parish sheriff's office and at that time he refused to sign a waiver of his rights he made a clear definitive declaration that he wished for his counsel to be present for questioning and he made it unequivocal invocation of his on the record at least two occasions as to what he did which was recently what he called and i think the quote was i explained the simplicity of the case to mr polk or some other words he said this is what the evidence shows this is what we think we have probably the law in this case is settled it's been settled for fifty years the right to stop questioning before interrogation begins or in the middle of interrogation is sick or say it's been part of a critical safeguard of the pit the minute what you  that the prohibition against questioning or rather let me rephrase that the right to silence encompasses not only questioning but any word or act by law enforcement with the intent to or the likelihood of overwhelming the defendants the suspects invocation of silence and leading to a cop to restate it so the spectrum is large is not just questioning it's let me tell you how we've already got you know you dead to ri is going to submit this is a harmless error if if this court finds that this confession was improper or inadmissible i believe the state's position is it's all water under the bridge and it was harmless and we can laugh about it now no harm no credibility to the statements of the accused if those statements are made against his or her interest so the statements that were obtained illegally in this case and used i believe illegally in trial had a tremendously damaging effect poe parts to fix they established plan motive intent preparation opportunity the absence of mistake they placed mr polk court at the scene where the alleged threat occurred at a time consistent with the state's timeline but there was independent evidence as to all of that your honor i believe that to say there was independent evidence i don't think gives a full weight to what's going on in this case if there was truly independent evidence to mr poe part statements would have been irrelevant they would have been simply cumulative they would never have been admitted in trial at all but there admitted in the trial why because they tell a different part of the story they tell mr pope arts part of the story with his own words and he's powerless at trial to defend him so he can't cross examine himself he can't do anything except violate you know waive his fifty minute right to silence at trial to explain his statement just the same way to say louisiana tramp stone those rights during interrogation so he's an ape he is in a eat terribly difficult position i do not believe that these statements of a defendant against his own interest are ever the same ever cumulatively something that comes from other places and your honor i would say that they the timeline in this case and mr poe parts present at the bar at the time that the state says he was there defense then his defense attorney attempted to mitigate that loss by raising some of these issues opening statements and trying to draw the sting out of them but his his attorneys you know  efforts to share this don't wade this issue however you cut this lieutenant bruce harrison and the jefferson parish sheriff's office violated mr polk parts right whole scale he there's no question that he demanded his attorney and then he demanded his right to silence and they continued to speak to him with the clear intent of overwhelming his resistance and the statement once obtained were used at trial and they had a powerful prejudicial effect so i  that the state courts have misapplied in misinterpreted the constitution tell me what what the statement it was and no independent evidence other than his statement  corroborated or supported by some other evidence that was introduced in a prosecutor's case and that and that's a good question and in the case of course involves a public intimidation charge mr polk park is alleged  because the claim is the allegation is he released those photos as a threat to our in retaliation of mr higginson appearing at an unrelated criminal proceeding there were two witnesses that attempted to establish associates that the bar that the deputy higer seen found himself fighting for his job fighting for his integrity that there was a sin blue line that there was jefferson parish authorities jefferson parish sheriff's all involved in trying to find somebody to gut and to blame and to punish for these photographs in the ng up online that was the defense theory and part of theory was that the bar owner and that the deputy had been long term friends of the deputy  goes that series the theory is then cut off at the knees not the only person likes him he's the only no your honor but he corroborates the he in critical parts of the state's case and i guess that's the point they go from being disputed at trial to irrefutable which the defendant makes comments that that corroborate key elements of the state's narrative the state's telling a story and as long as the defendant says i'm not participating or not if that's true then he's got a full range full spectrum of things used in his defense but once you take his own words and use them against him to corroborate key portions he loses that ability to defend and in this case this was not immaterial details was significant detail about the timing of  origin of these photographs mr poe parts plant preparation opportunity to engage in this intimidation so this was highly prejudicial i try so let's go back a minute to the to the miranda issue i just want to understand your position wants a suspect is being questioned and in invokes his right to an attorney or his right to silence are you saying that the investigator or the police personnel can't make any kind of statement at all about the facts of the case of the circumstances of the case i understand you're not arguing they can't comment about hey it's raining outside or something like that i don't know that's correct taking your position that that far but but are you saying that the officer can't can't say anything that relates to the case anything with the intent to induce any any photographs any comments anything that's intended to overwhelm or reverse the citizens position that they wish to invoke their right or federal that would hold a law enforcement officer is permitted to continue to speak in an attempt to induce a statement after a witness or suspect has in invoked their right to silence any are really that i guess you know i certainly i can appreciate the courts to limit but it would be my position that one dissenting court or several dissenting courts for that matter i can't upset about it to your miranda argument but waiver of some sort what's the operative factor i'm out of time but if if i'm a perspire and i would take the position if i had to be hyper technical and i've attempted to avoid that that asking the question may i go over the facts with you is a question and it is whole scale completely and utterly prohibited it would be no different than can i say the pictures of the scene can i take each of the scenes that question alone too soon immediately following that invocation  of the record first of all the defendant was not alleged or charged