article his version says this and you got it from the transcription done by the i believe the state public defender at the time now whether or not it was of educated i think was brought up by the district court but at the pleading stage it didn't need to get in that should have i think another question what do you make of what was said after that or when he said when was a lawyer come here and they said that's up to you i would make of that that they were trying to continue to cajole him to speak to them instead of respecting his right to counsel remark to me that one can read that as saying you're not going to get a lawyer and i should talk to us right orbit and also that i've already asked that attorney when is he going to get here so i think that further supports is a no no i understand that part i'm asking about what was said next and by the oh yes when he says well that's up to you if you tell us your side of the story i certainly think that's a plausible reading as well is that they were continuing to look it's up to you if you talk to us sensually right well i think that thing at that state's position would have been that that was they were trying to tell him that he could call for a lawyer but i do agree that it's  more that they were trying to convince him that speaking to him was more to his benefit than having the lawyer come i think if all you had was that nd statement that's transcribed i think you would be out of luck to me that's quite ambiguous as to whether he was again in jones we aren't in the statement but i do think that he pled as pled which should have been what should have gotten into an evidentiary hearing there were two other unambiguous asked for counsel here and i also want to address briefly the fact that i don't i'm not position was not decided on its merits the state court for whatever reason said that they were dismissing on procedural grounds and the state waived that and waived any procedural challenges in the district court his statement about about the key question here is whether there was he didn't ask for a lawyer at the time of the rest outside the scole and that was never it wasn't because in our position there was no merits review here by the state court and where and novo review this is not a situation where the supreme court's precedent regarding voluntary and involuntary statements overall are over it reaches that of this court and in this court when there are multiple edwards violations like there were here that puts the burden on the state to establish that there was a voluntary waiver and that can't be done on this because there was no suppression motion it wouldn't have been able to be have raised on direct appeal because i think contemporaneous objection was never made we didn't we did not assert any of the procedural bars in the district court so really the procedural bars are off the table entirely because of our own mistake and forfeiture while most of them must change you want to do it that way as i understand it because you want to argue that it was decided on the merits well there's there's a couple of ways that you can look at it and if you look at what the so i was saying that this was just not in furnes it was a deliberate decision to take it as having been decided on the merits yet yes that i grieve ok i agree with that i don't necessarily agree with the tactic that the attorney who wrote i understand that there isn't this isn't a question of somebody forgot something that's correct it was tactical and that on that front now even assuming that there was a miranda violation this was a harmless error under brecht because there is no substantial or injurious effect upon the verdict because exact same factual struck i'm standing right and if it's if it's if if in a car see if you along the same kind of facts were presented and the defendant testified and and the same kind of facts were presented from the from the buttocks that he touched her vagina that he touched her down low that he that he touched her inappropriately the pretext phone call was completely admissible and so that if this or it's this idea that this confession only came in because of the police interview we have to basically confessions one to the mom in the pretext phone call and then one to the police now even if the police confession is excluded the confession to mom is entirely admissible and would have come in corroborating the victim's testimony about dispute that the st indication if it indeed happened i dispute that that has to be read in context with the nd indication later four hours later the st by itself would be sufficient to stop all question should be but there you remind me what i thought the case may be as opposed to the invocation of the right to silence the invocation the right to counsel was pretty much once that happens you don't get to wait for hours come out the guy again and see if you can get around at that time i thought you pretty much i think i might be missing i might be mixing the silence i think you're right i think that it would put on the side regardless regardless of where whether there was an invocation and even if there is an indication the still is harmless there's no substantial injuries  effect because you have the victim's testimony you have the pretext phone call which is perfectly admissible and then on top of that the defendant's own the fact that he has to face his only defense was i never touched her in light of that pretext all he had to testify he had to get up and he had to explain the statements that he made to mom in that pretext phone call me what exactly did he say in the pretext phone call that he touched her daughter she touched her buttocks i thought he said it was but it was accidental or something i thought it was far less daughter for that conduct he even said anything that your daughter has said i won't contest that i want to see that she's telling the truth so that that kind of testimony he would have that kind of those kinds of statements he would have to explain at trial and he did he testified at trial once he testifies the statements that he makes to the police post the miranda indication with the invocation for the right to counsel those would be admissible under new york harris and they were used by the prosecutor in that impeachment kind of way and so those statements would still come in and so even if there were a miranda violation and they can come in this impeachment the prosecutor used his state the prosecutor used the status of the police both in the case in chief and to impeach his testimony later when he's testifying didn't you say to the police x y and z and so it did he come in for that purpose as well under new york the harris york cases i just don't remember with what the cases say on this point do we assume that if the confession had properly been excluded from the case in chief that the defendant still would have testified in the same way that he did or i guess i thought the harmless error analysis we couldn't factor in because obviously if we take into account the fact that he testified it's going to come in anyway so i thought we had to just like pretend that well if they'd been able to get the confession out then presumably he would have not taken the stand right where if you brought a successful suppression motion to be resold worried about keeping the confession out of think the last thing you do is take the stand and have it come in anyway right i agree with that but the problem is that his confession to mom doesn't stay out i got infection in my house does come in and so then in order for his defense to really work he has to take the stand and because he did take the confession to the police even though it may have been violated of miranda is admissible and therefore there was no problem here and so there could be you know substantial injuries of what for what purposes admissible out and out of course statements used to impeach him that's correct and what about the telephone call that the use for the telephone call is a those are party put party admissions he's part of this part of this action these are technicians against interest under the state hearsay rules these these admissions of am i don't think i have anything more to say if this court has further questions i'm happy to address them of course but otherwise we would submit thank your hono the whole context of the phone call was very apologetic and apology is often considered just like a confession a very very impactful statement but also one that you know even in civil court sometimes isn't allowed in because they're so often made with an effort to placate the other party and they're not necessarily indicative of what's happening what was admissible so what did you do your opponent's characterization of what he says the phone call what he what mr khan is really saying on the phone call as i want to call your daughter a liar if you say this is what she said i'm not calling her a liar i usually run my daughter's back and i think one day i actually rub her back instead she said she didn't like it i won't do it anymore there's also a language barrier here so when you look at that transcript and you hear that phone call i think it's clear that i think on its own it would have left a good amount of doubt as to what he was trying to get across so i don't think it's true that he would have had to testify to counteract the phone call there are also numerous character witnesses and then  question the question of whether the phone call and a victim's testimony together are sufficient to overcome whatever prejudicial effect there was of the confession no i don't think there is and i think that's untrue because this was a confession that was was professionally extracted by the police using their particular interrogation tactics to get him to admit to each and every allegation they wanted to bring so no there's no discussion of insert there's no admittance to insertion or anything of that nature for example in the phone call as opposed to in the confession there's also the apology letter that they got him to write which is also extracted during the confession and entered into the record as evidence so if anything i think these confessions one confession