good afternoon your honor i am here with the university of tennessee college of law appellate litigation clinic i am a supervising attorney and it is my honor to introduce you to the two students who will be arguing today alex thomas and garrett ward we have previously filed a motion for student participation which this court has granted we've also filed a motion to split the oral argument which this court has granted both of these students are in good standing in the last day or three else they participated in the briefing process and they are very well prepared here in terms of the time we're asking for twelve good afternoon your honors and may please the court my name is alex thomas and i'm here today on behalf of the petitioner in this matter douglas wiser the state of michigan deprived mr weiser of his confrontation clause rights when he used eddie lewis's untested testimonial hearsay statements to secure mr weissman conviction and to send him to prison for the rest of his life mr weiser is entitled to haiti's relief for this deprivation now the starting point in this analysis just like in any analysis arising under twenty two fifty four is laying out the clearly established supreme court precedent and here since we're dealing with the confrontation clause the first rule comes from crawford versus washington where the supreme court was quite clear that if the state wants to use hearsay statements against a criminal defendant that hearsay declaring needs to be unavailable in the criminal defendant must have had a prior opportunity to cross examine that to finish what we know from cases dating all the way back to for instance davis versus alaska is that in order for that prior opportunity to be constitutionally sufficient the criminal defendant must have had an opportunity to actually engage the adverse witness in lines of inquiry designed to show that the witness would testify in a manner that demonstrates a bias or a motive to t estify against the defendant we have that rule from davis versus alaska where the court essentially said cross examination is inadequate when the state applies the law in a way that restricts the diff criminal defense attorneys ability to pose lines of inquiry designed to show prototypical forms of bias and motive that's exactly what we have here because judge close who presided over the preliminary hearing limited the preliminary hearing testimony simply because it was a preliminary hearing  state rule that says this is a hearing to show probable cause and that's it so i'm not going to let you or prohibit you from asking the questions that we've identified that we've tried to be the most important our own pages five seventy three through five seventy nine of the preliminary hearing and one of the questions would have shown that any louison was a proffer on the record to this effect one of the questions would have shown that eddie lewis knew frank and in fact that he knew that frank simpson who was the trying to demonstrate that he knew that frank had money in his house and that he was a drug dealer and the prosecutor then objected and the judge said no i'm going to let this go i'm going to let him ask this question but then twelve lines later he asks the question how much information do you have in the prosecutor objects again this is irrelevant judge and in response mr davis who is the trial attorney said no judge this is relevant and the judge says that sustained i'm not going let you ask questions related to their relationship you see how important the relationship is because if eddie lewis knew that frank had money in his house that frank was a drug dealer and the jury had been able to learn that eddie lewis himself was in financial dire straits it starts to look like maybe eddie lewis might have done this on his own and then therefore would have a motive to testify in a way that shifts the blame to mr weiss it and that's exactly the type of stuff that didn't get to come out during this preliminary hearing because perhaps with respect to the first line of inquiry but with respect to the second the financial difficulties it's important to know that earlier because any lewis gave a lot of statements to the police before he ever did this preliminary hearing and one of the statements he actually told the police at his house was in his defense some sorry i don't think i quite a heard you you're said it was in a police report that he was losing his house couldn't you views that when he was cross examining the police officers and brought that out then perhaps you could have but the idea would still be under crawford that since we have this particular witness whose testimony were using that particular witness has to be cross examined and there has to be you're not claiming there was no cross examination you're claiming that you didn't get to do all of the cross examination you would have liked to do that that offered tell you that that's what the standard is no your honor what cross crawford says is is just that there has to be a prior opportunity and that the confrontation clause is a procedural right and when you tell what's your best kids from the united states supreme court because we're here under a what's your best case that says it's just clear as a matter of  precedent that we should have been able to do more the best case on that point goes back to davis versus alaska the line of inquiry in that case was to a juvenile witness in the juvenile witness had seen or so he thought the defendant in the act in the perpetration of an offense and the line of inquiry was designed to show that maybe that particular juvenile defendant or juvenile witness might have a motive to testify in a way that was beneficial to the police because he had been brought up on delinquency charges there's a state law in that case that said you can impeach a witness with a juvenile delinquency charge so the manner in which the defense attorney was able to actually ask questions was limited he got to ask a couple of questions but when he finally asked have you ever have you ever met with the police before been interrogated by the police before the judge said can i ask that question you can ask that question because it gets too close to crossing that line and becoming something that i say i'm out of time if i could he said