john mills versus christopher lloyd rose argument not to exceed fifteen minutes per side mr kemah for the appellant you may proceed due process requires the state to prove beyond a reasonable doubt every fact necessary to constitute the crime with which the defendant is charged in this case felony murder where even the ohio court of appeals could not identify the predicate felony the necessary facts could not be established let alone proven beyond a reasonable doubt the evidence was therefore insufficient to convict mr mills of felony murder i'm happy to go through the outline of arguments as i made my brief but otherwise i'd be much more interested in answering any questions that you may have one question at the outset harney that he was convicted of both phil any murder and felony manslaughter right that's correct your honor is the of the filling manslaughter issue is not before us today that's correct so if we were to agree with you he would still stand convicted if we were to agree with your arguments today if we were to accept them he would yes well i mean mr mills was a leadership figure here i mean he's the father of these two young men correct through he they all have weapons as they're walking to the scene of this encounter right the two young men have their boards i'm not sure where they got the weapons or when in the timeline but yes by the time of the of the actual fight yes everyone is armed with a board of some thought there was testimony that there the three of them are seen walking in and john mills has his cane or something and the two young men have what two by fours yeah i think so it's some point they definitely did have those items and and  then john mills draws a lethal weapon is it is it totally on forseeable that these two other men his sons would then swing the two  four and use those as weapons as well at that point in this melee i don't think it's unforeseeable that the sons would have used the boards at all i think what is unforeseeable is that cameron john mills son would have swung the board and hit jim mills who is john mills father in this case certainly that's not foreseeable in this context where there was this melee between two feuding families and jim mills was there is a neutral essentially i mean wasn't part of the grievance they had against the deceit that he had aligned himself with the other family in the past there was definitely testimony that the people on john's side of the fight were not pleased with him for doing anything other than to fully supporting the john cameron side of the fight but i mean isn't there testimony that would allow a jury to a rational jury to find that they were upset with the decision because in the past not just here he had aligned himself with this other family i think that's fair under the circumstances i mean certainly with the you know all these layers of deference we have here we have to take that as fact and so they're mad at him they're having a fight with that family these guys brought the boards for a reason you know you swing a board at somebody who's had just like a baseball bat you can kill them i mean why isn't that sufficiently foreseeable for any rational jurist to say that any rational jury could find that sufficient well there's two things that i would say in response to that the first is if we if you refer back to the state versus garden or the ohio supreme court plurality opinion which was then adopted in state versus o'neill the important takeaway in a case like this where you have the the multiple acts type case is that there has to be sufficient evidence to support all of the potential acts even if they don't have to be specifically identified and so what i'm getting at with respect to that is that means even if it's true that there was sufficient evidence to sustain a conviction based on incitement you still have to look at the question of whether the felonious assault of jr would have also been supported by sufficient evidence for a felony murder conviction that's that's the first thing the so you still have to deal with the sufficiency of the evidence to support the claim for mack but the other thing to take to heart here is the fact that at closing the prosecutor specifically stated that he's never alleged that anyone intentionally hit jim mills including his head so correct but regardless of what the prosecutor says in closing they can find that he fell on his sleeve that the guy that he killed in that manner but i think the distinction here is that the prosecutor has stated that he never supported the that crime which is knowingly doing that i don't know i mean how do you get around that when he's swinging a two by four to you know at the man's temple i mean frankly that from my reading of the facts and obviously i understand the deferential standards here it's not clear to me whether anyone was certain that he swung it intentionally at the head or was a real backer i don't know obviously if to hit someone pretty hard with a two by four to kill them you know hands on where you had him i guess sure but the other thing is then even even if we say that is the case we still have to find the incitement angle and that's problematic here like many of the other things because we have this complicity argument that's been stacked on top of everything and the prosecutor never identified the particular species of of complicity that was a political here so we don't know whether he was inciting or whether he was pure i mean we can pretty recently establish this wasn't an irresponsible person so this is the causation part of  foreseeability like proximate cause typecast no no no i'm talking about which theory of complicity ok he was aiding and abetting or inciting because there are several