may please the court line especially hart lane assistant attorney general for the state of michigan on behalf of the respondent warden respectfully requesting that this court reverse the decision of the district court granting hey vs relief and may it please the court i will request two minutes for a bottle of the district court in this case fail to appropriate appropriately apply the highly deferential standards of review that that apply in this case in reviewing the decision below this court should do with the district court failed to do which is to place itself but i'm addressing the deficiency problem here of strickland first which is to place itself in the shoes of the attorney at the time the strategic decision was made not to object to the interview statements this is something the district court didn't hindsight to look at while the effects that it had by being used by the prosecution by being used in the closing argument this court needs to recognize that the attorney the defense attorney in this case was faced with  what is essentially a trial them which is to say i could put my client on the stand simming is willing to testify subject him to cross examination and in my opinion as a defense attorney that's not going to go well i could get the statements excluded and not call them on the stand and then leave the jury wondering well other than sort of the brief interview with detective mills wondering why aren't we hearing the defendant's side of the story which in my view as a defense attorney is not something i want the jury to wonder about or i could get these interview statements made the statement they were made in the interview not object to them coming in and say now we can get all of these denials in not only denials but denials that were made when my client was in a we state when my client was you know in the hospital on trucks and saying look even under all this pressure my client consistently and clearly denied it get that in front of the jury with no time for cross examination now i've got a reasonable trial strategy in particular reasonable in light of the limited options that were available to defense counsel at the time which is why defense counsel said pretrial not in front of the jury and i have to correct that mistake in the police brief not in front of the jury and not in closing argument pretrial said and this is a quote that's a paraphrase but there's all these interviews that are going to come in and i could object to it because he was in the hospital on drugs when he made it and i'm not going to object to it because i want it all to come in  there was one statement made by defense counsel which was in the motion for a new trial the supplemental motion for a new trial after the trial court ordered him to brief his home ineffectiveness in which he said i initially believed that i couldn't keep it out because there was no confession and that's the same  that the michigan court of appeals made there was no statement saying that that was the reason he didn't object he just said i initially believed that well initially meaning when he first started to look at the case and develop strategies initially at pretrial initially we don't know when what there was missing is any statement that that was a reason for his failure to object the only reason we have is the contemporaneous reason he gave pretrial which i just said which is i wanted all the come in because even though i could make a motion and then also in the arguments on the motion for new trial which the court below sort of stitched together statements and sort of made a patchwork of admission that it was this era of law and it's not the case what he was saying what he said in argument there was no confession here right there was only denials that doesn't mean that as a matter of law voluntariness isn't the issue what he means is this is not a disadvantage for my client it plays into my strategy of showing he consistently denied it and the other trial strategy which is reflected in the defense closing argument which is police overreach police that he was that started proudfoot was single minded determined he was persecuting my client he never looked at other suspects he never seriously considered it was an accident right and that is also the defense strategy so we've got two different strategies the one which i outlined get the statements in without cross examination the other which is reflected in closing argument which is showing how determined the police were to get this guy that they just ignored of the theories and you can get them both in by getting these interviews and allowing them in and you don't get any clearly inculpatory statements now and then further you can reduce the damage mitigate the damage done by the inconsistency that's what the physical evidence by saying well yeah there are some inconsistency is he was on drugs he was in the hospital and he was confused he was confabulating right you've got all that testimony and that confabulation that we can state these drugs all that got in front of the jury so you mitigate the damage what little damage there is to be done you mitigate it and you get in your theory about the police and your denials and you say look even when the police wanted it even when it went in for the kill and this is language again not a direct quote but this is like a trial closing argument he didn't get the kill he went in for the kill and he didn't get it that's a difficult position the defense counsel is in where you've got a fire you've got very strong evidence that the fire was not accidental you've got two people in the house one of the most dea can you are you suicide you can but then we'd be hearing that in effect a sense of assistance of counsel claim that he argued an implausible suicide theory right the only other person who had access to the house was frederick spencer you're in a tough situation the district court says that without these statements the prosecution later in closing argument he develops this theme of you didn't explore other suspects you didn't explore other avenues that cetera that all that all ties into the theme of police overreach singleminded persecution of mr spencer and i'm going to move on now to the prejudiced prong now in this case spencer will have to show that both of there was a reasonable probability that these motions to suppress would have been successful and that if the statements had been suppressed that it would have made it a difference to the spencer can't make either showing with respect to the court below first of all a crucial element in showing that a statement can be suppressed as involuntary is police