magistrate's opinion could not even list all the instances and discussions each one and had to basically deal with the instances of misconduct category by category and many of there was comparing the this situation to the nine hundred and eleven terrorist terrorist attacks and in fact this prosecutor had been previously cited in another opinion and a court ruled to bring prosecutors to justice i digress from the key points of this case but in fact i brought before this honorable court the case of alex well what the prosecutor in the judge conspired and made a transcript of the conspiracy to perjure the entire trial last month i had an inmate release twenty years early from a sentence because the genesee county prosecutor's office came on t v ad and bitted that they had perjured the entire trial it's hard to get an appellate court to say that a prosecutor has committed a significant due process error however here as you mentioned  larger concern that ultimately has to be addressed however if i may return to the specific here the court of appeals said that this was not error because they did not they made on the reasonable determinations of fact and they did not follow clearly established supreme court law they analyzed each instance individually there was no evidence that they analyzed the effect of these many many errors cumulatively now they did use the word cumulatively i think some wise appellate judge inserted dad into the position into the opinion that the and just to try and  that opinion against the kind of challenge i'm offering but in fact they did not analyze them in collectively there is no paragraph no and they'll assess of the collective effect of these individual instances of misconduct and that's contrary to common sense if you're familiar with professional fighting it's quite possible that one  sensitive area might be overlooked but dozens of kicks to a sensitive berry there is a cumulative effect that cannot be denied when a pitcher throws up being ball there is a lot of  in the my eleven comment the judge said that you should have done that but that it was a way to help the jury understand circumstantial evidence ok so that being the case what's wrong with that well what's wrong with that is is contrary to clearly established priem court law because it focuses on the kind it focuses on not the effect on the fairness of the trial but merely offers a discussion of what the prosecutor was trying to do in effect it's a series of apologies by the court of appeals for what the prosecutor did without focusing on what the law says it must focus on which is the effect on the fairness of the trial the court of appeal says oh well they're trying to we blame circumstantial evidence which you know to use that example to explain circumstantial evidence i don't think i have to comment on but when you fail to focus on what the law requires which is the effect of the fairness on the trial as i just indicated a moment ago there is no analysis of that and that's a mistake on the court of appeals part to focus on merely trying to offer an explanation on behalf of the prosecutor well he was just trying to do this rather than the say what was the effect of trying to get these people to relive that moment of terror and fear that everyone felt when within the horror when we heard this and that is a physical effect on people that raises their blood pressure and increases their respiration that causes them psychological flashbacks to that time in the time that we saw our dog killed or our wife passed away i'm not in the hospital it you can't just dispel that with a generic instruction at the end of the trial saying put aside your prejudices and stuff maybe the experience group like these attorneys in this panel could do that after years of training to do so but a jury can't do that on just a small say so and they act contrary to the federal to the clearly established supreme court law because when you implicate the specific constitutional right of an accused the died in case one out of the way to say that you have to give a specific instruction you read out the testimony the prosecutor just said thus and so and this and you all should know that that is improper and you should ignore it just so the entered instruction wondered reading over the transcript or the judge was most of the time in this case but assuming it was his duty to explain what the evidence should show and not the not the attorney i mean he decides questions a law and not the attorneys so if i follow you and if i proof of this man's killed i mean or is it that if i accept your arguments isn't that where i'm at at the end of the day i still have to balance that against proof you still have to deal with the quote overwhelming conclusion of the court of appeals which i believe was again completely contrary to really established court law in that st of all the course of appeals appeared to base its and there's something really off with that opinion where they analyze not the effect of the fairness on the trial but just sort of make excuses for the prosecutor on each instance where they based their own overwhelming analysis and their initial sufficiency of evidence and the alice s which of course assumes everything in the light most favorable the prosecution and also off finds all conflicts of evidence in the prosecution's favor prosecution witnesses in adding up whether the evidence was overwhelming against berger or not in doing so made clear that you don't use a sufficiency of the evidence analysis and the court of appeal said it's overwhelming and i'm saying they used the wrong analysis in coming to that opinion because they used their sufficiency of the evidence to test to come up with the fact that the evidence is overwhelming i want to come in on one of the centerpieces of the prosecution's case with respect to overwhelming evidence the prosecution says that this man allegedly executed to see labrat plant got insurance got it well which the wife agreed to get in contemplation of this episode on the cliff but the fact of the matter is these inconsistent statements are more an indication that he did not plan this that this was that max that or why is there because no one plans ok we're going to get this insurance we're going to get this will and we're going to go up to the