it's important to know is that appellate review was especially important on the issue of voluntariness because the way it presents itself it's always almost always attached to the issue of them or a potential miranda violation and therefore it's set up the way i see it as as something of a compromise issue when you find it difficult fact pattern in terms of improper police conduct you often see when you read these  cases if the court will go ahead and make the finding of a miranda violation that the dynamics kind of change at that point the defense lawyer seems to be happy the prosecutor seems to be unhappy in the court seems to exhale and there's kind of an instinct for mediation perhaps see typically the court will simply say oh and regarding the volunteer in this issue i'm going to find that the statement was voluntary and that seems to be how the issue often is or arises so we think that the issue by itself  of sets itself up for the back side of the negative side of a compromise the second point that i'd like to to emphasize is the reason for the rule that we exclude the evidence for all purposes when we are determining voluntariness is because  likelihood that these statements are unreliable we often find a person that is subjective vulnerable to coercion that goes ahead after a certain amount of time and pressure from the police and we'll go ahead and say what the officer wants to hear in order to stop the interrogation and so what ends up happening is that the trial court often thinks that if he or she makes a ruling on volunteer in this that it will somehow encourage the defendant to commit perjury at trial but it's quite the opposite what happens is that a person who's made an unreliable and perhaps untruthful statement initially will be prevented from testifying for fear of being impeached with a false statement and while that in yemen might further the chances of conviction not further the truth finding process itself and so i just wanted to make those points regarding the times it was are we concluded by the any terrorist act this court we're going to and i can address it now certainly your honor the way i understand the a p a and it's a difficult statute for those of us that don't practice regularly in the federal courts it's often mis characterized as as a standard of review option when in fact what i think it is fairly characterized as whether or not it's an obstacle to prevent relief which is the way i've characterized it initially we go ahead and and see whether there's a violation in cases where there are factual dispute the fact that it was the statement was involuntary so we don't have to worry quite so much about the deference portion of it and we're limited to asking ourselves whether or not under twenty to fifty four d won the state courts application own free choice or whether they were somehow functionally improper coaxing on the part of the police in other circumstances the supreme court tells us they give us they tell us in in looking at the issue were to look to determine first whether or not the suspect was particularly vulnerable to this kind of coercion and secondly whether or not the circumstances and police conduct were such that they might over bear a reluctant persons free will the courts give person who uses that is an important factor she was young she was not experienced in matters of the police she had severe psychiatric disorders she was physically injured at the time of the statements both by virtue of having been in a serious car crash and also having been literally chewed out three or four portions of her body by the police dogs we would suggest it's our position certainly that she would be something of a poster child for  someone who would be vulnerable to coercion and then we ask the second part of it and that is were there any other circumstances or regarding the details of the interrogation or were there things that the police did that were improper to further the analysis regarding an additional circumstance of the interrogation it would be that it took place in the middle of the night that she then after twenty four hours at the time this is a recognized factor regarding the police conduct in the situation we would point to the fact that there were liberties taken from the officers regarding the miranda requirements the police told her while she was at the hospital that that medical treatment was going to be withheld until after the statement  the police did not notify her parents as they were required to do by law the legislature in california has decided that that's such an important fact that they will criminalize the absence of that telephone call by the police when you tell so we believe that this is a strong case and again perhaps i should have mentioned this initially the initial query as to whether or not she was willing to talk to incorporate all the factors regarding her vulnerability and the things that the police did we also need to look at them in terms of the fact that this is a person who about three dozen times informed the police that she could not and did not wish to speak about this and i'd like to just one quote i think is particularly telling on this point  suggesting that the victim was perhaps a live in the hospital he then changed and said she's dead and this is your chance to help yourself i'm sorry to say it to you that way but you don't want to say anything about anything and it's really important to bill yourself  out right now so this is the detective is telling her during the course of the interrogation he's frustrated by her not wanting to say anything you don't want to say anything about anything and i believe that that's important so we think that this is a situation where there's an aggravated case of a violation and heading to the analysis i've heard of for two different ways if you refer to us at the again the the important question is  whether in this case it's not a question of contrary to and counsels discussed in the district court incorporated if the analysis is quite a bit about the difference regarding factual findings and so forth but i think that we can pretty clearly look at this issue in terms of whether or not there was an unreasonable application the supreme court already the courts tell us that there's a few circumstances and things that we can look at in determining whether or not the state courts were unreasonable  look to see first of all whether or not the state court ignored some important factors in making its decision look to determine whether or not the court incorporated