convicted here of arson on a prosecution theory that was impossible based on the scientific evidence defense counsel here was ineffective and there's no reasonable  argument that she met the standards of strickland with respect particularly to the expert witness and there's no way a court could reasonably determine that there was not prejudice to mr jackson to focus this morning on a decision i'm quite certain both members of the panel who are here today are familiar with richie versus brett which we've relied on from actually into the in the state courts and the situation here is not only an elegance to richie but the defense counsel was was more ineffective here was more of the most egregious type of situation where she knew there were problems with the scientific proof she acknowledged all along she thought that there were problems with the way the fire marshal had investigated this case and that to remind the court that the fire marshal position was that the fire had started on the couch that accelerants had been used he wasn't sure what excelente but he thought it was winchell wiper fluid based on the fact that there was a full bottle of windshield wiper fluid located in the apartment and that there had been wiper fluid is poured near the couch or on and on the couch and then ignited by mr jackson as the diff this defen expert began explaining and at the hearing that we had below that would have resulted in the person igniting the fire actually igniting themselves if you're standing in a pool of accelerant starting a fire you inevitably going to bring up yourself in addition it didn't match up with the the evidence because the couch was not the area that was the most involved in the fire as the fire marshal him self acknowledged it was actually in the kitchen that the that the kitchen cabinets had burned and that the scientific evidence in the physical evidence was most consistent with the pot being left on a burner and that's where the fire began mr jackson i did not behave in a way that i would recommend certainly to anybody he was definitely though it was the last person seen leaving about two hours before the fire was discovered but the jury was instructed that you know the defense counsel w certainly aware of that and that actually made the expert testimony more important that if started not by him intentionally starting the fire on the couch but through as the jury was instructed the jury was instructed they needed to presume that it was  accidental fire and the expert testimony would have rebutted both of the prosecution's expert whose testimony took up half of the trial account of the pages last night it's just about fifty percent thought they didn't find any trace of a shower they found the true that they found no trace of accelerant but the but the fire marshal maintained that there was still excel or in there that had not been found either because through his own technique of washing it away because maybe it hadn't oh my reports were wrong he did it he had indicated and the fire marshal also testified that he thought the dog had indicated an accelerant so it wasn't a surprise when the fire marshal came in and said that there was an accelerant what the expert would have allowed the defense to do is to give you give the jury a basis for determining as it was instructed that it was an accidental fire that the scientific evidence was consistent with an accidental fire the cross examination by ms robinson you know fairly effective she got the witness mr hager to concede to a number of things in terms of i guess the lack of smell of gasoline in the things about the burn pattern that make it more difficult to conclude that accelerant and been used well if you things with respect to that it was not effective she she certainly got him to to make some admissions but he never said it was gasoline he was going with the the windshield wiper fluid theory that and that the dog had alerted that she was not attacking i have read it but not recently ever had it i spent a lot of time with it before zari or i spent a lot of time with it before before the hearing that we did with the the abbreviated hearing i would say that we did with the expert i i i i it's impressive that she said she committed to memory because that's a that's a difficult task and it's certainly difficult to cross examine an expert without having the precise text there so even during the hearing she didn't have it she didn't ask for the dog here she's she said she spoke with an expert before the daughter hearing about what maybe you should expect her in the daughter hearing but not specifically with respect to this case that she she didn't ask an expert to take to take a look at this case and come up with a defense theory about why there was no arson here where the fire started to go to the very heart of the prosecution's case  to get to the the scientific evidence that the prosecution was wrong on about where the fire started she she was going with this sort of you know maybe it's an it's an accident theory because she certainly could not  is i cannot say here today that mr jackson was not the last person seen at the apartment or that mr jackson behaves in ways that you know i would certainly say were i you know i would not recommend that people do but that doesn't mean it was an arson but the supreme court seems to suggest that there are times when cross examination will be effective to test the prosecution's scientific evidence if  that defense counsel would always need to have an arson expert i mean there are there are situations where if the defense counsel believes reasonably so he or she can challenge the prosecution's expert