in council may please the court michelle leader appeals her conviction for disorderly conduct based on having transmitted a false report that she had been kidnapped  very briefly the situation arose from michelle having given statements to police during police questioning after she was found wandering in a was not proven beyond reasonable doubt and secondly that the statute in question is unconstitutional as applied by reason of by awaiting the st amendment protection of free speech we admit the elements the false statements were made and therefore statements were made to the police those are two of the elements the other two elements are that the statements be a report and that that report be transmitted so we argue that their statements do not amount to a report within the meaning of the statute and that any other conduct is not amount to transmit all of a report the information or the statements that were you submitting that transmission had to be made by the defendant not someone on her behalf under the circumstances of this case we would argue that and certainly if there were a direction to a rd party to transmit a report we've got it now it's that to be a different situation than this situation but in this case the only other persons involved in the suppose a transmission are actually the police themselves well he was not present i don't believe in the hospital room at any point when these statements were made so that the statements were made in roughly a one hour period medical devices during the time the statements were given and there is a reference to the statements that were given your or her account of what occurred were given freely and voluntarily there is no you're not arguing that she was coerced into making those statements are you are forced no we're not raising any type of voluntariness argument but you're what you're stating is that that the police officers were complicit in doing their job but they by doing their job by investigating this report that they are the ones that initiated everything but weren't they just doing their job or are they just following up on what was reported to them absolutely they were doing their job reported maybe to them by her and by i think as last name was was a collins the man who found her she told him she was kidnapped in then he called the police so how it how does that make this make her not complicit in in this string well the reason they add is not a report that their conversation that she had with the  patient person now is because she specifically asked that the matter not be reported to the police and simply that she referred to the person if as her father that her police for doing what would probably be their jobs and probably would be the job of the cancer ration employee to report strange occurrences on the premises he was resident  herself in would not necessarily indicate that she was a reasonable person at that time i mean the evidence is there she was distraught or upset to some extent  so it may well be that that would be the expectation of a reasonable person i don't know that the evidence establishes that she was a reasonable person at the time and place in question did this why great well she is convicted of conduct that happened in the hospital room she is convicted of making statements to the police and will of the specific to police who were present in the hospital room so while we can look at some of the kind that happened before that before those actions that constitute the crime her statements to collins or anything that happened before that interview start didn't i mean wallach also started the ball rolling she started the ball rolling when she was found and didn't say hey i was why she said i was it now so how do they not take that into consideration in their investigation which you know begin began making the police officers incur expenses in an investigation but potentially could have had innocent people arrested if other things came out i mean it are hard a bit to the police officers you're you're saying it's only that time that happened in the hospital how well how does other things not run well that is what she is convicted of i mean she is convicted of state statements in this whole case and when one get eleven looks at the constitutional argument that is presented in this case this entire case he has to do with restrictions i speak so some of the questions that you're asking are more i would submit there they are more pertinent regarding the constitutional let's move to your constitutional your constitutional issue ok so regarding the constitutional issue the we rely very heavily and the united states supreme court decision in united states versus alvarez and we would submit that it is virtually of the considerations that are appropriate in determining the constitutionality of restrictions and speech in the criminal argue in the constitutional contacts didn't you know as far as the way the court is framing some some of its questions this morning there is relevance to the fact of what this statute might cover or might legitimately cover and house are our proper considerations but the question is regarding the constitutionality now is whether this statute legitimately difference between those two segments of the of the justices has to do with the standard of review but it does not have to do with the the there are differen are really not affecting the substance of the constitutional questions and there are approximately four depending how you read the opinion but for that i i would direct your actors a tension as i was reading the opinion for the purposes of this morning's argument i noticed at page prohibit false statements concerning the commission of crimes and in the supreme court he had this to say regarding the very specific question in its treatment in other cases the supreme court said that those kinds of stitches require proof that substantial public harm be directly foreseeable or very or that the conduct is very likely to overall exception for statements made to public officials that those are those are subject to some st amendment an as well as it as any other restrictions on speech are susceptible to st amendment examination so you're relying on her statement not being not knowing or reckless basically well i'm i don't know if i would say that are we talking about the st amendment context an hour or are we talking about or are we talking about the reasonable doubt argument well reasonable doubt and six think they kind of spill over into your st amendment argument i mean she's not alone is not saying anything different in that you're not saying anything different in the st amendment argument than that you aren't saying in the beyond a reasonable doubt are all kind of based on the same thing aren't they well they're based on the same underlying facts but but i don't see the laws being you know particularly i down to call i mean the question for the law is not identical but the basis for getting to your arguments are the same are the same arguments but she didn't she