this case the idaho court of appeals unreasonably applied in as others rhode island as well as edwards versus arizona by finding that interrogation did not  occur all in contradiction to the trial court's findings of fact now here boise detective lance anderson let me ask you about that while we're reviewing right we're reviewing the court of appeal correct findings of fact of the trial court so it's important to look to see what the trial court's findings were in order to determine whether or not the idaho court of appeals properly applied the federal constitutional law to those comments at the time he was making and at the time of the hearing or are they like he wrote in his written decision well i think that the written findings control over the oral if i'm going to play the devil's advocate with you but are musings in terms of well the officer may have to ask for whatever and then there's other things where the playing which is i find so how do you know and trust that for us when you're going through th well i think that judge neville does not rise of really tight findings of fact and of course the state was the one who wrote the findings of fact and presented them and was modified in some respects but i mean he does make the findings that are necessary to find interrogations he does say it is also probably true finding by a preponderance probably true that anders induced a lotto might be ready to confess and that the information might entice him to do so he also said as he finds that philosophers main concern earlier had been not to implicate the others and he's fine there and the other wa probably or may is there a difference in the language between the two will probably a defining by a preponderance and i think it's probably something less than that but if you look to the world findings he's he said that it i probably true and again it's true that a detective anderson knew about this and then screamed what in the judge's own two words skillfully exploited mr slott tows  that andersen knew so lotto might be ready to confess and that the information might entice him to do so so he does say that detective anderson was aware of mr so a lot of this particular vulnerability o susceptibility to use of rhode island v m s is term to the idea that he didn't want to implicate his co defendants without finding in mind in the undisputed fact that detective anders went back to mr so lotto for no necessary reason to tell him that he is transportation to the jail would be delayed while his co defendants contractions were being written out written out that is the functional equivalent of interrogation under rhode island v m s it was just the need to have it doesn't have to be necessary for him to tell him it just he leaves then he comes back at least once and maybe twice according to the state court findings on the second time or the last time he says that your transportation is being delayed which is all fugitive he happened to be in state prison at the time and as a result of his failure to cooperate or subsequent to his failure to cooperate at least a federal indictment was issued against padilla and the mark the federal law enforcement agents came to pick up the dia to take him to be arraigned and they told him that he was being indicted in they're taking him to the courthouse and then went on to say this is your last chance to cooperate now this court found that that last part your last chance to cooperate was the functional equivalent of interrogation under in it's it have no problems with the you've been indicted for a federal firearms case or we're taking you to the federal courthouse in order to be arraigned that's all normally attendant arrest in custody w this court found was that going further last chance to cooperate was interrogation and that's precisely what happened here mr anderson and detective anderson knew that mr was going to confess if his co defendants had confessed and by feeding him that information in addition to some other information that he could have been right on point with today and said hey your think i'm sure co counsel stated it in terms of bringing together what you have the written findings and then you have what there are the oral findings are they are they musings you know what are they you know obviously i'm sure that if you could go back you would like to put some cotton in the the trial court's mouth fair and just say just make your findings and don't say you know don't go it could be this is it could be that or whatever but how do we you know how does that that takes care of other witnesses and the co defendants and takes care of is an overstatement it was a supervising detective is finding out what's happening with these other individuals he comes back gives nothing more than an update of why this man is not being transport unquestionably your honor and is not anywhere near this and as far as the fasher absolutely right because the officers were talking amongst themselves but if we look at the circuit cases and of course this court can look at the circuit cases in determining whether there was a reasonable application in the us we find that there are several cases even within this circuit where officers have not just merely been talking amongst themselves but have went back to the defendant to simply apprised them of all significant that after he's mirandized that's a taped statement then when he and folks the tape comes off the conversation whether it's interrogation or what exactly is going hayes but certainly under the things you can do the harm is there without sending it back to the federal district court well if if we got to that point what would be your position if we did harmless error under bain's what you know what do you believe you know what found that trying to remember it did not have his prints on it but it did i believe there was evidence supporting the fact that it was his gun that there is significant evidence your honor but again i don't believe the court has to get that far thank you i'd like to start with footnote eight of us which says any knowledge that the police have concerning the and usual susceptibility of a defendant to particular form of persuasion might be an important factor in determining the question and that's really the issue here detective anderson who is not any relation to mr anderson here was had knowledge of the particular susceptibility the court right now susceptible not to confess when he didn't know there was another confession but how does that make him want to confess to his own involvement the trial court found in the evidence supports a finding that mr salado wanted to anybody i want to talk to an attorney so the trial court mr detective anderson new in the trial court found that he had that particular susceptibility your honor with my five seconds left i'd like to turn to the question  fact that brac does not apply in strickland cases i think supports my argument that directed not in a political standard of review or harmless error test in cases where the state court has never applied the correct harmless error now i think it's at least arguable that the prejudice standards of strickland is higher than the standard in brecht and that would be one reason why you would has consistently applied the brady standard in brady clay to come up on hay vs they use the doesn't undermine the confidence in the jury's verdict standard materiality standard instead of using the brecht standard and i would i would i could see the brady standard as being a lower standard of review than the breath substantial an injury effect so we have the supreme court applying their own standards trickling in bravely even in cases where if it were true that brac applied in every case they would have to apply cracked on top