please the court my name is kimberly ang and i am here on behalf of john antonio poole this case is about an eighteen year old who was sentenced to life without parole because of the hearsay accusations of his very own codefend admitted against him without any opportunity for cross examination the admission of harold varner is hearsay incriminations through the testimony of sergeant gardner had a substantial and injurious effect on the verdict moreover they were in plain violation of the confrontation clause the michigan court of appeals had an opportunity to remedy that violation all it had to do was engage in a reasonable application of the factors set forth by the supreme court in delaware and grant mr pulls his petition now there are three certified issues on appeal and i have a limited time so i'd like to rest with respect to the third issue on the papers and i will address the first two and potentially the third as time permits now the michigan does not deny and neither does the district court for the eastern district of michigan that a confrontation clause occurred so the precise issue with respect to the first issue certified an appeal is whether the machine court of appeals erred on reasonably  finding that the violation of mr poole's rights was harmless error you know before we get to that isn't it true that crawford doesn't apply confrontation doesn't apply to statements that aren't for the truth of the matter asserted that's an exception right yes your honor i can and oh so the idea here is this testimony is not consistent with the government's theory of the case and it seems like you could make a pretty good argument that the whole point of it was to show foreigners motivation for bargaining i mean if you take it if you take what's said for its truth it actually undermines the government theory of the case and it seems to me and it's seems to me from the way the case was tried that this was about establishing foreigners motive to bargain your honor i can address that question but i did speak with mr sands prior to argument and the state has chosen to waive the  existence of the confrontation clause as an issue before this court ok so i still like to hear the answer to my question whether there was really a confrontation clause violation yes your honor there was a confrontation clause violation because it was offered against mr poole for three reasons first the statements were admitted even if it was the state's intent to offer them only with respect to mr garner they were offered against mr pool as well because as the supreme court held in britain v united states the statements come in against a defendant those statements are imprinted on the jury's minds so much so that the only thing they can get rid of the prejudice of such a confession is an opportunity for cross examination secondly your honour's the statements states the state points to one statement that was exculpatory in a sense if the mr poole's trial counsel had raised a self defense theory but mr did not raise a self defense theory it was not mentioned in closing argument there were no jury instructions and so to the degree that it might have been exposed to tory in a different case or might have supported mr poole's case in a different case it did not in the particular circumstances of mr poole's case the third reason your honour's is that it's impossible to separate this statement coming in as substantive evidence against mr foreigner but not against mr poole if the state was offering these statements to prove that varner was the mastermind they can only do so if they establish to continue the state's metaphor that mr poole was the henchman for the mastermind it's impossible to separate them they did come in against mr paul and there was a relevant is the less likely there's a real confrontation violation the less likely you're going to approach this right i mean you would agree the opposite is true for example the more egregious the confrontation clause violation the more likely it is to be prejudicial so i'm not sure we can say even if technically only precious and it is in front of us that we don't pay attention to this but the other feature of this it's just funny is in terms of prejudice now is this insert self defense into the case i mean that that exonerates pool but the what was a savage was that it was a murder conviction it was a murder charge that was being presented against him there was no self ok going there was no self defense theory and so the determination was whether or not he had acted to commit the murder and in that case where there is where the jury was not instructed to consider self defense as an option or it no i don't know that that's right that's beyond a reasonable doubt that he committed the murder and then the government puts forward a theory in the jury's asked to believe beyond a reasonable doubt whether that theory proves it and if you have inserted into the case well wait a second know what was going on here was there was some self defense going on but definitely relevant state of mind doesn't matter whether there's an instruction or not it undermines the government's power beyond a reasonable doubt pat they're asking the jury to walk your honors there was a statement made to that effect there are also multiple other statements that were made to the effect that mr poole was responsible for committing the murder and with respect to those statements it is clear that there was a confrontation clause just that when you say there was a statement to that effect the only statement we're talking about that matters is not just the sentence foreigner said the two days after the killing pool confessed to him that he had shot covington albion because he thought covington was reaching for a gun is that the statement that we care of there are mult there are multiple statements actually entered gartner said the payment oh no i'm sorry that he did not say that about ok i gardner tell me what is relevant about gardner's supposed confrontation clause violation testimony beyond the sentence i read so the sentence just garner said the two days after the killing poole confessed to him that he had shot covington i'll be it because he thought coming to us reaching for a gun that's that's what we're debating right and that is a statement that sergeant gardner made yes your honor and that's that's the only statement for which there can be prejudice yes those are the statements ok so i'm saying it undercuts the government's theory of the case but ultimately there was a statement made that he had committed the shooting and when we're looking at substantial and injuries of fact ruling out the whole course of not only was there an issue as to self defense but there was an issue that he was placed there that mr through his statements placed mr poole at the shooting when mr paul was not was arguing that incriminating and devastating under the supreme court's analysis imprudent secondly we're asking when looking at substantial injurious