seventeen das two zero four five mark congar vs david burke argument not to exceed fifteen minutes per side mr hudson you may proceed for the the question here is whether mr unger's trial counsel was constitutionally ineffective when he failed to protect protect his client from that junk science we submit that the only reasonable conclusion is yes and we therefore us the court to grant that there is no support in the medical literature for that conclusion that dr mckee rivers actual trial testimony with respect to the n f c and was junk science state argues that there is this other stain out there the n s e stain that provides some support and i want to take that head on because i think it is just flat wrong based on this record first of all dr mckeever and the prosecution over and over repeatedly disavowed any reliance on the n relying on an f horribly so at that point there was no possible strategic reason not to confront dr mckeever about the lack of support in the medical literature for the n f scene before you go too deeply into actual cause of death was blunt force trauma or whether it was drowning itself but i think that's why it was so powerful to the jury to hear a university of michigan neuropathologist testify that has a better medical certainty there had to have been a life or at least an hour and a half because if that's true mr wrong there is defense could not possibly be true if from the premise of your argument that the entire determination of the and if there was that could have been seen by the jury as the proximate cause of the death how long it took her to die or whether the husband moved the body into the water so she could drown the jury had alternative theories as to how the crime occurred and you know it just seems that your entire argument is based upon this one thing about the stains and how case its entire timeline its entire theme of the case on his ninety minute time they told the jury that because dr mckeever told them that this is on their head to ascribe an hour and a half that that meant mr ongar went back to his cabin waiting for the coast to be clear while his wife is lying on the slab gurgling in her own blood and that's not back down like a rat in the night to drag her into the water to die the other evidence in the case i submit was effectively neutralized by talk to the police and went to the right away and there's just a there's a bunch of circumstantial evidence of this and to work through you're presenting it in your honor i think the prosecutors themselves told us what they thought was important to the case and there are certainly other circumstantial evidence i submit that that was neutralized but they told the jury over and over it this sort of speculative is some of this that with the jury would have thought it was important and important what what the prosecutor told the jury is that the one thing the defense couldn't get around was dr mckee was testimony and they came back to that over and over i counted up one thousand times set forth a litany in our brief of the times they came back to the the ninety minute testimony and that's what they built their entire  case upon and in fact they told the jury that this wasn't a case where mr wrong her and this is on her gonna fight and he just pushed her over and she died shortly thereafter they expressly told the  jury that second degree murder no missing the mark on her when he was up on the deck premeditated the killing of florence on her what they said was it was leaving her there for an hour a half gurgling in her own blood that show that this was premeditated first degree murder perpetrated by a subhuman monster so i strongly dispute that the prosecution in the case they actually tried to this jury didn't rely on this hour to have timeline as the centerpiece of their case  jury have thought well we don't really know about the ninety minute issue but we think mr unger pushed her over purposefully to kill her and that that could be premeditated because that's why he encouraged her to come to the roof of the boat house for evening drink and i think with that reveals is that no jury has actually heard that story no jury has believe that story certainly no jury has her beyond a reasonable doubt of perpetrating those actions but would that be improper for the jury to have thought that way if they had it would do if i'm if my total hypothetical is true just more it would have been improper because the prosecutor expressly told them or encroach during closing argument that that would be second degree murder not first degree murder and i was going to talk charges catherine on the point of second degree murder i mean the jury was instructed as to second degree murder correct yes that's correct is it your belief that i mean if we look at the record and some of the things like his behavior after the fact would be true for second degree murder arguably behaving suspiciously might  the same way if he did it was guilty of second degree murder if we think that there's a filter through the hevia standard that there's a reasonable possibility that they would have convicted him only of second hand even crossed in the manner that you're saying should have been crossed is does that entitle you to the writ oh yes it does i mean that i mean it's that whole new trial that means that the outcome would have been different so under the stric d standard there was a reasonable probability that but for counsel's unprofessional letters his failure to exclude this testimony cross examined preparers own expert that the outcome would have been different and that's at a minimum a conviction for secularism is that established law that if you would have gotten convicted of a lesser you know who did it that warrants granted written a retrial i don't have a case at hand but