good morning your honour's may please the court matthew cushing on behalf of the petitioner having made ten or i'd like to serve three minutes for a bottle ms ten or level of her representation in this hopefully we've been able to jones day taking on her case she was represented very briefly by the michigan innocence project by briefly i mean for four years they were trying to prove her innocence and i think i'd like to begin with the jackson claim she is entitled to  have her petition granted for either jackson or ache but i'd like to begin with jackson because whether you consider just the state's evidence or all of the substantial exculpatory evidence in the record the state failed to prove beyond a reasonable doubt that ms turner killed ms watson or that rob katie had killed it for the aiding and abetting claim on the principle claim i'd like to just begin quickly with three piece pieces of exculpatory evidence that seemed to have disappeared in the record first th not my brief i hope first there was d n a found in blood stains on the victim's chest that did not belong to either the victim or to ms tanner second there was a footprint found right near the body that did not match the shoes of any person there in the morning with the bar employees or the police officers it was down in the basement your toes in the basement just a few feet away from the body like a blog footprint it was in dust and it was right next to a  rug that had been turned in twisted and there's some mud right next to that rug spot so it looked like somebody had sort of dropped mud and stepped in the dust that footprint did not match ms tanner's shoes when they were  collected and third miss turner was outweighed they did i believe they do this the police did a search of his house i don't believe that the check two shoes they may have checked the shoes but certainly there's nothing in the record about it matching his shoes as to the third piece of evidence ms turner was outweighed by ms watson by sixty pounds and not only was the state's theory that she overcame a woman sixty pounds heavier than her but she also killed her and left no trace evidence in the basement there's no hair fibers blood d n a mud there's nothing there's no fingerprints in the basement nothing tied to ms tanner down at the murder scene and  seem to be as i recall some kind of a struggle down there there was undisputed there was a lot of struggle down there there were tables turned over chairs flipped up and ms tenners a small woman  was i recall there was also some kind of blood on the wall at the foot of the stairs or go yes yes there was a drop of blood that the testimony was looked like it had fallen downwards so perhaps as the murder walked back up the stairs you know casting the knife that the blood had fallen down something like what i wonder did they do a d n a sample on that this state tried to do d n a testing on most of the blood found at the scene but somehow could only test the things that implicated all these other people and not my client they were able to test that one piece of blood up in the sink for d n a i believe that all of the blood that was tested for a that where they were able to get a hit matched the victim's blood not except for that one d n a spot on the shirt of blood on the shirt of the victim which matched someone else and not which are the blood drop in the sink the knife that looks like a knife ms tanner owned but wasn't and then testimony from an officer that she had admitted in an uncorroborated statement to being  prosecutor and then low he turns out to be his own star witness about a conversation in a car which there's no evidence but his testimony there was also another officer right in the car  not testify at trial my question to you is are are we in fact stuck with his testimony sort of you know for war for purposes of jackson unfortunately under the double deference owed for ed and not being able to judge credibility i think you are stuck with the text of walter's testimony certainly as background understanding of what happened the fact that was uncorroborated and he's the star witness action two pieces of evidence he's also the only that the evidence of the knife was that it looked like a knife ms tanner own she admitted that it looked like the modifications that were made to the tip looks like and i thought she owned but if you read either the may twenty fourth one thousand nine hundred five transfer before she was ever suspect when she was just being interviewed or look at her trial testimony it's consistent all the way through that her knife is a folding blade knife and the murder weapons a fixpoint knife she says in the trial transcript i'm sorry at the in the interview transcript that she it's a folding bike that she keeps in her back pocket you can't keep a seven inch long fixpoint knife that was used in the murder in your back pocket and then at trial she also says you know the officer asked me i asked the officer is  a folding buy a knife and as soon as he told me that if explained knife which is true that it was a fixed plate knife i said that that can't be mine mine's a folding blade knife and there's no evidence of anything else beyond those two statements that are made if you look at the only person who owned the fix plate knife it was the victim she carried if exploited knife in her purse her purse was found on the back of the bar right open right near where this fixpoint knife was found in there was no knife in her purse so it's likely that it was her own knife didn't have the same general blood type that was found in that drug near the night so in everything but one very parts of their boat both of the victim and his tanner had  and then there's a mutates subtype there's two plus one plus and two plus one minus the victim was two plus one minus and the drop in the blood was two plus one plus if we hadn't blood serum expert maybe we would know whether the one plus one minus is a could be a testing air or whether that could be and that goes to the claim but you're correct that the victim's blood did not directly match at least what we  know as the test results of the blood drop in the sink but the state also did not prove that it didn't come from the person who left the d n a in the basement on the victim's chest there is as far as the michigan court of appeals decision if you read that it says says that that was not blood tested so you don't know whether