case died from a blow to the had suffered on january fifteenth two thousand and ten at trial the state put on evidence of the heinous abuse and alienation that the victim suffered in the months before january fifteenth at the hands of jennifer gal her then husband joe for these acts jennifer galvin was convicted of child abuse and torture and she is serving sentences of ten to fifteen years and twenty three to forty years for those crimes respectively but we're here today because the state relied on that same evidence to convict jennifer galvin of the murder on january fifteenth without offering any evidence of multiple essential elements of the offense most obviously to first any evidence that she struck the fatal blow or even touched the victim that day which is essential to convict her as the printer better she doesn't have to destr if if the state's theory was aiding and abetting the state would need to submit evidence that she provided any aid of the murder at the time of the murder to joe who was the principal and the state court in its divided opinion affirming her conviction acknowledge that this was an element of the offense however did not even purports to claim that the state had offered any evidence of this element so as relevant to his galvin's murder conviction  human permit and encourage permit is not how the state court has defined it in people versus moore the michigan supreme court said that there has to be acts or encouragement of the crime so for example in people versus state court said that there was not evidence of a similarly in people versus perera the state court of michigan supreme court held that you have to have evidence of aiding and merely  hitting the victim or kicking the victim in the face can evidence perhaps an intent to injure but if that is not tied to the actual murder itself that someone else committed that is not a and it does not show the men either but about you know we have a case called sanford versus yok in two thousand and two that says that even though mere presence at the time is not sufficient the being present and giving silent moral support is enough to support a conviction of aiding and abetting well what about her silent moral support for the abuse that was taking place so again the abuse has to be connected to this specific murder in sanford there was evidence that the defendant actually tea for the principal who was orchestrating the rape it is true that in michigan if there were a prior agreement between the defendant and the principle that in essence their silence would constitute support approval and encouragement as was the case and people versus chapman then in that context it could be the case but mere in action cannot be the it was almost a tag team kind of fact with the may or may not have to believe her testimony that actually is not the case there is substantial evidence that she was not present the state's own medical examiner who conducted the autopsy testified that the overwhelming likelihood is that the fatal blow was inflicted in the minutes to an hour before that and there there not according to the testimony of both jennifer and of joe himself in spite of this not exactly exculpating him he was sorry he he relayed to officers who then testified that he was alone with the victim in the right so she she testified and in facing a wall she says to the police well i put some jam and toast out and i went to bed knowing this child was being in my view torture didn't see that the child had anything to eat this child in that game one pound as a three year old in three years or more in year please avoid the same a year ago says and joe are supposedly the child isn't that encouraged going along whatever you want to do i mean what more would you need not with respect to the law the elements of murder must nonetheless be proven this is not like felony murder in one or criminal law michigan is a little bit different felony murder simply takes an already existing murder all of the elements of second degree murder must be satisfied and then if it was in the in the context of child abuse that raises it to first degree murder and makes her eligible actually receive here for life without parole but all of the elements of murder must still be satisfied under michigan law as the these specific aiding and abetting has to specifically be with regard to the act of murder itself and so does the mens rea element and the state courts in spite of having acknowledged this requirement itself the first judge to hear the evidence in this case judge cynthia placer held there was not and probable cause of to indict her for murder even if that evidence is is a reasonable inference which we do not believe it is nonetheless under michigan law and under the law of this court you cannot take mere presence to show either aiding and abetting what i was more the mere presence so it is also the case that even standard and it was the case in a newman versus mattress again granting hey b s relief in the element that you're claiming missing here is really malice no that is one element that we are claiming is missing however the most obvious elements that are missing are aid of the murder in order to convict her of aiding and abetting under an ending in abetting theory the state needed to offer evidence that she aided the murder and in order to convict her as the principle the state would need evidence that she in fact struck the fatal blow the state courts nor the state why did she have to strike the final blow under an eating and abetting here none of that would only be under a principle theory under aiding and abetting theory the state would need evidence that she provided aid of the murder itself at the time of the murder itself the state court acknowledged this acknowledged that she had challenge that lack of evidence and yet did not even  state that there was any such evidence of the offense because instead of the state court said that she was complicit in a general pattern of abuse but it is an unreasonable application of jackson versus virginia to acknowledge elements of the offense and then not find them satisfied not even state that they are satisfied and then affirm the conviction anyway jackson