good morning your honor laura kathleen sutton for petitioner appellant dana kennedy and i have reserved two minutes for rebuttal in this michigan murder case that was no physical evidence linking mr canby to the murder no fingerprints no d n a no videotapes of the incident no weapon found on mr kennedy in his possession and he made no confessions or incriminating statements to the police or any of the getting to that mr kennedy's conviction was largely based on the the eyewitness testimony of the andre humphrey that there was a single shooter who he identified as mr kennedy firing a single weapon and a jailhouse informant who has since for canada's testimony now apart from mr humphrey there were other witnesses at the scene who testified they did not see the shooter and these witnesses comprise the bulk of the state's case as to possible motive yet the objectivity is questionable as the respondent stated in exams or these individuals were closely connected by family friendship or involvement in drug transactions within the neighborhood now balanced against the fact that the bulk of the state's witnesses were involved in the drug trade was the prosecutor's theory that mr kennedy too was involved in the drug trade and had been involved in an alleged unrelated arson and that the theory of this crime was presumably so that mr kennedy could get back at people he could mean could contain control of the drug trade in the neighborhood now i've made these comments to place the issues in context this case was not a slam dunk for the state the shooting took place at a street corner known for drug sales the state's witnesses and the defendant had been painted to the jury as associated in one way or another with drug trafficking in this case the andrea humphries so all i witness testimony that there was one shooter firing multiple shots with one gun was the basis for this prosecution now this jury had to decide whether to believe an unsavory defendant or a collection of unsavory defense witnesses and the introduction of an impartial  peached expert witness who provided testimony that bolstered that of the soul eyewitness to the chill to the shooting this tilted the balance in this case now the constitutional este of the brady violation the constitutional protection here is the due process right to disclosure of evidence material to guilt innocence or punishment and obviously the case law precedent here is the long established case of brady versus maryland and it's well established tests th evidence be suppressed the evidence was favorable an hour or material to go or punishment of the prosecution sharpest in evidence do we aren't we don't know that the prosecution's suppressed any evidence t because it wasn't revealed until after the case was over you're talking about the number of casings that correct attached correct understood and then there were that's the respondents argument that they had lack of knowledge the prosecutor in the claimed in their brief that they had no knowledge of the falsity of the testimony at trial because it was generated by the detroit police crime lab well supreme court precedent disagrees with that because in kyle's versus whitley the court said the prosecution has a duty to disclose favorable evidence and it's not limited to actual knowledge by the prosecution it extends to evidence in the car the evidence didn't even zia's at the time of trial it did exist and that's misleading that argument that it did exist it didn't exist at the time of trial is misleading it exists that it was in the possession of the police department the testing that was done on these on this on the evidence was false and misleading to say it was retested later and found to be that the evidence presented to the jury in this case is true that the ballistics all came from one gun was faults the police had these casings at the time of that more than one kind after the trial did come after the trial so there can be a bright on the part of the prosecutor for withholding something that doesn't exist nor can there be false testimony prison it if he didn't know he was presenting anything that was false so i don't know how you get when you're in a newly discovered evidence category not in the category you're seeking to be in it seems to me while that argument is casings did exist at the time of trial and they were tested by the detroit crime lab and a false report was generated and it was testified to was true to the jury the evidence existed it wasn't newly discovered and therefore it's withhold because a prosecutor never gets a chance to give it to the jury so you're arguing well our argument is that this that the brady violation extends to the entire state prosecution team and that included the detroit police department and the detroit crime what i would be absolutely true hiya the evidence which is the ballistics report had existed at the time of trial but it didn't exist at the time of trial no a false report existed saying that all casings came from the same gun i don't know and you can say incorrect report i mean don't you think that all these here and all these things that are testified to in court are sometimes wrong of course they are mean human error is prevalent in everything but in this particular case the testimony of the eyewitness deonte humphrey was the sole i mean that was the basis that there was one gun and one shooter mr kennedy and the ballistics m in the ballistic this case wasn't you know a slam dunk for the prosecution as i stated earlier the ballistics evidence was the sole impartial testimony that was given to the jury about the shooting and it's not unreasonable to believe that given the rather unsavory character of the way this is this evidence carried great weight with the jury and that was certainly argued by the prosecutor you should listen the ballistics testimony supported the andre humphrey forty seven here so there are multiple casings allegedly now i'd like to talk about the third part of the brady test which is materiality or or prejudice and the respondent dismisses the new ballistics evidence as a material and states in there and their answer that the streets of detroit are likely to be strewn with bullet casings now had this ballistic evidence been accurately tested and the prosecutor confronted with two types of shell casings this trial would have been different since the state's theory a one man one shooter would have been unavailable due to their own ballistics testing now it's reasonable to assume too that any competent the fence attorney would have had a field day attacking a prosecutor who argued to a detroit jury as the respondent did this brave the gunfire is so common in detroit that spent casings on the streets are a common feature now the state trial court found the evidence not material in light of mr kennedy's alibi defense which this finding misses the point there's nothing inherently contradictory about an alibi defense and a defense that impeaches the only eye witnesses testimony and certainly defense counsel could have used this impeachment evidence to call into question the witness's testimony an attorney can still assert  an alibi defense and attack a key witnesses account of how the crime