seventeen fifteen seventy four paula bennett versus john brewer arguments not to exceed fifteen minutes per side ms melissa salinas supervisory attorney to be argued by law student sinead redmond good afternoon your honor is made please the court i am melissa salinas counsel of record for paula bennett we appreciate the court giving this law clinic an opportunity to represent miss bennett in this case i would like to acknowledge four members of her family who traveled to be at today's argument and we're thankful to have them here and with that i will introduce she made redmond third year law student who has been given permission to argue the case thank you applied strickland and it failed to find and it's trial counsel constitutionally ineffective and it is currently serving life without parole and as the district court put it the hard truth here is that she did not do much to receive the sentence to be clear the stat imposed conviction or of you found that counsel's performance was deficient but unreasonably held up and it was not prejudiced by those deficiencies additionally this court should find that its appellate counsel was also constitutionally ineffective for failing to raise the imbue abuse inflicted upon her by her codefendant and adopted an overall strategy so irrational that the michigan court of appeals dissent called it bizarre and counterproductive on appeal and its counsel performed efficiently again prejudicing her problems we've got with this record the fact that we have the lawyer who represented her trial has never been asked about why he adopted this sort of team strategy approach there hasn't been an evidentiary hearing was one requested in the district court one was her request in the district court and she was proceeding pro se at that time so she she did request it say well you don't need an evidentiary hearing because you had one in state court but in fact here there was not warnings gore that's right that's right and i don't recall a specific reason that was offered so she has you know as you mentioned she had no eviden level she was she was she was also on represented on post conviction rubio which is when she initially brought her claims for her trial i see claims on her other argument you're making because generally under the law the what you say would have been established was that the witness in question not entirely might have been able to get in this argument that well it goes generally into whether he was joking more now if you were going to if you wanted to pursue as was pursued here the other huge are theory but that it doesn't get you near is far it seems to me as you seem to think it will give you the reason why we believe this is so essential is because you can learn and it where you are in impulse paxson me with benson all day as were several other misspent its friends and they all heard him saying the same things they all heard him and is making these threats and then saying that he was going to too and she was the only one who was in the position taking the driver's seat and driving around the complex and so she needs i was a or she is reported to have said others were going for the purpose of reclaiming their property even is whether it be that could be argued to be evidence that she thought they had another purpose but it could be also be argued to be evidence that they were going to in some way i have an encounter with  but at the time that she was providing the assistance which was when she gave him directions you know she had just gotten in the car with and after spending the day with him and ms candler and listening to him  these kind of threatening comments and then alternating back to saying he was just going to go pick up the item so that the issue here is that camera was the only one who said at trial that she took him seriously and her credibility would have been severely in question if her or if mr bennett's attorney had questioned that i do agree though that you know all all of the claims kind of tied together under this umbrella of the team strategy that bennett's counsel chose  while it may have been irrelevant to been sent it was extremely relevant to bennett because the key thing that the prosecution had to prove here was that she either intended to assess him or knew what he was planning to do so the argument the i'm just trying to connect you're here so they had two separate attorneys in two separate juries so the fact that in the car was very clear throughout you know that there were two separate juries making separate determinations of guilt for each person so the fact that it was rule well it may have been irrelevant to ban send because there's so much physical evidence indicating that he committed the crime it was very relevant to understanding how bennett would have perceived what benson was intending to do the exactly the same  that none of these witnesses took him seriously then it would be even harder for a jury to believe that bennett knew that he was planning to do this if nobody else that he talked to that day took him seriously then you know there would be even less evidence that she should've she should have known and she did not testify that she did not testify that's right so all we have are these kind of circumstantial pieces of evidence from her friends who spent time with the two of them that day anything on the record about why she didn't testify there's not and that's also something that the michigan court of appeals dissent raised in a footnote that that was something that the michigan court of appeals descent would have liked to see explored and again through hearing and as if i'm remembering correctly claims so at the post conviction review would have been yeah post conviction review heard the opinion there said that it's a little ambiguous but it said that the appellate i e c things had already been decided against her when in fact they had not the first time she raised them was on post conviction review of course that was the first time she could've raise them logically i see that my time has expired thank you it please the court linus being heard lynn assistant attorney general for the state of michigan on behalf of the respondent warden and respectfully requesting a firm and i think you clearly are not the trial counsel for the state no this is a classic example of reasonable trial strategy now if it had ben as described that ms bennett's counsel had put all of the eggs in this basket of mr benson's guilt i think we'd have a tougher case i'm not going to concede anything  the record i think that certainly miss bennett's counsel did make an issue of whether benson had committed the crime because that was something the state needed to prove it was not a foregone conclusion they were holding a whole trial on it for mr benson well yeah but there's something about it that suggests that that they didn't get anywhere with maybe plea