1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0300p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

SAMANTHA BACHYNSKI, 

Petitioner-Appellee, 

v. 

ANTHONY STEWART, Warden, 

Respondent-Appellant. 

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No. 15-1442 

Appeal from the United States District Court 

for the Eastern District of Michigan at Detroit. 

No. 2:10-cv-13762—David M. Lawson, District Judge. 

Argued: December 9, 2015 

Decided and Filed: December 23, 2015 

Before: SUTTON and KETHLEDGE, Circuit Judges; BECKWITH, District Judge.*

_________________ 

COUNSEL 

ARGUED: John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, 

Michigan, for Appellant. Marilena David-Martin, STATE APPELLATE DEFENDER OFFICE, 

Detroit, Michigan, for Appellee. ON BRIEF: John S. Pallas, Elizabeth Rivard, OFFICE OF 

THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Marilena 

David-Martin, Valerie R. Newman, STATE APPELLATE DEFENDER OFFICE, Detroit, 

Michigan, for Appellee. 

 *

The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern District of Ohio, 

sitting by designation. 

>
No. 15-1442 Bachynski v. Stewart Page 2 

_________________ 

OPINION

_________________ 

 SUTTON, Circuit Judge. When Michigan police officers arrested Samantha Bachynski 

on suspicion of murder, she invoked her right to remain silent and asked for an attorney. During 

later interactions between the officers and Bachynski, she changed her mind, eventually pointing 

to a detective and saying: “I want to talk to you.” She then waived her Miranda rights three 

times and confessed three times to a slew of crimes, including murder. A jury convicted her, and 

the state courts upheld the conviction over her Fifth (and Fourteenth) Amendment challenge to 

her confession. A federal district court granted her petition for a writ of habeas corpus, holding 

that the detectives impermissibly interrogated her without an attorney present. Because the state 

courts reasonably construed the Supreme Court’s teachings in this area, we must reverse. 

I. 

According to the state appellate court, here is what happened. Bachynski’s first two 

victims were Scott Berels and his pregnant wife Melissa. Bachynski and her boyfriend, Patrick 

Selepak, an acquaintance of Melissa, came to the Berels’ house. At some point, they locked the 

couple in their bathroom. Then Selepak choked Melissa until she was blue but still alive, all 

within earshot of her restrained husband. Bachynski “finish[ed] it,” pulling a belt around 

Melissa’s neck until she was dead. People v. Bachynski, No. 281550, 2009 WL 723600, at *2 

(Mich. Ct. App. Mar. 19, 2009). Bachynski took a break to smoke a cigarette, then returned to 

Scott. Selepak beat Scott “until there was blood everywhere,” and Bachynski “moved a knife 

across [his] neck” and injected him with bleach. Id. Bachynski put her foot on Scott’s head and 

pulled a belt around his neck, killing Scott. Bachynski took another cigarette break. She and 

Selepak hid the bodies before stealing the couple’s money and driving away in their car. 

 The next day, they befriended a stranger, Frederick Johnson, at a dance club, and they 

seduced him later that night and in the days that followed—at a hotel and eventually at Johnson’s 

house. They also spent time with him eating and shopping in Frankenmuth, Michigan. They 

returned to the dance club with him and his son-in-law the next day. And they spent the next two 
No. 15-1442 Bachynski v. Stewart Page 3 

days after that watching movies at Johnson’s house. On the last night, they tortured and killed 

Johnson, apparently in order to steal his truck and other personal items. They loaded his dead 

body in the bed of Johnson’s truck and stole the truck. Police eventually found Bachynski and 

Selepak in the dead man’s stolen truck, with the dead body in the back. They were arrested. 

The police read Bachynski her Miranda rights, and she requested an attorney. They did 

not ask her any questions. Two detectives from another jurisdiction, Charles Esser and Kenneth 

Stevens, arrived at the police station about an hour later and reread Bachynski her Miranda 

rights. She again said she wanted an attorney. The conversation ended, and Bachynski was sent 

back to her cell. 

About thirty minutes later, Esser and Stevens realized that Bachynski had no “tools to get 

a hold of her attorney.” Id. at *9. They went to Bachynski’s cell and asked her if “she had been 

given an opportunity to use a phone to contact her attorney.” Id. I don’t have one, Bachynski 

responded. Stevens offered her a phone to call her family and a phone book to find an attorney. 

