant wanted an adjournment the defendant every time the case came for trial the defendant is from a german he complained the first day of trial when the case finally did go to trial i want an adjournment at sentencing he said you should have adjourned my trial was his reason for seeking he was constantly criticizing his attorneys for a wide list of complaints he corner yeah i want to go to trial no i don't want to go troy i want to go to trial i don't like my attorney my attorney you know and various complains but there are several spots on the record cited in our brief for the judge you know compliments the attorneys and said you know this is just a difficult client he offender he's got he's got a lot of experience in the system and he seems pretty intelligent i mean he sort of understood a lot of the issues and he you know he was hard to control and he complained a lot quite frankly he built a lot of objections into the record but every time it came for a trial he adjournment he didn't really want to go to trial but he knew how to make an objection now the last thing is this failure to investigate and no expert witness and trying to invoke the booker and couch the book or the defendant later produced an expert witness who said i have a totally different theory how the victim died and testif examined at a district court hearing in this case there's been no offer proof at all as to any witnesses expert or lay and what they might have said or that they had any favorable evidence if there had been a more thorough or you know more complete investigation honor this is a jury trial was it not and your client was found guilty of second degree murder is that right is correct it's the government's position that as it relates to the speedy trial aspect of the case that there was a waiver number one to number two and miss is critical as far as i'm concerned how has this prejudiced your client you got all your evidence in a trial the jury heard it all and can you honor the waiver issues are relevant the alleged waiver occurred in november of two thousand and two which was shortly after the indictment he wasn't tried until april two thousand and five he reasserted his rights as early as may of two not try me for twenty five years the waiver only last until it's reasserted it was reasserted as early as may of two thousand and three so the waiver issues are relevant to the prejudices issue here is the my client did not get all of his evidence and the witnesses the disappeared and that is crucial to this and these are witnesses that the district court said would have benefited his case they they are witnesses that would have contradicted the witnesses that the state put on the stand and that that is the prejudice and that is classic prejudice and that is prejudice that this court has found in other instances the disappearance of witnesses is prejudice and if i may i don't i don't need to remind this court that this is a speedy trial case at its core when when my opponent is talking about whether or not the final pretrial is a critical stage in that this is what they've done throughout this case the they've tried to negate the issue by saying well you know it's a scheduling you know it's not a big deal this is a speedy trial case ok it's a critical stage because a constitutional right to construct a right to speedy trial was affected that so it is so it's not just a mere matter of you know the state pushing through another continuance and it's not a big deal because it scheduling scheduling is required by the constitution speedy trials are part of a constitution so scheduling issue is a time from the time mr aren't cough was appointed which is because he was trial counsel in june or july of two thousand and four until the trial so that's the better part of a year ten months eleven months and when my opponent said that it doesn't count if it's less than a year that's that's not exactly true it's only if it's more than a year it's presumptive but it still counts of it's less than a year and again there are two issues here when we're talking about this particular timing issue there's the speedy trial issue there's also the sixth amendment critical stage denial of counsel issue and those those two have to remain separate so although yes it's counted for speedy trial purposes under the sixth amendment to say ok is eight nine ten the ten month delay it wasn't that the court then allowed the prosecution without any explanation or justification whatsoever to delay it at this point we have to remember we're talking obama eight two thousand and four they've had the case for four years and they're showing up at the final pretrial saying we're not ready to go with it what were they doing for four years where you have not been able to show this truly was intentional by the government have you they asked for the continuance so the delay was intentional i don't see how denied your client to fair trial that's correct i mean i don't see how the delay could be anything other than intention i'm not sure that we have to prove that it's intentional but i don't see how could be anything other than intentional they show up at the final pretrial and say it for you again four years after his arrest they've had a case for four years they've had their witnesses for four years they show up nov two thousand and four and say we're not ready ok with i mean i don't like that delay from nov eighth to date of the trial is intentional in the sense that they are intending to ask for a delay and they ask for a delay but why does that show that the delay prior to november eighth two thousand and four is intentional it just could be that they're negligent overwhelmed with the number of cases to put it charitably what's the distinction between your client showing up on the day of trial and saying not ready to go give me a continuance and then sign three months before trial and then three more months in order to present this case princes ones done by the state ones done by my client my client's request wasn't granted and that doesn't justify the state's delay up until that point you know there's a bit of i guess i'm just confused because the purpose of your argument is that there an intentional dilemma that was inappropriate and denied your client the ability to go forward with presenting his defense and yet on the day trial is to proceed your client stands up and says i do not want to present my defense today i want a continuance now i'm sayin though i'm not understanding how your argument evidence is prejudiced for this three month period that still qualifies probably for under a year i think you have to admit and yet your client then desire not to go forward on the day of his trial is doesn't undercut your argument that he is desperate to move forward with the presentation of his own defense the the the the delay when we're looking at the delay you know we certainly have to chop it up into different parts and look at which part was it was attributable to  the state which part was attributed to the defendant the fact that my that my client is a loose cannon or whatever and stands up and says you know i you know i want to go forward we sit there with council some of course it did less than a year if we count and have to attribute to your client a substantially longer period to life it's it's not a matter of saying you know the defendant delayed this long versus the state  the calculus but i mean the fact is if my client it's not just that my client delayed more than they did my client could have delayed for twenty years be you know changed counsel five hundred times that still doesn't give the state the right to then delay two years ok they still have a speedy trial obligation so the length of my trial my client's blame of the delay is irrelevant really you really only look at the state's portion so you can say and of course there were counsel issues you know he changed counsel twice and i understand that you know so of course a part of the delay is attributable to that but that doesn't the fact that's longer than what the state delay doesn't negate the fact that the state the state has an obligation not to delay the constitutional simply the state can't can't delay longer your shorter work out they can't do that i mean what we could do we could change counsel five hundred times in the that doesn't give them the right to come in and say oh well you know you cause a ten year delay so we get eight years that it just doesn't work that way then what we do is we calculate what the what if actually