petitioner a public morning morning your honour's may it please the court and counsel hall appointed counsel for mr davenport it's permissible your honors i'd like to reserve three minutes rebuttal thank you your honor there is no dispute in this case that mr davenport constitutional due process rights were violated when he was visibly shackled throughout his trial given that undisputed violation the only question here is whether the shackling era had a substantial and injurious effect or influence in determining the jury's  there are a number of factors that courts look to in determining whether that standard of actual prejudice has been met and in this case they all way in favor of granting hippias relief in fact the first two factors so heavily weigh in mr damn court's favor that the state doesn't even contest them that state does not contest and mr davenport shackles were visible and extensive and nor does the state contest that mr davenport was charged with a violent crime the shackles in this case essentially branden mr davenport  heard comments made by another juror to the effect that the shackling that the defendant was restrained throughout the trial had no influence on their verdict in the thought that those are standard procedure they certainly testified that  so i think your honor's question is getting at the fact that the defense did not say sorry the jurors did not stand up in open court and say you're right that the shackles had some effect on me i view the defendant as more likely guilty because he was they certainly did not say anything to that effect and i think the law recognizes the reasons why they didn't say anything to that effect the supreme court in both holbrook and then later in dec reiterated that the reason why s prejudicial is because it affects the subconscious minds of the jury the jurors are not cognizant of the fact that seeing a defendant shackled likely undermines their ability to fairly a value with the character of the without supreme court and dec recognize a number of reasons as to why shackling is i don't want to go there's no testimony that in fact from the defendant that he was unable to communicate with his counsel there was some testimony at a prior evidentiary hearing when he had some difficulty writing but that certainly wasn't an issue at the trial he had one hand i'm cuffed so that he could write one of the jurors i will note in the evidentiary hearing recognize that it looked like he struggled a little bit while writing and that's why he recognized he was shackled but certainly there was no testimony from the defendant that he could not communicate with his lawyer for that reason but the other factors identified by the court and dekker certainly relevant and the supreme court in dec recognize and i believe who testified that they viewed the defendant as dangerous and they viewed that in light of the fact that he was charged with first degree murder and shackled throughout his trial during his first degree murder trial today i think the standard and brecht makes very clear that the question before the court today is whether there was overwhelming evidence of the crime of conviction and the jury's verdict and that is first degree murder so that there was if there was not overwhelming evidence as to first degree murder and there was overwhelming evidence as to second degree murder and the writ was granted  be to have a new trial or is there room in the to allow sentencing based on the second degree murder trial so i understand your honor to be asking that if the jury was only charged with second degree murder and a self defense instruction and there was overwhelming evidence as to second degree murder what should the remedy be here i think that is likely a question for the state court to decide in terms of a new amount of time that passes between when a victim loses consciousness and ultimately passes away is not sufficient on its own rebuttal johnson johnson actually said that that is evidence that there was a time for  certificate of appeal ability as the five minutes in the car ride from when the defendant and the victim left their friend's house to when the victim passed away in the car and during that evidence in this case but that evidence was really limited to the testimony of the medical examiner and that testimony that he provided was in forty five minute time frame and that's the testimony that the prosecutor at trial solely relied on in his closing argument to argue for first degree murder either over second degree offered himself in many ways in terms of being a believable witness well certainly the defendant's credibility in terms of whether the jury believed or you did not believe his self defense theory is you know maybe relevant to determining whether  that's that's not relevant to whether is overwhelming evidence of first degree murder that's a separate question as to a self defense theory but i think they're as the judge instructed the jury kind of the hallmarks of first degree murder is planning and the judge instructed the jury that to  find the defendant guilty of first degree murder he would have had to thought about before hand killing this victim there wasn't any evidence in this case that he had a preconceived plan to kill this victim and you know you can imagine a situation where there is the more evidence of his guilt the worse the shock when you know so you can never know i don't think that's true your honor i do think that where the government makes his propensity for violence a major issue at trial and he is also i'm constitutional shackled you have to look at the overwhelming nature of the evidence or not in light of these other factors and where his propensity for violence has been made a central feature of this case and the evidence is circumstantial and very much a limited to the medical examiner's testimony about the amount of time that fact that passed given michigan case law that says that's not enough on its own i think that certainly is a relevant factor to look  at testimony of the medical examiner in this case the forty five minutes i know that the government focuses on it extensively i do think that it also needs to be reviewed in the context of the facts of this case which is this is not a case where the defendant was standing over victim you know watching a clock to live if it was distracted and driving trying that time and the medical examiner also offer testimony that several common injuries suffered in strangulation cases which might show brute force and might be more likely to lead to a jury finding first degree murder were not relevant here so just as a few