please the court i wanted to thank you for allowing our law student josh rothenberg to argue this case on from the university of michigan law school and i'm here to supervise him today thank you thank you  jury's verdict to stand based on speculation rather than evidence or rational in specifically the jury would have had to speculate as to the but for cause elements of aiding and abetting the delivery of a controlled substance causing death and as to the act or encourage element of aiding and abetting the crimes related to the removal of miss irving's body from a stand outs apartment i'd like to begin with the aiding and abetting the delivery of a controlled substance causing death charge the prosecution entered one witness to discuss the but for cause element there medical examiner dr cho he testified repeatedly that there was a lethal dose of both cocaine and heroin in mr irving system that either could have killed her and that in his expert opinion he could not say which was the cause of her your honour's that would necessarily have raised a rational a rational reasonable doubt in any rational jury's mind to overcome this doubt the prosecution attempted to rely upon faulty logic namely argued that because heroin could cause pulmonary edema and cocaine could cause heart attack and because the medical examiner testified that mr irving had died from a pulmonary edema that heroin was the but for cause of death however no evidence in the record suggested that cocaine could not cause pulmonary edema this gap would have left the reasonable doubt fully intact but not in the record  that you're out of the question for the jury became whether cocaine could be the cause of death by causing pulmonary edema which the prosecution also relied upon the fact the medical examiner testified that heroin was more consistent with the death and cooking this would have allowed a rational jury we concede to conclude by a preponderance of the evidence that heroin rather than cocaine was the but for cause of death however that is not a reasonable doubt  this question to the medical examiner can you say beyond a reasonable doubt that her one caused the victim's death but the question well there are of course that would  be an opinion as to an ultimate issue of fact but i think what's important here is that what they could have asked is whether cocaine could cause pulmonary edema and how much more consistent it was so that's not a permissible quest that heroin caused the death would that be a problem question i'm not certain on it because it's not an ultimate issue of fact in this case but our contention is not that he said it was by a preponderance the evidence but rather that by the more consistent statement a jury could for a legal conclusion yes your honor is that what you're arguing and you're making the factual statement by the examiner that it more consistent with your turning in to would legal argument as though the medical examiner has made a legal conclusion isn't that what you respect the art of that's not my goal here my point is that what the jury could have concluded from his testimony was that it was possible beyond a proposed by a preponderance the evidence but not beyond a reasonable doubt because knowing simply that between the two causes one is more consistent than the other the jury did not know how much more consistent or what chance there was that cocaine was the cause of mr irving step and that was what they needed to figure out they have to have they after all been told the legal the difference between  preponderance and reasonable doubt yes you're on and that's the argument well ok so you're on it to be clear argument is that what the prosecution could have done in this case to fill this gap is ask the medical examiner whether cocaine could cause a pulmonary edema how likely cocaine was to cause a pulmonary edema how likely cocaine was to be the cause of death via pulmonary edema when there was also heroin in the in the victim system but rather than pushing on those questions they relied upon th faulty logic and hope that the jury would conclude from the mere statement that cocaine can cause a heart attack that it could not cause a pulmonary edema and here is that was the exact reasoning relied upon by the michigan court of appeals and it was on reasonable  to the state court's ruling on this but yes yes your honor we do recognize that there is double deference here however this court's precedent namely brown v palmer establishes that relying upon speculation rather than evidence or in e allowing that to go forward is an unreasonable application of jackson because jackson makes it quite clear that the only permissible categories are evidence or reasonable inference moreover in this particular case that gap in the record should have been court of appeals relied upon in its conclusion here i'd like to ask you a question which i think may be difficult because it's not exactly what the michigan court reasoned but doesn't doesn't your argument  depend on the idea that under michigan law if you have to concur criminal causes each one can keep the other one from being the cause yes your honor we do and for that we'd  have concurrent criminal causation and that's acceptable under michigan law they give us an example if an infant died because it was locked in a hot car on a sunny day and the child was left there by two parents rather than one neither could be found criminally responsible and they say they reject that so if the law were what that seems to suggest that would undermine your argument no your honor i believe not i believe the team says about concurrent cause in the sense of that it causes that both parents could have done something and failed to do it so both parents bear the responsibility the equivalent here would be if they were testimony that heroin and cocaine heroin was caused the heroin was caused and could have killed them was caused by one criminal and cocaine is caused by another criminal why isn't that the same they give us another example if a guest died in a hotel fire and because another guess firecrackers would that be exonerated by the fact that some other hotel guest somewhere else at a fire and either fire would have burnt the hotel down scene isn't that the same as one person provided cocaine which is presumably illegal on another person provided her and that's presumably illegal and there concurrent causes difference there yes you are i believe in those hypotheticals once again the fires may have worked together there is more evidence that the two causes are concurrent in the sense that they both operate towards the same too but i'm not sure how they're different and the you're on the other thing is that in those cases there were also be attempts liability people the schaefer makes quite clear that in the case