coercion police co activity and it's it's just not present you just don't see it in you see if you look at the cases and there's a case a u s supreme court case in particular colorado versus connell which in turn cites other cases where you see police coercive activity where you see and it's similar to miranda cases except they're different because there's no custody but you see the length of interrogation you see the tactics used etc and here you've got the nurse gives permission right you've that maybe your honor but i'm talking about from the point of view of the police in terms of what the police were doing the police officer sought permission and received permission and i don't think there's any reason to think that the police officer tricked the nurse if the nurse was operating under a misunderstanding or if the police was earth the nurse excuse me especially with the february tenth interview where there was no where where spencer wasn't even a suspect at the beginning of that interview right and it is not confrontational and further what coercion could there have been when i meet the court would have to accept the idea that profit went in there with the idea of coercing specific lies from spencer so then he could use the inconsistency as with the physical evidence to show that he's lying and it doesn't make sense you'd have to i mean the correspondence or into saying the gas can was here and then i'm going to show that the gas can was there and there's no evidence in the questioning and it's frankly an implausible theory if you was trying to coerce a confession out of him well again one of the crucial elements to suppress this is involuntary is that the police overboard the will of the suspect well then where is the confession and i have to have to clarify because this was a statement maybe a misunderstanding in the police brief the state isn't arguing as never argued that the fact that there was no confession means the voluntariness analysis is irrelevant and of course that's the mistake the court of appeals the machine court of appeals made but the fact that there was no confession is relevant in showing that the police didn't over bear the will of the suspect right if they're in this we can state and again this is the argument that he could make and he made before the jury in this way you can stay on drugs in the hospital the police one of the confession there was no confession now which brings up another point in the prejudice analysis the district court said well there's no evidence so strong as a confession of the language from arizona versus foreman and i'm not mistaken well there was no confession here so i think that certainly they're both points because we have to show because spencer has to show that both that the motion would have been successful which goes to which it is relevant to say that there is was no police coercion which is part of the point and also to certainly and yes your honor then and of course the prosecution did use these in consistencies and in the argument is that the prosecution used it to their advantage of the point is that when the district court says well of course this is prejudicial because confessions are so prejudicial it throws the district reasoning into doubt because how can you say well this is prejudicial because confessions are prejudicial whether there was no confession that david moran from university of michigan law school michigan innocence clinic i'm joined by co counsel imraan sayed and student attorney kyle hamilton on behalf of mr spencer let me turn to the last point that mr big heart lynn made first about  an involuntary confession when an involuntary statement when there was that when there was no confession the basic error that mr bang hartland makes is that test for involuntary ness is not police coersion it's police overreaching that's the test  colorado versus connally that's why we have arizona versus mincey which is a case very factually similar to this one in which you have the police interrogating a badly injured and drugged man in a hospital room while he's attached to various various equipment in the u s supreme court finding that the resulting statements are involuntary it's taking advantage of a person in a weakened state like mr spencer was the district judge had an opportunity to listen to the tapes we have submitted the tapes of the interrogations anyone listening to those tapes would understand that mr spencer was being taken advantage of and his statement was therefore involuntary because the test is not whether his will to confess  being overboard but whether his will to speak at all is being overboard and he was not in a state where he could rationally choose whether or not it was in his interest to speak to detective proudfoot much less formulate his answers in a coherent and rational way that would not make him sound years later to a jury as a guilty man now ever going to be mincy i should add it is not cited anywhere in the state's brief or in the state's reply brief even though both the district court and we rely very  very heavily on it for the proposition that this is coercion now asked for the last part of the prejudice prog about the impact on the case i can't do any better than quoting from the trial court when the trial court issued it february tenth and twelfth two thousand when matched with the physical evidence irrational trier of fact could conclude that defendant was lying and then infer from the lies the defendant was attempting to cover up the commission of the crimes he was convicted of and quote it's not just the district court who looked at this and said the most important evidence against mr spencer is the statements he made in the hospital bed it's the trial court as well that presided over the entire trial indeed the prosecutor understood that one glance at the closing arguments in this case if you were just to randomly put your finger on a page of the closing arguments in this case the chances are very good probably something like two to one or three to one or one to two one to three that you will hit upon the prosecution attacking mr spencer for the statements he made while he was on dimmer all how ball tylenol with codeine being interrogated by detective proudfoot on february tenth and twelfth two thousand the prosecutor is in the best position of all to know how important these statements were to the case and so the prosecutor listened to the statements understood they were devastating because they were all over the place they were inconsistent with each other they were inconsistent with the physical evidence at the scene and as a prosecutor repeatedly stress