that afternoon kimberly thomas from mystery miller from the michigan clinical law program at the university of michigan your honor i would request two minutes for rebuttal and you may think you think please the court the evidence in this case the bench will accusation from  grave by a jilted ex lover and ex police officer in the form of a suicide letter so that ms miller can get what's coming to her this type letter was left as part of a with a briefcase as part of  work up of evidence for law enforcement and in this letter mr cassidy confessed to a murder and accused miss miller of helping to set it out mr cassidy showed through the words in the circumstances of the statement that he wanted to take revenge on miss miller and a calculated and deliberate way under these circumstances the michigan court of appeals unreasonably applied and decision was contrary to clearly established supreme court law of ohio versus roberts law she is also held in violation of clearly established prior constitutional law reference previously as an initial matter at the ok the evidence was admitted under the catchall exception to the hearsay rule so we're not in a situation where there is a firmly rooted hearsay exception there's a presumption in under a higher versus roberts against the admission of evidence unless there are particular guarantees of trustworthiness there is further a presumption under levy as well as a separate line of cases deceit here who had not been charged as opposed to a codefendant who potentially might have a motive to try to shift the blame for one crime to someone else well that's exactly  there are two reasons why the courts have been so consistently opposed to the entrance of the evidence it's that the jury considers these confessional statements so powerful and they're made at a time when the declarant has a motive to point the finger at the other person and i would a motive in your view to seek revenge that's correct that he is seeking through the statement so that the statement is both a confession and an accusation but you say  why does he write three suicide notes only two of which only one of which surfaces when he could have easily put the statement in the briefcase if he wanted it to get to the authorities and well to both buttress your trustworthiness on its face the letter was addressed to his parents however he knew it would be passed on to law enforcement he stated how do you know that in the sense that the other two notes didn't get to slow enforcement he says i have the proof i'm sending it to the police she's going to get coming what's coming he set up this chain of custody so the the suicide type letter isn't on full up on top of a briefcase that briefcase is under mr cassidy's bed he had stated to his brother previously that if something happens to me go look under the bed there you'll find what's important and what what was there was this letter there's also a a on follow up that says mike that's his brother don't open alone and the name and address of an attorney to whom he goes in my life there's lots of stuff in the briefcase i mean there's lots of stuff in the briefcase which mostly does get admitted there are that evidence and inside of the briefcase is an instant message as well as e mails between them there's a pornographic video there are some other photographs but there's a you know sense a fair amount of stuff which does get admitted comes in as well in addition to the whole package the prosecutor trial treats this is a whole package of evidence against m miller the suicide letter the instant message the e mails the whole thing and the prosecutor in her the her argument ties it all together i have the gist of the trial court citation but it's two eighteen in the t make this part of one package deal he has created this evidence in order to get vengeance on her and so this is a very different franklin which is cited by other counsel where the statement is made to a friend who quote has no reason that th would ever be reveal to law enforcement in fact mr cassilis father brings this letter to the attorney's office at the time that the attorney with this briefcase everything is there it's all together i mean i understand your point and i think that's a very  characterization how it was treated the trial part of the question is his motive i mean isn't it arguable that he thought the briefcase contents were worth that he intended those to do  her in this letter or i'm just saying arguably it was meant just for his parents as the other letters were meant just for those recipients no because he puts it in the same location so it's not as if this is a letter that's near his body where he says you know it's typewritten and it's got the same content in terms of its accusations against miss miller it's all of a piece secondly his motive and intention is shown through his language in the letter so he says that while he killed her that she is basically behind it she helped set it up and he says quote she will learn she can't do that to people draw his people people is mr cassidy he's just she's going to he's going to show that she can't do that to people he she can't do that to him he's going to take his vengeance on her and he blames her for what happens to him this is not the statement of someone who is a neutral party it's a statement of someone who has every motive to lie his last communication with his parents he's going to lie to them and say he committed this terrible murder and the letter otherwise seems to show a lot of affection for his parents why why i mean why would somebody do that well there's two things one is that there is a confessional piece of it and there's an accusatory piece of it and the accusatory piece doesn't have this doesn't exist in the world where you know maybe we might be honest with our friends and family and frankly a suicide letter is your last statement mr cassidy is taking care of worldly business in the suicide letter he is getting back at ms miller for everything she did to him and everything that he sees this and that's that's that's the purpose of this part of the episode if this if the letter is reliable as to whether cassidy was the murderer isn't also reliable as  those separately right so the case law