substantive claims of constitutional error one claim standing under doyle versus ohio the other claim standing under  donnelly both both prosecutorial misconduct claims that it's the first the first one dealing with prosecutors inappropriate impeachment or introduction of statements well after probably you know the record isn't real clear on that but it was on the ride from lawful into las vegas so it's probably two or three hours after he invoked that where he wants what's the harm in that and the question that cop prosecutor did not actually comment on his failure to give a statement or anything i think he was cuter the prosecutor didn't make a comment on that in closing argument because what the prosecutor wanted an attorney that's how it that's how the evidence came out the evidence came out in the prosecutor's case in chief during the direct testimony of the other dog and have a situation where the guy that volunteered some information leiter d if there was in doyle in this case there was no comment and i thought that was you know i think there may have been and in this case the that the trial judge during the motion for mistrial that was conducted outside the presence of the jury admonished prosecutor not saying anything trial judge did mention the fact that he was that you know that it was a concern that this evidence did come in but to basically counsel on this comment that where we are we have concern about one answer from a police officer in the course of a analysis i think that you know this is this is not just the doyle error there's also the what i would consider the very compelling air that were addressed many years ago in stand in versus negotiations and in it obviously this isn't this this isn't as compelling as the standing case where in the in the in the in mr stand ins trial the state introduced evidence of of the fact that he had pled guilty and with through really kind of tragic because he'd been sitting in the county jail for ten months and he was just kind of losing it he said you know i got a supreme court precedent to say that that's i think in stand in the the this point with stand and it's not but it that we're talking about the attempt to get to teach it to to just to make discussions with regard to plea negotiations most of that most of the air and that would be where the defendant is in your hypothetical for me concluded that the statement was voluntary then it would be admissible and if you say if he says to the i say you know confidential informants or the guard was your claim or if the guards been planted there and trying to get whatever information you can but that doesn't seem to be our situation here like my kneejerk reaction would be that it's not admissible because it's conditioned with the call my lawyer you know you have a that's not the guards fault not the guards has been prompted by anything absolutely and of course we're not you know i mean we're trying to i don't mean that that brings them to the third question of happens when he says to the guard hall my lawyer i want to plead guilty right and i proceed to mean to me i want to plead guilty is the is the ultimate sanction what he's saying is at that point i don't like your you know your inculpatory statement which i think is more more colored by a fifth amendment question and whether or not there's there is indeed still a retained six and then right to counsel when that statements made i think when that when the defendant says i want to plead guilty all sorts of alarms go off because what the defendant is then saying is you know i'm not just incriminating myself but i want to wait until the entire panel play of constitutional rights that i have the right to confront that statement that statement is just you know verboten it's it's it's something that you know that can it it can be cured you know if it i mean not cured but it but it can be deemed harmless i'm not saying that it's structural there and you know that's case there was dictating into voting that said that if the if the if the highest state state court does not conduct a harmless and a harmless error analysis which the nevada supreme court did not do they just dropped but not saying we've reviewed all these other issues and find them to be without merit opinion did it have a sense to injure is effect on any one of the jurors decisions to vote for guilt and if so it's not a jackson versus virginia analysis that's not what's there sort of guilt beyond a reasonable doubt that's not we're talking about and i kind of like to compare it to you know if you're if you're making but a good way to to do this if you're if you're making some spaghetti sauce and you drop bleach into it you know that's that's pathologist could not give the time of death that made any sense medically and he basically admitted that on cross examination i am pretending the victim was gone well according to my client after his body had already been  and again according to my client's testimony he was getting that information from this from this brian guy that he met with the victim i mean it was a story that really you rebound of against him but he but you know if you if you look at if you look at his klondike after this all happened it wasn't the kind of conduct of somebody who was trying he was trying to hide his guilt that he went to california he remodeled the jeep the way that the you know way that rushford wanted him to remodel it he drove he didn't change a life the play he wrote checks leaving rushford on basically with rushworth license plate as collateral and security charged on right rushford charge account this was not a guy that was heading to argentina to get away from a murder that he had committed you know he was he