took place no materiality asked the question if the jury had known of the evidence could have affected the jury's verdict sufficient to undermine the confidence in the verdict now absent the testimony of the andrea humphrey there was no case there would not have even been an arrest in this case as do you hungry humphrey was key to the state's case this ballistics evidence that contradicted his this already unsavory witness in the eyes of the jury would not have been as the respond in a separate in its brief a marginal utility now this evidence was material and false testimony that supported the only eyewitness to the shooting could have undermined the state's theory and consequently undermines confidence in the verdict all these casings came from the same caliber weapon well they said the case there were five there were five casings that came from a different gun and fourteen cases like they were all from the same caliber weapon they were one was a fifty caliber and one was a thirty caliber that was true they were all the same and same casing well the visit may have been to shooters out of that car the second one law for that finding people versus crest but this finding is contrary to clear statements by the supreme court that impeachment evidence can constitute a brady violation and i'm am citing to go versus the united states and in a more recent case of smith versus kane the court reverse a post conviction relief by the state where there was suppressed evidence and the only purported eyewitness to the murder was lying to the jury now the respondent also argues that there was nothing to prevent mr kennedy's attorney from presenting his own constitutionally bound to a court defendant's due process i'd like to spend a couple of moments on ourself representation claim and i want to start out by saying that the request was not equivocal o first day of trial mr kennedy told the trial judge your honor i'd like to exercise my sixth amendment right and go pro se and the trial court's response was equally unequivocal i'm denying it now i'm denying your opportunity to represent yourself and when asked by mr kennedy why the request was denied the court simply stated it's not in your best interest mr kennedy furthermore there was no inquiry into any potential waiver mr kennedy was not complaining that the trial court feel to follow some particular methodology in this but federal law does require some type of inquiry into the voluntariness of the waiver and here there was no inquiry just the court subjective belief that it was a bad idea while the request to proceed pro se may have been a bad idea it was a right belonging to mr kennedy and not to the trial court of appeal on direct appeal this issue was not raised on direct appeal that is correct it was raised and we have citation that jones's failure was found in context to be on timely and that that sorkin stance was not present in this case and the denial in this case does not mention timeliness and expression where the is willingness to show prejudice or you have shown proteus this case is on collateral appeal and we believe that i'd like to say something about the their right to self representation just so that we're clear because we only have a few moments are you saying that there is no prejudice or that you have prejudices we believe that there is prejudice because this issue was laying even of prejudice is required you show prejudice we have shown prejudice because counsel to ignore this obvious issue on direct appeal that wasn't there was no question of timeliness as in the jones case and it was an obvious error that could have resulted in you have to show once you show prejudice don't you have to show some prejudice  from from having him represent himself which seems like it would be hard to show it would be very impossible to show that and that's what the court and awful to show them and you are you that that's what the court in the united states versus gonzalez lopez said when it called the right habeas relief is not whether this trial is a slam dunk for the state addressing the brainy alleged constitutional violation you're correct your honor that this  evidence was not this report from the detroit crime lab was not available until a good five years after kennedy was convicted of or it was it just well the report was not issued and available until five years after but even the audit and investigation of the crime lab in general did not begin and to two years after he was convicted so to say that somehow we agree that the state can't suppress even inadvertently but it didn't have anything to not divulged it just didn't exist and with respect to the alleged false evidence there's no way you can call this testimony of david potch from the crime lab false he believed he was test he testified in good faith he didn't know he'd made an error and the state didn't allow him to get up on the stand and lie and let him lie and not correct it it was as you suggest your honor it was it was a mistake and was because of the  retest things anyway that same strike years after a number of years after kennedy's conviction in it began to came come to light that there were that there was an unacceptable air raiding and so two years approximately two years after kennedy's conviction there was an audit investigation and they chose a number of cases now miss sutton suggests that they chose this case because of course it would have made a difference and satisfy the h standard but they didn't look at the entire case to see what it occurred it was a capital case and likely they chose this case to retest because it was a capital case and ballistics and interest cases they would do it  understand what i'm asking yes my understanding and i it's not from the record in this case that it's from to think a little bit of his googling about the crime lab issues is that it was just sloppy incompetent work mistakes mistakes you can what if you had a person in the crime lab so tested something and said to himself oh this is going to cost the person to get off to be acquitted i'm going to change it to i'm going to i'm going to close one eye and say oh and change the facts because i know that's more likely that the police whom i work for all to mostly will get a conviction that would be if that was done in bad faith that would be you know you could suit soon for that under our precedents you would think that would be a brady violation and i don't think that's a key distinction your honor because well i think your hypothetical has a key distinction here which is that there was some intentionality there there is no clearly that's required when you're talking about a policeman as opposed to when you're talking about because the lack of disclosure and the issue of the false the false testimony as opposed to the false report because when you look at the false false evidence including false testimony the u s supreme court has said very clearly lapu which is the case that my opposing counsel has art has relied on heavily and the court has said the touchstone of lapu is is knowing what is there and knowing that i'm asking if anybody in the prosecutorial team knew and intentionally tried to hide that i think that could be