based numbers fourteen there's one five five three one five five four one five five five one five five six one five five seven and one five five eight james harlan jr versus stephen revard oral argument not to exceed thirty minutes per side matthew brown for the appellant you may proceed mr brown you've got six cases here i assume that since there's complete overlap with respect to one big issue that you're just going to present all of these parties are the same and the lawyers are the same soon that unless you have a different suggestion you're going to go for up to half hour minus whatever you reserved for rebuttal and these going to do a half hour and you'll cover all the that are relevant is that what you plan to do yes good morning your honour's i see this you're right it's that right and i'm trying to get how the time is divided well there are six cases but there's really one essential issue that we hear about today and it has to do with a voluntary and you're ok with a half hour half hour way of dividing this very very much so ok great do it that way thank you and as i stated your honor good morning again we are here today too we're appealing the appellant is appealing the decision of the district court to deny the writ of habeas corpus with respect really that the essential issue in this case was the voluntariness of the confession that occurred in we know that it's most of the facts are not seriously in dispute that led up to it we know that mr holland was turned himself in on a parole violation something completely unrelated at which time he was moved from jackson michigan from the penitentiary as i understood it to the washington county i think you into the state police they began questioning him regarding a series of unsold rape cases which time he received his miranda warnings in they said somewhere around two hours into that he said i would like an attorney and at that point the questioning stopped and that was it and they he they brought him back to were two jacks then seven days later he was brought back and due to be questioned on in an unrelated matter that being the lisa shaw murders and because he had given a statement prior that he was a witness to the murder and in so that second seven day later meeting though i mean that that had to happen right i mean because it was in the trial coming up there was a trial coming up in that had to happen i mean maybe one way of thinking about this is how the prosecutor should have handled this differently right you got a trial you a speedy trial rights you've got to do the other trial it's certainly not improper to interview witnesses for a trial and he was going to the lead witness right as i understand yes you are ok so what how do they do this differently well i think the way they have to do this differently is they have to afford him his constitutional right to counsel and he asked for it on january six because at that point you know the case law is clear that you know you're not you don't ask him any more questions to get him an attorney and we know from the supreme court's ruling that once you make that request you've got they came up with a bright line  case you've got fourteen days that that continues that right to counsel and you don't ask him any more questions further there's case law that says you don't ask him anymore questions you don't bessie gate any other crime and i believe that that was your answer to the watch a they have done differently as postpone the other trial no i think what they should have done is they should have gotten him an attorney in let him confer with an attorney so that they could have satisfied his demand for an attorney it is constitutional right at that became problematic because because he didn't have an attorney for the first he did not he did not any asked for one in it they did everything i would simply they did everything right the first time because they said you know fine we got stop talking to this gentleman because he's asked for an attorney the problem was is that only seven days later they've got him back now remember there are question about crimes that they thought he was involved in so he's a suspect and we know from the you have to be in miranda cosi so it's the nature of the custody you know and i think that's where i have a big problem with the district court's decision because he's in custody he is he's  not it leaves the house case in the house case the the the defendant was already in prison and they took him out of his cell and brought him into a conference room the room within the same prison that they question him for seven hours and then ultimately they just said you know they kept tell him you're free to leave which by the way they never told my client he was free to leave although admittedly on that january twelfth they did mirandize him but we know from the case law that merely mirandizing somebody doesn't  the failure to fulfill that earlier constitutional duty to provide him an attorney so that becomes very problematic so to really answer your question a long way around it is yeah they should have they should all they could have cured their problem simply by letting him confer with an attorney satisfy their constitutional right then go ahead and question him about the lisa schomberg then prevent him from talking to an attorney they mean they edwards requires you to stop talking which they did but but your honor that they have him in custody he's not free to make phone calls and get attorneys he's asked them to get him attorney he can't afford one that they'd need to afford him they didn't do a case well you're talking about with respect to lisa shaw murder case but might what i'm arguing judges this is that any investigation any further investigation by the police they've got to give him an attorney at that point he's being interrogated even judge lost and found oh he's being interrogated all right good because the court of appeals in michigan try to say he wasn't being interrogate but i grew judge lawson he was being interrogated essentially but he said it was ok because he wasn't in miranda custody in my argument he is that he was in rwanda custody because he was taken from the jail unlike in the house case that judge lawson talks about in this case you know he's in jail they're moving in from jackson michigan over here then they're not then i send them back to sell the sleep they're sent and put through in a holding cell for the night they brought him back and you have to look at the backdrop of this guy is that before he turned himself in on the parole violation he was he was addicted to drugs and alcohol which is made part of the record so he's strong out he's not he's not getting his drugs so he's he's under pressure now they brought him in they've questioned him a total of seven hours over those two days from january twelfth to january thirteenth during which time they'd mirandized him but again as i said that doesn't matter under the law they still needed they still need to fulfill that earlier obligation if we've been there been fine if it had been fourteen or fifteen days later according to the u s supreme court so i think that they have a huge problem there so once you get to that point you know you've got this guy in the situation where of the reasons he was brought over also was to reign him so we had another legal proceeding going on he's being arraigned on this parole violation at the same time so he's very much in custody very much under control of the state at that point so for those reasons i i believe that they're the they violated his right to counsel and as such the entire confession is tainted and it violates the rules set forth by the u s supreme court that how do you