on codefendant accusation says you know well even if it's inculpatory to the defendant it's the co defend it's that accusation against the alleged accomplice that is so troublesome in the you know decades and decades of can i understand that as a general matter but i think the reliability of determination is case specific and as i understand it our task here is to see whether the state courts reliability determination with respect to this letter was out of bounds that permits and looking at the fact pattern of this case it's just it's seems to me a plausible that if it's reliable as to his confession that it's reliable as to his pointing his saying that she induced him to do it i mean why else would he do it i we would love to ask him right that's the whole point of the confrontation right i mean he needs to be he needs to be confronted we don't know whether his whether he killed bruce miller or not we don't know whether miss miller put him up to it or not all we know is what he says there will be only we don't know so ok no i understand your point you know that's that's you know really why this letter is so important to the case and why it's trustworthiness is so and question it's just it's hard i mean it's hard in i suppose with your situation because it's hard to make this argument in a case in a direct review case you know the state court is less latitude about why he may have committed suicide there was criminal problems financial problems alcohol problems there are many reasons he may have committed suicide for one reason and stated something else in the letter and that is supported by the record so the  fact of a suicide note doesn't independently give anything second is a matter to look at the state court's opinion it is an unreasonable penya it doesn't recognize the presumption against the mission of evidence without particularized guarantee or certainly doesn't recognize the state's burden it doesn't recognize that any of the case law that might suggest or looks at bias or issues of a motive to shift attention from th accomplice completely ignores that line of cases it specifically says that it's relying on the state trial court for a specific factual findings which are absent from the state trial court record so the of appeal says that the state trial court noted that it was consistent that's actually not in the state circuit court or district court at all that of course we would assert that the cross lower courts didn't do that because it's contrary to clearly established law the state court of appeals says that the state trial courts found it was contemporaneous to his death there's no such finding in the trial record either at the district court of the circuit court that's unreliable and the state court really basically repeats facts factors from a state another state court case without any basis in the facts of this case and why does that matter it matters because for example in this court has looked at one of the asserted reasons for state court opinion and said that is not supported by the facts of the case and the other reasons the court uses are insufficient to show reliability and the court there found it was an unreasonable application similarly in wigan's versus smith the u s supreme court looked at a state court opinion that assumed that an investigation was act adequate in a capital case which was blighted by the record by the lower court record and found that that was an unreasonable application of clearly established law stricklin there so the state court gross errors in its opinion also support a finding that this is something reasonable application of clearly established law when you said when you said that the state court had found that it was contemporaneous with his death the statement is that is that any different from their analysis of the fact that his his memory would be good that it was contemporaneous in the sense that the murderer that he's talking about happened within three months of the death so the statement had to have been written within those three much to did make an affirmative statement that it was contemporaneous in the sense that it was written the day before no it doesn't actually do rebuttal afternoon your honors may please the court john palace assistant attorney general on behalf of the state of michigan on behalf of warden clarice stover we are the apple e this time around in this case there's a quote i think from from the facts of this case and i'm not going to dwell on them long but a quote that i think kind of summarizes the impact of this case for what this case is really about and it's from shari miller in an e mail quote i will never be safe as long as bruce lives this is what charlie miller told her lover an ex police officer named jerry cassidy who cassidy later kills i will never be safe as long as bruce lives this statement i think summarizes or sets the stage for what has really been a very long  sometimes torture is route that this case taken to the state and federal courts but i think we now have the opportunity to finally close the door on this case and say the district court's  proper there wasn't a contrary to or unreasonable application of ohio versus roberts in this case and it was interesting listening to to ms thomas actually i think there's so much that we actually agree on i think we agreed that  i think we agree basically what the controlling supreme court precedent is in terms of ohio versus roberts so i'm like that the last time this case was before this panel or at least some members of this panel  applies and i think as the supreme court and i do i'm certainly not going to be labor the point because i know your honour's are very familiar with that and what it what it talks about but but but basically the the crux of this case the question is and what we have a dispute here is whether the michigan court of appeals reasonably determine that there was a showing a particular rights guarantees of trustworthiness that's the crux of this case and when you look at what the michigan court of appeals said here you have to take it in the context of ed pub once again and in the district court very candidly i think noted that roberts is a very gentle non mechanical test of admissibility as our supreme