good morning may it please the court bruce edwards of michigan assistant attorney general on behalf of the warden who is the appellant and the cross and probably in two thousand and five petitioner mark bailey it was convicted of the one nine hundred eighty nine murder of a seventy nine year old woman give me bailey's habeas petition alleged to violations holmes versus south carolina which speaks of admitting evidence potentially pointing to a third person who might have committed the crime and then brady versus maryland which says it's a due process violation of evidence is surprise that whips prejudicial to your case the magistrate judge carefully reviewed both of these claims issued a forty three page report recommendation and suggested a recommended that the claims be denied because the state court resolution of them was not on reasonable or contrary to supreme court precedent the district court saw things differently but in it in the state's position is the state's position that as an harrington versus richter the district court improperly treated the recent unreasonable in us question as a test of its confidence in the result it would have raised under didn't overall review and that is not allowed under it i'm asking this court to reverse the district court because all fair minded jurist would not disagree with how the state court resolve these claims that high standard has not been met while the homes and brady question that might be close to the end for question is not it is within the realm of possibility that a fair minded jurist could find the evidence of third party go it was too attenuated and that the suppressed fingerprint report was not prejudicial because it was only similar to bally's young age of being ten or eleven at the time the earlier crime had been committed  the homes claim the homes the supreme court a state court can only fuse to admit evidence suggesting a third party guilt if the connection we to that between the two crimes is too speculative or remote or there isn't an adequate connection in the michigan court of appeals specifically said we have consider the similarities and the differences between these the one nine hundred eighty murder and the one nine hundred eighty nine murder and having considered the similarities and differences we find that the trial course this isn't that it was there was an insufficient connection is sustainable now the district courts and all these crimes are so similar so i got a call that was just you know and i can agree just enforcement at the time this murder occurred you have to ask yourself what was it that they were assuming well when they looked at the two crimes the idea in the eighty nine crime they thought that there was a new a remarkable similarity in the way these murders of elderly women were undertaken so much that they wanted to examine that and when they examined it and had got a report back from the entity of the f b i that said we think it's a single perpetrator then their response at that point was to decide not to prosecute so that's not i think that that's a good thing because what you're looking at is the law enforcement the decision of the law enforcement officers at that that they thought that they were not similarity between clean acquire and that when i think the fingerprints and the fingerprints didn't match they excluded this person from charging now why doesn't that to prosecute even if the earlier prosecutor didn't you know so i really think that but there were two reports there's a michigan state police profile report and then the quantico report the district court focuses exclusively on the quantico report but the michigan state police report is a much fairer report in my opinion if i could refer the court to page eighty one seventy four the michigan state police really laid out the differences that really make that key and here in the two key differences are sexual motivation behind the crime and faffed and the michigan state police report focuses on both of them they say her panties and slacks were pulled down to her ankles the purse was open the wallet was lying next to it she was taken into the bathroom she was stabbed with a knife about her lower clothing after her lower clothing had been pulled down she was sexually assaulted at this location the killer took little money in the victim's wallet and her car keys and stole her car so the michigan state profile focuses on a sexual component pulling her pants or her pants down stabbing her in her in the vagina area and rectum and also stealing money from her purse and her wallet were empty and taking her car so those are two key old or was that or was the word of the facts given to the f b i without regard to any particular person just these are two crimes probably the latter but i'm not entirely certain your honor i'm sorry i don't know exactly you and i guess judgment only to how similar they are seems to me that a police person might say and therefore you should continue to investigate on the theory at least that it was committed by the same person then if they were told however yeah but the person we're thinking about is somebody who would have only been ten in the first one does that change your view it would seem to me when you read that that it probably would change their few but if if they knew it then i would be able to say that i'm not talking about me i'm talking about what the what the state courts would have found was speculative or not because when when this kind of evidence is given to the jury it's going to be with respect to somebody who was only ten not in their opinion that's right that's right i mean it is so it seemed so important that to ones thinking about it that you think it would be in there if they knew so i you know you know what all we do is ask whether or not the actual result reached is an unreasonable application of supreme court precedent and but but but it comes through a brady klein with an embedded holmes colline and the key in that fandor it is whether the what occurred under my confidence in the verdict right and that's where my argument is is that the fact that the defendant bailey was ten or eleven at the time the first crime occurred that is at least as exonerating as the fact that his ten or eleven year old fingerprints did not match some fingerprints found at the crime scene of the one nine hundred eighty murder it really doesn't add very much quite frankly and it certainly doesn't put the case in the entirely different light doesn't make the prosecutor's case much weaker not graham who was convicted of the from murder that's correct did not live in michigan at the time he committed that murder charge he was traveling through michigan and he didn't live in michigan at the time of the id not murder this possibility seems to me that it kind of