false facts in making its rendering its conclusion or you can look to determine whether or not the court used irrelevant path in those circumstances the application of the state court the supreme court authority would be unreasonable in this case it that it's a little bit of a hybrid issue and it's certainly not an exclusive list but we've got a situation where the court the state court as it had to acknowledge all these improper factors but then curiously reached a conclusion which seem to ignore them the court said in its opinion we understand statement involuntary in fact in the court's opinion at age twenty i believe it was the court referred to the fact that she was old enough to have been able to assert her right to counsel which later of course said that the statements that she made were not an indication of counsel but the court was using it at that point to say that she was the youth by itself was not determinative and the court said well yes she was inexperienced but we don't find that to be controlling here and he said yes she certainly had these psychiatric disorders that's that's clear but counsel hasn't pointed us to a case in which such psychiatric disorders will render the confession involuntary and it went on the same thing with the injuries that said yes of course she was bleeding and she was in pain but not the kind of pain that would render it involuntary and yes it was in the middle of the night and yes she was yawning she'd been up for twenty four hours but we don't think that she's demonstrated didn't look to us like she was actually falling asleep at the time and yes the police didn't call him either and y police did these things but you know what those things don't require they don't equate to a finding of involuntary in this and we would suggest to this court that essentially what the court did in that case was to say it would be looking at if you're to look at this in terms of the tot circumstances and it would be as if the court had a bowl of soup in front of it and the question was to determine whether or not that was vegetables and the court said well he plucked out a carrot and said this is clearly a carrot but we're finding that a car applicable here and at the end of the day the court reached the decision that what was in front of it while all these ingredients were certainly there that what was in front of it was something other than vegetable soup where the council hadn't presented cases showing that a carrot equals vegetable soup or something and this goes to the e p a i don't believe that it's necessary to do so in light of the fact that the analysis in misapplying the nine factors of coercion were so clearly demonstrated but i just wanted to touch upon the first was  years the trial court found that she did not that the police did not and we would point to the fact that they initially suggested that the victim was alive and then of course she was not that was a  situation where we think that the evidence rebuts that the other fact that they referred to was the fact that she seemed coherent at the time and i think that's a very dangerous and i just like to address that it was also the it was the only it on herself right and i think that gets to yes and that came i believe from the either from the detectives or from the young girl's she also made statements and i think that gets to the issue of prejudice  the the woman's car as well and that was the car that crashed into the bank building thirty before i go on there's just one more legal conclusion on the part of the court that again i don't think it's necessary to resolve the issue but i think it gives you reverse this for a second time i don't know when i put that out there for what it's worth but we had suggested in our briefing that these repeated comments on the part of the police that this is the time to help yourself right now you can help yourself if you talk to us that really promising anything all they were doing was suggesting to the suspect that if you tell the truth it might make you feel better or something along those lines that that's not legally that doesn't constitute a promise of leniency we would just  the extent that the court relied on that line of cases that it was incorrect and i'll just read one out of pages of these detective graham police said to her you're you're in this is that page eighty four of the excerpts and you're in big trouble and yeah you're in such big trouble that this is the only time that you can help yourself because if you don't tell me you know what the situation is or what happened over there you're in big trouble i would suggest that this is more than someone suggesting that if you tell the truth it's likely to make you feel better that this was a suggestion much like an colossal versus a stealth that you will be harmed if you don't talk to us and you can receive a benefit if you do talk to us now the final question assuming that we make we can get to the  point that the court has unreasonably applied on the state court level still have to address prejudice under the a t p i would have to determine whether or not the state can show that the injury was not substantial in it and  difficult this is a difficult defense to try and convey to a jury that this person could not form the intent to commit robbery or to commit murder because she was psychologically dependent on this evil boyfriend this was something she needed this was certainly the case and the case can strongly be made in six circumstances but it's difficult to for jurors i should imagine not to think that two people that went and did these things didn't have these independent thoughts and because she was so horribly mistreated throughout her life and this treated by this boy in particular who was older and up that guy it was important for her for the jury to listen to her and to form its opinion as to whether or not she was  allowed to introduce through the psychiatry just that she had made the claim to the police that she had intended to commit the robbery which was made after dozens of denials on this point and it was extremely and inflammatory so it was difficult it was very prejudicial also they got the tag along with the gratuitous comment regarding either thought good to kill somebody but the state will say that because she made these statements to the young girls that and this torture began i think hurt your career ok i've just like to complete my point about the juvenile witnesses because i think it's important and i think it's the only thing that the state in the juvenile hall