gives the state courts a tool of self policing share your argument want the state court did not even contend that there was any evidence of the aiding element in or of the intent to eight element we can have a dispute about whether or not we don't think that there is sufficient evidence or that state court could reasonably find sufficient evidence of them in element either but the most glaring obvious deficiency in the state courts opinion is not even contending that there is any evidence the so that there certainly is evidence of prior abuse in this case which again ms galvin is not challenging her convictions or for child abuse or torture but the state has never articulated a theory aide of what possible aid she provided to the murder specifically that's a good time for list to hear from the state and then you can come good morning or enters into it christiansen brown of the michigan attorney general's office appearing on behalf of warden in the stewart the district court in this case rejected jennifer galvin's claim that there was insufficient evidence to support her conviction instead it found that that evidence was overwhelming and we would ask this court to affirm that decision this court is a very well aware of the doubly deferential standard of review required in hay vs cases i will not belabor that point i know the court is very well aware of that however i do want to make two points that i hold significant there's significant to this case first of all regarding the standard the supreme court has instructed that whenever there are conflicting inferences from the evidence presented with this which this case is admitted loaded with that reviewing court must presume that the trial or excuse me that the trier of fact resolve those conflicts in favor of the prosecution that's number one and number two regarding circumstantial evidence circumstantial evidence can sustain a conviction so long as the totality of that evidence can allow any reasonable trier of fact to find guilt beyond a reasonable doubt and that's what we have here mr galvin on the other side is attempting to argue that there needs to be something more at the time that the blow was struck to this three year old's head that there needs to be some more per se direct evidence galba intended a specific fatal abuse of the dollar absolutely her honor and that is based on not only what occurred that moment when she was in the shower and the final blow was struck that's not the solitary moment that the jury needs to consider circumstantial evidence includes a universe of facts which includes the prior abuse so when the when the jury hears from three dozen witnesses including medical personnel police personnel but most importantly friends family coworkers even strangers at a photograph studio that discussed the mistreatment the horrible treatment that this girl endured for the year prior to her death that evidence is also fully within the jury's the purview to review and of that evidence provides not only the bank decision from this court in two thousand and eleven and heard me ok i know you're familiar with that case you're on so that case specifically and also there are other views are direct review cases but that talk about the totality of the evidence that that can be presented even jackson was a jackson versus virginia was a circumstantial evidence case so we're not talking about the moment the blow was struck we're talking about everything up to including and what happened after jennifer galvin actually left this house when emergency personnel were performing c p r on her daughter her stepdaughter but her daughter she left that house when they were trying to save her life this is the sort of appalling evidence that this jury heard and all of it together i would submit that not even all of it together but all of it together which they are permitted to review not only establishes every single element of felony murder but every single element of aiding and abetting the michigan court of appeals decision that we're reviewing here for which you're asking us to give but deference as i understand it basically said that there was sufficient evidence that from which you could draw an inference that she was complicit in the abuse that's first part and that a natural consequence of that abuse would be death yes or no essentially what i understand the appellant to be saying here is that yes there was child abuse yes she's being properly held responsible for that but it there isn't a proper inference that you could draw that abuse would lead to the specific event of death so how do you respond to that my response to that is that through the litany of witnesses who who testified to the prior abuse she had been subjected to prior hits to the had to be most specific she had prior black eyes she had a knot on her head the size of a tennis ball one of her caregivers testified to that and also the medical examiner dr spetz when he was performing the autopsy found more than twenty two points of impact on her head that were in various stages of healing this girl had and several of those were considered to be implemented on the day that she died so all of these these injuries to her head show that she had been hidden had previously jennifer galvin edited to her to the jury when she testified and also to several other witnesses that she was fully involved with the disciplining of the victim are you arguing that somebody here actually intended to kill her or are you rather arguing that at the very least created a risk were great bodily harm including death was the probable result correct your honor and just just to clarify felony murder provides that there needs to be intent to either kill cause great bodily harm or create a risk of great bodily harm and if you're repeatedly striking a three year old in the head that creates a risk of great bodily harm and she had she had hemorrhaging in her head that is specifically listed in the statute as great bodily harm i'm not suggesting that it was the petitioners duty to prove anything obviously at the new trial but was there was a a claim made or or evidence adieus that that this this abuse as horrific as it was didn't rise to the level of the probable