you can ask that question because if you do you're going to end up violating the statute and we have a very similar thing here we have if you ask these questions you're going beyond the veil of probable cause and it's just not what we're here to do the judge said in the preliminary hearing this is a preliminary hearing it does not give you an opportunity to cross examine like you would at trial think  good afternoon your honor is a minute please the court my name is ward and i'm also here this afternoon on behalf of mr douglas wiser your honour's in the early morning hours of march of march second mr weiser sat for a custodial interrogation with representatives of michigan law enforcement during this interrogation mr weiss that may numerous statements which under clearly established a prima court law would qualify as requests for a for an attorney and therefore and therefore demand the immediate cessation of the interview after none of these requests did the interview cease and ultimately this interview ended both a transcript and a recording were introduced as evidence against mr weiss to trial and used to secure enforcement official and the same circumstances the as the as the law enforcement official conducting the interview would conclude that the request has heard as a request for counsel and i've been there isn't there is much  i think i'd like an attorney and the state recognized that as a success request under davis at that point he didn't go on and say but i'll tell you everything i know correct your honor on on february twenty eighth he did he that all that all he said was i think i'd like an attorney later on when he said i think i should like to have an attorney present but everything i know that doesn't turn that into an ambiguity you know no you're our position would be that what mr weiss it is doing there is stating that he doesn't desire to talk to police on that evening but what this is what but with the assistance of counsel and i since i'm willing to talk to you but only with my attorney present that's that's the that's that's the nature of the of the request he makes there and a little bit of the problem that the officers when he was going back and forth about wanting an attorney and inciting i want to talk are the officers the ones who said you've got a killer he want to talk with us now or you've got to tell he don't want to talk with us without an attorney and ultimately wasn't the most on equivocal statement from the police in saying you know i think i think you need an attorney john i believe you're referencing a statement that occurs on the page thirty lying you really need an attorney i really did and then at that point there's one other thing about these cases our friend welcome an attorney this is the police again and then they stop and discuss the district court record part of the discussion after that is technical details about how he should procure an attorney but not the entirety of it there's about twelve pages of interview that occur after the exchange so you want an attorney i do sir some of that is technical details however not all of it is there are numerous statements from those final ten pages that the state quote and its closing argument namely and this is reflected on thirty nine eighty eight and then on appendix page one sixty four him was that they thought that he lewis would be found guilty of this crime because of statements he'd made to them mr weiss says well for that matter i think i'm screwed as well he's saying i think i'm going to be fine i'm guilty of this crime and then that statement is ultimately played played before the jury that's referenced in closing argument and the state's last chance to convince the jury that the page i do cite is thirty nine eighty seven and thirty nine eighty eight and then the close  relevant closing argument portion is on page one hundred sixty four of our appendix so what the state in its final chance to convince the dr mr or mr weiss or its guilt reference references his own thoughts on his guilt where he  says i feel like i will i'm screwed ultimately i'm probably going to be convicted of this that's the essence of what he's saying and that's a very that's very prejudicial evidence to a jury it's tantamount to a confession something that i did i mean he doesn't say that i'm pages thirty nine eighty seven and thirty nine eighty  has never held that a criminal defendant who has been affording opportunity to cross examine a witness at a preliminary examination is denied his right to confrontation when that witness becomes unavailable and his preliminary testimony is read to the jury second of all because the michigan court of appeals determination that mr weiser did not unequivocally invoke his right to counsel during his second police interview was not an extreme l function of the state criminal justice system not to the first point on the confrontation issue counsel for the for mr weiser identified problems with questions about the relationship that mr lewis had with mr simpson as  well as mr weiser and some discussion of money or having his house foreclosed on i would note that those specific points were not mentioned in counsel's brief as to what was precluded but i was also mentioned that lines of questioning were never categorically barred rather counsel would ask a question ask a few more questions and then either receive an objection from the prosecutor or the court would interrupt counsel himself and say you've already asked about this this is not a fishing expedition this is not discovery move on and i would note your honor i think looking back at the transcript the court interrupted counsel himself the judge interrupted counsel only nine times in a sixty eight page cross examination that lasted over an hour and only four of those nine times did the judge prevent counsel from continuing the line of questioning specifically those four instances occurred on  often your honor over seven years or your well your terms of your number sure and in terms of timing it would seem to be a little less frequent than that for instance  most of the interruptions here really were from the prosecutor it i think the prosecutors interruptions came far more frequently than the court's interruptions and in that sense the court was merely ruling on objections