that d n a matches what's in the sink but of course that would make the most sense based on the state's theory of there's a substantial in the basement the murderer cuts themselves somehow in murdering his  watts and then goes upstairs and is cleaning things off but leaves one drop of blood well if they cut themselves and bled on ms watson and that d n a does not match ms tanner then if we were to get able to get d n a from the blood drop up in the sink it also wouldn't have matched his tan or unfortunately there was not at the time in one thousand nine hundred five when testing with d n a testing was very new there was insufficient d n a found in that blood drop to be able to actually do the testing  the blood of another woman on the on the clothing of the victim how did they explain that they had never offered an explanation they very quickly in two lines of testimony noted evidence that there was d n a found on this on the woman's chest on the victims just and then never mentioned again in the rest of the trial where they cross examined about it by the lawyer who didn't get the  t she brought it up once did not very clearly make much of a case about it though he clearly should have i think in his closing he may have mentioned that there was d n a found on this victim's chest and isn't that interesting and i think that's all he said was isn't that interesting though the state's theory was that had he tanner was maybe an aider and abettor somebody who went in and killed the state's yeah the sister was that she was an aider and abettor to rob katie yes so i think i don't understand why katie wasn't also charged with this kid he wasn't charged i think this is the police's theory on the state's theory always was that rob katie is the one who did it he's certainly the most likely get rid of his testimony as you know unbelievable there were also uninterested witnesses who came in testified that they did see a white male with a beard and if you look at the sketch that rob katie had described the man has a beard he's a white male with a beard and there was a leaving the bar at one thirty with a passenger who i don't think the sex of the passenger was our tracks come from that area yes there are tire tracks from the back of the bar which is the only muddy area the rest of it is asphalted and i think that explains the mud down in the basement there's fresh mud down in the basement next to the body that one could make an argument that the guy the person pickup truck yeah you would think that would be reasonable doubt your honour's but wasn't katie's blood on the victim sure katie's blood was not found on the victim sure katie was type a little bit out that yes rob kate is type a blood and there was no tape of blood found anywhere unfortunately but even if he had committed the murder which was the most likely thing for the aiding and abetting theory the state never showed that ms tanner gave him the knife even if it was her knife and there's very little no evidence of well first of all post under mission law post activities are only good for you no concealment charge not for the aiding and abetting which actually has to happen before hand that would be well and if she was the getaway driver and nothing else then her blood type would not have been found deluded in in the sinks i mean yeah and i don't think i think the blood type in the sink could be explained by a number of other things that i can all those other people that a seven other people who  could have easily stolen the knife and crack over there they were together over at her house smoking crack she could have easily stolen the knife even to the extent it was her knife the only test was that she had not seen it in three to four weeks so he could have even stolen it earlier  the principle theory that there was enough evidence if you tied the blood drop even though that implicated millions of other people with the testimony from the officer out in the parking lot with the knife if you believe that the knife was hers even though the testimony was that it wasn't hers that that was sufficient but you know if you look at yeah if you look at this court's decisions in newman nash killed parker  judge moore you were on a number of those panels the facts in newman were far worse than they are here and yet this court even under the double deference of found that the state had failed to prove beyond reasonable doubt the crime had been committed  i see my time is way up to michigan supreme court discounted the importance of the blood evidence in dealing with the expert claim and just just dealt with sufficiency sort of you know  yeah the footnote as to the aiding and abetting and the aiding and abetting theory has really never been fully advanced either by the state or by the courts it's always just been here's a footnote believe us as to the principle if they want to discount the blood evidence that i think the case is even weaker there's nothing putting the tenor inside the bar then so i will reserve any remaining time for  good morning your honor is rayna her back is from the michigan attorney general's office on behalf of respondent joan you can see as this court is aware habeas relief is an extraordinary remedy that the district court denied to the petitioner in this case the state asks this court to affirm that denial for two reasons first that the supreme court the u s supreme court has never held that a criminal defendant has a constitutional right to the appointment of a non psychiatric expert at trial and second because the petitioner has not met her high burden of showing that there could be no reasonable dispute that the michigan supreme court's ruling on the sufficiency claim was wrong let me let me ask you this let's let's suppose that the ache or key decision is not limited to psychological or psychiatric experts isn't it pretty clear that this lawyer could have used a little help with the  problem i have two points to that it it's difficult to to find that it does extend a non psychiatric experts a supreme court rulings are very narrowly construed trial counsel made the request to the state trial court the trial court reasonably determined that he didn't sufficiently meet the requirements under michigan statute to obtain an expert trial counsel aptly cross examined both prosecution witnesses in this case and obtain some some pretty big concessions all the while saying he didn't know what he was talking