At this point, Bachynski said that she didn’t want to spend the rest of her life in prison and 

wondered whether she needed an attorney. Esser reiterated that “they could not discuss anything 

further with her until her attorney was present.” Id. Bachynski responded, “with some urgency 

in her voice”: “I can change my mind, can’t I?” R. 9-5 at 80. Pointing at Detective Stevens, she 

said: “I want to talk to you.” Id.; see also Bachynski, 2009 WL 723600, at *9. The detectives 

obtained the approval of the prosecutor to continue speaking to Bachynski before taking her to 

another room. 

The detectives read Bachynski her Miranda rights and asked her whether she wanted to 

talk to them without an attorney present. Bachynski “reiterated that she wanted to talk” to them. 

Bachynski, 2009 WL 723600, at *9. Acknowledging that she had initially requested an attorney, 

she said she had “changed [her] mind,” “asked to” talk with Detective Stevens, and “would 

rather just talk to [the detectives]” than get an attorney. R. 9-22 at 6. She signed a waiver of her 

Miranda rights and confessed to the crimes. Bachynski, 2009 WL 723600, at *3, *9. 

About six hours later, Bachynski asked to speak with the officers who had arrested her. 

The officers administered another Miranda waiver, and Bachynski again confessed to the 

murders. She did the same thing a third time, this time to Detective Stevens. 
No. 15-1442 Bachynski v. Stewart Page 4 

Bachynski came to regret her confessions. Her attorney moved to suppress them, arguing 

that the detectives had “coerce[d]” her into talking through “psychological intimidation.” R. 9-5 

at 101. As Bachynski remembers the events in her cell, the detectives not only offered her a 

phone to call her attorney but also mentioned that Selepak had waived his Miranda rights and 

was talking with other officers about the case and that Selepak’s accomplice in a previous case 

got in more trouble by not talking. All of these statements, her attorney argued, convinced 

Bachynski to talk and amounted to an improper interrogation. 

The state trial court denied Bachynski’s motion, making no mention of Bachynski’s 

testimony. It found that Bachynski had initiated the interrogation, not the other way around, and 

for that reason rejected her claim. 

At trial, the jury heard the confessions and observed physical evidence that incriminated 

Bachynski: her fingerprints were on the duct tape used to wrap the bodies; her sweatshirt had 

bleach and blood on it; and she was in the driver’s seat of a dead man’s truck with his dead body 

in the back when she and her boyfriend were arrested. The jury rejected Bachynski’s defense 

that her boyfriend made her do it and found her guilty of two counts of first-degree murder, 

among other crimes. The court sentenced her to life without parole. 

On direct appeal, Bachynski challenged the admission of her confession, claiming it 

violated her rights to counsel and against self-incrimination. Bachynski, 2009 WL 723600, at 

*9–10. The Michigan Court of Appeals disagreed. It held that the detectives’ “communication 

with [Bachynski] in her holding cell was not an interrogation or the functional equivalent of an 

interrogation” because it “solely” involved helping her acquire an attorney. Id. at *10. 

Bachynski, not the detectives, was the one who “insisted on speaking” about the case. Id. At 

that point, the court held, Bachynski “voluntarily, knowingly and intelligently waived her 

rights.” Id. at *9–10. The Michigan Supreme Court denied discretionary review, and Bachynski 

did not seek review in the U.S. Supreme Court. 

 Bachynski filed a petition for a writ of habeas corpus in federal court, alleging many 

defects in her conviction. The district court granted relief on one claim—that the state courts 

unreasonably admitted her confessions in violation of her Fifth Amendment rights—and rejected 

the others. The State appealed. 
No. 15-1442 Bachynski v. Stewart Page 5 

II. 

Our standard of review is familiar. Federal courts may not disturb a state court’s merits 

decision with respect to a conviction unless it is “contrary to” or an “unreasonable application 

of” clearly established federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). 

In this instance, the Supreme Court has not “confront[ed] the specific question presented by this 

case.” Woods v. Donald, 135 S. Ct. 1372, 1377 (2015) (per curiam) (quotation omitted). That 

means Bachynski must rely on the unreasonable-application prong of § 2254(d)(1). See id. To 

prevail, Bachynski must show that the state courts’ determination was “so lacking in justification 

that [it] was an error . . . beyond any possibility for fairminded disagreement.” Harrington v. 