obscures the arc of the investigation and and then we're back to the does that undermine confidence in the verdict which  michigan intermediate courts never had the opportunity to determine because of the bright lights but as i mentioned in my brief brady looks at its effect on the trial not the subsequent appeal and  michigan court of appeals knew he was ten or eleven and would the fact that his friend a ten or eleven year old fingerprints didn't match and earlier crime scene all the sudden makes them think oh my word that's you know routinely we find ten or eleven year olds fingerprints at murder scenes you know  wouldn't the brady issue depend a little bit or maybe significantly on why the michigan appellate court thought it was speculative before it had that information if it thought it was speculative because a ten year old could have committed it and therefore it's not exonerating then this information would have  big effect on the late thought it was speculative because these crimes were really not all that the same they had this and that difference going on then the new evidence would have changed the committed it and so the reason that it was speculative was because he thought you know a ten year old could have committed it doesn't really exonerate all right but i just  or i'm sorry i don't think that's a fair reading of the court of appeals opinion why not because they say looking at the similarities in the differences between the two crying and the difference is the highlight around they say our first time around they say that before they get the new evidence they say well they didn't say anything the second time around they just did so and brady replying i understand yes and brady was the first time around they relied mostly on the difference between the two crimes and not on the possibility the ten year old could have committed the first i believe that's correct see my time is up keep my three minutes for a bo age of mr bailey and part of the argument that the state at the time when this was being looked at by the court of appeals originally it was their very argument that they made in regards to those detailed reports by those experts that a ten year old potentially could have done this because in those reports that report highlighted that that individual could have been as young as per ten perhaps thirteen and so in the context of when this case was going on it was really an argument that hey by the way these reports are not all that helpful to mr bailey because in fact they could actually point the finger at mr bailey even though he had this argument that he was only ten at the time of the first thomas we know the district is i mean the court of appeals ruled reasoned that way why isn't it if not definitive at least as reasonable to assume that the that the state court after they got the brady evidence legibly brady evidence reviewed what they did before  identified it as finding just speculation based on differences between the two crimes rather than on the possibility that a ten year old might have done that could potentially be the case however when when  looking at everything of course the court of appeals in their first opinion that after the sixty five hundred motion was filed and that court kind of adopted that rationale from the original court of was unknown to them the first time first time around and you know what i'm saying is that when the when the later court evaluated whether this new evidence made a difference that analysis would  certain extent would it not that's my question on what they took the court of appeals to have been reasoning before and why couldn't they say well look they said that these we're looking at the differences in the similarities between the two crimes and it doesn't seem like they were close enough they're reading to say that this evidence is more than speculative or less than speculative not speculative right  that's their analysis that's a reasonable analysis and then you lose under it that's what i'm not understanding why you don't i mean sure they could have said oh you know what the what the court of appeals was really saying this was speculative it is has to do with whether a ten year old could commit the crime but if the basis for saying that it was speculative and implicitly they said it was speculative because that's all they ruled was because the crimes first were not sufficiently identical if that's the basis for the first  determination then it really makes no difference it's even kind of supports the decision to say no the first crime could not have been committed by this person or when i was going to say what when reviewing the opinion i don't know wife if we can come to that conclusion that that's what that's what they base their rationale on there's there's nothing they go beyond that and starts talking about the dissimilarities of the what we concern yes i definitely yes i do i would like to highlight a couple of things one is is that this issue which kind of developed over time first began with the argument that mr bailey was denied his right to present a defense they had asked to have not only these reports but the fact that there had been a murder in this small  town very alike and similar in nature and all of the very details that were in that report that experts not ones that mr bailey had hired but the prosecutor themselves had hired these individuals to come in and look at these crime scenes and make an analysis and then as time went on and he was denied doing that it wasn't just that the knowledge the similarities was not allowed the jury it was also the fact that the that there had been a prior homicide that very arguably mr bailey could show he was not the perpetrator and that  both connections of those two were not brought before the jury that's really the heart of that being able to argue third party guilt if you are not allowed to point that finger and you have the evidence that you should be allowed to point that finger at another individual he was a stopped from really worries in a kosher defense at that point and then we find out later  after discovery on his hey b s that in fact way back when they thought enough of the fact that mr bailey potentially could have done this crime at the age that he was  that they ran his fingerprints real issue that they wanted to examine the singer plans because they thought the crimes were so alike  what reason would you have a of particularly with the quantico report of seeking to put this before the jury except the head it is it it ever did it gives the jury an opportunity to consider third party guilt but it also gives the jury an opportunity to consider what the state thought was third party guilt yes i would agree and  that enough is the real question is that enough to survive it and if so why i think it is