effect do these statements also serve to corroborate other evidence at trial that might not have been believed so there is not only the harm from the violation itself but the harm that then permeates throughout the whole course of the trial and your honour's if we look at vasquez he jones it is clear that state we are we allowed to consider how often the gardener testimony is referred to in closing arguments and so how much when you said permeates the case yes it's not my sense that it did permeate the case terms of argument by the lawyers no it wrong about that you're correct your honor it's not about argument by lawyers to clarify my point it's that it permeates the case because it served to corroborate all of the other testimony at trial that directly incriminated mr paul that might not have been believed so if we turn to vasquez b jones this  allowed to consider the in the prejudice and corey whether the government for example relies on the disputed evidence closing it's not something i can consider in terms of its prejudicial effect on the trial yes your honor you can but also we have to consider the degree of crowd rating effect here and to that i would point to vasquez b jones because in that case this court granted habeas relief where it found that confrontation c testimony in violation of the confrontation clause has substantial injurious effect because that testimony was the only testimony directly incriminating the defendant that was not impeached and that was not questioned here where rather in mr vasquez's case there was there were statements by a third party witness that he had committed the crime those were in question there were two other pieces of testimony at trial statements that had been or canted statements prior to trial exactly testimony in mr powell's case and also statements that were impeached there by virtue of drug and alcohol abuse here with respect to mr higginbotham by virtue of the fact that he was so openly seeking a cooperation was even greater and i say that for two different reasons your honour's first the testimony about the fact that it not only undercut the theory yest pool and undercut the serious devour it i mean it undercuts both theories yes as far it doesn't say he says there was a murder he says pools and to be in self defense but of course he doesn't say anything about paying for it so we're told undercuts the theory that right i mean the statement is incompatible with both theories of the case but the seat of an honor and pool yes your honor but the statement serves to corroborate testimony that was that mr varner paid mr poole to kill jury to take as true that question testimony that it might not otherwise have taken so the fact of the matter is here under this court's precedents mr poole mr varner statements through starr you garner not only had their own incriminating fact on their own and to what degree this court finds there to be an incriminating effect but there was a second incriminating effect under mascots that incriminating effect was serving to corroborate testimony that might not have been believed the testimony of mr coddington excuse me miss coddington and mr higginbotham that there was a murder that there was a payment to kill again so turning toward why there is a substantial injurious effect here given the statements by mr poole and they're corroborating a fact the statements in vasquez we jones were seen by a third party witness here the statements by mr poole excuse me by mr barter where the statements of his very own codefendant and thus they were objective lee more prejudicial the supreme court has said in britain v united states exonerate the person and even even when they exonerate a person to a degree that was not  discussed at trial but to the degree that they exonerate and they also served crab rate other testimony they cause they cause that test me to be believable that it might not otherwise have been if we look at the absence if you think that's because has any bearing on this case of one draws the conclusion that the statement had zero corroborating in fact except for the idea that pool was there and pool to pull the trigger i think invest as the conclusion from that case as applied to here is that there was a corroborating effect because invesco as the time it was in the testimony was not discussed in that case as though the testimony had to match up perfectly in order for the the concept that this court discussed in vazquez of the tiebreaker witness was that it caused testimony to be believed that would not have been believed because it went to the material fact of the defendant's guilt and so to that of the defendant's participation in the shooting or the murder to put it more precisely so here there was a statement by mr carter through sergeant gardner that mr poole was the one with the gun that morning those statements so turning to ineffective assistance of counsel so i asked you a lot of questions but the road has been on for a while so why don't we do about four or five minutes and then i'll give the same time to you from the other side get out of your hall it be about four minutes no i'm saying i can keep going but you're going to be interrupted a little bit it was about four minutes with the confronted with ineffective assistance of counsel issue it was unreasonable to decide that council's failure to object was sufficient that is because the entire court's analysis was premised on the erroneous assumption that only a crawford objection was available with respect to the prejudiced problem which is court refused to novo if there was a substantial injurious fact there was certainly a reasonable probability of a different outcome there wasn't a confrontation clause violation because it wasn't for the truth of the matter certain it was to show the against mr paul those statements were ones made by his codefendant brewed in the united states does hold and it does not make reference to whether or not those statements have to be ones that were wholly inc have been made regardless of whether they're offered for the truth of the matter asserted the point is that in the jury's minds those statements are so damning that nothing can nothing can remove the taint except cross examination the reason why is because ultimately it doesn't matter to the jury whether or not something was offered for the truth matter sorted or not the point is that the jury is unable to get rid of that tape so much so that in britain the supreme court held that limiting instructions don't saying something different than what it said was meant for some reason verner laid out the exact theory of the case the cotton theory of the case so what you have is everything's the same about the case except that the sentence isn't the sentence i quoted in the sense that was introduced but it's gone or said i paid three hundred dollars to commit the murder and how does that case work out in terms of prejudice your honor i still believe that in this particular would be certainly something