top of the cliff there and then we're going to make a series of inconsistent statements about how it happened no one would plan to do that that's much more indicative of an individual who was shocked by events and made inconsistent statements about it  which the expert witness who testified said was consistent was something like that happening to somebody but the jury rejected they found that  person with feel they can thiering all of that they did you wait and this jury was poisoned by a series of prosecutorial remarks that was specifically calculated to tip this balance like i said when the expert testified that this was a normal response to the trauma that the man suffered what did the prosecutor do to counteract that called the expert off our good god is this where we've come to judge your heinrich in and eighty s you had a case called wilson versus still will hospital in your i know represented spero hospital and there was a passing reference to one of the plaintiffs medical malpractise networks it was  post operative infection case that that there was a a motive to testify he had been a it was so mild it was a four to three decision that case was almost lost just on the basis that statement here we have someone calling the witness a whole lot more compelling than that is the fact is your client have conflicting accounts of the could have found that and it could have been because the expert was denigrated in that fashion and it could have been they just didn't get it that when you witness a trauma like this you make inconsistent statements and that's inconsistent with him big this master plan to assassinate your wife in collect her insurance money makes no sense whatsoever that someone would elaborately planned this and then claim to make inconsistent statements  of circumstantial evidence and each point of circumstantial evidence was countered with alternative back you can ask the court to go back and in the play for the jury endorsement i'm not i'm not sure where we're discussing the thank you thank you early on my brother said that it's difficult for courts to bring prosecutors to justice and i think the reason is that on hay vs review it's not the court's job to bring prosecutors to justice right smith versus phillips which he repeatedly quotes  his insights in his brief says that the image due process is not a punishment to society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused and i understand the position that it's both here right but to lead off by saying we need to punish society for the misdeeds of the prosecutors directly contradict and i appreciate that he brought up xander is civil because that's exactly what happened in a civil as the district court granted hay vs relief because it was trying to punish for the misdeeds of the prosecutor who did in fact conspire with the judge to bring in perjured testimony and the prosecutor was brought to justice by a criminal probe by being disbarred and prosecuted by the michigan attorney general this court reversed the district know we may not have to get to that on hey because i think that if point we take that absolutely and that is absolutely a fair point and i don't i don't take anything i think reasonable minds can differ whether the prosecutor in this case went right up to the line or whether she went past the line i think that reasonable minds can differ i think a lot of this was was a close call i think what reasonable mind and the fact that reasonable minds can differ is just another reason why the district courts niall her life needs to be affirmed because this is not something where the mission court of appeals was an reasonable in its adjudication even if you disagree which i don't disagree in part because of the overwhelming circumstantial evidence of this guilt and in part because you have to look at these things in context i also want to discuss procedural default which is less interesting than the merits but it's potentially dispositive and i think it deserves discussion in the reply brief the claim is made that we waived any argument a procedural default by not objecting to the our in our and so i need to respond to that by saying that this court has held that a party that prevails under the r n r does not mean to object regarding issues that they might have lost on in order to preserve them as an alternate basis for a firm and that souter versus jones and nd of all we didn't lose on the procedural default issue in the our in our the magistrate judge simply declined to decide it and so we're left with a procedural default of most of the issues of prosecutorial misconduct and no argument made of caus prejudice and no argument made of new reliable evidence of actual innocence and those are the things you need one of the other you need those to excuse a procedural default so there's really no getting around the procedural default on most of the claims misconduct and then also two of the claims of prosecutorial misconduct are barred by the fact that the prosecutor was relying in good faith on the trial courts of an entry ruling again he quote smith versus phillips as saying well this is wrong because you need to focus not on the prosecutors misconduct but on whether it denied a fair trial but that misses the point of smith versus phillips st you have to find that there was misconduct before you say well the focus then is on the unfairness of the trial if the prosecutors were lying in good faith in the trial courts evidentiary rulings that there's no misconduct in the st place and so you don't get to that question in smith rhesus phillips about focusing on the unfairness of the trial so that those two things between the procedural to fall and the prosecutor's reliance on the trial courts have been ensuring rulings takes care of most of the prosecutorial misconduct claims i heard my brother counsel say that there is no evidence that the mission court of appeals misconduct claims cumulatively except that in the decision it says that these errors the that this conduct either looked at singularly or cumulatively didn't deny him a fair trial this court has to take that's what it says what it says the u s supreme court said the heaviest courts don't exist to critique opinion writing practices by state courts right if the state court says it looked at it