she didn't mean to you know mislead the police or she didn't make she didn't make the initial report i mean it was false speech it has justice for cats at any statement i think i read alvarez to saying any statement to any officer or a feather somebody of the federal government is is carved out that exception in our favorites so that's why i'm saying the speech in the beyond reasonable doubt argument in the same speech in the st amendment argument is no different well how is it not carved out what makes her statement her what makes her false statement protected under alvarez the following points i'll list them st and then i can go back to them but the but the following four principles at least the unlimited scope of the application of the statute to the subject matter the harm that is caused by the defendant's conduct the causal link between the restriction and the injury to be prevented and the sufficiency of counter speech to serve the government's purpose and i'll just i'll just limit myself right now to that particularly one because it is the most i am most apt and important in these principles for this case because it's a constitutional matter here's what happened in this case because michelle talked a lot her in the end remember that i represent in the brief that my reading or listening to the audio of this meeting in the hospital room shows that the police in a half hour period and sixty questions in a half hour period at least sixty questions they themselves admitted that those were sixty that those were leading questions michelle talked and answered these questions cooperated with the police and if you read that or listen to me at audio a few times as i have and i'm  that some of you may have you can see that michelle story is just not holding together and the point of the sufficiency of counter speech is whether or not counter speech is sufficient to serve the government's purpose in whatever it is criminalizing such that there does not have to be a restriction on the of the defend against free speech or that there does not have to be such a farce or stringent restriction on the to the conduct of the defendant while she sat in the hospital bed talking to detectives tensely and murphy your honor that's not the focus here because the fact that the statute at issue says that a defendant commits disorderly conduct when she knowingly transmits or cause to be transmitted in any way a report what that means then is that when she was found in the field and she told mr collins oh i i've been the victim of an aggravated robbery or if not using those words i've been kidnapped by masked men and one of them had a gun that was it that was her fall story and then when two or three days later when she told detective murphy engineers i'm sorry i made it all up i made it all up because i was being harassed that's it the offense just complete all four elements have been match i'd also like to touch on the conflicts are what is your response to mr statement that this is unconstitutional because of the lack of a car that  alvarez requires your honor i completely disagree with that there is in men's harm here and it's just a shot stick properly noted these two issues do believe together a bit and when we're talking about the standard for disorderly conduct and menacing the public the exact same power goes into a constitutional analysis here what is the harm to the government wow let me start with the harm was detective confined detective murphy being taken off their regular duties and getting on this case of where defendant made this story up and her boyfriend started by saying she was a missing person so you have those two detectives you had sergeant probes he was also on the case when she was found in the field then you have mr collins getting involved all these government officials who have better things to do than to deal with a defendant who's making up stories about being abducted you have at the scene of the sealed suburbs squad cars were called the richmond fire department was called an ambulance was called the defendant took up a bed in a hospital that could have been a most possible harm how do you distinguish the stevens case that that she relies on actually i'm glad you brought that up your honor because it really you don't need to distinguish stephen's case it actually hurts defendants case when she was saying earlier i believe you asked her does it have to be the defended herself that reports this or can it be somebody else and in those demons case it was the landlord it was these two guys were yelling at each other the landlord was like what's going on  here and the landlord the woman called the police and then the detective payment found out that the you know he made up a lie about the ordered fifty dollars they had to go in and then at the end of what the court was talking about with regard to the harm your honor they were saying that this is a menace to the public and in the defendant's brief she talks about the fact that the court said that this could have been an explosive situation because the officer had to go into an apartment that he believes there was an r there was an armed individual however if you read the entire paragraph your honor what it also says is that there's a lot of harm here you took three police officers away from their job to come to this whole hoax and that's exactly what's going on in this case your honor look at how many people were involved and took away taxpayers time and also government resources that could have better been spent solving crimes  instead of investigating this hoax again your honor i would like to go back to the dictionary definition that defendant talks about up transmit and report as you notice from my grief i completely agree with the dictionary definitions however i do not agree with defendant's interpretation that a report must be something so elaborate or so so formal i mean obviously  she when they when they also had a brother a judge to get a search warrant and the detectives went into her apartment she planned which is really screwed up but is making the apartment to nate but she left her purse there she left her wallet there she left her clothes at her boyfriend said that's what she was wearing the last time i saw her they were on a pile on the floor she had planned this whole thing out and the amount of harm that it caused and of course this was a medicine the public that the stat that that is prohibited and a proper restriction on st amendment speech but the alvarez case is nothing like this case at all it was dealing with the stolen valor act and what that was it was a law that that made illegal  anybody claiming that they have received a military medal or award however what the what the court said was you can't you can't regulate false speech for func speech alone there was nothing else attached to it not even a requirement that the state would have to prove that the defendant uses for example for material gain here this is completely different this is a well settled as it was noted in the  honor