and that that would be enough to just trial strategy i'm certainly not going to dispute what the supreme court has said you don't always have to have a competing expert to greater minds than mine of course the but but there are but the defense counsel needs to make a reasonable determination that they that they don't need an expert and part of that reasonable determination it should include talking to the expert about your specific facts of your case and what you have going on your case here's the evidence that i have here pictures of the spears people you know consulting with them about your specific case not not speaking to them generally but but consulting with them fully investigating and then making that determination and that the investigation claim is one that we have argument that has been raised all along that she did not do enough with respect to the determination not to bring an expert in that that she should have for as an expert would testified as mr smith who helped write one twenty one testified that the evidence was consistent with of the fire being started by a pot being left on the stove that the that the fire marshal had swept things away had looked for the bottom of a a pot to be charred and had not looked through the debris in a way that it would have landed him to find the amount of pot that would have given the the defense in the jury  point to say yes we have this instruction that says that we have to assume that the fire was accidental that that there's no physical evidence to say that the fire started someplace else and that the prosecution there are any witness fire began in the kitchen that there was a flashover in the kitchen that spread to the other room that the kitchen had the most damage not the couch the kitchen cabinets were gone the couch remains that the frame of the couch was still there so it didn't make sense based on the physical evidence to say that the fire had started anyplace else but on the stove and they test that whatever they call that begin to go big or whatever it was was over right that it was that it was on but that that would be expected because when the fire department comes in to put out a fire they turn off the gas to the stove so you wouldn't expect the burner to still be on because they're putting the fire out in the in the apartment i see that i've used up all of my time here to have your full rebuttal thank you thank you really if you can show an unreasonable application of strickland in this case now fortunately nobody was hurt in this arson and that led to the defendant getting a relatively short sentence and in fact he was already paroled six months ago so this is a first case a very good for the defendant was not incarcerated now the only claim is that the defense attorney should have done more should have retained an expert should have cross examined the fire marshal more thoroughly supreme court has indicated that when you have strickland you have to show deficient performance and prejudice attributable to it and when the cases on tape is you have to also show that the michigan court of appeals resolution of the claim was on reasonable so they call that double deference and the likelihood of a different result has to be substantial vote they did they said they did not think it was deficient with a good but even if it was deficient there was no prejudice that's right now fortunately in this case we actually had an evidentiary hearing after the trial and with her attorney testified and she was asked you know why didn't you call an expert in the one in all of this and so that's very helpful in this case and she explained that she had over thirty years experience of trying cases in criminal law appeals and trials and that she had spoke to an expert she spoke to other attorneys she  read multitude of articles and strickland says you have to evaluate what the attorney did when they did it now when she made her decision not to retain an expert what was the the facts the facts were the fire marshal s you know both of those things and that's when she said well gee i don't think i need an expert because he's got the fire marshal has nothing to support his own testimony and in fact his testimony is going to be contradicted by the reports that i have now that's a row terribly reasonable conclude in fact she testified that the defendant himself agreed not to call an expert now the seventh circuit has held that if an attorney if a client agrees when he has all the necessary him for mation that he can even argue ineffective assistance if he agreed not to  now judge starr you mentioned this other evidence and that's it my real argument is that even if the defense attorney could have persuaded the jury that the fire marshal hagar's theory was you know that the next element was used was wrong they still would have convicted and that's really what the trial judge and the michigan court of appeals said and they listed several things and some of them have already been mentioned but i'd like to mention them all of them and you know he previously had threatened to burn down the apartment on the night of the fire he sought a gun from a friend so he could kill his girlfriend and the night of the fire he smashed his girlfriend's car when it was parked over the girlfriend's mother's car when the girl from was in the mother's house he was the only person besides the girlfriend who had a key to the apartment is the last one seen leaving the apartment two hours before the fire started and a gas burner was left on and then finally the defendant's expert said i can't rule out arson i just rule out an accelerant so the fire could have been deliberately started