court has said in medical versus let the most general the rule the more potential there is for fair minded reasoned disagreement so in that context we have to think about this case and add and let me just start right off the bat with sister counsel's comment that in her brief that the michigan court of appeals decision is contrary to idaho versus right and she says that that the michigan court of appeals said that cassady statement was consistent and that's contrary to idaho versus right well what i do hope versus right said was a court cannot bootstrap corroborating evidence to show the trustworthiness acquired by roberts it did however say as a district court noted that spontaneity and count consistent repetition of such statements is a consideration which is something i'm going to talk about later but the michigan court of appeals here to did not do anything contrary to idaho versus right in fact in discussing the roberts factors and they don't specifically cite roberts but cite state court law that cites to to roberts and related authorities the michigan court of appeal said righted right in its discussion quote the court must not consider whether evidence a trial corroborates the statement so i think miller is reading something into that what the michigan court of appeals did which it explicitly said it wasn't doing and again we have to give every benefit of the doubt to the state court it worst i think what the michigan court was a court of appeals was saying about the suicide note when it said it was consistent is that it was internally consistent and i'll get more to that later i mean that then why not now i mean the internal consistency of it is not very probative right i agree counts i think it is certainly not the michigan court of appeals most compelling point for admissibility of what is meant what is your what i think the the most compelling point are that statements that cassidy made were directed to family members and as opposed to being directed to law enforcement and i have to really strongly disagree with sister counsel when she said that the suicide letter that was intended to be given to law enforcement first of all let's let's talk about that letter for a second it was addressed to his mom and dad it was an address to the police and i understand it was on top of a briefcase that did contain materials that were intended to be given over to the police but it wasn't a stand alone envelope and it did not say do not open alone or open in the presence of an attorney like the material that he intended for the police so maybe you know i'm new to this case of trying to get at some envelope or what piece of paper was that i believe it might have been and i could be wrong i believe it was material that was contained within the briefcase how did why would he put it inside the briefcase if you know were supposed to be there for you open it up well there was the letter to the to the to the mom and dad and the personal letter and then for the materials that were intended for the that i think were reasonably intended for the police that's why he said open in the presence of the attorney that that go i mean that was addressed to his brother was it not this mike yes it was i understood at the briefcase in fact went to mike that's correct the notes in fact went to the parents the ex wife and the children two of those never surface that's right and they never got a judge box it appeared that statement that i had been aware of before were that the parents and mike meet after the funeral and the parents showed to their note to as my recollection of the record as well it ended at your adversary seemed to say that everything got to the police at once is that your understanding that is did mike then take the notes and go to the police or i cannot say for certain that everything ended up at the police at the same time but certainly the intent was that this letter that is addressed to mom and dad was not intended as as his sister counsel say says to be delivered to law enforcement and some of the other materials she says for example and in her brief cassidy's letter was designed designed to go to law enforcement to help prosecute charlie miller it was not a secret secret correspondence to family but there's really no evidence of that here i don't you look at the suicide note and i printed out a copy of it and looked at it and it sure doesn't seem like it's  intended for police it's a very personal very personal very touching letter actually he he talks about his parents being the best possible parents he could have had he gives his instructions to his parents to what to do with insurance money i mean it really reads my my co counsel at the table actually gave me this idea this morning it kind of reads like a like a last testament of will and testament actually more so than some sort of document to be used to to to get back at shari miller and i would submit if you look at this letter probably more than half of the noted so elf isn't really about miller in a direct sense but he's talking about concerns for his son whether his son would be able to collect on an insurance policy for him how his parents should handle that money if given to a son for example a trust he asked his parents to take care of his son he talks about being cremated he talks about his there could be no i would say no i think the purpose of this particular no was to is to explain to his mom and dad this is why i'm committing suicide you were wonderful parents i have a wonderful family  i had to do this and basically i think the note here this is somebody that the police didn't even suspect he wasn't even on their radar whatsoever and so what this is what he's basically saying is yes shari miller pulled me into this i made some mistakes but he admits i'm the one who killed bruce miller i'm the one who went to michigan and shot and killed bruce will or bruce miller he really seems to acknowledge in this note that his failings i mean certainly he recognizes miller's deceit but it almost seems like i'm the one he what he's telling his parents is i'm the one that had the greater sin here i was the one that was duped by this woman this is why i'm doing this you were wonderful parents but but i got pulled into