the third and fourth assignments a very dealing with a grand jury testimony on april fifteenth two thousand and eight zero one am james branson was charged with capital murder within ten minutes of that the prosecutor and the lead detective had obtained a warrant for his arrest within an hour james branson appeared in front of the grand jury to give testimony at no point in time was he ever advised that he had been charged with capital murder chief judge so argus found the state's actions in this case deeply concerning we believe the law suggests that the sixth amendment right to counsel in order to waive in order to waive the right to counsel under moran versus bird mine there must be full of full awareness of the nature of the right abandon and the consequence of the decision to abandon it in this particular case there could be no full awareness of the right get being given up because of a given number for miranda warning was he was given it wasn't the exact marine it was sort of the prosecutor ad libbing but yes he was good he was told that he had the right to remain silent told that he had the right to counsel and counsel may potentially the court may give you counsel if you can afford couch i know the respondent talks about in the district talks about well he had been there before so you know how does he not know what's going on why i think interesting enough what happened before actually supports our argument because in two thousand he was indicted and that indictment was then dismissed in two thousand and one in two thousand and two he was brought to the grand jury under the theory that he was a witness he was helping the prosecutor out that's that's the way it was styled and after he testified in two thousand and two he wasn't taken away in handcuffs like he was in two thousand and eight two thousand and three further help he comes and meets with the police was he arrested after that absolutely not so when he comes in two thousand and eight he has every right to believe from past history that he's not going to go away and change that he's not indicted and had he been advised of that he most certainly would have exercised his right to counsel and certainly no attorney worth their weight would have allowed him to walk into a grand jury and give testimony when he had been capitally indicted now the prosecution used the two thousand and two and two thousand and eight grand jury testimony at length in this case in fact the last thing the prosecutor said in closing rebuttal closing is make mr branson accountable for his words and gave the grand jurors or gave the jury in the trial mister grand jury testimony from two thousand and two and two thousand and eight asked him to compare it and look at the inconsistency to prove that he was guilty we've raised this issue both as a sixth amendment issue as well as a abuse of the grand jury process  failing to tell the defendant that he was already been charged and we cited the dos case and also main versus mo i think they both support the arguments in this court very clearly indicated that the prosecution is not permitted to use the grand jury as a discovery instrument and to do so would pervert its constitutional and historic function and this court in dos also criticized the prosecution for u sing the grand jury to question a defendant secretly without counsel and without being informed of the nature of the cause of the accusation against him i think both of those and then  it was very clear when they used a confidential informant when the person had been charged that it was the knowing exploitation of an opportunity to confront the accused without counsel being present was the breach of the the problem  situation for us to say this is this is what the federal law was articulated by the supreme court and so that's the problem that i am bad difficult i understand i understand that and i understand where judge starr just came from and unfortunately in patterson in footnote eight the u s supreme court said we're not going to pass on whether you have to tell i'm when he's when he's been charged paterson is not even this common cnts knowledge that there's something we're all with that letting somebody proceed as a witness before the grand jury without it vatsim them that they're under indictment and  we're just not lipped with much else other than some suggestions nothing that really gives us the answer that i mean that's the problem with your case is this i can  jury even though it was not the context in which you know one would think of his being he didn't they asked for a lawyer and i don't know the can be said to have knowingly waived his right to a lawyer when he didn't really have an appreciation of the fool picture but i mean it's just it's just really problematic in it it's troubling but is whether we can get to sources but i think in dos you sort of indicated that men do want to know implies that there is this there could be a fact pattern where the abuse is so great that it does violate the six amendment right to counsel and that's what i'm asking that in brown i think do support our arguments i mean he was charged with a capital crime on eight eight zero one am if they didn't bring him into the grand jury he would have gone in front of a judge probably that day who would have appointed counsel how fair is it then instead of going to arraignment let's go to grand jury let let's get all this information we need to convict you then we'll give you your lawyer that and it's more disturbing here we have case after case on the fifth