false testimony but that there's nothing in the record here to make a police team well anybody that's acting in concert the record that anybody in the crime lab intentionally try to skew the results of this of this trial or the results of that that testing and there's absolutely no evidence in the record that when david  up he did anything but testifying good faith he made an error there's no question about that but it was an error that was made in good faith and there is there is no clearly a staffer supreme court precedent that says that  that's right but i'm wondering how it works exactly as you're saying if the policeman who didn't give it to the prosecution because or the perp or the crime lab assistant who didn't give it to the policeman who didn't give it to the prosecutor those people were in good faith there's nobody violation but if they give it to the prosecutor and the prosecutor in good faith neglects to give it to opposing counsel then the prosecutor so right so there's a difference in who gets the good faith protection for purposes of brady you know it i think what you are talking about we're talking about turning something over is suppression and clearly the prosecutor is if if if the police have suppressed something that is imputed to the prosecutor we know that and that's very clearly established but that brady suppression issue nothing was available to who skied their results intentionally in order to bring about a more favorable result for the prosecution that was later discovered  what avenues of realty are open to a convicted person under those circumstances well i seem to remember that those cases resulted in new trials or you know well i certainly i think then you fall under absolute false evidence that evidence for instance that if you if the later investigation showed that yes there were people in the crime lab we've audited the crime lab of investigated the detroit crime lab and there were in fact people who were trying to skew the results of these this testing it wasn't just error they were they were results that were skewed that is not anything that is one way or another some really would i think i think that's true your honor and i think it's because then there is that element of knowing false evidence and knowing false report that you have not that makes sense to me i'm just trying to get the doctrine straight in my mind you can help me deal with the law if the if the prosecutor in good faith suppresses something it's still surprise but if the police investigator suppresses something in good faith it's not suppressed for brady purposes right so the it is that the that seems to be where you're ending is that the good faith standard has to be applied when you're talking about functionaries down the line but doesn't have to be taught doesn't have to be applied when you're talking about the prosecutor himself that this thing i think you're talking you're using the word suppression and i think when i think of auk about not giving evidence that would help the defendant that's all i'm talking about well and in in ideologically between the suppression of evidence whether the the state should have turned over divulged evidence and then the false testimony i'm just putting those into different boxes because in terms of suppression there has to be something to suppress in terms of false evidence and the testimony of david pasha about the report that would have to have been knowing use of false evidence and at the time it was not or whatever but let me just make clear my understanding of this for brady purposes it doesn't matter whether the withholding of evidence is inadvertent and it doesn't matter whether it's the prosecutor or the police or anybody else who are subject to the bright a requirement i mean that if it's withheld it's withheld and there's no i mean not the testimony was knowingly fall into and it matters more both with respect to the prosecutor and with respect to the witness to get a yes estimate but it's possible t prosecute a right not a no but the witness did and in that case i'm rowley is the if the prosecutor absolutely you said that much better than i did your honor and that is exactly the case there is a little bit of a distinction between want your positions is that is harmless error anyway it's not yes this is not a situation where the head of ballistics had weapons to match you that you don't have a weapon here and there's does make a difference wasn't the number of shots it was the identity of the shooter we have an eyewitness who clearly he knew kennedy any identified him he said he's hanging out of a rich sheep with an a k forty seven any show shooting continuous shots we have two other people at the scene who didn't couldn't identify the shooter but identified a red jeep and shots coming from the passenger side if one question about this  humphrey also a den of five the person who killed that he was who killed him as being booked which was apparently a reference to kennedy presumably there was an opportunity for cross examination of humphrey and presumably he could have been asked whether he was or not if he actually solved kennedy  and he didn't say i saw one actually go and the trial testimony does not elucidate not not that i recall but you know the the the test for harmless error is whether admission of those that unreliable ballistics for example had a substantial or injurious the fact of the influence in determining the jury's verdict and it wouldn't have with all these other witnesses with the eyewitness testimony and the fact that key to this case was an alibi i wasn't there not self defense i was shooting at someone else and again even if there had been a second shooter it would not have made a difference centrally to the reason that the crime lab detroit karma lab was audited in two thousand and eight was due to over a ten percent earn rate in the ballistics section now the police did hold this evidence in their possession at the time of the original trial and they could have properly tested the evidence and then provided the evidence to the prosecution who would have in fulfillment of their brady obligations turned it over to the defense that could happen today and it didn't mean you can say well they need to go back and check it again our fingerprints all sorts of things and our point well before the trial it was presented as the evidence as presented no you're playing some semantical games here i mean it is true that the analysis of the crime  defendants are entitled to an attorney with access to the evidence or right to place trust in the evidence presented by the state and to cross examine and confront witnesses and to fashion a defense based on incriminating testimony that is truthful and trustworthy these rules are constitutionally mandated and we believe when the state fails to adhere to these roles the outcome of the criminal process is constitutionally flawed mr kennedy's attorney was denied these tools by state action and systemic failure which led to the submission of faults and material evidence in mr kennedy's trial we believe is it constituted an extreme malfunction of the michigan criminal justice system and hey b s relief should be granted thank you we