result being death did that come up during the trial i'm sorry your honor i guess i'm not understanding  question let me phrase it a different way you presented medical experts the medical experts testified as to the abuse that this child had incurred including on the day of her death the defendant doesn't have to offer any evidence but the defendant certainly can for example cross examine those experts so in through cross examination or any other source was there really ever any issue raised in this case about whether the extent or the degree of abuse would likely lead to death whether that day or the next day or the day after that i think that the that the impression that the medical examiner was to leave was that the impacts to her head causing massive damage a three year old can't endure that sort of punishment without those without that and without that result and that is a reasonable inference from the medical examiner's testimony and my my friend on the other side discussed cases where intent to injure is not intent to kill that was the case and it's factually  distinguishable we're talking about an adult that was kicked in the head we're not talking about a three year old without a fully developed brain getting smacked around to the point where there were multiple impacts causing her brain to shake and rupture that's what we're talking about here and there were there all of all of the inferences here were the jury has broad discretion to determine what the reasonable inferences are and the root and the direct review court has and they have to draw a very difficult line between speculation and inference and here finding the finding of inference was absolutely reasonable under both jackson standard and under the standard now the just one more point  evidence and on the other side you have the u s circuit court judge that allowed the bind over to occur you have the two court of appeals judges that found the evidence sufficient you have the michigan supreme court that found that there was no reason to review the case and you also have the district court judge that found this evidence to be overwhelming you've got five counting the michigan supreme court is my judge which it's clearly not you've got five judges on this side saying that there's sufficient evidence and you've got two judges on this side saying that there is very familiar with that case as long as reasonable jurists can disagree about the correctness of a state court decision the conviction must stand and his galvin is using that disagreement as a basis for a grant again harrington versus richter tells us that is certainly the case that circumstantial evidence can support a conviction however under michigan law there must be aiding of these specific murder that took place in order to sustain a conviction for murder the state relies only on the evidence of prior abuse and it's still pointed to no evidence that jennifer galvin gave any aid at the time of the murder to the act of murder that occurred again her challenges for child abuse and torture for those prior events are not before this court at the moment we are not challenging that on appeal the state also mentioned as you dispute that the evidence shows that it at a minimum and we'll talk about whether it's enough in a minute that she acquiesced in this additional discipline occurring that morning after the child whether self no so after the child we herself the only evidence is that joe told jennifer i'm going to give the child a shower and then jennifer assuming that the jury concluded and you can argue was unreasonable that there had been a pattern of abuse in this method of discipline is that is that enough no and why not because it is not tied to the murder under people versus sims and people versus the aiding and all of the other elements of aiding and abetting must be tied specifically to the murder i see you just reading out this whole concept of the probable result of something so you know it has again has to be tied to the murder and as the state court potential vision of finding the means radio aliment the state has said the state courts have said that there has to be wanton and willful disregard of the likelihood of the natural tendency of those actions to cause death  so basically you're saying if somebody has been repeatedly beaten for a long period of time the natural consequence of which is that sometime it's going to result in their death there has to be evidence that death was intended the specific time as opposed to a natural consequence that day the next day the day after so for the men's read element it does have to be tied to the death specifically it cannot be the case that every person who lives in an abusive household is least one type of child abuse that we know is going to result in her death and that was starving this child to death that your claim is that isn't the predicate act here so the fact that she didn't succeed in starving her to death that she succeeded in acquiesc g her husband beating her to death that's not enough the intent has to be connected to the cause of death and again the most obvious element that is missing is the aiding element and again the state has specific crime is the blow to the had that indisputably caused her dr spitz the state's own expert testified multiple times that the cause of death was the fatal blow that she suffered on that day if the cause of death had been something else then we might have a different dispute but in this case jennifer galvin was charged with the murder that actually occurred not with a murder that didn't occur and she was also charged with the child abuse that and indeed with torture and she is serving very lengthy sentences for that and will regardless of this court's opinion in this case and with the words all right thank you the case will be submitted to court notes that you were appointed under the civil justice act and we want to thank you and your co counsel and gibson dunn for the excellent defense that you've given to this case this this is a case of very very disagreeable facts and you've handled that admirably and we thank you for your assistance to both jennifer galban and to the court thank you thank you very much