with having disseminated the pictures that appear on the website the very dot com he was charged with public intimidation which required the communication of a threat that would influence that a public officer or witness in this case you detect the detective was also a wit who was also a witness  but fulfill their duty so the point here and what is this industry attorney said several times to an argument was you know i don't have to prove a lot of these things what i have to prove is that he communicated his threat and he communicated the threat when a few days before the case that that mr part was about to be tried on when mr poe part went to the bar where the incident had happened in front of where you know and also his and was a detail officer he went into the bar talk to the bar owner and another gentleman who were there and made the statement that i let him know or worse the effect of you know let him know that if he testifies and that was the substance of the offense in this case not who took a picture or not who actually posted the picture what was not relevant obviously you know in terms of the defendant's intent to communicate that threat at the end of the threat that he had a picture of a girl was that it searched to defend its residence pursuant to a search warrant and they found you know that what was introduced at trial was downloaded you don't like printed out screens you know the dirty dot com website with the photos issues that have the very dot com logo on them and some other information the defendant actually had a cd that had numerous photos you know lots of lots of photos and two of those photos on that cd with a very photos that the defendant did night posting the photographs whether he you know what he had to prove that he did push the photographs whether he admitted taking them was irrelevant you know everyone knew he had the photograph that was introduced at trial on his  officer which is the issue before us well he also did you how do you maintain that thoughts harmless are oh well there were two witnesses that testified at trial that he was there and i also disagree with the statement that there were witnesses that would in terms of that what the detective would take harrison said to him is basically he just wanted to lay out what he thought was the simplicity of the case and as i've stated the case was very simple he went into a bar i mean there's no testimony about this or very little because the defense cut off the questioning about the subject but the substance of the cases he went into a bar you said if you shows up to testify there's photos of a girl that's going to go public a response and i think that the defendant here agreed to listen and defend it when he decided to make involuntary statements but even if and a gain on hey views review the standard is did the state court decide the issue in a manner that was contrary to one objective lee and a reasonable  recommendation did not err finding that it was not objectively unreasonable began with regard to the harmless error or you know again the issue here was did the defendant communicate a threat designed to influence of the hips and the performance of his duty which appearing testified as a witness and he was a witness and again it's one thing when the defendant did that simply by going to the bar and communicating to the two witnesses the threat now for it not to be harmless error it would have to be substantial it would have to have a substantial impact and be substantially injurious and that is not the case here because his testimony was simply she miller to the two other witnesses juan that this is not just a little chatting session with the with the place also he's invoked his right i don't have to explain to you what we have what the purpose of that at that we know what everyone knows that the purpose of that is that get him to talk and as i read the law it is quite clear you can't do that not other circuits have done that so i think that's where your best case law is is arguing the uncertainty of the law but but as an original proposition which we don't have before us it's very difficult for me this judge to see that this is not a routine you target in technique and it's to use because it's affected this but you know so we do it the other way but that's not what they run to teach everything and you know he never admitted making the threat and making the threat was the critical part of that case what he did concede was that he was there which two witnesses already were testifying that he was there as substantial injurious when it was cumulative of what two people said you know that you know unless there's any other questions about the harmless error i think that you know again i i think you must pardon mr harrell you saved him for once there's been an invocation of the right to remain silent there can be no questioning yet we know that it harris harrison continued to question at least once and then continue to recites facts about the case michigan  must refrain from repeated efforts to wear down the suspects resistance lieutenant harrison missed that day at the academy and in rhode island versus ennis which has been adopted by this circuit the court has held that all words and acts intended to wear down the resistance and overwhelm that invocation must stop at the door once the right to to remain silent has been elected i submit your honour's that that is the objective law of this country and of this circuit and it's a louisiana misapplied it and misinterpreted it when they failed to to grant the motion to suppress failed to overturn the conviction and failed a great post conviction rel the i'm i understand the court's question i'm just not so sure i sense and understand the court's pause and it does the state of louisiana must be guided by louisiana law and then if it and of course the the wall of the supreme court of the united states this court is a persuasive authority that the louisiana supreme court can look at but it's not binding out of the easiest supreme court you or your interpretations are binding on three other states based on your interpretation of the u s supreme court case law i think the only thing that matters here is did you say the easy and issue an opinion that was materially contradictory to the u s supreme case u s supreme court case law if we need to understand what the case law means i think you need to look no further than your own decisions as a body on that issue i don't think you need to worry about the seventh or the eleventh of the ninth circuit's on this issue it's the fifth circuit and how you interpret the u s constitution which is going to dictate whether or not the easiest green court got it right or got it wrong when they handle this matter u with regards to the two witnesses much has been said about the two witnesses that place mr pope part in the bar i just want to emphasize that in a criminal trial witness testimony is not evidence unless and until it is believed and taken as evidence so i believe he suffered great harm i don't need these two witnesses they're not like a piece of forensic evidence that is or isn't there witnesses that could have been subject to the crucible cross examination and they may have been found wanting until of course mr poe parts incriminating