cumulatively evidence overwhelming the evidence on the record is overwhelming there are the multiple inconsistent stories and it wasn't just that well st he told one story and then he remembered and he told a different story he told both stuart all three excuse me all three stories right that he didn't see or fall that he did see her fall and he thought she tripped and that he did see her commit suicide to multiple people not just law enforcement over the course after the murder and he had inconsistency is about the inconsistency sometimes he said that it was because of his memory from a brain injury that many many people who interacted with him said he had no problems of memory but he had a brain injury and that was and then other times he said well i don't want anyone to think she committed suicide and then other times he said both in fact in this brief he says both in there they're not even consistent explanations for the inconsistency you've got the fact that he said he saw c handle on the trail and that made him look over the edge to see he made that made him worry when in fact one sandal was on her foot and the other sandal was on a ledge below like well below the trail another time he saw flip flops in a tree and i don't understand how the jury hearing the seventh's how  state also had a lot of people who you know who i mean it yet there were paid experts on both sides but i think the jury can also take that for what it's worth and say i mean i think about traumatic moments that happen in my life and i remember them with vivid clarity i think the part i think the jurors can think that as well and the idea of this is not a minor discrepancy this isn't where we came up in the st he said well i think she tripped and fell and then later well i think she you know she tried to say something to me and then she turned and jumped and that's the discrepancy he said that he came from the bathroom and he didn't see her at all right and then he said that he saw her and she looked at him and fell over and then he said that he didn't see and then he said that he did  and the idea that this is a head injury that nobody has seen any evidence of before the murder is is the idea that one paid expert whether they're described as a whore or not the jury knows that they're an expert on the defense's payroll and so the idea that one paid expert can counteract a dozen or more witnesses testimony saying yeah i interact with them all the time he said he had a prosecutor what do you think  i think across a lot i mean i absolutely i think it crosses the line and i think that this is a this is a prosecutor and again she she's been criticized before the the r and r mentioned that that she was criticized for bringing up nine hundred and eleven and i mean this is an attorney who has drawn the attention i mean look at the michigan supreme court's opinion right it wasn't a single sentences as hundreds of them are this they went into criticizing this prosecutor for this and this happens this is an aggressive prosecutor absolutely this is a prosecutor who has crossed the line and this is someone who i think that  this is taken as a criticism or not i think that as an observation i guess without putting a value judgment this is somebody who puts a lot of emotion into her work for both for better and for worse you think that that crosses there is this criticism and people think you know bad prosecutor but you know if you think how do you have a remedy that how do you ever bring that person back in line with their ethical role as a minister of justice because if we face a need of a person you think the calculus i'm going to do whatever it takes to win and i know this comes up with a lot of cross of the lime and the court attorney grievance commission and so michigan has ethical rules just like every jurisdiction does has not the rules and has just like every jurisdiction is specific up the rules that apply to prosecutors i think that you don't become complicit in the denial of due process because in each case evaluating the prosecutor's cards in context and balancing it up against the weight of the evidence the weight of both the prosecutor and the defense evidence you're looking to see in each case was that particular defendant died a fair trial and the idea that you reverse a conviction that you say you might be guilty as sin and in fact the prosecutor presented overwhelming evidence that you're as guilty as sin but unlike your guilty counterpart one county over your prosecutor was bad and so we're going to give you the windfall of a new trial your counterpart one county over a good prosecutor they're going to stay in prison you you've got a bad prosecutor so as guilty as you are and as much evidence that was lodged against you we're still going to give you that windfall and that's not that is directly contrary to the u s supreme court holding in smith versus phillips we don't punish society for the misdeeds the prosecutor we punish the prosecutor for the misdeeds of the prosecutor right and so if there's a grievance to be filed it can be file ethical rules in place those can be enforced but the idea that we enforce this by reversing trials we don't do that unless the misconduct was so so bad that it pervaded the entire trial and made due process and i understand his argument in part is that it did do that so i'm not saying he's not making the argument he is but it's it did right and more to the point a reasonable jurist could hold that it didn't and so even if th court is so troubled that it agrees with with with my brother counsel that this actually not only crossed the line but crossed the line so much that it outweighed all this overwhelming evidence and that a different result was probable  it would still have to go the extra step of saying no reasonable jurist no reasonable jurist could look at this mountain of evidence against him and say you know what as much as she might have crossed the line and i and there's a huge difference between going up to the line across the line right darden says a prosecutor may strike hard blows but may not strike follow so what does that mean if we say a prosecutor mr carr blows right she can make emotional argument she doesn't have to culture arguments in the blandest of terms these cases hold this there's nothing inherently