of a much more similar statute here the automobile homicide statute that but for cause means that the diff the result would not come out but for that cause we do not know if mr irving would have survived had she had only heroin in her system that is something that we will never now i do want to briefly address the act or encouragement  prong of the removal of miss irving's body and i'd like to rest in my brief for the mens rea a problem because even if my client knew that mr rhys or intended to commit an illegal act of did nothing to stop it under michigan law people versus burrell that is not enough the jury here would have had to speculate based on a two circumstantial piece of evidence namely that she awoke mr aris or rather than calling the police and that she went to work and showered again rather than informing the police where the authorities  under people versus lucas and accessory after the fact is not nader in a better and vice versa and the timeline here did not establish that text messages were sent before or during the commission of the crime as opposed to after the crime had already been committed are you  conceding that they were for or that this would that would be sufficient evidence to show it in a betty yes your honor if it was established beyond a reasonable doubt that the text messages had been sent before the crime was committed that would be sufficient however that was not established here as it recognized by the michigan court of appeals when it relied upon the text messages solely for the mens rea or component and not for the actus reus of aiding and abetting in this case you don't think the message is themselves were sort of ambiguous as to your honour's the simple fact is that the prosecution must holes in its case and hope the jury would patch them over with speculation hope that the jury would take the weak points of its case and make them strong that is not allowed they try to allow for a preponderance of the evidence take place of beyond a reasonable doubt that is not allowed no matter how differential the standard we ask that you reverse the district court's denial of p b s corpus and vacate my client's convictions understood in comprehended in existing law beyond any possibility for fair minded disagreement what we have here is no question down a lack facilitated delivering a fatal dose of heroin to the victim and that takes care of that now the basic rules for sufficiency both in michigan and one of the federal standards you look at in the light most favorable to the jury's  verdict you're not required to disprove all reasonable alternatives consistent with innocence and even circumstantial evidence is sufficient to convict and then when you combine that with that he standard it makes it in nearly insurmountable burden mentioned in my brief the davis case from two thousand and eight signed by judge rogers dan'l i cannot meet this very high burden because the factors indicate that it was more likely heroin now comes out cocaine is a stimulant if you die of an overdose of stem of cocaine it's because the heart stops no evidence of a heart attack ok and this is as both a michigan court of appeals and the district court analyzed on the other hand heroin depresses that is consist i don't have the cite for it and i'm sure not sure there is a cite because this came out of to over twenty seven like five weeks ago her old p e r r e a t vs meth not written by but signed by judge watters and one point hoping for a different conclusion paroled invokes to six circuit b s cases this court said these cases do not constitute clearly established supreme court precedent and as i pointed out in my brief think we're familiar with those cases the heart of their argument is as i understand it is that is that it is firmly established that you have  to prove has to be beyond a reasonable doubt so if the facts compel the conclusion that no one could find this beyond a reasonable doubt because by definition it's unknowable which is what's going on when you have concurrent causes then then in order for it to be found beyond reasonable doubt you have to have something in addition to the concurrent causes and what there is in in addition they claim is just ephemeral or very little how much is there that gets you off evenly balanced just two causes each of which could have caused it and that's what the evidence is and the only thing that's getting past that is is what the political in the law or whatever is that right is that the status and the fact that there is no evidence of a heart attack remember what extent was that all proven to the to the  overdose is through the heart stopped beating a cocaine overdose he specifically testified to that but you add to that a cocaine overdose occurs through the heart stopped beating down on page ninety eight he said there is no evidence of a heart attack if that's true why wasn't he able to say that it was caused by one rather than the other because he is a doctor a scientist to this does not feel he who does not feel sufficiently comfortable specifically saying that that's why the evidence infer it even though he's not comfortable saying it absolutely strange and let's not forget under the hey be a standard it doesn't matter even if the court of appeals decision was wall that's beside point on the stand was is it on reasonable that anybody could have and any reasonable person could have and i always be beyond a reasonable doubt oh yes of course but as usual good beyond a reasonable doubt doubt that's right but it's a double standard i mean it's a double lever of deference which makes it nearly insurmountable and as the district court said there is nothing here there is no problem with this particular case now going over to the other issues the ones on the other crimes the innocence here is in the third transcript page one twenty seven i'm sorry the may nineteenth two thousand and eleven transcript page one twenty seven know she's dead yes sir is that a fair summary of what happened yes sir that's the essence of why the evidence is sufficient for those last ones at the very very very least that is obstruction of justice she flat out admitted it that is totally unreal bahu testimony there is no speculation there that is good enough now you can the obstruction of justice is it like the person did not die at that time to make it so that the police later on would not be able to connect act to her room you would agree the text themselves didn't do anything to well actually are the actual moving of the body not the actual moving of the body but let's not forget we don't have to specifically absent ported the state courts decision could happen supported which is exactly what the district court did here saying the text messages themselves even though they didn't help move the body they were