negotiations or something i mean i the failure to give bennett a chance to plead guilty and perhaps testify against the mets the kind of thing that that the record doesn't tell us that might have been developed at a hearing that you're out of the record and i wish i could give you a page i d number but the record does show that miss bennett did reject a plea offer and i can i can submit a supplemental brief showing where in the trial that's all right i just there's there's something about sending her into trial that that speaks to a team effort of some  why was her counsel cross examining the medical examiner when nothing about that witness's testimony related to her guilt or innocence because because in order to find her guilty the state needed to prove that benson had committed the murder that was an element of the crime and what we're hearing is that counsel was not only made a mistake but actually performed incompetently by not conceding one element of the crime and that's and that's well that wasn't the only defense witness for benson that he cross examined was a no no exactly because he has a there were two juries and both juries had to find that benson had committed the crime and it's easy to sit here knowing what the verdict was and look back and say well here's a way that it could have been done differently but at the time you know i think what we're sitting here at least i am not speaking for my colleagues sitting here saying is not hindsight in view of the verdict but hindsight in view of this evidence i mean she's got to be shown to either well let's say she has to be shown to either intend or know that this is going to happen but that's not the end of it she's got to encourage it i've forgotten what the what the  and courage woman in here i don't have the the assistant i think it's a promoter system might be i'm not sure the assistance is in telling him where to go he didn't know where to go she knew that he was going to kill her and she told him where to go how did how did what how does the evidence show that she knew that that's the problem because he was talking about killing her and he had a gun and he was saying that he was going to kill her and that that was the evidence and the thing is that is an argument the trial counsel made trial counsel did not say well we all know that she did assist whatever happened but benson wasn't the killer that is what happened she said the trial counsel said they haven't proven that benson was the killer and also even if he was and in fact in the closing argument defense counsel even says the evidence tends to show that he was so you know that's like the old business of saying my client is insane but if he wasn't insane he didn't do it no it's not because i was know what might amenity he didn't commit the murder but if he did she didn't realise that he was going to do it is that where we are know whether he did or not she did in the system and it's not even if he did she didn't the system it's proven that he did it but if you think they've proven that he did it then you look at the lack of evidence that she actually knew which your honor was just asking you by where's let me go back then and i ask you where is the encouragement encouraging it is thing to aim the trailer giving him if i could hand a murderer a gun it's no defense to say that the murderer could have gotten a gun i understand that but you certainly you see how weak her involvement is in terms of a life sentence without paro that's a matter of state law what the punishment is for the crime that she did she assisted in murdering come in come committing a murder you know that is every when the from the transcript is then one two three four five up to around twenty three yes that's correct so moving from the so we've got the strategy argument and again the this is not a case where this is a case where the state had to prove to bennett's jury that benson and committed the murder benson's attorney certainly vigorously contested it and it wasn't on reasonable for bennett's attorney to contest it as well in addition to the main argument that we can't you see how much more reasonable it would have been for them to come in with two separate attorneys and for benson to take the bennett to take from the very beginning the position that he's guilty and i want you to know i had very little idea or no idea that he was going to do it and it and i was stronger than wasting time saying he didn't do it you got to prove he did it it might be and i i think that it happened i would be up here explaining why defense council's decision to concede an element of the crime was a reasonable trial strategy and i think i might be able to do that because there are more than one reasonable way to try a case but wait a minute flesh that out a little for me you're suggesting that bennett should have gone in and say of course he did it that's element one of what the state needs to prove against me i concede it don't have to prove it no physical evidence no testimony you don't have to listen to anybody on that i can see that he did it and now i would have to say why that's reasonable when you plead not guilty put every element of the case in contest to then come in and say well except for this element which you do have to prove to another jury right at this is not something where benson pleaded guilty because their case was a foregone conclusion he went to trial he made he didn't come in and concede yes i did it the evidence is overwhelming he put them to their end so she did the same thing and it was reasonable for both attorneys to say you have to prove what the law requires you to prove virtually had an eye witness to what it go on and then there was his statements to people of what he now could there have been any doubt in anybody's mind that he was guilty which is why you also argue that she didn't know that he was planning to do it which is what trial counsel also did and also impeached candler with her inconsistent statements and also tried to raise a reasonable doubt about what she knew and that was the main thrust that was the main thrust of defense counsel's argument was her lack of knowledge that mr benson intended this murder at the time she gave assistance that they argued he argued both and it was reasonable to argue both because the state was required to prove both but if i ask you about that language again and it turns out t only does she need to know but she has to give either assistance or encouragement will she give assistance so there's no well the two seem to be sort of on the same level the assistant she gave was turned out not to be assistance because he knew exactly where he was going after all you're asking and that and the and the use of the term encouraging it seems to suggest that you really have to be behind it pushing on that level and saying this is really what you ought to do and i mean here with you and