and so forth and that this is not a person this is sara lee who was what the doctor had suggested that she might be keep in mind that during under cross examination these witnesses admitted that essentially embellished this testimony that when they talked to the police initially they had said you know first we thought that she was bragging about what she was doing but then we realized that there was something much deeper that this had to do with her love for and fear of her boyfriend and  complicated relationship these were girls who approached her they had knowledge of the incident they were pressing her for details she was and i can't tell you what psychological state she was in but the others suggest that she was in a in a heightened state of psychosis at the time of this which lasted several days and she was saying remarkable things delusional things talking about blood being all over her sweater and this and that when it wasn't the case she was in this heightened  state so we believe that because the girls embellish their testimony that was shown to be the case and that that's will not render the agreed just air regarding the court's ruling to be lie like you focus on that one particular as your honor i don't think it's taken as literally as it seems i think the trial court found that the police did not lie in a way that had been sanctioned in other cases or u s supreme court that was not sanctioned in prior cases in the court took into consideration the statements but also all the factors that the petitioner had alluded to in making its conclusion that under the psychosis took over that that was considered as lawyer on her and her responses to the police questioning was were found to be awful incoherent there were times where she claimed that she couldn't remember but then later  gave very detailed responses to police questioning the statement about her being in the ozone that was in response actually to her statement that it was starting to sink in that she first as she was in trouble and then later said that it was starting to sink in that she had committed the murder and that's what that seemed lou to not to be entire her entire geneve demeanor and in what occurred in taylor versus maddox there was a denial of involvement for two and a half hours before a final confession here there was no initial denial of involvement in fact bar cheers stated that she was in trouble and then continued with her story also trial court found that she didn't have below normal intelligence or maturity level and she did show some level sophistications the injuries her mother had a prior record and contacted the police she did not him so for i'm not hearing anything that you're saying that would not make taylor applicable i mean you're saying she's fourteen but she's not an unusually immature constitute involuntary and what i'm trying to find out from you is in what way are the circumstances here not greater than the more do not tend more toward the circumstances again i believe it's a tally of the circumstances your honor if if if you look at what occurred again with the injuries in the mental disorders she didn't appear to be in pain she was not during the interviews she did not request medical attention at the hospital regarding the dog bite wounds she mentioned they were gross when they said they'd give her granny she said ok in fact right before she was caught when the car crashed she was able to jump out of the car run away from the police for some distance and dr malloy on his cross examination admitted in her mental state and behavior was consistent with someone who understood the nature her speech was normal there was no indication of any effect on her ability to answer the questions the blood test was negative on the presence of any drugs or alcohol  little difficulty staying awake during the interviews the only difficulty she may have had was waiting for victor she's gone one or two times the interviews were late at night but they were close in time to the murders regarding the pre i ask you to stop there in particular the officer statements that this is the only time you can help yourself and it's only your bacon you're saving right now it's nobody else's isn't that suggesting that you'd better talk if you want to make it easier on yourself it's not directly talk and will let you off but they're listening to some degree of inducement there that it's going to be better for you if you talk in a context where the intent to rob comes out to be the critical issue that seems to say and so on some level put your head into the noose by telling us that you intended to rob this lady and i think your honor the context too was we've talked to the others she come into the house with them to give them yes your honor that that may be a question but she was also liable for first degree murder maybe as a direct perpetrator as an aider and abettor there were well both physical evidence was clear that she had committed homicide but the piece that turns out to be critical is the intent to rob and i think we still have the problem the distinction that was just raised that she participated in taking something but what evidence what other evidence other than the juvenile hall statements what other evidence is there that she entered with the intent to rob and i don't think the house she's groaning and he says the doctor will come and fix that also i'm going to on page eighty nine of the excerpts that says you're a little bit upset right now i can understand why i'm going to let you go for a while unless marc that's the other detective has something to talk to you about and i want to get the doctor in here to treat your injuries and i'll talk to you a little bit later ok so he's suggesting that it was important that the recognize these injuries were worsening which the evidence shows it's probably not the clear the strongest factor we have that this was a case where this girl had been chewed up her she was bleeding severely the officer knew about it and did nothing about it and told her interview right one was five pages in the interrogation transcript in front of the other and it was the better for our purposes recognizing she's groaning he says you know what i need to know why you went over there and we'll get the doctor in here to take care that he didn't sit there and overtly tell her i'm not going to bring treat your injuries until the doctor comes but nevertheless i think that's an inference from the record again and we think you're and we believe that this is a more gracious case than the facts