is that set forth in the ohio statute right and the prosecutor never selected one so we don't know get her hands on i guess because the facts are kind of confused absolutely but as i understand it there's a felony assault which even or not appealing that there was a phone is a softball that's correct the question is whether the a not even particular phoneys assault and to go briefly back to what you just said your honor the conviction for manslaughter is predicated not on the phone use assault but on a third degree felony which is called inciting to violence so it's not that there's the same predicate felony for the murder charge in the manslaughter charge the inciting to violence because the third degree felony cannot be the predicate for a felony murder charge so it's first things that were not incitement to violence was enough to support felony which he's he's convicted of such a felony correct so there's enough evidence that the felony happen is whether whether that was sufficiently foreseeable or whatever the standard is for sent forseeable he grew out of or sufficiently grew out of to meet the state standard the the murder of the of the victim and so in that particular context that's a that's a pretty differential standard that we apply under jackson isn't like any jury could have found any rational juror that's correct but in this context as i said earlier you have to have found sufficient assault of maque took place at one point of it the striking of jim took place completely separate named and separated portion of the fight importantly all we have to do is find correct me if i'm wrong not regardless of whether there was if it's couched in those terms but i think the distinction here is that it but catching it goes to other than structure we just see will there's enough sure enough evidence for the jury for the right and here's why there isn't because the particular phone is assault here the holding of the knife or the clothes knife to ma throw that in this context would have to have caused somehow cameron to strike jim and there's at there's no rational way you can connect those two things in this fight look at it specifically as th then those i mean the jury would have to and i think they would in this case because the felonious assault of mack not some larger you know undefined involvement in this general fight is what the predicate felony he was at large i guess the theory would be for this having with this case i agree i have plenty of trouble with this case myself and we focused on what my trouble i guess yes to address your trouble could be here all day to address to address your trouble in this case i think it's particularly important to also notice that he while he was charged with also feloniously assaulting maverick he was he was acquitted of that so to say that that for all kinds of reasons well right but to say that the general fight itself necessarily was sufficient to support this complicity for cameron assumes that but if you can if you can every thing you can have contradicting for ticks you just may have gotten tired of saying guilty i mean if it doesn't if you have enough evidence for one thing and then they also don't find something that seems to follow from their first birth that doesn't mean there's not enough evidence for the first one you know that's true but what i'm saying with respect to the maverick is when we're talking about causation here we're saying a rational jury would have to find that both but for an proximately john mills assault of mack caused cameron to strike jim somehow we know for certain based on the jury's acquittal that him fighting with maverick couldn't possibly be the underlying felony predicate so what i'm saying is the overall fight based on that fact can't itself be sufficient to connect this causal chain thank you thank you it please the court i'm billing him and i represent the warden in this case the certified issue here is whether their wrists efficient evidence to convict and specifically whether the state courts adjudication set forth a proper theory of guilt i know the court knows this but i feel i'm compelled to remind you that this is a hate b s case and that their court's first task is to look to the result if you are considering this take course if you do cation and second to determine what arguments are theories could have person's state court said the opponent did not appeal the predicate offense of food as assault so that was conceded so that's not even in the case and paragraph twenty nine is crucial answering the question i'm not aware of any case or ok that is my right all right you're asking us to find some really to plow some new ground as to how the deference works when you have to judge to justice to judge majority and their analysis is ground but if i say are then that in then you have to find four that goes to the substantive legal question that the state court passed on and whether there's a specific enough federal precedent to sort of drive the state court's decision one way or the other what we're asking about is whether this counts as a as a merits decision i guess for purposes of whether you get at the deference or whether we review it to know i mean as you adjudication in the context of conflicting decisions that just lead to one vote right i had to prove a negative i cannot give you a case like that but let me add that in  the opponents reply brief cited mckinsey vs smith case in this is circuit for the proposition that there was no adjudication that was the opponent's argument in their reply brief and nice to meet the mckinsey vs smith does not default and merits determinations of the state court just relies only on procedural default and clearly doesn't get to the merits then i