i've got your back and i guess i would respond in two ways first i think that that's a question of the sufficiency of the evidence which isn't before the ideas then we haven't talked about all of that but i mean her the fact that she filed a police report that morning indicates that she was looking for the law and the judicial system to take care of it the fact that she never said to anybody all day long you know we've got a guy and i think he's out to get mcclure and you know what she did it doesn't bother me if he does do it  and then the fact that she lost it completely when the shots were fired i mean there's something about this that indicates that she may not have been totally into this i guess what you would want an aiding and abetting well which is why it goes to whether she intended or knew that he intended and there's no requirement that she intended death and i don't think that that was the basis of the jury's conviction i don't think that there's a serious contention that she intended it which is why i mean which is why the problem i mean i look at page eight of the reply brief where it says any reasonable attorney would have focused the defense on her lack of intent but that's not correct it's her intent doesn't matter it's her knowledge that matters did she assist and did she know when she assisted what she was assisting and the evidence suggests that she did i think the second response i would have to that line of questioning is that that's a matter of state law what does encourage me i mean insufficiency is a federal claim but it's up to state law to define what is a fit what constitutes sufficient let me put it a little different basis we don't have the sufficiency of the evidence in front of us as such what we have is a claim that if this was the evidence heard a lawyer who gave a completely unreasonable strategy to try to get her acquitted right and whether the strategy that he used was reasonable or unreasonable and if it's unreasonable it's inefficient ineffective assistance of counsel and whether it was reasonable or not reasonable was the evidence that was presented certainly that he knew about before trial and that was presented at trial certainly and  me back to the one of the first things i said which is that if counsel had put all of his eggs or even most of his eggs in the basket of of cura benson's innocence i would concede anything but we'd have a tougher case if that's not what happened the thrust of the defense bennett's lack of knowledge that he's not taking him seriously and that is what counsel argued mostly without conceding the defense that there was reasonable doubt as to benson's guilt talk together which again is that the best way to try to case it's not a question before this court is a reasonable way to try the case it absolutely does help if somebody had gotten him on the stand her trial lawyer and said what they were you thinking when you did it might but i will respond to that by saying that there is a presumption that counsel does perform effectively and is making good decisions and it is an objective standard if any competent attorney could have tried this case this way then it really doesn't matter it can be helpful to have this particular attorney's subjective reasons but it is an objective standard if any reasonable trannie could have tried this case this way then it's not ineffective well i'm going to give you a little bit of advice if you ever run into this situation don't try it that way ok well i mean every case is different and i hope i never run into a case like this certainly for for a lot of reasons i haven't really gotten to talk about the better woman syndrome in forty seconds i will just say that it does not go to the knowledge it goes to intent which is not at issue i mean that is the basis that it's been argued is that she didn't intend that a battered woman defense could have shown that she did not intend the reason she did this was not because she intended other reasons but the reasons why she did what she did are not at issue in the case what is at issue in the case is what she did and whether she knew when she did it what she was assisting and that is all say unless there are any other questions yes i do have one question just one thing we decide that the failure to grant her request in district court have an evidentiary hearing was error especially in the situation where she's proceeding and there's never been a hearing can we send it back down there to have an evidentiary hearing on the question of an effective assistance of counsel you know we don't usually touch that question unless there is evidence in the record that would go to show that and there's just to have a district about it being an objective standard i would say that i won't say that that would be a correct course for the court to take i think i don't i don't think that would i think that i mean in terms of do you possess the legal there is enough to remand and grant habeas relief and you know this so it's not it's not necessary and we believe that the it's you know the issues here the ineffective assistance of counsel issues here jump off the page they jump off the page to the point that it because i could i may agree with you that there was depression but you still have to get past the state court ruling that even with the foreman there was no there was no prejudice and that's that's what we have to give the court effort of course we have to find that's a reasonable application so tell me what right so to demonstrate prejudice under strickland miss bennett needs to show only that there is a reasonable probability that but for counsel's unprofessional bidding on what the record revealed to us she may have provided the direction she remained with the car he drove the car  complex and he knew where the up happens it was a happenstance but yes she you know she didn't need to provide very much you know and as joe jr said you know she really didn't do very much at all here i see that my time has expired i did want to briefly mention just that maggie russell this court explained and i think this goes to your question i'm judge her from that strickland requires that cumulative effect of errors has to be have to be scrutinized more closely than usual state court but i think i'm the unique facts of this case what mackey is requiring this court to do under strickland the clearly established federal law here is to consider the fact that the impact of the potential errors becomes magnified and that yes that's mackey and so that but what that means here is that you know in a case where she is serving really long life without parole sentence  there was limited physical evidence against her a limited circumstantial evidence against her these errors that counsel that both the trial counsel and the apollo tonsil made need to be scrutinized even more closely to ensure that they satisfy that the six