the most devastating thing at all for mr spencer was that he was not firmly denying saying the fire strongly enough he never admitted setting the fire but the prosecutor kept arguing to the jury does that sound like an innocent man  dealt with the statements once they came in the in effect and this was not trying to exclude the statements in the first place much of what mr bang heartland describes as strategy is mitigation he is attempting to mitigate the damage from the admission of these statements by making sure the jury understood that his client was not in his right mind but that leads me then back to the question of whether this was a strategy and i turned back to the trial court first of all again we don't have to go to all to the district court we can go all the way back to the trial court and on page six of the order denying the motion for new trial the trial court says first that the defense attorney made his decision because he believed eroni asli that he could not exclude statements that were short of a confession and he actually says this this is an error of law so both based on the written motion the trial counsel had filed post post trial and the hearing post trial  trial court understood that defense counsel was saying i didn't file the motion because i thought i couldn't exclude something short of a confession then the next paragraph the trial court says and this was a certificate decision and the district court in the in the opinion granting the hippias correctly calls the trial court on that it can't be both you can't make a strategic decision based upon an error of law that leads you to believe that a motion to suppress will be it was made i can't get them suppressed probably because trial counsel had read people versus just the same erroneous michigan court of appeals opinion that the panel relied upon the michigan court of appeals panel relied upon in this case to deny relief once trial counsel had made the erroneous decision that i can't get these statements suppressed as a matter of law then as a good trial counsel he starts thinking well what can i do with these statements and he starts coming up with ways to try and mitigate the damage and i want to say explain why none of these reasons even if we assume counter factually to what the trial court valid the state trial court even if we assume counter factually this was a pure strategic decision it would not be an objectively reasonable strategic decision indeed it would not be a reasonable decision even under the double deference that the district court appropriately applied to the trial court's decision in this case let's look at th one by one the first teacher can even claim is that it gave a great opportunity to attack detective proudfoot for conducting an interview on a helpless man but counsel could do that assuming he made a motion to suppress and it was denied at testimony from the nurse he could alissa testimony from mr spencer's sister corinne during the february tenth interview to show that detective proudfoot went to the hospital misled the nurse as to his true objective hit every quarter in his pocket and then conducted an eighty minute interview with a man who had been drugged again all that he could get out to the doctors and the nurses in the hospital records and then came back and did it again two days later when mr spencer was even worse shape twenty minutes after receiving an injection of de miscible for all purposes including including impeachment what would he have been cross examining that would have provided him the opportunity to bring only that one detective profit testified in defense counsel could have said you went to the hospital sir didn't you on february tenth two thousand you knew about the state that my client was in you attempted to interrogate him for eighty minutes you misled the nurse he could if what that would uncovered and they wouldn't know what that something was unless proudfoot was to testified to what took place during that era i don't believe so your honor because i believe what defense counsel could do is get a limiting instruction that crowd would not be allowed to mention that he obtained any statements from mr spencer only that he attempted to interrogate mr spencer and that the defense counsel could question him about the circumstances and then bring in the doctors the nurses spencer in order to establish mr spencer's weakened state but if i'm sitting on the jury and i'm listening to him say you did this and that and he was in a weakened condition my response would be so what what's that got to do with me well according to the  i agree so what but according to the state this was the grand strategic decision that defense counsel made to show the detective profit was a bad guy what i'm suggesting is that if the defense actually had a strategy of trying to show that  guy they didn't need to admit the statements to do it they could do it so simply by showing what he did without admitting beat almost three hours of incoherent self contradictory and rambling statements that i hope you'll listen to if you have listened to already  on the tapes i don't think any competent defense lawyer would listen to those tapes and think it's a good idea to have these statements come in so that i can show detective crap for the bad guy the second reason the link to the first one given by the state as for why this was a valid strategic decision is it gets mr spenser's exculpatory denials before the jury without putting him through the crucible of cross examination true enough but mr spencer's exculpatory denials were already coming in through his statement to officer meals or mills or detective mills and that was that was never denied and if if for some reason you were to buy a space argument but detective m statement isn't enough it's actually quite comprehensive it goes through the facts in a coherent rational way as to what mr spencer has all along said happened except when he was under the influence of drugs you would never want to admit if you listen to the tapes you would never want to admit these statements as the form of exculpatory denial for the very reasons that the prosecutor hammered on over and over again throughout closing and opening statements that they're inconsistent that he doesn't strongly deny having killed his girlfriend and so forth the final reason that the district court correctly seized on as to why these statements can't be seen as a reasonable exercise of strategy not to try to suppress is that if they had been were essentially would have been no case against mr spencer as defense counsel himself put it in the motion hearing post trial there