amendment where the police are allowed to do various things here when it's an officer of the court doing it it just makes it so much worse and i just don't see how we can allow the government to do that to it's just a complete misuse of the grand jury in violation of the sixth amendment right to counsel and i think that's that's where the problem is and i do think the cases like se the defendant has to have a full nowhere full awareness of the nature and right of band in and in when you don't tell the person that you've gone from being a witness helping us out just providing some time up some loose sense to you know what it doesn't really matter what you tell us here because we've just charged you with capital murder that differentiates that's why i think there are plenty of cases and i don't even think respondent would disagree that it has to be a knowing and intelligent waiver of the right to counsel so i think we're judged was wrong is where he found her you know it's deeply concerning but i can't go that extra step because we just don't have the law i think you do have the law i think the law does say let's evaluate under the totality of the circumstances whether this waiver was knowing and intelligent and if it's a mistake the state court said that it was that because he was given his miranda warnings and voluntarily waived that it was a it was a valid waiver and and that's that just doesn't get to the heart of how they did this i mean why in the world really clearly they used that and that is the jurisdiction absolutely yes yes now it's obviously he'd given grand jury testimony two thousand and two that's obviously different grand jury but then he was indicted shortly after the two thousand and eight grand jury his the charge pending was in municipal court which allows the prosecutor to file the charge it sticks for ten days and then you have to indict after that or dismiss so so that's again it just shows that the whole the whole sequence of things shows this route to get him to speak and to get him to say things they knew were inconsistent they had everything lined up and and then they decided you know what we're not going to give you the information that gives you were full awareness of the right that you have the sixth amendment is one thing but the sixth amendment is a lot different when you're charged with capital murder so i think under all the facts and circumstances it was not a knowing waiver and it could not be a knowing waiver because the state in this case the prosecution abuse the grand jury process  subverted the grand jury process and we should not be comfortable with a conviction when the sixth amendment is just thrown out the into the trash like it was in this case like to reserve my remaining time for the bott court i'm bill lamb and i represent the warden in this case there are three factual issues we have to get clear in this case the first one is that and the chronology is set forth at a state court decision and paragraphs one thirty one or one thirty two there was not an indictment when branson testified there was an arrest court that was issued about an hour before he testified but there was not an indictment there for the das case even if it applied and i submit that it does not because this is a b s case would presiding judge and got an arrest warrant for princeton branson testified and then the arrest warrant was executed after his testimony in the grand jury but as the time he testified he was not indicted i might  that in its chronology incidentally your honor on the question of abuse of the grand jury process grand juries don't issue arrest warrants so i don't see how that connects with an abuse of the grand jury process the grand jury had voluntary because rents in appeared voluntarily he was not subpoenaed and by the way another factual issue he in fact according to the state decision of paragraph one forty two had in fact consulted counsel although counsel was not present in the grand jury proceedings so the state court's reliance upon patterson versus illinois and that's in the state court decision of paragraph one thirty eight was not objective be unreasonable and in paragraphs one forty one forty one of the state court decision that the state court also cites the washington case which stands for the proposition that being a target of the grand jury neither enlarges nor diminishes the counsel of the protections of right to counsel moran versus bird if i did by the appellant although it's not a grand jury case stance the proposition that the police do not need to provide a flow of information to assess specter to help the suspect calibrate his self interest so all of these things as determined by the state court  reasonable reliance upon clearly established united states supreme court precedent one other issue i'd like to mention on the question of a factually way of factually valid waiver mr branson is not a  and he went through the process of finding out and participating in discovery in this case in the prior indictment that was dismissed he has had a prior contact contact with the criminal justice system as  indicated in the indictment he had participated in discovery and he had previously consulted counsel as i noticed in n p r estate decision paragraph one forty two so is his voluntary was his waiver w factually voluntary as well as a supported by clearly established united states supreme court precedent i would argue that the main versus moten another rule is cases do not apply in this case when you're dealing with the grand jury and