it please the court tracey dresser for petitioners leaf taylor this case really present a straightforward question in two thousand and four this court reversed mr taylor's conviction  and issued a conditional writ that said you know if he gets retried it has to be with evidence other than the illegally obtained confession and in the second retrial the one that resulted in mr taylor current conviction a prosecution witness said that mr taylor had confessed then i say he confessed to the police he did not and there wasn't other evidence disputed by th was evidence that he made statements confessions to i mean statements that could be viewed as confessions and there is but i think there's i think there's sort of a lay person belief that confession involves something of legal significance and certainly something different then what would have presented been presented so far at that point in the trial the sarah was only the second prosecution witness was teens that were involved in whatever was going on that night saying that is not a confession that's let's get me outta here that's not what one person would think of as a confession we live in an age of what about two responses to that one is that at the point that this occurred in the trial elliott had testified yet in putting aside all the weirdness related to what eliot claimed happened again that's not a confession convey so that some some aura of legal importance not something you say to somebody that you know an acquaintance when you're walking to get ice cream at the seven eleven confession to a lay person imply something involving the police or something involving your priest it's a it's a stronger word than that then really at the core though is that there was a simple order from this court don't bring in the confession all the court had to do at the point when this was done was declare a mistrial is only the second witness the the relevance was that mr taylor was entitled to a fair trial that didn't have this or of the confession and that wasn't what happened and what's actually even more disturbing about how it played out with the denial of the mistrial was the next day when they were still debating what to do the prosecutor comes in and the first thing the prosecutor says to the court is you know a denial of a mistrial it's a it's  doing and then proceeds to say that parrot back exactly what the prosecutor had said and so the point wasn't to try and ensure that mr taylor had a fair trial or to ensure that the court was complying with what this court's mandate had been it was to try and protect the going forward with the trial and not wasting other resources or as the court said well if we had another retrial we sara would do it again well that's not mr taylor's issue entitled to a fair trial if they have a witness they can't control he should have to be subjected to a trial where the confession comes in and there's no suggestion that the prosecution manipulated somehow well not uncontroverted that before the first three trial that prosecutor and this is the same prosecutor for all the trials that this prosecutor told lazaro if you don't give us the same testimony that you gave initially that mr that taylor got in the van and said i shot the guy we're going to charge you with murder that's a pretty heavy thing to tell somebody and then expect that they're not going to say exactly what you wanted them to say but the other thing is you cannot read what transpired with loose well i mean i think i remember things considerably farther back than thirteen years it's not thirteen years isn't that long a time and it's hard to believe that if say that's an abuse of this crash of her to say look i think you're lying i'm going to jail you until you stop pretending that you don't remember well it's also hard to disagree with the serious point that there had been so many different versions told that  he wasn't sure what was the truth and i find it considerably easier to disagree with that than i do with this agree with the judge i mean i you know i but but the facts still remains that the sarah was jailed for four days  and that he was while he was expressing concern on this on the second day of his testimony after being jailed for four days about wanting to see his daughter not having gotten fed not being concerned that what no matter what he said he was going to be jailed again that that the prosecutor keep asking him the same questions over and over and insisted that he was responsible for the death and and it then but  you don't have a i'm sorry you don't have a claim him based on the prosecution under pressure that the prosecution put on on the witness right you know this is just background information legitimate function for the just to perform there's nothing there's nothing out of the ordinary or improper or irregular i mean that's what one of the reasons mean let's come back to the issue ok the issue is this court order didn't say that a confession could come in indirectly or that the confession could be mentioned but the details not be given or that the confession why isn't this why is it not the case that we have to treat this as a child with a confession you know the reference to the confession is not in the record because the judge thing that happens when they come in they come in the next morning again there's a lot of attorney stuff that you're finally come in and the first thing the judge says to them is disregard anything that was said about a confession we'll talk about red lights flashing lights you cow could the jury not be thinking confession that this was something critical and we also have to think of the car there is another way to look at it there's another way to look at it he used the word confession that has some legal connotation and when she comes back with this instruction it says you decide what's a confession or an admission i thought it was actually kind of a clever way to do this to throw admission in there with confession so acquit the jury just have been thinking that oh something wrong happened because they called this statement of loose arrows or that sarah made about all these things that people were saying  confession well i suppose you could think of it that way but again context is everything in this case you can't disregard that this jury knew that the murder happened in one nine hundred ninety three and that lea taylor was arrested in one thousand nine hundred three and that there had been multiple proceedings in it it would not take a very much leap to figure out that this was a retrial and why might there be a retrial with these red flag confessions it doesn't take a law degree to think that maybe there was a confession that we're not supposed to know about and and we don't know what exactly did yuri would have thought but there was a simple we were all concerned about the judge knew it the judge had instructed multiple times don't say anything about the confession here's a bigger error the policemen's on the stand and he says he confessed to me i can imagine a bigger are