was his conduct was completely innocent and i think if you go right back to what the path ologist testified to it could at the time the time of death could have been anywhere from twenty four and maybe even more thirty hours before prior to finding the body at three thirty on june second to as little as and this was that this was the defendant's period in closing argument was that given the given the circumstantial air evidence that was available at the scene the fact that there with the good from the truck had been seen leaning against the truck at noon by missing was dragged and then and then at three thirty the hood that was leaning against the truck was covering the body death having occurred within a short period of time from finding the body leads to an absolute alibi for mr mill bore because mr mill born from at least nine o'clock the night before until six pm the day that excuse me the day they discovered the body was in the presence of mary kane and mary kane the state's own witness testified that she said that she in millburn did not leave each other for more than twenty minutes that entire period of time and if that's the case again by the state's own testimony by the state's own evidence millburn could have driven from laughlin to the scene of the crime which was an hour and a half drive so if indeed again you know i think it is the evidence is circumstantial and i have an idea judge noonan that you can convict with circumstantial evidence but not with this circumstantial evidence this circumstantial evidence was was all over the board in that then that and the state's theory of the case and the state and was mentioned in opposing counsel's brief was that the window of opportunity for the death was that i'm based upon the mr smith dr clarke's testimony in that window of opportunity had to you know in order in order for that window of opportunity to be at all evidential to have any of that valid evidentiary value the you had to take as unequivocal medical testimony dark dr clark's theory that that that mr rus twenty four hours before finding him and i just couldn't i mean it just by his own admission if you read cross examination of dr clark and several places he talks about it being just a rough estimate well you know i mean a rough estimate we're talking about a man who's doing two life without sentences based on this rough estimate he also says that yeah it's it's possible you know he essentially concedes that the death could have occurred within twelve hours of having found the body and if that's the case if you find a body at three thirty on june second and you go back in time twelve hours at three thirty in the morning that same day milbourne is with mrs cain he slept with her they slept together i mean this particularly the jury the jury hearing the evidence that he was ready to plead guilty you know i mean that's pretty bad as as this court said in stand and it doesn't get any worse than that again you know what i want to do for example i'm  looking at page twenty two of the states the states briefs that millburn actually signed a no it was exhibit eighty one showing that milburn had met with the victim the painted sample of cocaine on june fifth body already been found on june third right and i think and again milton testified about that note he was definitely cross examined about that note and what in his testimony was they just gave me this thing and i signed it but what i was what i was trying to explain to them and again this was records brother and asking if he seen him i mean these are you know these are ways in which somebody who's committed a murder might might very plausible e be covering it up well and again and that was the state's theory but my response to that is richard millburn wave made that decision based on the fact that this that the state introduced evidence that he wanted to plead guilty i mean what are we spending all this time for if the guy wants to plead guilty you know to me that's brecht there and that stand in  defendant to make that statement to prison guard standing like i said stan and again i don't mean to suggest that stand in is directly on point i want to make that perfectly clear in standards case mr stanton pled guilty he got the guilty plea set i think looking at the two issues that have been presented first of all there's a real question and i and i think it's first to be addressed the district judge for the sort of like that as to whether there was doyle there at all do is trying to sort of let the jury know for sure millburn knew about it right but he still open his mouth and started yakking during that long drive back to las vegas and that by yet in by doing that in the sort of put it in into context because everybody i mean the i would say everybody but anybody that watched more about five hours of crime drama on television is somewhat aware of what the miranda rights say and so i think he was trying to  of interrogation so i thought on that basis i don't think in the end in the prosecutor never to touch down again never mention it again and and there was never anything beyond that little  then i think a brecht analysis clearly shows a substantial was north not a substantial and injurious effect on the jury's verdict little ambrose might raise an interesting analogy he said if you're making spaghetti and you pour bleach on it that would have a substantial and injurious effect on a jury's verdict i think that's an incorrect standard using his analogy because if you use analogy you put bleach on spaghetti the spaghetti is ruined you can't put a little bit of bleach on spaghetti basically what mr lambert is analogies trying to do is make correct a structural error analysis if you do anything