of like the lawyers to state their names to the record will probably give you each ten minutes for your argument and then five minutes rebuttal we don't usually watch the clock so things seem to be going well and we have more questions we will continue but that's usually the time frame that we use to notice court completely overlooked the first invocation of the right to counsel and then during the second one the trial court i can't the conclusion that well that was the closest thing that he had he had done to invoking his right to remain silent but that indication was under illinois law the christopher definitely spoke his right term in silence when he was asked by a detective are you done talking to me are you done talking to all of us so it's crystal clear he said yeah a one word answer under people vs brown is sufficient simply by talking at that point but not only are they just talking but they're aggressively attacking the right to remain silent and the right to an attorney by threatening christopher repeatedly in trying to induce him to made a statement after he's already indicated that he doesn't want to talk the this with this case and he asked for an attorney and that and i think at that point in this in this case now they know they have a suspect who is likely to ask what attorney has done so before so the very first thing that they did in the first thirty three minute portion of the understand the process i am arguing though that i mean that same fact goes both ways because the fact that he was able to in another environment exercise those rights and then in this time he tried three times for both his rights and was unsuccessful in doing so it shows you know what's different understanding as the officers are in the room they know what's there the closest to it they're close to the camera murray was the closest detected he knew christopher invoke the right herman silent that's exactly how he understood it and he ultimately said i can't force you to talk so then he went on to try to walk him through what would be involved in re initiating contact with the police when he told them but i'll be in periodic point if you want to talk to me i have no problem with that and then he says a few sentences later i really thought you were a guy makes i'm looking forward to talking here because i really thought you're going to do the right thing there's no case all that i'm aware of that allows a police officer after you can help your rights to try to persuade you that it's not doing the right thing here and got those rights so once the invocation happened they felt under those admitted at first that he was he was told that christopher refused to talk and then he tried to backpedal from that statement and said well it's not so much he refused it's that he wasn't telling us the truth and then the page later on the transcript bush admits well my questions were designed to infer why did you refuse to talk to us so he does i did do not want to talk equate with i want a lawyer i don't want to talk doesn't equate with i want to lawyer but when he's asked it to ten do you want a lawyer he says yeah that is certainly an indication of the right to counsel at that point and what he was asked it to offset you're done talking to me you're done talking to everyone and he says yeah that's a clear indication of say i want a lawyer and it will stop at no point in my reading this where he says no i don't want to talk to you i want a lawyer those two things will never stand together as far as i can read in the streets so the police officers you say no and to you're not knowing what happened or not being involved you're cutting your own throat you're spilling your own glad you're going to hang for this i mean these are force of statements it's akin to a threat of violence and you know we know under us versus rogers of threat of violence threatening the death penalty increases the likelihood of a false confession to the point where you can no longer trust this statement is actually accurate versus just saying what you think is necessary to try to avoid that this consequence so is there any room for persuasion or joined by police officers when they're interrogating people like that the law is for some amount of perception like an officer can tell someone you know we know so much about you even though they don't they can say someone said something about shooting but they didn't in general i would say there's a difference though if once the person votes their rights and then you're using deception it's talking about the rights themselves that then it belies the actual rights that's what state versus lock at the highest court of maryland's two thousand  right that part of it stop there and he done everything he should do in that situation but he went on to repeat being brought up in the earlier part where you know you're either here to help yourself or no one to help him he would all basically been saying this is your one chance for a reduction in sentence that's exact words that were used earlier the interrogation was if you ask for a lawyer this whole thing stops and there's no more chances for reduction in sentence because no essay is going to look at this and offer you a reduction down the line so that's why he's being so you know why he's he's trying to be careful not to step down question because he's believing that maybe yes maybe he should say something to the police but he wants to do so with a lawyer by them saying basically well you can't really about the right to a lawyer to have a presence here if that's never going to happen whether that's a true response or not that completely undermines the right to have an attorney present during  bright line for all cases if we look at just this case and where i would draw the line what was said to christopher in the very beginning those insinuations like you know there's certain things people do to lessen the low it's a difference between life and a term of years and all those things that are trying to  us versus rogers that's not on a case that's an eastern district of his constant case i believe two thousand and two they talk about it being on a continuum where such a slight amount like deception saying you know yeah we know all this about you but i really don't that's that's probably going to be fine on the other end once we get threats against you like you may get the death penalty or you may get a difference between a life sentence first term of years then you're then you're no longer letting somebody voluntarily various points if he ask a question like i don't understand why i can't have an attorney here i think i think it is appropriate for an officer at that point to say you know basically you can't you can't have a right to an attorney you know they could answer to that and try to stop it where the first started his response but he went on he went on and said but that never happened because this is what a lawyer is going to tell you so he's speaking for attorneys you know he's limiting the options that he's undermining the right to have an attorney because he's saying you know train the world's go attorney present during the questioning so that is a