Richter, 562 U.S. 86, 103 (2011). That is not an easy standard to meet. The detectives’ conduct 

must have been so obviously an interrogation that no reasonable judge would think otherwise. 

It was not. 

After a suspect invokes her right to counsel, police may not initiate an “interrogation” of 

the suspect without counsel present. Edwards v. Arizona, 451 U.S. 477, 484–85 (1981). 

An interrogation occurs when the police “should have known” that their conduct was 

“reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 

301–02 (1980). That definition naturally includes “express questioning” designed to ferret out 

the suspect’s involvement in the case. Id. at 300–01. But it also includes the “functional 

equivalent” of such questioning—“any words or actions on the part of the police (other than 

those normally attendant to arrest and custody) that the police should know are reasonably likely 

to elicit an incriminating response.” Id. at 301. If a reasonable person, using all of the facts and 

circumstances available, would view the police as attempting to obtain a response to use at trial, 

it is an “interrogation.” See id. at 300–02 & n.5. 

At the same time, suspects who invoke their Miranda rights remain free to change their 

minds. When the suspect initiates a case-related discussion, “the right to have a lawyer present 

can be waived.” Wyrick v. Fields, 459 U.S. 42, 46 (1982) (per curiam). And the police remain 

free to converse with the suspect about “routine incidents of the custodial relationship.” Oregon 

v. Bradshaw, 462 U.S. 1039, 1045 (1983) (plurality op.); see Pennsylvania v. Muniz, 496 U.S. 
No. 15-1442 Bachynski v. Stewart Page 6 

582, 603–04 (1990). The police may not, however, “approach[] [the suspect] for further 

interrogation.” McNeil v. Wisconsin, 501 U.S. 171, 177 (1991). 

All of this means that, after a suspect invokes her right to counsel, courts may still admit 

a subsequent confession if (1) the suspect, as opposed to the officers, initiates the interrogation 

with the police and (2) the suspect waives her right to counsel. Smith v. Illinois, 469 U.S. 91, 

94–95 (1984) (per curiam). The state courts reasonably held that Bachynski did both. 

Did the officers interrogate Bachynski after she invoked her right to counsel but before 

she said, “I want to talk to you”? After Bachynski invoked her right to counsel, the police never 

expressly interrogated her. Bachynski instead claims that they made comments to her that 

amounted to the functional equivalent of an interrogation. None did. 

Bachynski first claims that the detectives initiated an “interrogation” when they returned 

to her cell to provide her the tools to get an attorney: a phone and a phone book. But all of this 

facilitated the exercise of the right to counsel, not an interrogation. When a suspect invokes her 

right to counsel, there is nothing wrong with getting her an attorney or getting her the tools to 

hire one. The idea that offering a suspect a phone and phone book to call an attorney is 

somehow a ruse to convince her to do just the opposite—to waive the right she has just 

invoked—is a heavy lift. The offer facilitates the exercise of the right; it does not subtly or 

directly undermine it or for that matter amount to a prompt to waive it. The officers had no 

reason to think she would say something incriminating or reconsider her invocation of counsel 

when they made this offer. We have previously reached this precise conclusion. An officer’s 

questions “principally aimed at finding [the suspect] an attorney,” we held, did not constitute an 

“interrogation.” United States v. Ware, 338 F.3d 476, 481 (6th Cir. 2003). That’s all there is to 

it—at least to this contention. 

Bachynski’s second contention is more complicated. She claims that, before she said “I 

want to talk to you,” the detectives told her that: (a) Selepak was talking with other officers 

about the case, and (b) Selepak’s brother, his accomplice in a previous case, got in more trouble 

by remaining silent. But that’s not what the state courts found. Their opinions never mention 

Selepak or his brother in this context, instead finding that the detectives’ questions focused 

“solely” on getting Bachynski an attorney, see Bachynski, 2009 WL 723600, at *9–10, and that 
No. 15-1442 Bachynski v. Stewart Page 7 

the detectives “scrupulously honored” Bachynski’s rights, see R. 9-5 at 105; see also id. at 54, 

73. We presume those findings are correct, and must uphold them if any evidence supports 

them, which it does. See 28 U.S.C. § 2254(e)(1); Rice v. Collins, 546 U.S. 333, 341–42 (2006); 

cf. White v. Wheeler, No. 14-1372, 2015 WL 8546240, at *3–4 (U.S. Dec. 14, 2015) (per 

curiam). 