an obstruct of justice and that is sufficient under hippias review we're not in a direct appeal so basically in fact when we come down to it obstruction of justice is after the crime aiding and abetting is before the before the crime is that adding at abetting is during the crime and let's not forget that moving the body it did not really and until they dumped the body it wasn't merely moving it one inch or even moving at out of the moving out of the apartment it was moving out all the way to the creek bed but i guess my question is if that had all been concluded when these texts were sent then there'd be a problem with convicting mating or betting if that at all being included nowell because we know exactly why she sent the texts to cover up that is a reasonable conclusion after the fact covering up is ok under the long as part of aiding and abetting after the fact was cited in the briefs that it isn't so that's why mess after the fact covering up is not however the less their argument then is after the fact covering up rather than that is just a few cover up before has not really covering up if you're a lookout at a bank robbery you can still be aiding and abetting even though you don't that would grab the money you've kept  from being discovered as it's happening but their argument is this is after the fact by my understanding is that right and it's not their argument no i am saying it occurred during the crime and the only reasonable conclusion to draw from that is the only reason that she did it was to cover up that the body was being taken out of there why would she do it because she knew that it was not being taken out  covering up makes it during the act you could have been after the act of covering up so just saying it's not a cover up it's not after the crime because it was covering up does that tell you the earth isn't the same thing as saying that it happened during the crime and i make incense yes there is sufficient evidence to show that the reason that she did it was she knew exactly where and why the body was being taken out and it was not being taken to a medical examiner or to the police there is sufficient reason as the district court correctly analyzed in addition and it was decided before they move the body based on this evidence that it's a reasonable conclusion even if we disagree with that if you decide to cover something spirity claim is mostly an aiding and abetting a way out of conspiracy crime he wasn't charged with conspiracy wasn't was not charged with conspiracy but under michigan law you don't have to charge with conspiracy to use conspiracy analysis and of course we can use on havey as we can use what ever analysis we want consistent with the michigan consistent with michigan law to come up with the the proper reasonable approach we can do that united states versus cunningham six seven nine f third three five five page three seven one but cunningham's interpretation of the evidence is just that his interpretation such a view is bolstered only if one draws all factual inferences and he is favored now dental x has come up with oh wait a minute we have to take a look at the jury instructions where now when you're dealing with sufficient the sufficiency of the evidence we do not have one thirty six supreme court seven o nine we don't have to worry about it i'm asking the court to affirm because under the heaviest standard there's nothing here thank you thank you thank you your honour's double deference does not work a standard that protects the state when it tries to argue that preponderance of the evidence is beyond a reasonable doubt or when it tries to argue that speculation is allowed into the jackson standard is difficult yes it is not i don't believe that if you're on i believe the only receive the instruction on beyond reasonable doubt or how do you get this argument that could convicted palmer and little even know what that is the only thing they're trying to figure out  my argument is not they convicted based on proponents but that the evidence only proved it based on preponderance they may have believed they had a reasonable doubt there's some evidence in the record i believe it's transcript eleven ten that the jury had some confusion over the instructions on causation that may have been what caused it they may have simply not understood the beyond a reasonable doubt standard i don't know what happened in the jury room but i do know that the evidence was not sufficient to prove anything more than by a preponderance of the evidence but i'm glad you brought up  instructions because in this case the theory of conspiratorial liability was never instructed to the jury which means the one thing we know did not happen in that jury room is that they made the legal conclusions necessary to determine that there had been a conspiracy sufficient for c ial liability they would have needed to have an instruction telling them that they needed to find a can spend affirmative agreement and that was just not present moreover there is no michigan appellate court law that we could find suggesting that there is  conspiratorial liability where there is not a conspiracy charge and i'll point out that the state sites this works director if you precedent for that but again under jackson the substance of lot of be applied is the law of the state you asked i want pick up on something counsel said counsel said the jury in this case proved that heroin was more likely the cause of death we agree that that is a rational conclusion to draw we agree that under the hay be a standard that conclusion could have been drawn by the jury where we differ your honour's is that we understand that more likely to be the cause of death is not the same thing as beyond a reasonable doubt more likely to be the cause of death especially when combined with repeated statements by the medical examiners the medical examiner that he did not know which was the cause of death is not enough  usually it's pretty hard for us to draw the line where you can concede that a reasonable jury could conclude by preponderance and that jury is instructed under beyond a reasonable doubt that we're going to them second guess whether what was conceivably enough or a preponderance didn't get to beyond a reasonable doubt i mean it's sort of like we have to rely on the system of proper instruction i you know you can conceive of a case like that but if we start doing that it starts to come in tension with these with this great deference that we're supposed to have of the  this is that case this is the case in which the jury what they received basically told them it was more likely that's that's the furthest you can get with more consistent and after the furthest they could get there's still no way that a rational jury's reasonable doubt could have been could have been s