just not with an accelerant so given all those circumstantial facts the jury might well have said we don't agree with hagar all but we still find that he deliberately set the fire and so therefore they would necessarily find him guilty of arson now at the end of it quite interesting at the end of the attorney's testimony at the evidentiary hearing is she's getting ready to step down the judge says this is on page eighty eight zero eight the core you did a lot more than a lot of lawyers i see every day would probably have done to prepare and then defense counsel in an unguarded moment of candor said i think she did a very fine job well so do i now the district court basically doctor the same position that i had taken and what they had is you know what what the attorney did was reasonable when she made her decision based on the facts that were before her and you can't find prejudice and in fact as you mentioned  and it doesn't judge cole she did defense counsel he listed as several concessions on cross examination and the united states supreme court has never said you have to call an expert in every case they even said there's no newton's third law when somebody calls an expert that you have to have a counter expert they said many times it's better to do so in fact the defense attorney testified at the get their hearing in her experience of over thirty years that when there is a prosecution expert and a defense expert the juries frequently discount w defense expert says and think they're just saying that because they got paid to say it and the prosecutors usually argue that as well and so she felt like you know based on her own experience that you know i really don't need an expert here and even if i were to call on i'm not sure it would really move the ball forward in her case now in her brief opposing counsel cites two cases in particular dugas feet copeland and that's a first circuit case where the first circuit was critical of an attorney in an arson case but we need to hear the rest of the story and if you will shepherd eyes do this week open you'll see that the first circuit said we find official performance we cannot find prejudice of the reminded for a determination to prejudice the district courts that i don't find prejudice and wrote this was a death penalty case where the state called six experts and the court criticized defense counsel for not mounting a this was not arson defense well this case is the exact opposite out because the defense attorney did mount a this was not arson in fact it was an accident defense so i don't see how richie helps opposing counsel's case at all now jackson argues in his brief on page forty seven there was no risk to calling a expert but the supreme court in north of the mirrors amps at five five six us at page one twenty three said they were jack to the ninth also interestingly jackson accuses the michigan court of appeals of using the wrong test for strickland in her brief now if you look at star six of the opinion they use the exact correct test from strickland and then on the next page they use a shorthand phrase and she's attacking the shorthand phrase that they use but there's plenty of cases that say if the state court identifies the correct test the first time they mention it it's not wrong to use a shorthand thereafter especially when state court opinions are to be given the benefit of the dough and the u s supreme court has admitted that it's done the very same thing itself and some of its opinions i think if you'll see would have heard the risk yadi that happened where the court left out the word probable one time and now ironically not only do the michigan court of appeals not use the wrong test but opposing counsel uses the wrong test on page fifty of her brief she cites the at least one jersey might have had a head might have struck a different balance test  a two thousand and three case a death penalty case from the united states supreme court where they were reviewing a virginia death penalty were the jury verdict has to be unanimous in order to give the death penalty so if the jury votes eleven to one to give the death final the defendant gets life and so that's why if you have a twelve zero if you just only one germ i don't look at things differently then you might be able to satisfy strickland in a death penalty scenario now when they talk about striking a different balance what are we talking about they're talking about aggravating and mitigating circumstances that are presented at the death penalty phase of the trial while michigan of course doesn't have the death penalty and there was no mitigating or aggravating evidence that was submitted to the jury for them to strike a different balance regarding anyway right so the correct test in strickland specifically says that a reasonable probability that the fact finder might have had a reasonable doubt respecting guil so the fact finder in this case was the jury so it's not enough if one of the jurors might have seen things differently the jury must have at their must be a reasonable probability that the jury itself might have seen things differently so the w testers do not even apply in this case and i urge the court not to follow th e supreme court at all they concluded that in a b s you can't get habeas unless there's been an extreme malfunction in the state system there is no extreme male function here the district court correctly found that the defense attorney was able and capable before trial she got the defendant's prior conviction suppressing case he testified he was going to be able to be impeached with it she got some statements the defendant made suppressed as well so that they