thank you i'd like to reserve three minutes for i call this the case of the missing facts because the record shows that the district court neither cited nor considered fifteen the twenty critical pretty facts that demonstrate that mr babies alleged confession to his psychiatrist was involuntary the state does not disagree that the just a court did not consider these facts the state's position is that the privileged and confidential he testified under the court's questioning that the question of the conversation was confidential both joining a group and it was confidential after the group was beginning to disperse what i wanted to ask you about actually it was i think around s c r three ninety five where the court is quoting from the agreement and then says it is possible to interpret it as covering post session statements dr o'connor then a few pages later the court seems to say that in looking at the surrounding circumstances it would not have been reasonable to believe that these blurted out statements w section then begins with coercion and she concludes that the promise although it may have been covered it was not a horse of promise so i'm not too sure on it but to the extent that the district court is group therapy session that finding is clearly erroneous based upon several significant facts include when i just mentioned that dr o'connor himself felt that the conversation was confidential that is coupled with dr potts  we have this twist here that the real question is how far this session extends and do you agree that that's the standard at least for part of what we have to decide is whether he reasonably you know what is the scope of the promise and if he reasonably rely on it i do agree that strongly so let's just start with that the last kind of divides things up in terms of what is the scope of the promise the judge seemed to make a global finding that combined that and the second factor which is he could have reasonably believed that his promises extended to the conversation with dr o'connor so would you agree that he seems to combine the extent of the promise and his reasonable  babies perspective which is what precisely the court i mean they don't just questions of you saying that yes the promise didn't cover history then so if that's the finding and it does cover the first part then have the third part and that is whether his will was overcome as a result of having this agreement or promise so my question then is the finding which you label as contradictory which then seems to suggest that this chapter is outside of the promise is that a conversation predicated on the third factor i mean is that a finding predicated on the third factor or is that just  a separate independent loose finding that we have in the record that doesn't attach itself to a factor i am i'm not sure you wanted to me there are two issues one is to the and i'm not sure from answering your own actions on that one i guess the question is from whose perspective or what's the legal benchmark for that third element because if you are correct that the district court's finding that there was subjective reasonable unless in his perception that it was within this penumbra of confidentiality it still has to be it will have to be overcome so is that will overcome a general reasonable person standard or what is the benchmark i do believe it's a reasonable person standard and as though it is a legal issue and to be reviewed they novo even if it were a factual issue even if the co determines a factual issue there are probably ten facts that are critical to that issue which are not cited by the district court at all the number one fact being that dr o'connor admitted at the hearing that he was having a conversation with m about christie for an off and from that conversation he learned that christie for the most to be viewed christie for an off as young balance each you little girl he testified that that conversation took place in the context of the group that somebody else and things were breaking up and then he just blurted this out that it came out of the blue that it shocked dr o'connor that he didn't notice it in any way so why aren't those findings supported by the record they are he wanted to discuss this because the group discussion awoke something in mr debating that he had a need to resolve that day which is consistent with all the cases that address the core hearst's of promise the district court relied upon mr b c cross examination testimony that no nobody forced me to go up i could have gone back but that is never the issue in a curse of promise case for example in the walton case the  called the police officer and they sat on a park bench and then during that period of time the police off so you're always free to go but he did make a promise to the defendant that anything you say will be off the cuff and protected so and that in  question was to build himself joining the group dr o'connor encouraged the group to attack miss the baby's character in committing what he was alleged to have committed doctoral kind of had a continuing conversation with mr bailey about mr b s alleged interest and young women in addition dr we had expert testimony showing that mr bailey has an organic brain injury which would make him more and the reasonable standard person has to be the shoes which would make him more susceptible to the need to turn to the group leader for comfort dr o'connor had first initiated his communications and relationship with mr b by intervening when people felt when he was distraught about how people were viewing him he testified that he expected miss debated to turn to him in the future if he was distraught about the way people were viewing him they just had a group session which mr bailey is being attacked for having committed this act dr car think of as in a voluntary confession of i feel very bad about what happened i want to tell you i did this instead mr b was making statements that responded to the group attack so it's all in conjunction with one another and during the course high profile defendants not to talk about their crimes or the charges in group therapy wait until afterward in speak to the psychiatry is directly and that's what mr levy was doing he followed the prescriptions potts let me just go back on the issue of compulsion to me