examples there was no injuries to the xterm portions of the neck no injuries to the larynx no injuries to the trachea no injuries to the vocal cords the jury could hear this evidence from the medical examiner and certainly find that the elements of first degree murder were not met and where the evidence is not overwhelming your honor i submit that  morning your honour's me please the court jared schultz assistant attorney general from the state of michigan on behalf of the respond in this matter the jury the jurors in irving davenport's case heard significant overwhelming evidence that he deliberately killed  that one by strangling her to death putting significant pressure on her neck for several minutes before she died well the state courts later found that downpour was improperly shackled during the trial all of the state courts found that that error was harmless indeed given the overwhelming evidence of guilt along with all twelve jurors testimony testimony from all twelve jurors that they did not believe this athlete had any effect on their verdict devonport is not pretty is that the head hasn't that issue already been addressed in the case law that the jury were statement that check going has no impact on them is so under cut both case law and hand rigorous scientific information about implicit bias so why would their statements that didn't know it didn't impact us carry the day well your honor i would i would say that first of all these jurors sat through and they do trial where they were able to evaluate the evidence and what they saw and testify to what they saw also i would i would note that to the extent that holbrooke talked about how  can look at jury testimony in significant factor first of all holbrooke didn't deal with a harmless and harmlessness determination holbrooke was dealing with whether there was a due process violation at all  here we know that there's a duplicate there was a violation we're we're just dealing with harmlessness which is why i said you can overcome the violation by showing harmlessness deck never said that you can look at jury testimony  also i would point out that holbrook is distinguishable because the jury testimony in that case was durned why dear and holbrook during jury selection holbrook specifically said that we can't take one stack into this the jury testimony because we don't know the jurors when they testified excuse me they had no idea how seeing in that case there was several officers and behind the defendants then no idea how seeing that play out during the course of a long trial would have affected their decision on that case here that's not the case we have this testimony occurred after trial they knew exactly how to the extent anyone saw shack the breck standard so the question we ask is did a constitutional lawyer have a substantial and injurious effect on the jury's verdict grafted in but i don't think we throw out at post standard they heard testified that they base their decision on the evidence only all twelve jurors testified that shefflin was not discussed in deliberations and i'd like to briefly go back to something that they did testify that they discussed among themselves right isn't there isn't there some testimony about one of the juror saying to the other juror you were sitting near the stand and he wasn't wearing the shackles more you skater yes i believe there  testimony about that and there was also some comment made didn't you see he was handcuffed or something like that i do believe that a one or a couple of the jurors testified that these comments were very only two of the jurors saw that they said that they even might have seen like restraints i think one equivocating on whether he saw it but all the other jurors said they only saw him in one handcuffed they didn't say that they saw legs like shackles as well or a belly chain as well aren't we and my misunderstanding your argument aren't we beyond the question of whether it's a constitutional violation for them to have seen that kind of shackling on a defendant right i just think that that goes to whether we can take much stock in the jurors testimony and whether that had no influence on their verdict as to what extent he was shackled and i would just i guess it's a you're right it's a point there were a little bit beyond but just to the extent that there was any checkley there was i just point out it was an extensive that they saw i'd like to go to the overwhelming evidence of guilt in this case which also  so why this was a harmless error significantly mr davenport confessed that he killed this victim of a medical examiner testified that it takes four to five minutes of putting significant pressure on the victim's neck before someone is deprived of air for so long that they the death results and significantly the medical examiner testified that it takes to take only thirty seconds before that person loses consciousness doesn't isn't michigan case law express on the distinction of strangulation the case law as i understand it in michigan and the brutal nature of the killing are not sufficient evidence of premeditation on one that's correct your honor but mission case also says that it can be used as a factor to determine whether the defendant had an opportunity to take a second look and in this case i doubt so i understood the michigan case law to be a second look outside the no i don't believe that's correct your honor i think it's the fact of strangulation and so you can look at that and determine whether the defendant had an opportunity right then does take a second look i think that's that's pretty clear here that if  he took at least forty five minutes to strangle this victim he had an opportunity to take a second look to decide when michigan case law is wrong because it always takes four to five minutes that was the expert testimony to strangle strangulation alone would be evidence of premeditation because anyone who holds someone's neck for four minutes has the opportunity to take a second look but that's not what michigan law us well i don't think it says that anyone has an opportunity even for if i may i think that's very significant evidence that in for five minutes you can take a second look then you disagree with michigan law which says that you  other circumstantial evidence as well in this case that shows that he premeditated this killing there's testimony from another victim who said just i believe it was a week before this murder occurred that she was strangled by devonport too and that she lost consciousness as well and that the only reason that he stopped was because someone else intervened so the fact that two