The most Bachynski can do to rebut these findings is to note that the state appellate court 

cited a case that held that “informing the accused that a codefendant has given a statement” does 

not violate the Constitution. Bachynski, 2009 WL 723600, at *10 (citing People v. Kowalski, 

584 N.W.2d 613, 617–18 (Mich. Ct. App. 1998) (per curiam)). That citation, she says, amounts 

to a finding of fact by the state court that the statement occurred in this case. But case citations 

are not fact findings. State courts do not make fact findings through passing references to legal 

decisions, least of all when it comes to facts that bear on the underlying inquiry. The statements 

that Bachynski alleges the officers made, but that they deny, cannot be found anywhere in the 

state courts’ opinions. All that exists in the state court opinions on this score is language denying 

the existence of these alleged additional statements—namely, that the detectives’ questions 

focused “solely” on getting Bachynski an attorney, see Bachynski, 2009 WL 723600, at *9–10, 

and that the detectives “scrupulously honored” Bachynski’s rights, see R. 9-5 at 105. One cannot 

accept Bachynski’s version of events without contradicting these state court findings. As a 

federal habeas court constrained to give the state courts “the benefit of the doubt,” we must 

accept the state court’s record-supported fact findings. Woodford v. Visciotti, 537 U.S. 19, 24 

(2002) (per curiam). 

Even if we accepted Bachynski’s theory, even in other words if we agreed that the state 

court’s citation to Kowalski imported the relevant facts from that case into this one, only one of 

the detectives’ two alleged comments would be affected. The cited case dealt only with 

“inform[ing] [the] defendant that [the] codefendant . . . had given a statement,” Kowalski, 

584 N.W.2d at 615; it did not involve implied threats of the sort that Bachynski says occurred 

when the detectives allegedly commented about Selepak’s brother. If we add the one statement 

to the mix (that Selepak was talking), the state courts still could reasonably conclude that no 
No. 15-1442 Bachynski v. Stewart Page 8 

interrogation took place. Fairminded jurists could disagree about whether informing a suspect 

that an accomplice is talking constitutes an “interrogation.” 

Our court already has said as much. Shaneberger v. Jones held that, where a detective 

“informed [the suspect] that he had been implicated by a co-defendant,” the state courts 

reasonably concluded that no interrogation had taken place. 615 F.3d 448, 454 (6th Cir. 2010). 

Because the detective “directed [the suspect] not to respond” to his comment, and because the 

suspect chose to speak to a different officer at a different time, the detective’s statement 

reasonably fell “outside the realm of interrogation.” Id. A like conclusion applies here. As 

Bachynski acknowledges, see Appellee’s Br. 5, Detective Esser directed Bachynski “not to 

respond” to him. Shaneberger, 615 F.3d at 454; see Bachynski, 2009 WL 723600, at *9. 

Bachynski instead asked to speak with different officers later in time. And Bachynski admitted 

that no one talked to her about her case before she brought it up. What was reasonable there is 

reasonable here. 

Innis, the leading case on the meaning of “interrogation,” supports this conclusion. In 

point of fact, it seems to present the harder fact pattern, and it arose on direct review to boot. 

Even a conversation between officers in front of the suspect about what might happen if the 

wrong person found the murder weapon, the Court held, was not an interrogation about the 

location of the gun. 446 U.S. at 303. The Court acknowledged the “subtle compulsion” inherent 

in these kinds of conversations and the compulsion inherent in the nature of custody. Id. at 300, 

303. But it held that no interrogation had occurred because “the entire conversation,” far from 

being a “lengthy harangue,” “consisted of no more than a few off hand remarks” that were not 

particularly “evocative.” Id. at 303. If the Court found no interrogation there on direct review, it 

follows that no interrogation occurred here—or at least that it was reasonable to think it did 

not—on habeas review. 

Our habeas caselaw points in the same direction. In Fleming v. Metrish, the habeas 

petitioner claimed that he was “interrogated” by police officers after requesting counsel. 

