statement but put on the record on the reporter's transcript an explanation of why she was failing to make the motion to suppress what brings us here today is whether the defendant suffered in effect that of course was not considered before the trial court because none of the facts were elicited on the record than the law was not discussed it simply was a motion that was not made now there was a recent decision in missouri again t which i belatedly brought to your honor's attention i'm sure you're familiar with it decided last june this is not of course new law indeed even the three dissenters relied upon their reading of and i think what's noteworthy is when he said that it was after approximately eight hours since his arrest he was arrested shortly after twelve noon the tape recorder was turned on shortly after seven respectfully disagree your honor the two detectives who were present at the scene of his arrest at gunpoint shortly after twelve noon were the detectives assigned to the case they are the ones who talked to him earlier thing that really wasn't that incriminating i mean they they had other evidence that that he was present at the scene and that distinction was it was an eye accident i didn't intend to shoot him and the faction a case where he broke down he was crying and so on and he was kind and good even though they had shot him or something to that effect it was just one of those freak things that it was not an intentional killing which the jury chose not to believe of course but so it statement was virtually entirely circumstantial the principal testimony came from two witnesses who were brought from prison and testified under grants of immunity against him and the statement that was actually that that goes to their credibility and the jury chose to believe them well yes of course because they had also listened to a tape recorded statement of the defendant in which he admitted being the person who was standing there and shot  shotgun at the victim that is a decision the defendant should have been able to make three of having taped statement taken in violation of miranda first played to the jury the issue basically what the court said was well yes he makes strong arguments that this is not a first degree murder that this is not a murder that it may have been a rash impulse referring to the manslaughter standard court however  conviction because there was a basis from which the jury could have concluded that it was a murder the problem is that he by having to put up with the evidence of his own recorded statement was deprived  the opportunity to present his evidence in his way during his part of the case either take the witness stand or not take the witness stand free of that kind of tanks let me ask you armor nature of these statements am i correct that d that there was no contention in the pro se petition of coercion however if you take a look at that a titian which he wrote himself he was on represented by counsel for a period of close to eight years i think in it seemed to mean that in reading the briefs that you had not made the argument that the second statement was coerced but then i got to the great grief and it seemed to me that the argument was made there was with that main in  looking for and you know if i'm wrong i would like to know that it's in the bloom brief so i can consider it in that light but i only found it in the gray brief maybe what you can do is we have a problem that exists in this case is one that was discussed in united states against or still at the end bank decision of this circuit's court of appeals on this question of the effect of oregon against else that and i was particularly interested in the concurring opinion in that case and that case i missed or suppose claim was rejected under the authority of oregon against that but the court concurring was particularly concerned with a deliberate failure to develop to advise her of her rights and the concern that they take a dim view of deliberate in contrast inadvertent or technical failures to advise an accused of his cannot say under existing precedent the inspectors conduct was so coercive that or so a lack of sufficient free will to decide whether to waive her right that exactly what you have here no no or so case involves fifteen minutes of conversation preceded by an admonition you better not talk to me about this this case involves seven hours including an hour and a half of sit down questioning in which there has been and was told no you're not telling the truth out there he denied any involvement in which in his heaviest corpus petitions that he wrote he was shown a photograph of the victim no i don't know him so i know you're lying and you better come clean we have you we got you for first degree murder in substance this what they call them that's completely agree now that is something this court must consider in determining whether the the ultimate miranda admonition that he received shortly after seven o'clock was an effective admonition within the meaning of missouri against how can you rely on steve and i don't understand how you can rely on secret as a new that's a new case that was never brought up before aren't you barred at least by teague the new rule rule now it's not the new rule why isn't it because all nine of the justices i ncluding the three dissenters relied upon oregon against just that no author of any concurrence or opinion in missouri against seeburg suggested they were in any way withdrawing or or rejecting  upholding the horrigan against else that rather it was the gloss it was instructive and for that reason i believe it's appropriate to look at it i don't have to go into that area because it does not announce a new rule of any kind it clarif and explains the existing rule i don't see why we have to put blinders on we won't wear we won't wear blinders i'm an us thank you for your welcome it please the court jeff firestone for the california attorney general's office representing the warden i believe it's warden marshall's been substituted in regarding the last point that the court talked with counsel about as far as missouri versus  quote the technique of interrogating in successive unworn in warren phases raises a new challenge to miranda and in that case they dealt with that procedure whereby it was a question first mirandize later approach and it was deliberately done to do an end run around miranda whereas that wasn't present in oregon b l stat and there's no indication that that was present in this case also in granting the petition for writ of certiorari in that case the united states supreme court noted that it was doing so because there was a difference of opinion as far as in the circuit courts of appeal and therefore the lay of the land it was an unsettled area of law and in fact the provide some guidance while they did look at organ versus alstead and one thing i noted in looking at that is that as far as horsham issue goes  o'connor recognized that the cat out of the bag is not a sufficient form of coersion and they found out that what she says is we rejected the theory outright we did not do so because we refused to recognize the psychological impact of the suspects conviction that it let the cat out of the bag but because we refused to endow those psychological effects with constitutional implications and so the fact the cat was out of the back and that wouldn't be admission his statements that there were no threats by the officers and they were right they were good officers good people it's what is part of me it's what his heart told him to tell the officers it's right it's the truth and i also notice that during that tape statement and it's that the excerpts of record it it's sort of record exhibit two pages nineteen or twenty they have alternate pages on them but when the points where the tape is turned over the officer says and he acknowledges that you said that several times you thought about calling the cops are calling the police so you can infer from that that he wanted to get this off his chest he wanted to talk the officers he felt that  fact he went on to say i know what happened wasn't right i feel sorry for it i hope god understands so he and this is a petitioner who want to talk to the officers and he wanted to tell it as far as counsel as brief portrays it as it was  a seven hour marathon questioning where they were interrogating him over a seven hour period that's not exactly the case it was interspersed with breaks first he talked the officers initially h that he perceived the shooting as far as he heard it really didn't he didn't actually see it but what he saw was the defendant had the victim cornered in the kitchen with basically no room of escape weapon and in exchange for him being able to see his family and then he made a tape recorded statement so they bought everything that he said and they still think found that  got a situation where it's not an unknown council specifically says look i thought about bringing in an atmosphere of section four up to challenge to the statement i've talked with my client and from that we can infer that the client mentioned to her that he had been mirandized initially assuming that that is true and she looked at the situation and she found that it was completely voluntary and that there was no basis to challenge the confession  whatsoever undertaken by the state court rather it was simply a citation of oregon against that in the matter that was discussed in the briefs that's an alternative basis around the requirement that would otherwise perhaps deny this court the opportunity to consider this on the merits are you referring to the attachment of the law clerks memo yes why can't we consider that as the judges are reasoning having it attached to the order it's not the word reasoning i'm focusing on that goes to the aspect of is that an unreasonable application of the law i'm focusing on the complete absence of the eliciting of tax that would enable the court properly to apply oregon against  i am reluctant to state that as a general principle i will state it in this case when there is no inquiry whatsoever into the facts it's not just a question of failing to state facts to support the order there was no intrinsic you're saying if you use an extreme stick approach as defined in taylor you find a deficient fact finding process is that what you're saying i may well be standing that i'd have to think about it at length but since i'm the one who cited taylor against maddox i'll have to answer that i'll say yes i guess that's what i'm saying what i thought i was so though is that when there is no inquiry into the fact that under taylor against maddox is purchase a santa clause thank you that simply fails as a matter of law to comply with that standard i think judge kozinski calls that the extrinsic test well then that's what i call it too thank you