cooper's confession harma and the answer to both of these questions is no to taking them up in that order the warden argued it and the michigan court of appeal power that cooper is procedurally barred from presenting that argument but that's wrong key question is wh r cooper was on notice that notwithstanding his timely objection in the form of a pretrial motion to the press he could waive his right to challenge the admission of the confession the thing go in artfully worded question and the answer is of course there is absolutely no precedent that could have put cooper on notice that depend counsel questioning could waive that in mclean we haven't found any and certainly neither and they should in court of appeals nor the warden have pointed to any one thing that is question is whether the error was brought about by it directly attributable to the complaining party its conduct and so in my invited area doctor and private where a party complains of something that they impression that cooper in fact had not made it what he had in the rd interview and so i guess you know just to give you money my concern about your argument that seems to be rather clearly inviting a correction of the misimpression counsel song to leave so i think that that i don't think that he did not open up in the bakken interview and stop there obviously would be misleading with respect to whether he had opened up at all i mean the question you know isn't whe said something in the nd interview i i think fairly one could read that transcript to mean that counsel was trying to leave an impression that he hadn't opened up at all and maybe he was doing that because the impression that was contrary to the record in the case so that is exactly what happened in jones the prosecution witness whose name was also joan had undergone a polygraph examination and everyone knew and noted like this left an impression that the that the witness had bailed the examination which wasn't true the witness but you know they stopped there and there was a misleading impression left and so then the prosecutor the next day got a trial and directly attributable to the affirmative conduct of the attendant and given it cannot be said to have waived the alleged error for appellate review and so you know that that directly on point and i think that's what you know particularly striking about this case is that we don't have a de authority it's not just that you know no michigan court had ever applied invited error in the dr and we have a on point binding michigan president and this is not how invited error work you don't apply it where the other party introduced that evidence you only apply m and the warden had not provided any reason to deviate from the president the warden you know can't point to a single case other than the one where the prosecution introduction of a statement that defense counsel had moved to the press  no i think that if the deference baked into the brac standard you know in brac the court the supreme court is considering whether the harmlessness standard should just be strictly just chapman or should it be a different and the reason the court by simply ruling whether any error in its case was harmless was certainly not conceding that point but it is one way of approaching this case certainly if this court sees this case otherwise and would like me to address things differently or simply answer questions argument that jones is contrary to the mission court of appeals decision here precisely because there was a similar misimpression in jones and that was nonetheless not invited there well i think i'll start with that then judge pledge in terms of jones which i was going to talk about people do you reach own that's the case that cooper says supports  point but we believe it actually supports the states and i think the difference and the result anyway and that case has to do with the fact that both the defense counsel and the prosecutor strayed into an area which is unequivocally off of limits he wasn't planning on using that statement hugely on the scooper took the stand and contradicted something not it i think one of the big differences in diverse salts and how these two cases turned out it's because here the prosecutor was acting in good faith he was not trying to bring in something that had been ruled inadmissible or was known to be inadmissible under michigan law as what happened in jones so i think frankly jones doesn't hurt us  mention in the opinion of the fact that there was references by both parties to something that should absolutely never have come in and that frankly the other difference is is that at the time that this  happened where the defense counsel asked the question to the witness about having taken a polygraph there was an objection by the prosecutor the judge offered limiting instructions both of them turned it down and then the prosecutor turned around and asked the question that pretty much tried to get the answer that the witness hadn't given previously so i think there's there's a different tone to it at different feel to it i mean here the the quick steak or trial trial court had said that statement all of those statements were admissible so the prosecutor again being ultra careful just said look i i don't plan on introducing that they've been in particular because unless the defendant takes the stand and contradicts it so i think while there isn't a explicit good faith basis i think certainly when you look at the result in jones i think the result of that was largely driven by the fact that they were both straying into something under michigan law that anybody who does criminal practice and michigan knows that that is a no no you stay away from that well but you don't you don't dispute that  the fashion was inadmissible here right i mean i don't see you disputing that i don't violate so we don't know how do you distinguish this case just some subjective thing where the prosecutor is doing something you