think our presidents are we we give to nova review to the merits of we get to it is that correct its way some cases go other cases are like under american they say if the supreme court if the state court just didn't tell us what it was deciding upon then we give it a difference to what it probably might have been thinking is that fair but i misstate some of the are but i hope that shows that there's two different ways we could look at this case we could look at it as each of those judges is deciding in a way and explicitly not deciding in the other way and the other judges deciding the other way and explicitly not citing the first way making it very analogous to the two the procedural default versus the merits kind of distinction or you could treat them as they're all basically harrington versus richter we can just get to the particular one but that's his argument under under jackson and he made it clear i think that his argument is under jackson now you're saying that argument not only gets jackson deference but also gets at  understand that i'm just trying to figure out what we're arguing about were you about whether epinephrine supplies that's what you want to focus your argument on the fact that you want to focus on whether applies and the argument that it doesn't apply it seems to me is that it's it's the the situation where you have a split panel in the state court is analogous not to harrington but to the distinction between procedural fault and and the  there's not a split decision well there's clearly split i think both of us would really like to hear your reasoned argument since we don't have a precedent on this why harrington should apply here rather than the standard if there were a procedural default that we're getting pas i think i suggested in my brief that there might be a procedural to focus i didn't work it out for a while well no i well no no i mean it's not it's not that it is or isn't to proceed to fall it's just sort of it which situation is this more like even though it's neat i mean arguably neither i would prefer procedural to phone is perhaps a possibility but i prefer to come back to the question of what was presented to the court were   i'm having trouble seeing what the theory is for where there's a merits decision when not with respect to whether there's a funny assault but whether there is causation of the felonious assault of the murder all right that's the issue that's the jackson issue is there causation and one judge says there's enough evidence of causation under jackson because i see this is the felonious assault and another judge says i see that there's enough connection between  solved and the murder because this is different item is a felonious assault each one possibly apparently is rejecting the other theory a little you don't have a majority theory on what the causation is where you have to split theories on what the causation is and when you have that i can see applying majority you've got he says lead opinion you've got it wrong as to me no he said a paragraph when fifty years by the way let me let me come off the state court decision altogether let me look at the state court decision all together then we don't have a difference no no but i'm trying to trying to cooperate with the courts question we have here aiding and abetting proximate cause and i think the court is can see is concentrating on proximate cause there was also the aiding and abetting that preceded or is interurban with the proximate cause and that was the nature of the conviction aiding and abetting felony murder now the aiding and abetting and the state court gives you at paragraph i think twenty one is plenty of law to talk about aiding and abetting which is inciting and and so on supporting that in turn leads to the question of proximate cause which is also in the state courts decision gives you because because there was proximate i got the opinion right here paragraph one fifty of the concurring opinion said that he concurred that there was sufficient evidence based on the state's theory that perhaps paragraph ninety six is the holding of the lead opinion might might give you that that answer credible evidence of aiding and abetting felony murder and voluntary manslaughter and that's the same as the causation is that when you talk and that's where they result in i was a sure you have aiding and abetting which abetting felony murder but you have to show it and the state court sets out the state law aiding and abetting that has your honor pointed out mr mills was like the commander of this squad going into combat and anything can happen when you're when you're dealing with two by fours around with the force of a golf club and in fact the victim's head was severed from his spinal cord and he died immediately so you have the mills the commander leading this attack and there is they're swinging two by fo around and it's certainly under the law of ohio as articulated in the case reasonably foreseeable somebody's going to get hurt or possibly killed if aiding and abetting followed by proximate cause you have the proximate cause i have i'm looking at one forty four concurring opinion from my review of the arguments of counsel the primary theory of this case by the prosecution is that they he aided and abetted cameron mills in committing the felony assault on jim mills victims in the two opinions the make up the majority s are correct so that's how can the causation analysis be the same if you're talking about different flowing assaults that's my question and  you say it is the same right i stated the same analysis even though it's different i say it is the same yes you're well it's not a little counterintuitive i mean is it because they both had the effect of inciting