about well he did he did say that at trial but when the witnesses clearly understood what he was talking about and asked his questions i mean the fact that the attorney the attorney made that comment at trial the transcript reveals that that the witnesses understood it he was talking about and he was able to get the points that he wanted across to the jury namely that there were many possibly millions of others that had that blood type and p g m subtype with problems we don't know what other points there might be i mean what about this two plus one plus two plus one minus who knows i mean do we know to this day whether of trial there was no challenge to the testing of the any of us or ology because he didn't have a cirrhosis and to this day the petitioner hasn't come forward with any expert that would testify more favorably than what the experts on cross examination testified for the petitioner it seems like the showing that you've been saying she had to make at the time and during her michigan proceedings is that she would show that the serai just would be greatly beneficial to her defense and i guess my question is she's trying to get a serai just how can she make that showing without well there was evidence here the trial counsel did talk to somebody a law professor and the best he got from that law professor was you might want to consult with somebody there wasn't any evidence that they could obtain anything anything beneficial and the other reason he wanted to explore this issue and it was merely to consult with him to a school where the issue was he wanted to find out if there was better d n a testing available at the time of trial  versus versus at the time of the offense and the trial judge made the point that that is something that could be brought out at cross examination where you know i like that thing that bothered me about the transcript and i don't have it in front of me and i can't find it but the expert for the state did one of these comparison things testifying the blood in the sink i've forgotten which one it was this it was this it was this and it was this and had a tanner's blood is this and this and this and this which which the which her attorney was unable to deconstruct because he didn't know what it all meant but when you do that this this this in this and this this this and this to the jury they think it's something really weighty i mean it may be more weighty than d n a as far as they're concerned and we've got to remember that d n a back then was not is conclusive as people consider it now so he was he was just sort of adrift there at the at the at the time of the trial i i do disagree that he was a draft i thought he did a very good job at cross examining these these prosecution witnesses and the jury didn't misunderstand the value of this testimony one of the experts on cross examination said specifically that d n a testimony is drastically different than this type of testing and the only thing that they could take away from it is that it was consistent with petitioners and that there were millions of others that also had that well let me just say that they must have been they must have been the fact that they would convict her when there was only non d n a evidence that even arguably pointed to her and there was d n a evidence on the victim that exonerated her and you say the jury clearly found whatever whatever that is that is a to me a really troubling verdict a really troubling verdict well and in the point i'd like to make is that all of this was before the jury  trial counsel yes yes there most certainly was and i'll go through some of that to find the petitioner guilty of felony murder there was evidence that  admitted that the murder weapon which was the knife found at the bar was hers while she denied that at trial when she took the stand she had earlier told detective walters that the life looked like her and then and then that it was as the knife actually night it's her knife and there was she also explain why her prints would be on the knife too so if she identified it specifically and she explained why her parents would be i mean were her prints on it i don't believe i'm not sure i don't believe that they were on it but she told the detective that her prints this is why her prints would be found on it she also admitted that she and katie were at  the bar promises on the night of the murder are around the time of the murder but after initially after initially indicating that she wasn't there that's very damaging katie placed himself at the bar as well during the time of the murder there was strong evidence of motive in this case both petitioner and katie were close friends they were smoking crack that night and they needed cash to get more crack but he got her from another bar did he did and one state then ish smoking the crack that they had bought with that cash they needed more cash and there was evidence that he knew barney's had cash there was evidence that he knew where the cash was kept and how what time did he go to the other bar as if you're arguing that he then went back to barney's well there his testimony at trial was inconsistent in certain ways as was petitioners but the prosecution's theory was that he and petitioner went to cash the check together initially came back to her house after buying crack and then the second time went out together to barney's to get more cat was there somebody from the first bar where they went to and got k that testified or gave a statement to police there was and what time did they say that they showed up i believe that was  around midnight sometime sometime during that night and the murder happened after that ok there was testimony testimony that katie who was a regular customer of barney's who the victim trusted knew he could get in even after hours and there was evidence of a robbery at barney's cash over one thousand dollars was missing the state of the crime scene indicated that there's been a robbery and a struggle in the wounds  murder is that the theory of i think the evidence is equally strong as to both theory well i think katie couldn't have committed the murder because his d n a wasn't found on the victim it was somebody else that we can't even identify although how does that theory hold the fact that there wasn't any d n a evidence found doesn't know but somebody else's d n a evidence was and i don't have an explanation for that that could and i'm not sure