this situation i did this horrible horrible thing i shot and killed this man and i feel horrible about it i feel guilty about it i'm up next police officer i can't go to prison about it i feel like i've got no other choice but to do what i'm doing but but mom and dad please know this isn't about you and take care of my son for me i mean it it i think when you look at the letter in in is totality i mean you can take certain segments of a certain sense as judge moore that certainly do talk about miller and there are things i concede she he says she just wanted all her money  husband but she was soon to learn that she can't do that to people i mean there are actually things in there but but but the primary purpose of this particular document was to tell his parents this is why i'm committing suicide this is saying mike don't open it alone so that's how mike handled the briefcase because mike was the one to found it the brother had told him about the briefcase before he left town to do the murder correct that's correct and yes i had mike delivered to the on the lopes to the address separately and then they got together a couple of days later at the funeral and my my brother counsel who wrote this brief i certainly he has he knows this case you have citations for that yes it's yours and it was mine he does he was involved from very early on in this case and unfortunately he couldn't be here today to argue this case so like say i just find it really difficult that a federal court could say that under ed with this very very general rule of ohio versus roberts where there's so much leeway given to the state and the state does talk about some of these factors and yes a couple of them are not as compelling as some of the other ones and and i i don't disagree with that and but there are other things that the sister council research that i just don't agree with for example she says well they make a very rote assertion about these particular factors well i mean we all know now from from harrington versus richter and then more recently johnson v williams there is that you don't have to go through detailed analyses these aren't being graded like law exams i mean if they cited the factors they and that's sufficient under ed on as long as it's reasonable there's really no need to to to to pick it apart as if maybe if this  were reviewing this denotable as it did the last time or if this were a direct appeal case i think in totality when you look at what the michigan court of appeals did here there's nothing unreasonable about what they did and it's as you as i try to answer your question judge how fledge i think the the most powerful aspect of this suicide note is the fact that most of it doesn't deal with shari miller in a direct sense and it's this very personal  letter explaining to mom and dad why he's committing suicide so to summarise what you think are the guarantees of trustworthiness what would you say well i think the most important ones certainly would be the spontaneity the statements i think a consistency i may not say that that is a strong factor i could certainly the internal consistency of the of the of the statement i think that's what the  of appeals meant i mean i don't think it's that strong of a point that kind of agree with the district court in that respect but there's certainly no supreme court precedent that says that you can't look at looking for your hit list so i mean what's what what do you think of the best ones well again being the fact that the parents were well the ones that this was directed to that it was directed to family members i would actually agree that it was a very spontaneous and contemporaneous to the event and i have a theory on why that's the case i mean it's an undated letter we don't know when this letter may have been written he could have read the david or two after he committed the murder of bruce miller we just don't know that it isn't going to measure contemporaneous in other words is should it be contemporaneous to the murder i would it be contemporaneous to the suicide i would agree judge more as as as a district court indicated that i think properly it should be contemporaneous to the event that we're talking about that is that the murder approves miller and i actually think there's evidence on this if i can finish answering  question i think there's evidence there's really no evidence to show that it wasn't necessarily written a day or two after the murder he may have written it or written it piecemeal and then and then ended up deciding ok i'm going to commit suicide and that  t unless you do want to hear any further anything else from my colleagues i think your times thank you very much for this opportunity your hono reliability the case law says that if a particular guy didn't pick particular as guarantees of trustworthiness give us an indication of reliability so first of all spontaneity actually isn't listed by the michigan court of appeals but there's nothing to suggest here that this is spontaneity spontaneous anyway mr miller had months and months to ruminate on being dumped by ms miller or mr cossey excuse me he had months to ruminate on everything about his life and there's nothing that's would suggest that that is even supported by the record second with respect to consistency by their counsel and you have an argument regarding contrary to book other counsel suggests that there's an internal consistency and i think it's really telling the facts that he points to he says that these two facts show the internal consistency that surely miller says she should get what's coming to her and she and that mr cassidy says she is soon to learn she can't do that to people so what we know is that he consistently is looking to take revenge on ms miller that's the only thing that we can really consistently say throughout the suicide note that doesn't show a trustworthiness or a guarantee of trustworthiness in this case that in fact shows that the letter should not have been admitted that he has a bias and motive against ms miller and he's taking that out in this letter which he's putting on top of the briefcase which everything else he's established this chain of custody to go to the police and for the police to obtain this letter and