miranda right itself so he is in effect telling them you do not have the right to have an attorney craig questioning is that will never happen so that's that is it consistent with the right  he was given miranda in the car and he spoke to the officers in their correct right and he denied that he not he denied getting her into warnings but he admitted that he had a conversation with them in the car do we in fact on this analysis at all i think though that the way that factors into this is you have to look at the totality of what was on camera versus what was off and look at bush's response so so you have christopher testifying that you know they were asking the questions and then you have you have bush saying he was volunteering and we were telling him don't know don't talk yet wait till you get to everyone can talk to them you can tell them but of course when the cameras are rolling that's absolutely not the demeanor that you see christopher he's not willing he's not looking to tell his story to anybody at that point they're frustrated they're trying to coerce him because they're saying you know he's a bass playing i don't know he's giving these sort of answers he's not getting one substantive answer to anything that happened during the incident  testified that you know he gave him his miranda warnings when he took him down to be bev it makes no sense for press to give him miranda warnings in that context where he had heat the spot that he had invoked his right for mean silence at twelve fifty seven of bush came in he didn't give him whether bush screening reinitiate or whether he continued the interrogation of that point the fact that he had been coerced to this degree and they think failed to give him that safety mechanism that ran that allows the holder to swing for it if you don't tell us something anything that happened in  changes how we view the coercion in the room the pressure on christopher because that's the whole reason for scripturally other thing if we allow officers to steamroll over your rights and then you know ten minutes later if one  threats are then the generalized i mean it cannot be i would say with great caution should should anybody i set forth a law that says that the police can tell you that if you but if you ask her attorney this whole thing ends and you'll have no more so to do all these things and then to to look at and at what happened in the hallway and to divorce it from all those factors is inconsistent with the backlog of his past saying that in determining whether he voluntarily waived his miranda rights that's it without the other circumstances and that's everything that's on that video is taken into account is it just the video it's a tally of everything so right saying yes it's before it's going to video however i would say there is certainly enough all these threats on video is enough that detective himself understood it to be the right invoking the right to meet silent and then the second one what she missed was that i mean the legal conclusion she said well this is she said this is the closest thing that comes to an indication i wonder people versus brown  not there's a reasonable probability of a different outcome in this case you know this was certainly the star piece of evidence the video was played to then play to the jury to the jury during the trial repeatedly it was played in closing arguments in rebuttal all six or seven times it was then the jury sent a note during deliberations saying that they wanted first to set a transcript but then ultimately what they were allowed to watch during deliberations was the video itself so the video was the highlight of it you take this out and you have circumstantial evidence that certainly provides a reasonable probability for a different outcome in this case for these reasons we asked this court to reverse and we pretty well thank you thank you  only a slight movement on the tape even the trial judge she noticed it and she didn't miss this alleged in vocation what she said about that tape is true what she said  the officer is asking him does he want to talk does he want to keep talking yes or no he doesn't respond because he didn't respond vocally at that time and in fact the most that can be said about defendant at this point might he does that with this scenario that occurred at about two zero seven earlier at about one fifty seven it had a broken was interrogating defendant and defendant kept saying i didn't do nothing and nobody detective grogan asked him a couple of other puts his head in the door and asks defendant do you have to use the washroom defendant didn't even respond so detective grogan then says to the defendant are you done talking to me they don't talk him and that's when defend says yeah it wasn't about miranda silence it was just about being done talking at that time and there's multiple cases that recognize that even a straight forward answer about being done talking doesn't necessarily invoke miranda silen let me ask you the thing pressed and i asked her what is your definition of the term scrupulously ahmed is used in the context of this interrogation of this defendant where there is is that what you're asking for and the defendant said yeah at that point when he said yes i want to lawyer to to brogans question that's an invocation and what grogan did at that point was exactly what he was supposed to do he left the room and left defendant alone for forty minutes that's clear on the e r i tape defendant is sitting alone in that room it was only then after he was being brought down for booking procedures invocation of the rights according to the defendant to the effective when he signed the bill he would talk to them that's kept him that's not captured that's off camera and then when he's back on camera somehow that's not nolan detective maria nolan were the same detectives that had earlier had to find in custody in january defendant did not get along with those two men as he later explained to detective bush it thought they were looking at him like he was dirt he didn't want to talk to them he didn't like them he felt as if they were judging him so it's and not on usual or strange that defendant would reinitiate with detective bush the detective officer with whom he felt he had a week or so it makes sense that when he was brought down to booking with detective bush that he would say i've changed my mind i want to talk and frankly nothing circumstances we're not only looking at the video cracked right lead from the time he was picked up in somewhere in the suburbs to the time he was brought down so what time frame are we looking at here do we know how long he was in the car with police officers we know how long  was in the station before things ended some time at three o'clock in the morning no he made it to area one at a little after midnight about twelve twenty something is when the tape starts we know that he was brought mediately to the interview room from the car we know he was picked up in westmont and i believe he was at the west not police department when no one i see is me to talk to bush and the game at them up there so that timeframe i mean given the time of night and