to ruin the trial you get a new one i would suggest that sauce and it still tastes like edible spaghetti sauce and something you can put on your spaghetti and then there's that there hadn't been a substantial injuries effect on the spaghetti sauce on the other hand if you double or container of salt in the spaghetti sauce making it totally inedible but certainly there has been a substantial and injurious effect on the spaghetti sauce i have to admit mr mr nader that the that you that you changed the analogy imagine what more circumstantial evidence you would want you have the defendant in possession of the murder weapon you have the defendant in possession of the of the victim's motor vehicle and the victim car keys you have the you have the defendant calling the victim's family think have you seen the guy you have the defendant making up these incredible stories to law enforcement agents to try to create an alibi saying victims are going to sell cocaine i want to give you a statement and the and the law enforcement say well read the statement and sign it whereupon our elusive brian is not mentioned and you have all of this with and then mr lambert saying what will the counter to that and what you have the pathologist the trouble is is that if you believe the defendant story which is rather hard to do given the number of times that he lied he got the keys to mr that if the victim's motor vehicle on june first that's what he said he said this mysterious brian gave him the keys and gave him the gun on june won just doesn't make a whole lot of sense with but the contact with law enforcement of the victim's family to create an alibi the gun in his possession and that's not this beyond a reasonable doubt that's all overwhelming overwhelming to this particular plane it's curse of all which i don't think can be read at all to say that if there is a comment or about plea negotiations there is constitutional  that's my first comment with respect to this that claim my second comment with respect to this claim have to do with the nature of negotiations just by a common sense standpoint  by common sense indicate to people talking about something and trying to come to an agreement in this case there was no negotiations in this case where the attorneys get together and the attorney brings his client in and they all are sitting around a table and trying to negotiate the case and the prosecutor says mr defendant tell me exactly what happened in this case we see you know what he did it and he said he didn't need to be in a conference room that's the kind of error where negotiations would come into play and whether it's a policy presumption against allowing that kind of evidence to come in but that's that and that's not a situation where a prisoner in a detention facility goes to a correctional officer i want to plead guilty is that the jury's going to read that comment to say i am guilty i did the crime the problem with that is as you pointed out just by having is if he'd said i did it i bit of the crime i put the body down the mine shaft it's clear that that evidence would come in as an admission what mr lamb roast would argue is that what substance so with respect and finally i'd say with respect that's that issue that if in fact there is some supreme court decision for which i am unaware that makes it illegal for unconstitutional excuse me to issue in that the evidence in this case is just so compelling and strong against mr mill born that it did not have a substantial injuries effect on the jury's verdict let's your honour's have any question i think that's what we're we're down to down to three to five the issues for which we spawn and respectfully suggest there is no constitutional error at all i've heard about whether or not the second question the police the admission of the plea evidence was a violation of clearly established laws is from the podium today if you look at the respondents answering brief they devote a total of two pages to the argument and they don't make that argument if they had made the argument what i would have said in my reply brief is that there is there is circuit authority in this circuit a case that i actually handled and i'm sorry i don't have the cite robinson versus  this same issue came up and what this court said was you know there does not have to be a direct squarely on point united states supreme court case if the logical extension of that supreme court case would be the kind of  believe it did i'm sorry i can't i can't remember right now but certainly stand and it play because she's involving attorneys i don't know that i'm sorry but if i do i get i'm not positive that that all i know all i can say right now is that that was the case that was because in the stand an opinion stand and you know as i recall and it was also one of my cases that it talked about how there was not a lot of authority for this for this type of error because it was so unique in the introduction of a of a guilty plea so is is the is the state responsible for the for the officers conduct and in jail if he's just just an unwilling recipient he's not inviting this he's not trying to he's not trying to get a promotion by getting a confession i'm not saying that you know that that that the correctional officer had any response to be here or that you know for that matter he was an agent but you know where the rubber meets the road is whether or not the proponent of the evidence should proffer the evidence and i'm saying that that evidence should not have been standard supports that conclusion to many and again the only other thing i think i think it might have been you judge seiler you were asking about whether or not there was a motion for mistrial there was