improper about a prosecutor bringing some emotion to the case right the the question is when she crosses the line and so even if you think that in this case she crossed the line a reasonable jurist could still hold as the mission court of appeals h on this kind of in context with what the prosecutor was trying to do it it really wasn't there at all and so in that if you put it you you come to the conclusion that in this case certainly the conduct cross the line but that's what you said earlier well in terms of calling the expert a whore which i don't believe was one of the instances that is in here i'm not been there are specifically seven depending on how you count them seven  don't believe that's one of them so you're calling that calling the prosecution expert a whore yes that's over the line but does it what does it tell the jury that the jury doesn't already know i mean all it tells the jury is that we already know this is a paid testified for the defense fifty five and you know and so that makes the point because you think this was done and you know this this would have a getting off track but the point is how do you make certain that you send the message that prosecutors have not just an obligation to act to win but they have an obligation to act within those bounds and ethically and if you have overwhelming evidence why contaminated with all this other stuff and you know as you say that doesn't mean that somebody gets a free pass but i think that that you know the message has to be fed at some point in time how you think and i don't know but it has to be well i i don't disagree that a message should be sent and in fact i think there are mechanisms by which to do it and the idea of granting a new trial to a man of someone who is overwhelmingly proven to be guilty based on conduct  mean the opportunity i'll just say briefly that i think the the two simplest ways to dispose of it as this happened here is before jones and so in terms of a deficient performance inquiry the idea that council should have somehow anticipated jones and known that this was an for for thirty four more years and the nd way is that i am was not absolutely not a crucial prosecution witness as she is described in the brief one witness of one of more than a one hundred in fact her testimony was helpful to the defense because out of all these witnesses that said he hated us why he was constantly complaining and bad mouth him her and abusive to her she was the one who said he described his marriage as wonderful and loving the best five years and he cried when he talked about her so the idea  that that this case rose and fall on the to fall for the prosecution on the testimony of tammy cyan is just untouchable so either harmless error or there's absolutely no deficient performance those would be easy ways to dispose of the  backing in through the most recently mentioned st to me so i am was a crucial witness for the prosecution because they used her to establish that he had an affair with her at her death and therefore tried to reinforce his motive to kill his wife so he could have a sexual relationship with another woman she was a very important witness to the prosecution the  allegation the argument that it wasn't against the law to warrant mostly search of vehicle using a g p s tractor tracker at the time of this trial  is not what our deficiency and now losses is about our deficiency analysis is about the fact that the attorney got a year before the trial the information that a tracker had been used and he failed to investigate this he failed to determine what the meaning of this was he failed to request the reports regarding that and if he had done that he would have learned about the testimony and he would have learned that in fact ms brophy who is the prosecution used to allege was someone that he was having an affair someone that he was allegedly having an affair with before her death or had a relationship forgive me day in the lead sexual relationship before the death that would have shown that in fact their relationship ended before his wife's death and it did not support the prosecution's theory and with respect to the relation back you can't view this conduct in high light excuse me in hindsight the fact is that when you view the prejudice portion of the strickland test you use the current law to determine whether or not that there was prejudice in the current law is that it was violation of the th amendment and questions about what if he had requested the information while the chances are he would have said oh my goodness there's a warrantless search here i may challenge says he may he may have won that motion at that time even though there was no laws regarding it because it may have been regarded them as a warrant less search so think the hindsight argument is answered by the prejudice inquiry taking place under present law with respect to procedural default we wanted to indicate that thomas verses on fo claim there's some confusion in the th circuit regarding this point you're aware of it i'm not going to it address it here i don't have the time it's addressed in our brief carefully but essentially the supreme court of appeals relied on a merits basic ground they relied on deciding a federal question  determined that there was no prosecutorial misconduct and when they do that it's not an independent state it's not independent of the federal question it's not an independent ground you have to have adequate independent ground procedurally the fall they did not have an independent ground to proceed really default so even if it well probably don't have enough time to launch into all the procedural aspects of this case i believe that indeed this line was crossed and indeed we can get to the question of whether this trial was fair and i would submit when you talk about consciousness of guilt i think the prosecutor was very conscious of what it difficult circumstantial case they had to make and how in the end it would be balanced in many ways by conflicting explanation of the facts and they are why they relied on this egregious course of prosecutorial misconduct in that clearly denied the  petitioner a fair trial and it was contrary to federal law often the meaning of pay vs corpus relief thank you for this opportunity thank you very much in the case