556 F.3d 520, 525 (6th Cir. 2009). The officers told the suspect that “things did not look good 

for him” and that he should “do the right thing” by getting “with the program.” Id. at 522. 

The officers even asked the suspect if he had changed his mind about talking and informed him 
No. 15-1442 Bachynski v. Stewart Page 9 

that they had found the murder weapon in his home. Only then did the suspect waive his 

Miranda rights and confess. The state courts nevertheless held that the officers’ pre-waiver 

conduct did not violate the Fifth Amendment. We upheld that determination, concluding that the 

officers’ “brief remarks” did not constitute “an interrogation within the meaning of Miranda.” 

Id. at 527. If telling a suspect that “things did not look good for him” and that he should “do the 

right thing” did not clearly violate federal law, then neither does talking with Bachynski about 

Selepak. 

Other Sixth Circuit cases are of a piece. An officer’s comment to a suspect that “we’ve 

got good information on you” did not constitute an “interrogation,” even on direct review. 

United States v. Hurst, 228 F.3d 751, 760 (6th Cir. 2000). It “contain[ed] no compulsive element 

suggesting a Fifth Amendment violation.” Id. Neither did a “casual conversation” about 

acquiring an attorney. United States v. Thomas, 381 F. App’x 495, 501–03 (6th Cir. 2010). 

Ditto for an officer’s comment that “things would be easier for [you] if [you] talked.” United 

States v. Murphy, 107 F.3d 1199, 1205 (6th Cir. 1997). The same goes for a comment that the 

officer “knew that [the suspect] possibly had the weapon.” Hart v. Steward, No. 14-5446, 2015 

WL 4567590, at *6 (6th Cir. July 30, 2015). And for one that you “could possibly face the death 

penalty” for your crime. McKinney v. Ludwick, 649 F.3d 484, 489–90 (6th Cir. 2011). That is 

not all. Id. at 491–92 (collecting more similar cases). Nor is our circuit alone in reaching this 

conclusion in similar settings. E.g., United States v. Blake, 571 F.3d 331, 336 (4th Cir. 2009). In 

the face of these precedents, it is difficult to conclude that it is obviously unconstitutional to say 

to a suspect who has invoked her right to counsel that a co-suspect is talking. 

One other principle favors this conclusion. The more general the constitutional rule, the 

more leeway the state courts have to implement it. Yarborough v. Alvarado, 541 U.S. 652, 664 

(2004). At issue, we can all agree, is a “general rule.” Dickerson v. United States, 530 U.S. 428, 

441 (2000); Van Hook v. Anderson, 488 F.3d 411, 417–18 (6th Cir. 2007) (en banc). The nature 

of this general inquiry—should a police officer “have known” that his conduct was “reasonably 

likely to elicit an incriminating response”?—permits a range of reasonable answers in a range of 

facts and circumstances. All of this makes it “less likely a state court’s application of the rule 

will be unreasonable.” Desai v. Booker, 732 F.3d 628, 631 (6th Cir. 2013). Each of these 
No. 15-1442 Bachynski v. Stewart Page 10 

factors considered, the state courts’ answer in this instance fell well within the “range of 

reasonable applications of the standard.” Bedford v. Bobby, 645 F.3d 372, 378 (6th Cir. 2011) 

(per curiam). 

Was Bachynski’s waiver of her right to counsel valid? Yes. Although post-invocation 

waivers are presumed invalid, see McNeil, 501 U.S. at 177, ample evidence rebutted that 

presumption here and showed that Bachynski voluntarily and knowingly waived her Miranda

rights. Bachynski, 2009 WL 723600, at *10; R. 9-5 at 105–06; see Garner v. Mitchell, 557 F.3d 

257, 260–61 (6th Cir. 2009) (en banc). Before any “interrogation” took place, she reviewed her 

rights (for the third time), both orally and on paper. She said she understood all of them, and she 

signed a document to that effect. She did not have any questions or appear to misunderstand 

what was happening. She did not equivocate in her desire to talk to the police or in her resolve 

that she had changed her mind about wanting to speak to an attorney. She later signed two more 

waivers, never second guessing her desire to talk with the police. Nor was she impermissibly 

“badgered” even though the detectives reread her the Miranda warnings after she initially 

refused to talk. See Appellee’s Br. 31. We have allowed far more such warnings in the past. 