i think it's an inherent in the strickland standard that the outcome of the argument is that the only reasonable conclusion from a trial court trial counsel's failure to read these articles and then use them to challenge the prosecution's key testimony in the case that establishes the testimony he was asked whether he recalled making any sort of analysis as to whether anything in that literature even purported to support the ninety minutes and he said i don't know can't i don't remember if i did or if i did not but what truly striking if you go through these articles and they're in the record allat record entry twenty there are only twenty two of them or four four of them are not even in english so that should have been a pretty big red flag  into it you have to slog through an article for example on the history of concussions from the era of the insurance antiquity ten through tenth century a d before you get to any discussion of stains there is a lot of filler in there i think there are only two you can arguably relevant articles in the ballpark sort of articles and neither one of those says that and that abstain and as he stain or any other stain stands for the proposition that somebody survived for an hour half it's junk science and then they agree to that basically why i mean there is a bunch of other evidence in this case you say it was neutralized but if he this other evidence ten percent one in one long it's cetera that she was on that ledge for a few minutes either you have this seizure theory which seems pretty implausible or he went down and did it after three minutes then after ninety well there is expert testimony by an mit expert who said it was perfectly plausible that she fell over the deck accidentally hit the concrete ledge and ended up in the water  nearly immediately and what and how did she get ten percent blood in one long i mean she's aspirate at dot dot dr schmidt the defense expert clarified that that can happen on a single inhalation of blood  the other blood testimony was out there was a twenty to sixty milliliters of blood on the concrete slab and that is a remarkably small amount of blood for a skull fracture like this i mean that's a that's a children's tylenol dose that which is about a shot glass worth of blood and it had i think there had been some precipitation and so it had diluted it but if there's a pool to the three if they had a witness who says there's a pool of something to three feet wide i mean that's not going to come out just as you sort of bounce along the way it's this much blood and she had a bashed in fractured skull and the doctor had testified that that amount of blood would come out on a and immediate impact being the admitted through her nose i mean that's if she's lying there lying there on the slab for the accent a lot of time dr smith said there would have been a lot more blood and i think that would resonate with the jury just based on common sense if she was late lying there with about in school she's going to be bleeding pretty profusely from this sort of catastrophic head injury so i do think that the actual physical testimony based on to establish and petitioners burden under strickland as high doubly so when considered in tandem with that and we would suggest that mr unger has not met that burden the court is well aware that strickland is a two part test comprised of both deficient performance and prejudice and if i may i'd like to spend my short time here with you discussing prejudice which your honour's have already really gotten into so to jump court supplied the project here regarding there were two there are two claims here ineffective assistance of counsel as related to the expert testimony dr mckeever and ineffective assistance of counsel for failing to object to the prosecutorial misconduct with respect to the prejudice prong of the prosecutor from his conduct claim that was an incorrect standard we say we concede that that is that that's to nova before this court so proceeding on to the the prejudiced component our position is that mr unger just simply  right i mean we have to evaluate the case as it was tried and would have been different if he got totally taken apart on cross which it looks like he could as that as the case went in as you as your honor state one witness of forty seven so to so to wrap up the entire prosecution's theory which mind you during cross or excuse me during closing argument is just a theory that's why closing arguments are not considered evidence so to hold a jury to be mandated if you find what the prosecution says happened or you don't find guilt that that's not that's not what what jurors are held to jurors are instructed that they consider correct absolutely correct and we submit that there us first not only was that evidence that florence either was alive on that concrete slab for at least a certain amount of time whether it was ninety minutes as as energetically put it out or whether it was three minutes as your honor pointed out no matter the amount of time she laid there for awhile specifically based on that blood evidence the pool of blood that you were that you were discussing true dr schmidt said that that could happen with one spurt of blood but what mr what dr schmidt was not able to point to was a source of that blood now there it is she she suffered a massive head trauma however both pathologist for the prosecution one who performed the autopsy and one who effectively consulted both said that a spurt of blood to match that amount sixty ounces or excuse me sixty millimeters is two ounces so to spurt out up to that amount of  blood that blood has to have a source whether it be a severed arterial vessel or a fracture of the nose and neither of those were found during the autopsy and when dr smith testified he said well