enough because although the state argues that this fingerprint evidence really is just cumulative really wasn't cumulative because when these decisions were being made and in fact the state knew about this that's when they were actually making arguments a potentially could be mr bailey and they knew it wasn't mr bailey on the first time aside and so when you take that in connection with his argument that he was denied his right to arm under home to be able to point the finger and show the third evidence  the third person guilt whole issue and then we have a brady violation after that i think it does rise to that i think that i can see it another way i guess and maybe it's because i've been working with a file for years and years and years but when you look at the us he's first to stop from going into third party guilt and then when he has some forensic evidence that really supports that and that the state had that originally and then he finally gets her and there's some forensic evidence that increases the likelihood that both crimes were committed by the same person it's  similarity seems to be to me at least to be the key weakness he the key reason it speculative is that they don't look that similar other than the wire the wires kind of strange there was a wire around the neck in each that were the differences and came to other conclusions and at that time it's very hard to forget what happened later but at that time that's what they were looking at and they said that there are in neither case did they come up with this  report either that was very detailed and they actually went into the details about how that this was a an actual crime of rage not necessarily a sexual assault fingerprinted and the effect that analysis is what i'm asking all of that similarity of the crimes whether you find it extremely cruel incidental or whether you find it not that coincidental however coincidental you find it it's not increased or decreased by the fact there's no fingerprints there i guess that specific issue it might not be but i think it certainly is very powerful evidence to support mr bailey attempting to get into and be able to point a finger at third party guilt because if if the underlying issue is that we do have this report by experts saying that in all likelihood the same individual committed these two murders that before them that report right before the evidence got yes yes they had that say well this is brady evidence because it would have made a difference but it is assuming that the original decision was ok it would've made a difference because the original if to the extent that the original decision is based on how tenuous the comparison  is i want to talk of one thing because i just wanna make sure that i'm right court here you're i may be confusing the courts as well as a lot of courts going on here liking in this case because i think the undermining undermining the confidence in the verdict with the brady really does relate back to the original issue of the holmes argument that he was stopped from presenting third party guilt and so the two really are intertwined together in so if the court's looking at the prejudices that came out of the brady and whether or not that may change really my understanding is is that if it would change the verdict and it doesn't have to be that you know all twelve people would find him not guilty it would basically it has to come down to this issue of when we look at the light of everything at that time whether or not that would have an impact on the verdict and i think the fact that the government has has fought tooth and nail about the third party guilt the issues about bailey's age during that time and mister bailey was actually prove that he it was his identity that had actually killed the compain so i really think when you're looking at these different standards i think they kind of i don't want to say blunt together but i think over all looking at it you really do have to look at the the whole issue of extensionally in the dan i do want to mention that the state has a harmless error argument that it has raised if this court order find if there were any homes versus south carolina violation you're still not entitled to habeas relief unless the court finds that the exclusion of the evidence had substantial and injurious factor effect on the verdict and here there are several things that point to bailey's guilt first of all he admitted the crime to three different people the confessions the court and the u s supreme court are very significant and in one of the early confessions he specifically told the other person he used a fork that had never been released to the public how did he know that responding to anything posing counsel raised well i wanted to make sure that i got my harmless error argument out that you have waived that that's for sure ok but you know part of the analysis let you make a new argument that she doesn't get a chance to respond what part of the analysis as to whether or not you should grant relief is whether or not it can be under  there is strong evidence relevant i'm just saying it's a different argument i technically i guess it is your honor but i'll be very brief he was seen driving a car identical or virtually identical to the victim's car his shoes were the same daughter testified her mother did not have a pet and it would never have any reason to go into the pet palace and that's where mr bailey worked and several witnesses also testified that he acted very different very strange on the day of the crime and soon thereafter seventy yards i have one question your argument is that the opinion reflects that the decision was made based on the link between the crime can you point me to where that  court of appeals direct opinion and they specifically say after considering they say although the issue is arguable on some level after considering the similarities and the differences we find that it was not an abuse of discretion for they documented the sexual component and they had this michigan state police report the talk about the thefts that occurred and go into all as they did not go into that with us and we have considered them that's right they had considered differences of preferred anything else not that i'm aware  had to do with money that was part of it yes that's right and if if they are differences then it's remote that there's a connection would be the idea all they're not talking about remote in time because it's how the crimes were committed and you know the victimology and how the crimes were committed that sort of thing is what they're talking about anyway the state would ask the district court it reversed because the state court relies aleutian was not objectively and reasonable under adam thank you very much thank you counsel the case will be submitted