See Davie v. Mitchell, 547 F.3d 297, 303–06 & n.1 (6th Cir. 2008). 

The district court relied on one case apiece from the Second and Third Circuits to reach 

the opposite conclusion. One problem with that explanation is that circuit precedent (even our 

own) “does not constitute ‘clearly established Federal law, as determined by the Supreme 

Court,’” and a court may not grant habeas relief based on lower-court precedents alone. 

See Glebe v. Frost, 135 S. Ct. 429, 431 (2014). The other problem is that the two cases are not 

helpful on their own terms. Both cases pre-date AEDPA, which increased the requirements for 

overturning state court criminal convictions. The police conduct at issue in the cases also was 

more extreme than the conduct at issue here because in one the police asked the suspect to “give 

us a statement,” United States v. Szymaniak, 934 F.2d 434, 437 (2d Cir. 1991), and in the other 

the police used one suspect to confront the other, Nelson v. Fulcomer, 911 F.2d 928, 934 (3d Cir. 

1990). For many of these same reasons, Shaneberger refused to rely on these cases in a situation 

like ours. 615 F.3d at 453–54. We do the same here. 
No. 15-1442 Bachynski v. Stewart Page 11 

III. 

There is another, independent reason for rejecting Bachynski’s claims. Any state court 

error was harmless. Although confessions typically have a “profound” and “dramatic effect on 

the course of a trial,” Arizona v. Fulminante, 499 U.S. 279, 296, 312 (1991), this was not a 

typical case. Given the overwhelming evidence against Bachynski, the admission of the 

confessions did not have a “substantial and injurious effect or influence in determining the jury’s 

verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted). We thus have 

no warrant to disturb the state court conviction on habeas review. See Davis v. Ayala, 135 S. Ct. 

2187, 2197–99 (2015); Fry v. Pliler, 551 U.S. 112, 121–22 (2007); see also Humphreys v. 

Gibson, 261 F.3d 1016, 1025 (10th Cir. 2001). 

The jury heard and saw ample other evidence of Bachynski’s guilt, evidence that she 

concedes was admissible. The jury knew that: Bachynski helped Selepak with previous crimes; 

she was at the victims’ house the night of the murders; she bought duct tape near the house after 

the murders; her fingerprints were on the used duct tape on the dead bodies; her fingerprints were 

on the lockbox found in the trunk of one of the stolen cars; the sweatshirt she wore the night of 

the murders had bleach and blood on it; she lied to her family about her whereabouts; she told a 

friend that she needed to change her appearance after the murders; and she was in the driver’s 

seat of a dead man’s truck with the dead body in the back at the time of her arrest. 

All of this evidence would have forced Bachynski to present the same defense that she 

presented with the confessions: that her boyfriend made her do it. That was her story from the 

beginning and according to her remained “pretty much the same” at trial, R. 9-14 at 38. 

Bachynski claimed that Selepak had implicitly and explicitly threatened her to go along with the 

murders, by, for example, pointing a gun at her. That, she said, negated her intent to commit the 

murders. On appeal, notably, Bachynski does not argue that, without the confessions, she would 

have defended her participation in the murders differently. 

The jury rejected this defense, and the confessions offered no meaningful basis for 

changing its calculus in doing so. With or without the confessions, the jury would have been 

confronted with the choice of believing Bachynski’s excuse or rejecting it. Either way, the 

prosecutor would have asked, “why didn’t she [leave]” when she had the chance? R. 9-15 at 18. 
No. 15-1442 Bachynski v. Stewart Page 12 

Either way, the evidence would have come out that she was not unduly influenced by Selepak 

but in fact seemed in control at several points during the relevant time period. The evidence still 

would have shown that Bachynski played an active role in previous crimes. It still would have 

shown that at 3:30 a.m., immediately after the murders, Bachynski went to a nearby CVS by 

herself to purchase duct tape to wrap the bodies, not appearing “under distress at all” but instead 

appearing quite “calm.” R. 9-7 at 63. It still would have shown Bachynski partying after the 

murders while in control of the stolen money and other goods. And it still would have shown 

that she was in the driver’s seat of a stolen truck, with a dead body—and the guns purportedly 

used to threaten her—wrapped neatly in the back. All of this means that, with or without the 

confessions, the jury still would have found Bachynski guilty. 

For these reasons, we reverse.