these guys to proximate cause and there you are i mean he could both of these things could have incited is that what you're arguing both in the separate felony assault each could have a jury could find  proximate there is a proximate cause there if you fight like that that somebody is going to be hurt or die what would your analysis be and maybe this is all in your brief what would your analysis be if we were to decide contrary to your position that this my answer would be based upon my brief if you look at jackson's i see is me a texan if you look at mills's testimony he says we went there i wanted to know who is where i have my son on this side and this one on this side and by gum me we're going to give you an experience to tell you exactly what happens when you knock out a tail light in my vehicle and we're coming at you and by gummy when you start a fight you finish it you know that's that would be my argument for saying that that shows  it's whether there was aiding and abetting and whether proximate cause are more or less the same inquiry is that the idea no sir i don't say that i think that the state court is even if you do not consider the state court it is useful for giving you some ohio law right and on proximate cause there is a nice distinction the dissent said this was a surprising event and that's one of the terms that's used in the state definition of proximate cause that's recited in the appellate decision the other two judges said no it's not a surprising if it other and you have to have a causation you do but you start or have aiding and abetting you have to have causation but i spoke first of all you begin with the aiding and abetting the fight then you ask what is that what is going to happen here in this kind of a fight if you start this kind of a fight in your aiding it then there's proximate cause i think that's the best i can do your own thank you s i would like to address the difference issue but first let me just circle back really quickly i think it's very important here and everyone has been scratching their heads based on you know the complicity language in which predicate filmy was it the important thing to keep in mind is being involved in this larger brawl or even instigating the larger brawl is not a sufficient predicate for felony murder that's the that's that's the predicate there was identified for the phony manslaughter charge and mr mills doesn't dispute that but that can also carry over and support the film the murder charge and with respect to aiding and abetting that was just added by the prosecutor to every single charge i have the jury verdict form right here it even says that the conviction for for the  foreigners assault of maque edwards was aiding and abetting but the facts underlying that assault where that john directly hold a close knife to max throat and said a bunch of terrible stuff there's no argument that that was actually aiding and abetting even though  f sites them to to go to this melee with frankly murderous intent that that's enough to support aiding and abetting years and i think it's long is there is actual evidence of that and if the court has identified or the prosecutor has identified which theory of aiding and abetting if it's aiding and abetting if it's listening procuring it cetera is i don't go here why does it matter whether the prosecutions identified i mean we have only sufficiency argument here why couldn't we just look at this and say you know what forget about that at the deficits issue let's just look at this on a jackson standard could a jury find that  ted cameron in this sequence of events to to swing the four against jim i think i think the answer is actually no in the reason is because this is exactly the case the gardener and obvious the dissenting three justices warned against with respect to the fact that this would create a fatal patchwork where there was no clear way for anyone to determine whether the jury agreed on the requisite predicates that's a different issue than sufficien right i mean that's some kind of i don't know what that is some other part of the bill of rights i mean this it's this is just is the quantum of evidence in the record enough to support a conviction as opposed to whether the jury was unanimous those are two different things rather they're both due process concerns i do if they're different to the process concerts so sort of that i would say i don't think so i really don't because everyone has pointed to how there was some sufficient evidence is looking at this larger melee and not looking at anything in particular that took place within it really briefly to a judge to address the aide to deference here you're correct there is no case that addresses this i think the more appropriate analog here is that the procedural one instead of the harrington one because here we know that the court couldn't actually agree on the relevant inquiry for the a d p concern which was whether there was sufficient  evidence as the court has already pointed out you can't have two separate predicates and say there everyone agrees that there is causation here because i agree that the car killed the guy whereas i think that you know him getting shoved into the street killed him we're talking about two different things so there's no causal relationship between both of them and the end result of someone being dead but it would be a problem if these creatures thought a blue car drove into i guess we're talking now about the court of appeals and not a jury we're not saying could any rational court of appeals judge have found x y and z we're talking about for the purposes of deference for yeah it was this you know result that you could presume i don't think so because in the harrington line