know knowingly because well in neither the testimony otherwise admissible that's correct except that at the time that he he introduced it in the trial court had already said it was admissible now that ultimately was not the case when the when the when looking at it i think from an honest perspective and i'm not going to i was going to stand before all of you and say that's but it say this over the telephone that i don't believe that this was of statement given all the multiple times that this that this prisoner invoked its right to silence he kept saying i don't want to talk i don't want to talk i don't want to talk i just think this is this is a a situation that is different from jones that and the prosecutor you know for whatever reason must of thought gee i won that motion but maybe i shouldn't and maybe in order to make sure there isn't an  on appeal i'm not going to bring it up on the defendant takes the stand and deny something he said or some pumping contradictory have said so again it may not be explicit but just kind of looking at the tone of the ford excuse me the jones opinion it does appear to be something that seemed to be held against both of them frankly in the jones case whereas here you know you have a prosecutor who wasn't going to go anywhere near that topic get back to the teacher that they were talking about the mark nd interview and then that the next question during and during that interview did he tell you he would in fact so why couldn't and shouldn't  at most a clip of the turn of the defense lawyer without having a qualifier the st time the question was asked but then the qualifiers added twice during the interview talking about the march  interview when judge moore i think that that's a good question and thank you for asking it because i was going to discuss this i think you have to focus on the very initial part of that colloquy where the question from the prosecutor is and did and you did that in order to get him to admit to something that he didn't do a question answer i was trying to get him to open up further about his involvement in the case of the incident excuse me than here's the line that i think really causes the problem the next question is he never did that he and then the officer response no as a matter of fact he did it but never did that i think  never did he is just like the defendant saying well i never said that i never i have never said anything about being in the house or something i mean that to me is is where the problem is and i think that counsel may have very well realized that he had strayed into something that maybe he was problematic and it was it may have been an advisor it burton but i think as as one of the judges when  speaking noted it was going to leave the impression with the jury that he hadn't opened up further that there wasn't something more that he that this was it you have a hey you think you have a cave  you know normally the the they don't always happen this way and part of my point is that i know she misspoke since she does a very nice job of talking about you know other cases that people are that this is not being applied even handedly but what i don't know that it's as much even handedly as it is they're looking at the facts of each case and if it doesn't get invited there it doesn't fit in find it air and i think that's more the distinguishing factor between a lot of the cases that my opposing counsel cites and  one and i just think the fact that you you know you open that door as as one of the judges on the panel said a little bit earlier by saying he never did that it he i just think the damage was done i mean he could try to rehabilitate it but the damage was done and the jury could have been sitting there writing notes saying oh my gosh he said he never talked up he never came back to further after that point which counsel knew wasn't the truth and i'm not i think that's different because it just i think because you have that preparatory comment it's made now look officer if i'm understanding a question just more that the officer profits process is his whole discussion  i say look i'm only talking about this nd custodial interview i'm not talking about anything else did he ever during and what he should have said in that question he never did that that he is he never did that during the nd custodial interview  ning related concept to invite error i mean it's i don't see this what happened in this case to be in fact any different than when a defendant takes a stand and said well i never said to the police but i was inside the home at the time of the murder if that was the way that this would happen in the prosecutor had admitted the statement the rd state but i don't know that we'd be here debating this right now i don't know that there would have been a a question about whether that was a proper in procreation of the invited error doctrine and and i think invited error it's not only prevalent and regularly followed and used across the state of michigan in hundreds of cases but also across the country had kind of changed the framework in terms of what needed to be looked at and what the role of ed pope was in in deciding harmless error questions when the state has actually made an analysis and the response time is up so i must the panel has any further questions i'll just refrain at this point thank you very much thank you your hon may have been other consequences of the inadvertent question that certainly where the of the comment being a one and we don't challenge that and i think under michigan law you know where the comment would have they'd there's just no way they could have on the good faith point the warden has just acknowledged the prosecutor knew that this confession with inadmissible and i don't see how good they can do can make any difference between the case and john i would like to discuss this with my my remaining minute and so  very much both of you your your argument and the case will be admitted