strangulations occurred in such a short time period goes to show that this was not a spur of the moment decision to strangle someone of self defense this was a pre planned decision and he also told another victim witness testified that he said if anything was there there was any problem with anything with anyone he would he would choke he said that she didn't give him something and that's why he strangled her so all of that evidence put together taken together to show why this was an overwhelming case overwhelming evidence of guilt in this case and again i i can't even i don't want to touch on all the evidence in the case but just a brief briefly also point to a couple circumstantial facts  prosecution how they showed premeditation the petitioner said that he he killed this victim in self defense but he didn't call the police he disposed of the body he got rid of evidence he stole something from the victim's apartment right after or not right after but after the murder i saw that evidence of premeditation rather than just  premeditation but that all put together with that the medical examiner's testimony with the testimony from the other victim in this case that's who she is she said she was also strong consciousness with the testimony from the police officers that he gave three different stories to them all that put together i think you can can show premeditation and i believe it was overwhelming second degree murder you know going with why you think that makes the premeditation leap because the i thought his testimony was that or the testimony in the case was that this woman gets high on whichever drug she took and becomes a fighter and they ask her to leave the house because she was causing trouble and and he took her in the car and she was jerk the wheel and he didn't and pulling out a weapon and and then she he's pandered and then when he let go she just kind made him again michigan requires is an opportunity to take a second look here in this case you mentioned that he had her pinned but the medical examiner testified that that from the band possible with with her and she had hemorrhaging to both sides of the nack not broadly across from the neck so do i think that his self defense claim or his claim that he had her pinned is completely undermined by the medical examiner's testimony in this case and again all that is required a forty five minutes that it would have taken strangle this woman to death he had an opportunity to take a second look along with evidence that he strangled some of beforehand meaning this this is a planned out thing he knows what he's doing the case as you think johnson's relevant case here yes i heard that the controlling case we should look to or the other other cases i believe it's the most relevant case here just because again the second look isn't important in this case and i believe there's there is clearly evidence that he took a second walk in guys see my time is up unless there are any further questions your contacts as opposed to after the fact of entry testimony about the effect of the shackling the reasoning that applies in that case does not make it specific to forty year and in fact there's another case the road in case in the ninth circuit where the magistrate judge in that case held an evidentiary hearing made a specific finding that the defendant was shackled that the shackles were seen but were not discussed during deliberations and made a finding that the shackles made  little impression on the jurors the ninth circuit issued a b s relief in that in that case and it was irrelevant to them that the jurors were not able to articulate the implicit bias that resulted as a as a result of the unconstitutional shackling you would what a second look that opportunity to take a second look is something more than intent to write it's a premeditation element that requires something more than intent and malice in the cases that that discuss it say that you know the defendant could you know you could stop in the middle or something here the defendant actually did try to stop in the middle as judge stretch pointed out he testified at trial that he let go of the victim and she continued to fight back she continued to kick him trying to grab the wheel so he continued to hold her back until they got to their their location that is entirely consistent with his self defense and is also consistent with second degree yet there's another case that we also cite in our brief where the defendant in that place there was testimony that the victim was stabbed i think seventeen times and the argument was that after any one of those seventeen times the defendant could have stopped to quote take a second over and then as to the strangulation being used as a factor to take a second look i don't believe that the circumstantial evidence here that the state points to as the defendant's conduct after the crime fills the gap as to the crucial time period to establish premeditation during the forty five minute time span we're talking about and i think that the government's argument here is asking this court to find that in every case of strangulation not only is there sufficient evidence but there's overwhelming evidence and there's just no support for that the standard here requires there to be overwhelming evidence of premeditation and simply rely on the medical examiner's testimony during that time period i submit is not overwhelming evidence in closing i just would like to reiterate the significance of the constitutional violation here and how much it infringed on mr davenport's presumption of innocence and right to a fair trial his shackles essentially branded him as having a violent nature and destroyed the jury's ability to fairly evaluate his character and the evidence it can all that constitutional error can only be found harmless if there was overwhelming evidence of premeditation and none of the prior decisions from the state courts or the district court here talk about that distinction between first and second degree murder they say overwhelming evidence of quote guilt and i said but that's not the right standard and that's not enough here because the jury's verdict is not supported by overwhelming evidence that he is really shoot in this case this we've noted earlier we do want to thank you and your law firm for taking on this case under the criminal justice act like your i think it's a very much a service to mr davenport and to our  we do thank you for taking on this case and the same for your co counsel sitting at that counsel table so any way the case will be submitted and that's i think completes our argument calendar so mr for