there must have there must have been something it can't it might happen that you can spread it out in one in one motion however that was not supported by the autopsy findings here so we would submit that that that that evidence was effectively i'm challenged and beyond that there was additional evidence of premeditation which we know that the jury considered that your honour's have extensively mentioned already his odd behavior packing up the car and wanting to leave within ninety minutes and agreed to charge me committed second degree murder i think you could react in just absolutely however when the jury is instructed as to premeditation they are able to consider all circumstances rim is surrounding the crime which includes before during and after and so his behavior while it goes to second degree murder as well also goes to premeditation all of this is evidence they can consider it goes from hoping to go specifically to promote that's what the jurors were instructed your honor so i don't have a page of a page that to give you however during the instructions when they're when jurors are considering premeditation it's not only the timing you know able to take a second look it's all of the circumstances surrounding the killing so that that so you can consider i understand your point but it's not tell he told one friend that he tried to get her out of the water but she was too heavy he told another friend that he tried to get her out of the water but blood started coming out of her head so he stopped we know from testimony from lynn duncan who was with mr unger when he entered the water that he never laid a hand on florence so why the discrepancy there why would you tell people you tried to get your wife out of the water runs a governance other than the small amount of blood that this was premeditated  the other well in addition to the bizarre behavior at the scene we also have other medical evidence that i would point to the blunt force trauma to the belly cavity there were marks that weren't indicative of any other pattern such as from a railing or from the boat hoist which are long lengthy beams i'm sure your hunters know what about horse looks like they didn't match any of those guys and dr smith correct that could have happened during  to if so there's a lot of doing expert testimony on these forensic points other than the discredited one and it testimony i mean if there's kind of just you know dueling experts in the almost cancel each other out why why isn't there a reasonable possibility that they would have gone for second degree rather than first well there i'm not hearing a slam dunk response to some of their art i don't know who's right but some of their arguments on these forensic points but point taken point taken there's that in but that's that's that's actually that the beauty of this is that there were dueling experts are both sides therefore you have counsel who is presumed competent who is putting on a case with a with a wayne county medical examiner testifying for the defense an mit professor testifying for the defense with animations that were used to  support their theory that she tumbled over the railing and into the water so we're dealing with with counsel who have who has presented one of the most thorough and comprehensive defenses that i've seen in my ten years of doing this work can you say that when parent council didn't read these articles which didn't support this theory that is then relied on by the prosecutor you know you're not that person but the prosecutor at trial again and again and and how can anyone think strategy for the war you're not decimate the state's expert when it come when it comes to decimation i think that we can we can look actually at the at the trial court's opinion when it comes down to we my my friend on the other side and i fundamentally disagree about what the content of these articles say and never did i admit that it was junk science not even the scientists not excuse me the doctors who testified at the at the get their hearing none of them used the term junk science it was a matter of interpretation how you interpret these articles so or ninety minute and as as mr hudson pointed out in one of his pleadings that it's a very short article it's six pages i think if that it would be very telling for your honour's to look at it these doctors i don't see it there's sort of like a reverse logic here if there's a negative result ninety minutes didn't pass then they might have still had that injury years i mean the injury can show up before ninety minutes it doesn't mean there but if it doesn't show up before ninety minutes there is the possibility that had the person live for ninety minutes or would have shown up yet there it's like a reliability standard it's it is it's strange and i honestly i'm i'm i'm a lawyer it's hard for me to understand these articles as well how it is but this was i mean the articles just don't support it he could have been annihilated and the difference i think where one might disagree with the trial court the trial court thinks it's funny i actually cross cross no yes yes yes but he's very animated and you know he's not fired a character but the trial court seems to think it's fine just have smith do the work but but to have himself in the box met on cross to recross that these articles that he's been relying upon don't support his opinion i mean that would have been just meekly devastated it would have it would have been powerful i don't i don't say that that if he were to have if defense counsel would have taken the step of of cross examining on this issue if the the jury probably would it would have taken i don't know what the jury would have done but it would have it would have been interesting to see however what it would have been i had but to