well instructed the jury not to consider it this didn't was confession and at the time lou cyril made that statement he had already testified that when petitioner got back in the van he said i shot the full so so we do have an admission there and that is something that the jury was legitimately entitled to consider so the court carefully balanced these considerations had you know i could just say don't don't consider it all and the basic instructions that the the deliberations must be based entirely on evidence this is in evidence  protect you have to act as if you did not hear it but the court did more than that the court took cognizance of the fact that it mission actually to admissions had already come into evidence because there was one prior witness l testified that petitioner had admitted the crime so what the court did was say you know you heard the word confession confession is a term of art and i'm going to tell you how to understand here's the difference here's an admission and here's a confession and you jurors are the ones who determine what is a confession case i just want to clarify one thing you indicated there was no physical evidence this may not be the strongest evidence but i thought the twenty two  bullets recovered from the petitioner's home were entered isn't evidence they were your honor so we do know that the victim was killed by two gunshots two twenty two caliber bullets and yes but  very strongly put rodriguez at the scene and at the scene in the company of another young male so we know he's there and that's very strong so then you have the second source of evidence which would be the statements from the people in the van and the van i'm sorry let me just go back to first time i saw that some of this is off this is  that's a likely explanation but even he doesn't say hispanic of the of the congo now considering no he tries to back away from that and he says you know when i said that the first time  is he didn't see the second assailant well enough to determine race and hispanic is a very broad term so it's not as if we can do a sort of a mathematical problem and say no but that's a that's a different issue the question that hispanics who might be you know blonde and blue eye i think the idea is when somebody says he looks a scran and they probably mean somebody who looks sort of the t the clear identification of rodriguez and you have a hazy identification of the second person he never saw the face full on it was dark the lighting was by streetlamp and headlights so i just all we know is that but we're very clear if i may guess we share it with someone else right ok so that's all i'm saying from that source and i'm a likely a man right slim build young he got that right both trials so then so you have to be consistent if you insist on some things and so then you have that one source the second is the people in the van saying rodriguez an petitioner got out of the van and walked in the direction of the murder scene just before the gunshots we picked them up just after the gunshots together so that source number two so that's pretty strong circumstantial evidence saying that the second person was petitioner and then finally you have the admissions and we have by we have five witnesses who testified as to admissions by petitioner three in first trial she was the only person from the van who who testified at the first trial so the urine also came in through the testimony concerning concerning it only came came in through her and others i believe rodriguez at least rodriguez ok this inappropriate statement coming in we're saying under this course decision in hayes essentially the same approach the first question would be is there a clearly established supreme then we have what's the cost to tional error and the closest you can come to is a violation of one's right to a fair trial under mcguire probably too general and that's what the court said in hayes but then alternatively it said ok we're the curative instructions sufficient to ensure a fair trial and we assess that under the  appeal in california could reasonably determine protected which is the rights of fundamentally free trial thank you you have little time left for a battle not one person at that trial testified that taylor ever said anything in the van this trial the second trial was completely based on statements that were made back in one thousand nine hundred four that the witnesses either minea testified about the witnesses all getting together because hispanics stick together to to make sure that their story smashed as i described in my brief it is a completely reasonable scenario that exactly what was testified to happened but if you substituted one of the hispanic slightly taller and larger males that were in that van that they say allen meister or abel who we know nothing about and said substituted taylor for that person you'd have the exact same trial and we'd be sitting here talking about their conviction this was based on statements made by teenagers thirteen years before that thirteen years earlier nobody testified at this trial they disavowed their statements even beneath disavowed it she she the statement that the nia claim that taylor had said that came in through the police officer that who who's very fluently explained how benita had said that taylor had said this this was the same police officer who had no memory about taylor's confession that this court found henning gauged in unfair police practices for that regarding the same case we have rodriguez testifying that the officers told him what to say when he said his statement and who were those officers the same ones that this court said had in gauged an unfair police practices with regard to taylor's confession and these are the witnesses and this is a situation in which we're going to rely upon for the same to be of mr a mr taylor's murder conviction for which he may very well spend the rest of his life in prison it  seems a little weak to me and when you going back to the to the confession issue we just there was a simple solution to comply with this court's mandate all the court had to do was grant the mistrial there were only two witnesses into the trial and instead the court set it up soley to protect her decision from appellate review by claiming she wasn't being arbitrating capricious by relying on well if we tell the jury to disregard and juries are presumed to have to disregard it we figured it it just is so and because lou sero would if we did it again he if we had tried it he would do it again those are the three reasons that she gave for denying the mistrial we have the united states supreme court as i said saying that confessions can't be over race from somebodies mind even if you instruct him to do so and mr taylor should not be serving the rest of his life in prison because they feared that they had a witness that was out of control that's a trial problem that's a prosecution problem it's not it's not a fairness issue related to mr tate taylor's entitlement to a fair trial thank you ok thank you