i'm not sure holds any water because as ms perko crowd up you have to prove the false statements were very likely to bring about substantial harm as i've mentioned several times of course they brought about very much substantial harm  and this isn't something like an alvarez they said well you can always you know make a fool of this guy and then you know that would be maybe a long enough speech along to the source or sort of some sort of  product of his fox the age that he would become embarrassed that certainly not anything like this case whatsoever you know is a little different but you know he does bring up the point that they after all these quite question sixty one questions and it's some point they had to realize that this was not a true story yet they continue your honor i'm not sure that they would be doing their jobs if they just looked at her and went ok this doesn't make any sense they still had to act as detectives and then vest to get this case and were important to your honor a lot of the substantial harm had already occurred by the time she was in the hospital but all these people had been pulled away from their jobs and had to follow this hoax in this story to figure out what the heck was going on the fire department had been called she was already in the hospital an ambulance had been called squad cars were there in the counter county sheriff's department was there all that all the harm had already occurred by the time she got into the hospital and she was talking to detectives gently and murphy and as a orders ari said even if she hadn't decided to talk to the detectives it didn't matter it was done because she caused to be transmitted over court to them when she told mr collins in the field that she had been abducted by armed masked men that's all it took that and then a conduct and certainly here as i have shown her conduct was completely unreasonable one other question our standard of review on both of these if uses do know  if you claim that the transmission was affected when the defendant told mr collins that she had been kidnapped  but she told him not to call the police so you're saying that there transmission was to the government employee collins and not to the police know he was transmitting a report got me i'm sorry pollens a government employee yes your honor he was a government employee but even if he were not a government employee she was what the defendant was doing was transmitting reports and causing it that report to be transmitted to detectives gently and and murphy well if that's the case then if and when they arrived he could disavow or refuse to make any further comment either or both d of those constitute a withdrawal or a non crime while your honor that would be up to the trier of fact and that's just not what happens here she what she ended up doing is she ended up answering sixty questions of the detectives and getting herself into a worse and worse situation as she provided more details of this story it was a honor yes however again your honors are the evidence at trial was overwhelming that the state had proven the elements beyond a reasonable doubt that's the defendant was guilty of disorderly conduct and for that reason we respectfully request that this court affirm the defendant's finding of guilty of disorderly conduct and find that the statute as applied to did to this case is not unconstitutional thank you your honors thank you are there any other questions she answered the question before i started the go ahead miss pearl there was a fitness examination there was a fitness hearing but i would not know specifically i'm not aware specifically that there was an investigation ert and examination of her for purposes of the insanity defense i mean that two standards are not the same fitness well i have i didn't raise that issue it's an interesting issue i didn't raise it i think it would be difficult to raise that this record without knowing  whether counsel examined the issue and made a decision it would seem that it would have to be raised in the post conviction where there was where there will be more evidence i don't think the record reflects this and certainly i did not  i you know i i and even at this time i have a lot of research in this case and i can that offhand recall if i examined the insanity issue without looking at my own kidnapping hoax and the statements i would submit to the court that this raises a considerable due process question as to what was being defended and what notice my client here had of what in her council of what was being defended what was being the charged and defended in this case w statements made to a specific officer those statements occurred in the context of their one hour in the hospital room during time talet in the circumstances though mr go as to what led to that is that not relevant were you saying based upon the way the statute will that the defendant was charged were limited that the term effect was limited to what was said and then the indictment limits it to statements given to one of the named officers not to the conservation employee so that's what the charges that's what as a matter of due process that's what the notification was in in terms of defending the case so i think at that point is important with reference to distinguishing my notes this morning during this our during this argument there there has to be either strict scrutiny strict scrutiny as the  the restriction and speech or as the pluralities that there has to be proportionality review is the restriction proportional to the harm that the government is attempting to use prevent by criminalizing the conduct and for the reason that we sated in our brief and again the reasons the smore ning that test cannot be met i also you know somewhat bear tracking a bit on this kidnapping business the boyfriend issue i mean there seems in the discussion to be  tendency to make my client responsible for conduct that her boyfriend get there there is simply not enough proof nor was it charged to make her responsible for let's say the missing persons false report that's not what she's charged with and you know while there may be some tangential relevance of these occurrences before the hospital room statements i don't think that that connection is clear and it certainly doesn't  it's not directly relevant and it does not raise to the level of reasonable doubt of proof of guilt so quick question i had to open up a new piano warns that you talked about the strict scrutiny standard is this a content based restriction in speech or content neutral no it's can't it's kantian content based i believe  as it made any difference whether the report that was faults reported it as a crime as opposed to a situation where she merely stated something to the effect that she was given a ride and dropped off in a field and she doesn't remember what happened after that well i mean that particularly statutory section requires that the false statement be the false statement about you know the commission of a crime so they acts integral it's