say that counsel did not read the articles number one i think that's not true and i think i think the act that's the problem i'm sorry as opposing counsel points out the problem ultimately is that he did not cross examine mckeever based on the articles not whether if you ratterman didn't want to do anything one could argue i mean that's like the worst decision ever but what i will say is that is that certain  points that my front of the other side points to that that would have been a decimation if you'd like to use that word were also things that were explored during dr smith's testimony and i would just like to point these out that dr schmidt during his testimony  excuse me actually during said directed by mr mcguire by defense counsel he stated that n s c really isn't a good marker so that's what these experts testified to during the guenter hearing and dr schmidt also testif expert for the defense may not have you know presented this this evidence in such a show we fashion the underpinnings were there and they were before the jury i think one thing we can fairly conclude i'm not saying that we've one place or another but i think we can fairly conclude that he gets cross based on those articles this ninety minute montreaux goes away immediately and we don't have nineteen references to nine minutes we don't have the creeping like a rock in all this drama none of that it's a it's really a different case from that point forward and i guess that's the challenge of trying to evaluate what might happen and when and when you isolate dr mckee testimony in the potential for cross i understand your point point taken however when you do consider the the forty forty six other witnesses the two hundred fifty exhibits the thirty nine hundred pages of transcript that we have here this case was not wrapped up in one wit i would i would also say blood evidence primarily and evidence of the evidence of dragging tied with his bizarre behavior all of this goes to premeditation so that that being said i just want to reiterate that counsel is presumed effective this was a very comprehensive defense and mr mr unger was very well served by it so unless are there for the questions i would just record i would request that this court for thank you stand the defense goes from scientifically impossible to consistent with this scientific evidence we know that oksana injury can appear in cases of instantaneous death because these cellular process is a go on for ten to fifteen minutes after breathing or heart stopping so that's why i think why this case beyond any other case i've seen is a case where the scientific evidence that nowhere in that study does it say that if there is a positive n s e stain that means the person lived for at least an hour or half and in fact there's a chart on page six zero one four that notes that in three out of five cases of short survival times that is less than an hour and a half the n s e stain did pick up x onil injury so more often than not the n s e stain was picking up x on the injury in cases of survival of less than an hour  half so there is no way to read that study and conclude that the paper in the medical literature is saying a positive one as he stain means an hour and a half survival time that's i think a simple as you can put it it has nothing to do without first of all and  particles do either but if this is the one article that the prosecution is relying on that article does not stand for the proposition that it is a a positive stain of any sort means the victim survived for at least an hour  i'm getting from your argument is that you think the scientific evidence is so compelling that all the other evidence is ruined irrelevant well not irrelevant your honor but does it instruct that there are some other entry issues that are so important the case that if you take out the council's unconstitutional errors that it would have a pervasive impact on the other evidence in the case and i think that this is the poster child for that your client couldn't see because of foliage and other things in the water there couldn't see where the body would be in the water yet he went straight directly to where the body was and that was prosecution witness gets up there and says i know as a matter of scientific certainty that this victim survived for at least an hour and a half after her fall and then the trial lawyer gets up ok i'm in the thing be certain in this case for a  was completely on challenged was dr mckeever testimony that she had to have what lived for an hour and a half after the fall everything else was was equivocal it was rebutted this is the one piece that the defense just did not challeng any meaningful way and that was the ballgame if the jury hears on rebutted from a prosecution expert that this woman was alive for an hour and a half case is over there's no way for the jury to find that this was not premeditated murder but if you if the trial counsel had cross examined it effectively at a visceral who did this cross examination in cross examination this would have been entirely different case and your honor so we knowledge of him his standards are exceptionally high of something in the back pocket for the prosecution so even if mckeever had been eviscerated on the stand with respect to the n f c testimony there was this other stain out there but if you take that apart which i think we have then there's nothing there and so it's unreasonable for the state court to conclude that there was no prejudice from this particularly when the prosecution hammers over and over again that this is their primary piece of evidence in the case this is what they've built their entire theme of the case on thank you thank your honour's thank you both for your argument that you thought we would would the court call the next case