given the distance one could estimate that he was picked up sometime that night around eleven pm bracero won and interrogated reinitiated around three o'clock and then provided a confession at three thirty so it's not a lengthy detention and in fact there is no point where the defendants demeanor changes in response to these alleged coercive statements his demeanor throughout it was to say the least resigned and downcast but that's not because he was being badgered or coerced defense counsel tries to say that oh he invoked in january so therefore we would expect that he invokes here that it was complete with the videotape the videotape doesn't show any miranda at this exact point the videotape shows miranda later on and that's absolutely in full the miranda the defendant challenges is the one that comes early i that since defendant knew how to involved and it's assumed that he should have invoked this time there was a bass distinction between january and december and it was the amount of evidence that the police had against the defendant and in fact the police overwhelming bit it would've made a difference whether he confessed or not absolutely and the reason i can say this and that even the closing arguments figure this out because the confession wasn't even discussed by the state's attorneys until the last part of their actually ask for the fashion the jury was confused about an instruction to talk about a transcript the jury never had received a transcript so the judge and the parties understood that question to be the jury's confusion so what they did was they invited just the the video against him which was consistent with what had occurred during the offense he could have only learned that by somebody who was at the defense which was defending with the theft by who would write regain his his testimony at trial and the jury did not believe that we can't isha that recantation was to put it mildly somewhat ridiculous and in the context of not having a confession  that would make no difference we have and in addition to that we have an eyewitness to the offense who was also there during the offense and part of it so his testimony the part of the preclude the criminal element of right and the fact that he is putting himself at the crime at the same time lends credence to his accounts of the crime the fact that he's putting himself there as part of the individual who was burning the car after there was a gunshot here we know he was at the scene because he was seen leaving the very park at the moment that the fire and the smoke was seen by a completely disinterested witness coworkers who saw the victim with emo and at the time that the victim was with emo defendants phone was calling the victim's phone we have the victim leaving to engage in the strug deal and then we have david p s account of how defendant and emo koza law together had gone up to the victim and while the defendant was getting something from the glove box right that's that's what we're say but again that is our last alternative argument justice to him our argument is that there was no in vocation here that that confession was properly admitted that there was no promise of leniency there was no coercion in this case the defendant's counsel makes a lot of remarks and paraphrasing of the detectives claiming they said certain things about what if you would deal and so on that that doesn't appear in the transcript paraphrasing and when he complains about the detective saying to the defendant you're going to swing you're going to stick a needle in your on your cut your throat those are idioms they were not meant literally there was no reference to capital punishment here know that your honor that's what i'm saying it was an idiom and fact the context of that statement detective grogan was telling the fund if you want to give your account if you're not the shooter what you have to do is you have to tell us because all we have now is an account from the other witnesses as you suggest you know there'd be some deference if you didn't give that confession was that appropriate that there is actually nothing in the red in the transcript that shows that they were going to do something for him there was no precise promise of lenient see or or anything of that sort and in fact defense counsel i believe just as calm as you asked him is there a case that says offering leniency is improper and i would submit that a decision by justice cunningham people versus lee in two thousand and twelve says that if if there's go be a complaint about a promise of leniency it's only improper if there's a specific promise it has to be specific i'm going to give you x y z in exchange for your confession that didn't happen here so promises of leniency are not  defendant with everything that they had against him they told him you're not going anywhere we've got you for this murder we have evidence from other witnesses that you're the shooter that you are the stone cold gang banging  and if you want us to believe that by all means don't tell us otherwise but if you want to mitigate it if you want to tell us that this is not true you have to tell us this we can't get that information from anybody but you there's nothing inherently coercive about that that's what police officers do these police officers continue to tell the defendant that they weren't there to help them that they only wanted the truth out of him and that only he could provide it but they reminded him that if you wanted an attorney you could get one and that's why the police officer detective grogan left the room when the defendant requested a police officer so rather than nullifying miranda or the circumstances in this case show the circuit court judge was absolutely correct in finding that there was no miranda violation here that statement was not coerced but that defendant provided this confession of his own free will and it was fully voluntary and or no he understood but christopher was doing and moments later said i can't force you to talk if you don't want to talk and he failed honor his rights that you know bush all but acknowledge that yes he was informed that christopher had had invoked the right to its own refused to talk so what we have on camera the state saying that this is a credibility contest i would suggest that what we have on the video is a lot of evidence that goes to the credibility of the particular but all the detectives the fact that bush would knowing being told he just invoked his right to remain silent and then come in and then start asking him what just happened man and start going into the case why would you talk to these guys this is your one opportunity to rewrite the script those sort of things again they undermine bush's credibility and irrespective of what happened outside of the videotape what's on the videotape shows threats being made about the death penalty they show up promises of leniency and even though some promises of leniency have not amounted to reversible error they are certainly factors to be considered whether or not the actual confession was voluntary and whether a miranda waiver was voluntary so we can't ignore them and in the concert of all these