was no downside that's an exact quote there was no downside here you can try to move to suppress and the failure to suppress if the motion had been denied would have been no way prejudiced his trial strategy if the motion on the other hand was granted going back to the quote from the district court it was the bulk of the prosecution case you had the prosecution had a very weak case that this was an arson in the first place the prosecution of the state claims in its opening brief this was a case of undisputed arson it's patently false much of the trial was about whether this was an a sliver of evidence beyond which a rational jury could find beyond a reasonable doubt that there was an intentional fire in this case could a rational jury has found beyond a reasonable doubt that  arsonist without these two hospital statements and i submit that the answer is no you have half the site tech the woman who died she could have set the fire accidentally or intentionally but you have mr spencer and then you have the possibility of a third party now remember there were two fires in this case there was a fire that were eighteenth two thousand that's a jury acquitted mr spencer of after he presented strong evidence that he couldn't possibly have started that fire because he was on his way back to shepherd from saginaw during a blizzard where he'd been released from the hospital just a few minutes before this fire had started and an eye witness had seen what appeared to be a tall woman who he said was definitely not mr spencer in the house or the remains of the house just before the fire started the prosecution started this trial by saying for sure the same person would have started both of these fires and so contrary to mr bang heartlands claim we have the entire universe of third persons as the prosecution essentially had no case that mr spencer was the arsonist all they had was two out of six responders said that mr spencer smelled like petroleum product for other said he didn't and that was the disk as the district court in the trial court both noted easily explained by the fact that mr spencer was a mechanic and and neighbors testify he often smelled like oil and gasoline that's the that's the record clearly reflect the trial lawyers mr barbarian's explanation was air which is surprising to me because there was michigan law michigan court of appeals law going the other way but apparently the trial judge was aware that that that that view of the law was erroneous in you just a few brief points on the last points first the fact that there are other theories of defense doesn't mean that the evidence without the statements was insufficient it's not a question of insufficiency and of course it's not a law the prosecution is not required to disprove all possible theories of defense there was sufficient evidence without the statements on the point about why not just get this in without without getting the interviews in but just cross examine detective proudfoot on his overreaching without bring it in and i think there are two responses to that first judge guy as as as you brought up you say so what and my brother agrees so what well unfortunately under the michigan rules of evidence evidence has to be relevant to be admissible so if the correct answer is so what then the evidence can't come in but there's another point and i would analogize this to a case where the prosecution wants to bring in evidence let's say there's a murder and they want to bring in the medical examiner to show the and how they went through etc and the defense side says well we'll stipulate that the shooting was the cause of death in the prosecution says no no no you pled not guilty you put the elements in play and i'm going to bring in the seven it's right because it's more evocative it paints a picture for the jury and it's the same thing  the other side of the coin with this case you can say well you can just give the the jury just the sort of cold well the police went there he was in the hospital he was on drugs or you can let them listen to the confused crazy sort of question the sort of weirdness and craziness of the statements those are not issues of voluntariness for admissibility these are issues of weight and credibility for the jury and both sides decided to use these interviews to put this question to the jury one to show overreaching and the other to showing consistency is the fact that it didn't work is not evidence of deficient performance here i'm sorry you addressed the yes you are i if i'm not mistaken that police coercion is a factor or police overreaching police coercion police misconduct and i believe that applies as well but yeah i mean clearly there are some cases where interview tactics can be police overreaching and police coercion and there are other cases where it's not and then she was one where it was and this is one where it's it's not i mean it's a it all of these cases are fact specific inquiries here and i don't think there's any  there's any black or white sort of bright line rule but one bright line rule is there has to be police coercion but as far as whether you find that you have to look at the you have to look at the facts of the case and so i would absolutely invite comparison with mincey comparison with undermine his strategy if if defense counsel believes that and if that was a basis for his decision then it would your honor but the fact that he wanted these statements in makes it irrelevant whether whether he believed there was a legal basis to keep them out if you are something in if you want evidence in and then you'll want to know whether whether it's excludable or not excludable but you can turn that on its head and say the fact that he thought he couldn't keep him out was what caused him to develop a strategy and how to deal with them once they came in yes your honor and if that were the case if there were evidence showing that that were the case what trial court did with the excuse me the trial counsel did it start off with this mistake of law and then build the strategy around the mistake of law but that's all speculation and it goes absolutely against the deferential standard of strickland what you do not there was no statement that made that connected that erroneous belief with his decision in the statement in the in the motion sort of stands on its own unconnected with anything and now is it possible  perhaps it's possible but again given the strong presumption commanded by strickland and his contemporaneous statement pretrial not in front of the jury saying i want this to all to come in because it supports my trial strategy the presumption has not been overcome