that had to be addressed but but if i may that the real issue here that that makes this distinct is a very important factual distinction between this case and vasquez and that is in this case the theory of the defense was there was a massive police conspiracy to get mr varner because mr viner had won a civil rights action against the state and you can see this throughout the testimony and you can see this in the closing arguments and you can even see the hints of it in the opening argument and so their entire theory was that the over and that that she then told the truth when she came to trial and that it was because of this police manipulation and because of one particular police officer allegedly raping her that she had lied in giving this as i said very detailed testimony i submit to you that in this case has the jury reached the conclusion that ms coddington was credible with regard to her allegations of police harassment and of rape mr poole would be a free man they clearly did not and the reasons that they did not have nothing to do with mr gardner's actual testimony and even in your hypothetical i w it would be a closer case the looking over the entire record but you would have to conclude that the jury even if mr gardner had test a sergeant gardner had testified that mr varner had told him that he had paid mr poole to do this even had that happened when you look higginbotham testified that mr viner had confided in him that he had in fact that they had a scheme to make up a false complaint against the police second there was significant evidence submitted from both the arresting example made numerous phone calls to the police a police officer to whom she was alert from whom she was allegedly receiving harassment that no one who saw the two of them together on the days of the day of the alleged rape noticed anything a trial testimony was credible no matter what any other witnesses said mr poole would be a free man so are you suggesting that the government's case was would would not have been weakened in the absence of gardner's testimony no your honor i think the guy i think government's case would have been weakened but not significantly so and when we look at the the facts or the van arsdale factors the fifth factor talks about the strength of the government's case and because gardner's testimony is only tangentially related i would suggest that the overall effect of it would have been relatively minor had mr gardner not tested sergeant gardner not testified at all i think you would have seen the same result in this case for the reasons i just explained alternately i think that that analysis of harmless sergeant gardner's testimony was harmless under the brecht standard then it would be very difficult to suggest that it met prejudice under the strickland standard much less strickland plus ed and i would double deference due to strickland plus ed and here's why even though the michigan's court of appeals was less than precise in its recitation of the strickland standard it's actual analysis of prejudice was under chapman so that it said we have found that the the error here was harmless beyond a reasonable doubt well the chapman harmless beyond a reasonable doubt error standard is obviously much more difficult for the state to reach then the standard under strickland of of probability so consequently because the mission court of appeals concluded that that the error was harmless beyond a reasonable doubt energy under chapman it obviously had to have been met the strickland standard and that this isn't is entitled to the additional at the deference that you have to consider whether the decision was so out of bounds and no reasonable judge could have reached it are you prepared to concede that gardner's testimony had and injurious effect on the on the petition no your honor i'm not not ready to concede that there was a substantial and injurious effect asked about injurious injurious you'll concede that won't you i would concede your honor yes that he had a i mean there was a there was an incremental addition to the level of proof provided by gardner's testimony of the question was it is whether it was substantial perec your honor yes and i think that in terms of looking back you know what the court of the michigan court of appeals said they found here obviously this was  this was harmless beyond a reasonable doubt obviously this court of lies brecht in this context and there's no question here that it had did not have a substantial injurious effect where as i indicated  of this case was focused on the entirety of the defense was focused on whether or not there was this massive police conspiracy to the frame mr varner and mr pool testimony need to be believed clearly there were two contradictory sets of statements one made during preliminary examination one made during trial why should it be believed first invest as we jones this court did note that  fact finders determination of credibility and also cited to filtering motley and doing so as a threshold basis the reason why this kind his testimony needed to be believed or could have been believed was motley this court was very clear that just because your other cropping statements it doesn't take away from the fact that a confrontation clause violation can be the most corroborating statement and that the degree of corroboration does make a difference in  corroborating statement you have to take everything that comes with it i mean i realize that it's most corroborating if you focus on just presence and pulling the trigger but you know it's one sentence and it comes with a very different theory of what happened and that just seems to me i'm not saying it eliminates corroboration and that's not my point i just would say i don't understand how one couldn't say it minimizes it particular when it also undermines the theory of what wagner was doing it's because the jury has to decide in addition to let me restart it's clear from mr verner statements that if we take them to be true that mr poole was at the crime scene the question then becomes as your honor has raised self defense vs murder there were two sets of testimony that direct directly and committed mr poole both amanda coddington's as the state has pointed out that said that mr poole had been paid to murder and also mr higginbotham's testimony that said mr poole had been paid to murder and so yes it is true that mr berners testimony was may have implicated a self defense issue but the greater point here is that it corroborated in so far as mr poole was there mr poole was the one shooting the gun and he had some relationship to mr varner it corroborated two sets of testimony to that degree that both said that mr poole was the one that actually committed a murder and was paid to do so so job well prepared i know you've got your supervising attorney there but i want the record to reflect the university of michigan turning else from greece students well you know i have to add ohio state's doing pretty well but today