that's puzzling in the context of this case so let's say that we had just a normal group session and everything went just like it did here but at the end of the session while everybody was in the room and in the circle mr beattie said exactly what he later told the doctor in that context would we even be asking or analyzing the issue of compulsion i suppose we would your honor because he's promised confidentiality he's relying upon that promise the question is the promise co inmates are not state actors they're just co patients so i guess i'm wondering if this case is unlike any of the other cases that we've looked at i think it's a stronger those other cases in which the promise of self was deemed call herself did not involve any psychiatric care it was a police officer and we say that jacob's case number applied brief which refers to a police officer talking to an informant and in both of those instances those circuit courts determined that the the process itself was called person because of the the history of the friendship between them and this case we have a psychiatry who ha which dr park states creates a powerful relationship of the parents he has repeatedly intervened to protect mr b when mr bailey has been distraught about the way people view him whether it was his family or prison guards or now the group so all those which demonstrates that he understood it was confidential in fact at the hearing he chose to fight unabashedly that he deemed it confidential that he was not going to reveal the confidence because he was confident that mr betting would be convicted and when mr biddies first trial resulted in a hung jury he stated i think i'm quoting directly wow i need to do something at which time he testified that he chose to go to the prosecutor and he was trying to say it's confidential but i need to reveal it in reality he need to reveal it and he states this because he wanted miss to be convicted in that instance he went from being a psychiatrist to a prosecutor using words that matter if the other standard isn't met in other words i'm not sure what the relevance of his state of mind is whether it's protecting the public or not i mean the tarasoff re to protecting the public and future potential victims and that's why i have to come forward but if he's being noble or not noble what effect would that have on our analysis one of the points of the just quote made was it was not dr o'connor's intent to obtain a confession but the cases we've cited still the smith robinson d f all stand for the proposition that it doesn't matter what the person's intent was at the time what matters is when that statement switches from something therapeutic to in a couple toys to me being used by the prosecution that's when the fifth amendment comes into play so when dr o'connor's asking mr beatty about christie for an office  therapeutic that may not be a violation by itself it's when he then changes his role to become a psychiatrist not examiner of someone's dangerousness of their mental state but whe become a where he's going to testify as a witness for the prosecution purposefully that's when the fifth amendment is implicated and that's when the confession becomes involuntary so the focus isn't on the intent although the intention is important because if they intended to get the confession obviously we know it's a statement that reasonably could have been understood by the press the government to elicit a confession and that's why i bring that up it's those three cases may please the court i'm john todd i represent the respondents in this matter the state of arizona the court is that absolutely correct that the focus of the voluntary issue is the whether there was state compulsion and whether that compulsion over poor defendants will hear the district court was correct and the records think that the it is a factual question whether or not there was state compulsions there was correlation like that's clearly a factual question i think the cases that i cited say that  case in with some of the others that we have because there you have direct questioning you know they are most of them are really in distinction in terms of the circumstances do you do you view the promise here whatever its scope may be as being an element of coersion i do not i think that the that most this to the whatever confidentiality this promise whatever extent that was nothing but but for in other words which is not the causation test for voluntary knows you know perhaps he wouldn't of talk to doctor o'connor but for the fact that he thought of his conversation might be confidential but that wasn't what compelled him to talk to dr o'connor it's clear from this record from his very own testimony that after the group meeting where the other inmates dumped on him accused him of being cold blooded and according to the dog testimony emitted that he decided he decided to go and talk to dr o'connor about what are her record shows that there were other people waiting to talk to  on as a result of the nature of the crime and the circumstances of him same thing happens and he wants to say it's not that bad or didn't happen that way and he blurts out in the group exactly what he told dr khan o'connor afterwards in your view would he be protected by the promise that nothing in that set in the group would go beyond the group the focus is on what compelled that statement if what compelled the statement was his belief that he could say this in the way would say things beyond the group then sure courtroom but then we can go back and say look we're in a confidential conversation so then i tell you something because we're having a coffee it's the knowledge of the bounds of our contract is that why we're having a confidential conversation so if we go into your analysis absent affirmative state action the confidential ality agreement is kind of not worth the paper it's printed on is that i'm  says well you know because this is a confidential group i feel free to unburden myself for therapeutic purposes and i'm going to tell you that i committed this crime and i didn't really mean to do it and so forth is it your was prompted by the confidentiality and therefore not admissible if it's within the group i know that's not our situation right i think it depends on the fact that this was a promise