that that was a doesn't le doesn't that raise a little doubt in your mind about all this i am curious about it but it was all before the jury and the jury when considering all of the evidence and this court has to consider in the light most favorable to the prosecution  could reasonably determine that i i mean why i mean all you have is is her nine this drop of deluded blood cracked and she's outside of the bar that's all you have well i jury and then meanwhile i mean i do think we have to take into account stuff that is pretty clearly exculpatory right we do take it sounds like we just ignore that it was part of the trial and you know how how does that establish guilt beyond a reasonable doubt particularly when katie had easy access to the knife and millions of people have this blood type well i think i think if you look at the prosecutor's argument millions of people had this consistent with this type of blood and p c m subtype but how many of them admitted that the murder weapon was theirs how many of them admitted to being on the bar premises on the night of the murder let me i of the murder about that admission the roof we have of that is the officer who says yes she said this is this is his statement in the record contemporaneous with the crime and if so why did the first da declined to prosecute if a cop came into me as the district attorney and said she told me it was her life etc etc etc i wouldn't say well i'm going to decline to send this to the grand jury well this year this case was under question did the police officer who later testified as to what she said tell that prosecutor that she had told him that or was that something that came into the record on down the line five years later i'm not sure exactly when the prosecutor i assume it would have been it would have been a no you know it's just a matter to get it or know that for sure i i don't know when when the detective mentioned it but i assume it would have been in the beginning with without all the other evidence that they well i know that at this point i'm not willing to make assumptions i really need not a gray area but something that's either black or white right well there would be no reason for the detective not to reveal that it you know right away what the cause and if he had there would be very little reason for a prosecutor not to to send the case to the grand jury then well again broad discretion and the prosecutor in there there was investigation going on for the entire time the d n a wasn't t necessarily immediately there were tips coming in from other individuals everything was thoroughly investigated in this case and the fact that the the prosecutor did this investigation i think just goes to show that they wanted to they wanted to feel comfortable when they when they eventually did make the decision to prosecute miss tanner in this case and i think again when you look at all of the evidence and that's what is required when looking at of sufficien all of that is looked at not in a vacuum and not piece by piece but together in the light most favorable to the prosecution that her customized knife was the murder weapon that she and katie were on the bar premises on the night of the murder are around the time of the murder that her blood type n p g i'm type was consistent with the blood found on the blood drop that was near the sink which was found near the knife that her friend katie and she had a motive a strong motive to get cash for more crack  and that a significant number of cash was missing from from barney's what do we do with the blood on the victim shirt that's not anyone's blood here that's circumstantial case this is a circumstance part of the record well again that was before the jury and i don't know i don't i don't that not create doubt at somebody else was here you know wasn't katie in a wasn't her and somebody else was here and in an altercation obviously with the victim because stuff's moved all over the place and that person's blood is on the victim ok i am not for certain that that that it was blood i know that they found d n a identified because i think i've read that many times and yeah i am not sure about that if it wasn't blood surely the vitus and it would rate reasonable doubt that's my question well it may have created some doubt for the jury but when they looked at that plus all of the other evidence the admission by petition we're here to review what the jury asked not to just determine what the jury found right and so why should that why shouldn't that have created reasonable doubt favorable to the prosecution and the prosecution or prosecution under jackson isn't obligated to prove or disprove every hypothesis except out of guilt they just need to establish guilt you know i have been listening to i've been sitting on criminal appeals for over forty two years now and for fifteen of those years i heard nothing but criminal appeals and i want to tell you the the distinct possibility that this woman is innocent is the kind of thing that makes trial judges but even particularly appellate judges loosely put my the very thought that this could happen and i i would just say however this case comes out that maybe the state of michigan should consider what to do about this  case just consider for example that this may not be the murderer that has been in the state prison for twenty two years and that some sort of reviewing reconsideration on that take place i just that's gratuitous you didn't ask for that if it's it's not an advisory opinion of any sort but it may be that it's time for somebody other than the end of sentence project and a volunteer a volunteer from jones day to reconsider this case but if i can briefly just say that petitioner was represented by a very able counsel at trial who brought out all of these questions and concerns with the prosecution's case very aptly they were very clear and i asked the court to to look at the transcript and to see that all of this was before the jury and my one other final point is that you know insufficiency claims they face a high bar that the i mean she did present federal claims i understand it and it seems like the michigan supreme court at least did not apply anything did simply did not apply the federal standard it applied a state nexus test yes my question is why is that entitled why does that trigger twenty two fifty four p deference if they don't even apply the u s supreme court standard well she did