the the court did make the statements that judge strange pointing out but again counsel was never categorically barred here from asking certain questions and really what this ultimately comes down to is the judge actual to point out that there is no clearly established supreme court precedent here that says the opportunity for cross examination at the prior proceeding needed to be adequate early so we don't have any definitions or contours for that all we is that every time the u s supreme court has had to deal with this type of issue they have said that if there was a prior opportunity ending all of those cases counsel actually availed themselves of that opportunity that was sufficient to satisfy the confrontation cla and that's precisely what happened here counsel for mr weiser is as they conceded are not pointing out that no process damnation occurred they their sole contention is that it was not an adequate opportunity and they  to and crawford for those propositions but those cases also can't be looked at in a vacuum we know that the clearly established under a law is that no cross examination is unlimited we know that from delaware  spencer we also know that the court is allowed to control their courtroom and to a large extent control the manner of examination that these attorneys go through with both direct and cross examination we know that from delaware versus van ar brief is simply not true in this case counsel was always allowed to get out at least a few lines of his line of questioning the problem was that he kept if i may be the horse count or excuse me the judge stopped counsel when he started to get repetitive which we know from delaware versts van arsdale is one of the explicit categories that a judge me stopped during the course of an examination for them were to the point that they prevented counsel from asking mr lewis about any motivation that he may have had for committing this crime himself that question there was an interruption from the court there and then at the end of the discussion between the prosecutor don't have that and we know that from just three years ago this court's case in williams worse is bahman where it was explicitly pointing out that that case law does not exist counsel for mr weiser point out that well in that case it was simply the issue that the petitioners counsel didn't point to a case or we have the problem here as well there is no specific case that says that examination has to be adequate and even if that we know that cross examination in this case was adequate because counsel went on for sixty eight pages to cross examine this witness and was only stopped when he started getting repetitive or starting into a fishing expedition  as with both of these claims the problem is context so we would like to do is put that in context the officer said but you know i'm not going to jeopardize this case getting into a wishy washy thought on the sixth amendment and all that if you want an attorney and then mr weiser interrupts i do sir if you officer continues and further this your systems to this i think we should stop now right and then mr weiser responds i just want to be straight up with you guys and i want you to believe i am and i'm telling you i know you're looking at me like i'm full of shit on him driving but that was the story i got as with every other time counsel was mentioned mr weiser kept on talking every mention of i think maybe i should have an attorney came with in the same breath but i'm willing to tell you everything i know or i want to be honest with you i don't want you to think i'm lying something along those lines that separates this interview from the first interview where he did invoke his right to counsel and that was honored by the officers but again the real question here is not whether mr weiser unequivocally invoked his right to counsel the question is whether the michigan court of appeals to terminations that he did not unequivocally invoke his right to counsel was on reasonable and like of clearly established supreme court pre and it was not that was an entirely reasonable determination based on mr weiser it's constant waffling every time an attorney was mentioned  thank your honour's just a couple of brief points on rebuttal opposing counsel pointed out the point in the context of the request on page thirty nine eighty seven and thirty nine eighty eight and an attempt to show to cast doubt to show that the or to paint this request as equivocal in some manner the way it what what precisely what happened here as the law enforcement official says i are you know i'm i'm worried about the sixth amendment he's referring here to the right but i'm worried about the six and if you want an attorney yes i do sir i should stop right now right and at that point the police officer has acknowledged the correct legal course of action if you want an attorney i sir after this follow up question to an unambiguous request perhaps that might cast doubt on the equivocal nature of this request and smith versus illinois the supreme court counseled against that the point of this question was earlier earlier in this interview but this statement is short and simple it was not misunderstood by law enforcement here and that's evidenced by his response being so i should stop questioning you  becomes under rictor would fair minded jurists disagree about whether or not the exchange if you want to the attorney i do sir is equivocal or an ambiguous verses and something that a reasonable officer would misunderstand and not only did not only did the officer here not not mis understand the request but fair minded jurists listening to you want an attorney i do they would not they would not misunderstand this request either and for that reason  habeas should issue thank you dollars thank you counsel and speaking for this panel i want to compliment both of you you have done a fine job representing your client and we always enjoy having  students appear before us very very nicely done thank you it is an excellent job you you've heard the advocacy here so now you know you're right up there beyond i think and then thank you frighten you give up your ticket because that's what you get paid for is to stand up to people with attractive fairish names who are psychotic you know i've done my level