that's all i have to say about that issue that's the only issue that's been argued to the court with the court's permission though i would like to mention one other factual question that my clarify some of the other issues in the case and then i will be very brief and that is what is this case about this case is not just a d n a case in reference to the other issues that have not been argued i would suggest to the court that there was a fingerprint of the defendant brin that contained a dog tag that was kept inside a looted gun cabinet and the looting of the gun cabinet then is is a significant event because of the relatively short period of time within which the murder occurred  there was uncontroverted testimony that the victim was an immaculate housekeeper so the presence of the and princeton's fingerprint outside the gun cabinet after it had been looted from the gun state taken on a well traveled area in the home right next to the gun cabinet is very strong evidence against princeton and that would be something that you might consider when you consider the other issues in this case unless there are no further questions i have nothing f ther to say and if you'd like to ask about the other issues thank you your honor as to the third and fourth assignments of air and page id five fifty there are joint stipulations as to all the facts related to this issue it was the same process kyle roar who  presented the charge and who got the press appeal for the arrest and eight zero one or eight ten am and there's a series of stipulations the parties went through exhibit a presented the case to the grand jury and tried the case  defendant's exhibit a attached to it's on page id five fifty four does say there the penalty was for aggravated murder in this case is death or life imprisonment now it may be neither here nor there it ended up not being a de case going to trial i believe because they tried co defendants and obviously the law does not favor co defendants being tried in a capital case so i believe the state remove the death specs mr lim talked about mr brin consulting with counsel and i don't know if the record is completely clear on this but he was indicted in two thousand so yes he did consult with counsel then i don't think the record reveals clearly the record does not reveal he consulted with counsel before two thousand and eight i mean in two thousand and eight and if he did i guarantee you that counsel didn't know he'd been charged with capital murder again because no attorney would have you walk into a grand jury if you've been charged with capital murder even charged with any murder so that clearly is  there is a red herring again you just get to the process you look at the process and you say if you're if if the right to counsel means anything advise him where he stands at this point in time and then then it's a knowing and intelligent waiver then it's free and then it's voluntary the way they did this it's so sneaky it's so below board that i think you do have the authority and the law does say this is not a simultaneously i think b yeah because i think he moved from just being a witness and being in a position where perhaps he could have voluntarily waived to to the point where the state of ohio knew he was no witness they were using the grand a discovery instrument which doest says you can't do so i think i answered my question if they waited and if they did earlier and didn't tell him but if they did it later i have a much more difficult argument you are going to have to say that they  in him but i don't see what if if we were to come down with some ruling in your favor all they would have to do to achieve the same thing is weighted well but doesn't at all that's what what what what interest was that of theirs to do it simultaneously as posed was there any government interest and did it add to their sneakiness to do it because they knew they'd have him there and they could arrest him whereas if they just charged him with it then they wouldn't have been able to using it as they were using his voluntary testimony to be able to nab him is that they know they knew he'd be there they they knew they needed some additional inconsistency to firm up their case but they knew if he'd been if he'd been told even charge he would never would have given that second grand jury testimony that's what i'm asking why couldn't they achieve the same thing despite this prophylactic opinion that you're asking them to all they have to do is wait a day or two and then arrest them i suppose they could have done charge up but what i'm trying to get at is the nature of the site why is it particularly sneaky to do it simultaneously as opposed to a few days later just because it ignores the sixth amendment it just it just basically says we don't care that would say we should ban ban that as holding but you asked and i believe because that's the whole sneakiness of it and i'm that's not a very artful way of saying it but that's the best way to describe what happened here in the overall i mean the posture may be different the argument would be the sign which is that it's wrong to if you've already made up your mind to charge someone it's wrong to use the grand jury process to see in an effort to get that individual you given we'll see consider the case carefully mr gathered them we know you're appointed counsel under the criminal justice act and we appreciate very much your having undertaken this representation not an easy case in which to get this sad but we're we're glad you're willing to undertake it