present the claim and there's a presumption that the state court addressed the claim and the supreme court i mean they weren't required the trial court in this case to apply it because it doesn't extend to were they i mean weren't they required to put apply some federal standard like you know griffin you know the cases from which they are aki whatever cain they just apply a state law standard and i did a pretty expressly i think that was i or we deferring to that as a mentioned either state that right or not right right and this court as the district court found could look to that to see if the petitioner was denied a fundamentally fair trial and even if  applied i don't the district court laid it out she wasn't denied her right to present a defense or a fundamentally fair trial in this case and this court is required to defer to state court decisions on and should should do so here with respect to both issues as a prisoner requests the application of the u s supreme court and the state supreme court thoughts on that question you know you had complimented me on my preparation and i can't take those compliments if i missed that issue myself i think you'd say that the decision of the state court wasn't on the merits of that issue you can't just talk about a pure state test which is entirely different from the constitutional test as to the claim itself i would say you know i didn't address it on my opening but the general principle at least is clearly established about the basic tools as your honor noted ake was an application of that and here you just have a different application the expert was just as important it's not an extension of x so it's not a white the what i'll issue it's just an application as the supreme court recognized in an extension because i mean it was a psychiatric expert so on that specific holdings was a psychiatric expert but you can apply these general new fact patterns without violating at their sufficiently analogous and if you were to really focus on this argument you could say it focused on a legal issue for which you had to have an expert in order to be able to put on any kind of a defense i insanity there here it's blood serum where the sole piece of physical evidence that the state is using is the blood drop but i wanted to answer a couple of this court's questions with citations to the record on the jackson issue just very briefly for the blood for the d n a it was found in blood according to michigan supreme court footnote two and also record sixteen dash three page four twenty six wait a minute the footnote to i can read it to your honor's footnote two of the michigan supreme court's decision so as testing of the blood stains on the victim shirt revealed that the blood did not match the d n a profile of either the victim or the defendant these blood stains which originated from only one person were attributable to an unknown female that's the d n a being in those blood stains and that's also in the record if you want to record specific citation that's sixteen dash three page four twenty six to go barry briefly back to the issue one way in which the expert would have helped on the reasonably necessary prong is that blood type a type b in this p g m subtype those are only two of two hundred forty different and zines are markers that you can look at so all that expert would have had to say to counsel who knew very little to nothing about this is get retested for any one of these ten other twenty other things if a single one of them doesn't match then you've just proven that it's not ms tenners blood and then the state whether in its closing argument word admits that the only way it puts her in the bar loses that piece of evidence or the trial judge himself seemed to recognize that the only reason he wasn't granting a directed verdict was because of that piece of blood evidence that kind of two hundred  hundred forty my source was a recent source and i apologize this is outside of the record i apologize for that i don't know how many of them but certainly far more than just to blood typing p g m subtype were available before one thousand nine hundred five i think that test actually was done in eight the blood typing but in any event as the knife the prints were not found on the knife if you look at records seventeen dash to page five hundred the detective admitted to lying that her prince had been found on the knife in order to get her to say and explain why her prints might have been found on the knife which i lied to her yes that's correct that's correct the detective admitted to lying to her in the interview in which she said that her prints might be found on the knife because he said your prints were found on the knife why would that be and she said well i last handled it three to four weeks if that is my knife there's a lot of confusion that is generated by the fact that this knife looks like  knife apology i only learned about this myself by going outside of the record if you look at the battle creek enquirer their local newspaper on june third one thousand nine hundred five before they were arrested anyone as there's investigating this there's a picture of detective walters the same detective holding the fixed blade knife up to the camera and explaining in the column that it looks like a folding blade knife but it's not it's a fixed blade if it could be easily confused for one and i think that perhaps explains why ms tanner herself thought that it gun was registered to him robbed a drug dealer he had told people that he wanted to rob a drug dealer a ski mask was found with his hair in his dog's hair i mean there are six or seven different things that all tie to him but he wasn't at the crime scene whereas here maybe you have the officer's testimony so if you look at instead parker sort of combining parker go plus newman i think you could get there in parker was talking about constructive possession of a weapon the individual was in the backseat of a car with two weapons two people in the backseat and the question was one of the weapons is attributed to one person is that second weapon attributable constructively possessed by the other person and there was a number so that's that takes care of the proximity problem it's a different context because no states really bring cases with this little evidence so it's very hard to get something directly on point the most point i think would be would be a human thank you very much