to be confidential because the supreme court has told us that but four is not the test for voluntary and thus if if it's simply b for that there's not compulsion you have to the state has to extract the confession why isn't it doing that in my example by having people sign a confidentiality agreement which  into thinking that if they just want to talk freely they can and it won't go outside the group if if the dr o'connor had gone to mr  nationality his his his testimony which the district court did not credit and it was in this was that he needed decision after the group to ever ever born by anything i mean you have to have you have to have the compulsion and you have to have it to such a degree that it over borders the person's will what was judge finding with respect to compulsion to make the statement i believe her finding was that it was because of what occurred by these other inmates in the group to the district court was that the critical question before us is whether betty reasonably believed that his statements were protected by the state's confidentiality agreement the factual record is not adequately developed for us to assess the his statements would be protected by the confidentiality agreement so it seems to me that with respect to what i thought the scope of the reason and was the district court  answered that question in the affirmative with respect to mr beattie i mean that's so weird what do we do then with that finding well she i think she found that it was not that was not what compelled him to testify or i want to go back to something that i asked opposing counsel and i think relates to just make us most recent question and that is to your three ninety five after quoting the contract the church in her opinion petitioner could reasonably have concluded that the promise of confidentiality applied to what happened within the group as well as his conversation with dr o'connor at an abstract question how could a person understand this contract and the second half is ok notwithstanding that that's not what happened here but i'm not sure of that how to go things fit together my understanding is but you said that generally speaking the it would not be unreasonable to have even though there's other people out there waiting to talk your doctor o'connor that his statements would be that he would perceive that his statements were covered however in light of what he claimed he said that he  he didn't want them covered that his position was that he wanted doctoral connor to go back to the group and say don't you know stop this behavior so forth court's findings unless you have a firm conviction that they are clearly erroneous this case has been in the courts twenty three years more precisely is this we asked the district court to determine a specific question with respect to the reasonableness of mr biddies belief the district court starts out the decision in  restating that question and then goes on to say you know that it would be reasonable if although we have to credit all findings absent clear air if a crucial finding which i think the scope of the agreement and his subjective belief is a crucial finding if that finding appears to be at odds with some way or other findings i guess my precise question is even under the clear air standard which i appreciate is our very deferential view what we do we l your honor i think that the district court after hearing all the evidence decided that the the extent of mr beatty's reasonable belief as to his conversation being confidential with dr o'connor was not the critical element in resolving the the issue on which you remained in the case and that was whether or not his statements were voluntary group the i think there's a lot more information that was developed during the course of it evidence rehearing that this court didn't have the benefit of at the time and i don't know if i've answered your question i this this case has been going on twenty three years with mr todd on one issue they didn't even brief the first issue of the scope of the of the contract apparently assuming that the district court ruled that the contract that apply i have common ground with them on that point  what mr todd states or what the state is claiming is the issue of compulsion came down to the district court on what took place in that group and how dr carney had nothing to do with it but that is clearly erroneous because we have undisputed fact o'connell played a role in the group asked mr beatty about christie for an off any agreed that he encouraged the group attack on mr bailey with respect to his character so that's why the second issue of compulsion is clearly erroneous the issue of compulsion itself i agree as a legal standard well that point assuming for the sake of argument that it wasn't five or ten minutes afterward but the next day he happens to run into him in the prison yard and he makes the same r in part in first i'd say dr garcia's testimony that sometimes and thirty you have these discussions that are very professional going on in the person may not respond until the next day or so when they see that psychologist and they thought about the issue in addition your honor  the group discussion took place and the contract does not say there's a quota of how many group members have to be there or that there's a timeframe when the confidentiality provision suddenly stops so it's just one last question if your compulsion argument predicated on anything other than the agreement and the conduct of dr o'connor is referenced yes and also the fact that he has an ongoing brain injury that would make him more susceptible to seeking the relief that he got from and the doctor kokoda nurtured this relationship where he wanted mr bailey to turn to him throughout his incarceration including the time when dr o'connor was at the main jail and mr brady was at durango and just doing knowing and he also went to mr beatty outside the group to discuss these matters as you please or thank you counsel the your time has expired the case just argued will be submitted for decision and the  adjourn with respect to the students the panel is going to have a conference for a little while and as soon as we're done we'll come out and have an informal conference with you with respect to the court and its in its work thank you