couldn't use anything that he said in the statements against them at trial she you know she called exposed some weaknesses in fire marshal hagar's testimony and his analysis but ultimately determined because of two reports that she had that would contradict what hager was going to say this she didn't need an expert overall and she could rely on the cross the contrary that was a shock a trial the defense attorney was blindsided as she explained it at the evidence you're hearing so you know if if i was on the jury and that dog handler said oh yeah by the way in my report actually i'm going to say the exact opposite thing that i said i to pay too much attention to it and i honestly think that is very likely that this jury wasn't persuaded regarding the ex use of an accelerant which they were persuaded because of the threat to burn the house down the threat to kill the woman that last one to leave the only other person with a key all those items together provided circumstantial evidence that in fact that arson had occurred here where this started you thought it started right near the couch with an accelerant and you know they sent some pieces of carpeting from new york right near the couch and now we can state police lab so we don't find any accelerant here now you know there were was an offer prove that at the get there hearing that a another prosecution expert would have provided testimony of actually supported what hager said but the judge didn't take that testimony so we don't have it when we do have an offer proof of that so as it as we have right now you know it's just hagar said x and then the defense expert after the facts know there was no excel or but i can't rule out arson well if you can't rule out arson and we have all this other circumstantial evidence than the defense attorney that did a good job if she  could you know the case was stacked against the defendant you know he was offered a sweetheart deal before trial and he turned it down and you know he rolled the dice and you know the jury did what they did and it's not really his attorney's fault that he was convicted in fact i found one case that says we recognize the tendency when all else fails blame the attorney and this is really what's happening here this attorney did a fine job and at least at one time defense counsel agreed that she did a fine job but she's not arguing that today obviously so smelled an accelerant and that page id seven seventy four she said i knew he was going to say he smelled an accelerant and that i i couldn't impeach that the way she could have impeached it was by having an expert of her own to come in to testify to say that the way that the fire marshal was determining that there was an accelerant was contrary to the to the scientific standards that his theory was scientifically in  certainly could have used the treatise to do that as well but but what the treat is alone could not the treatise could have said the way that your determining burnt looking at the burn patterns isn't consistent with n f p a nine twenty one and the way that you're deciding there's accelerant contrary to what the police lab is doing she has done all of that is contrary to the treatise when an expert could have added and why an expert is particularly important when you do have the evidence of the what i would certainly admit are are facts that are not favorable to mr jackson is is something that would support the theory that it was an accident and not an arson and she did not have that she did not put on evidence of somebody coming in and saying this is the most likely way and the most likely place that this fire started was on the stove and what the expert testified to is a little more complicated than just i can't rule out arson it's it was the way that we look at this scientifically  is is to talk about it in a more nuanced way than yes an arson known arson his testimony was it started on the stove it that there was the there was a pot left on the stove with the burner on that is consistent with it not being intentional fire and the jury was instructed that they were to decide to start with this presumption that it was not intentional fire with evidence that it was an intentional fire that that they were that there is an accidental way that this fire could have started totally and entirely different than what the prosecution expert testified to there's a reasonable probability that the jury would have found differently and  discussion and we don't have any indication in the record that mr jackson did not understand the arguments that ms robinson was making that she that he was somehow uninformed  completely knowledgeable so why shouldn't we align ourselves with i think is the second circuit case and concluded look he he made an informed decision not to have an expert he didn't think he needed one well he didn't make i say that we've been saying she did make an informed decision not to have an expert so there's no way he could have made in a decision he's certainly not an attorney he's relying on her expertise as a lawyer so if the lawyer comes in and has not conducted the full investigation which is something that has been our position all along and it's certainly not true that i think that she did a fine job with respect to the expert and that is certainly not at all what i meant at the time or the position i have ever taken but mr jackson was not i am sure you knew that but i wanted to make sure crystal  clear that that a client can't is relying on the expertise of the lawyer for the lawyer has not made an informed decision herself that an expert is unnecessary then there's no way that a client can make an informed decision