distinguish ho feels will and again i think you distinguish it by and that's death is the key here it really is to distinguish our case from house if you follow judge lawson's analysis which i thought up to that point i agreed with but the problem there is this is that in how they got to the defendant's already in prison all they did they took him out of his cell environment conference through the same prison doors left open they told me you can you can leave any time you i mean that must have been the most random warnings right that you're free you don't stop talking until you get a lawyer basically i mean i wasn't there i'm not sure what they were saying but look assuming for the purposes of this argument that they gave  know that they told him those things it's your right it's not the same thing as saying you're free to leave but it's not what he felt like there affirmatively suggesting that he has to answer the questions either right i can understand they didn't turn to the asli right it but i think it you know you look back at the back up even judge lawson talked about in his opinion that you know you're talking about in this particular case you have a polygraph examiner who's a veteran police officer he's a he's a veteran at talking to people and knowing how to get information that's what he does and a lot of crimes are solved that way when done correctly and these crimes were i guess were centrally solved but we say wasn't done correctly because do a lot of subtle things we had argued in our brief there was disco he was discussing with him hey listen you know get this wrapped up a trial you see your mom and your fiance obvious he was feeling pretty anxious he's coming down off these drugs he's not he wants to see is his mother and his fiance in her kind of promising in these things or talking to him and there's movement over with them which want cleared up over seven hours over two days they're traveling he's going from place to place going from prison over and over to the jail back over to court and back and forth he's not really it's not like the doors open hey you go back you're so you're all done at that point it's a pretty cool worse of situation and that is exactly what we talked with the court the u s supreme court talks about a miranda special yes so we're not here really to decide would we have reached the same conclusion that the state court did or even i mean we got to effectively say that no reasonable jurists would agree with what the state court did he foreigner are we not the problem i'm struggling with your honor to answer your question the reason i'm struggling with his when i think about this is that the u s supreme court says look when somebody is asked for an attorney you've got to get that person attorney within fourteen days then you can start asking again after that point so we're within at seven days so we have to square that why they didn't follow that rule then we also see i also explained you then we've cited cases in our brief saying look the fact that you could possibly no you back up your then the fourteen days we agree with that we also agree that you cannot continue to question somebody on that issue or any other investigation so i would think that would have applied to this they're saying well look i you know i just want to i do want to talk about those earlier crimes which we think he committed and we're asking about is a very accusatory situation we're going to talk about the lisa lisa shaw murder but as we said the case law says you don't talk to me about any investigation into you fulfill that deed so i still question it all it's up on to you on this question are you are you agreeing that the issue is basically  whether it would be an unreasonable application of house to find against your client or are you claiming that we just apply house directly and see whether plies do we have to question whether it would be unreasonable to apply house or do we ask how this house apply in this case my question makes sense yes and i guess i'm struggling with it because of it been reading these cases over and over again and i still say i've got this fundamental problem with this july sixth date or a i need an attorney that seems to me to go to whether house applies here or not ok i'm trying to get at the threshold question of what standard we use do we just determine whether house applies or not as if this were a direct appeal or do we determine whether house applies or not in the same way that we would if the state court had relied upon house which is different right that's my question and i guess that it depends on whether whether we can apply it to deference to an issue that the court didn't get to because it found some other issue answer whether at the deference applies now or not i think i think that you don't you might not even get the house that's what my problem is i think that you can't get past this constitutional problem the u s supreme court has laid out force they gave us a nice bright line fourteen day rule and we have to we have to square that up before we have really where they applied that in a setting where there's and persons agreed to be a witness in the case and it's just the troubling part of this case for me is this happenstance that he's the lead witness in this other case and it's utterly proper to talk to a witness for trial including as it turns out it's this case including the make sure the person is not lying i mean this this interview the whole thing could have ended very badly right he really got up there and lied someone else would be in jail it's this very interview that gets the system of justice working the right way and so what and where is edwards applied  that kind of a setting where this all prosecutors are doing their exact job right which we're going to make sure that when we put people on before we take people's liberty away that they know what they're talking about they're not lying and doing that very thing leads them to suddenly realize it's somebody else and i just it's incredibly hard to look at that and think you know i mean what i want to know ok so i want to know when edwards case where that happened in the courts no sorry they never have the right one i'll use the problem that i have is that these same detectives the same investigators knew they were looking at him for these other crimes they knew he had invoked that right yet they want to head in there they're setting up polygraphs for everything and i know that you're going to say well there are some the polygraph determined whether he was telling the truth or he's you know and i get that idea you agree with that agrees there or words someone's going to pin somebody for murder let's make sure they're telling the truth absolutely and i a on percent but since the same investigators knew they were looking and for these other crimes and they knew he had asked for an attorney why can't why couldn't they why couldn't they solve this whole problem simply by  letting him fulfilling his constitutional right lens confers the attorney i think there's a lot the idea that they should've would've been a good idea maybe they should have hired an attorney for him to talk to them first invoked edwards here but we've got this trial we need to talk to you would be better if you talked to attorney first of all makes great sense to me but where's the case that allows me to say you had to do that on pain of it being a reasonable application of constitutional law as determined by the u s supreme court that's that's what seems like the big obstacle here it's definitely an obstacle because i think what's we're running into is this conflict between this fourteen day rule which i think is a bright line rule the clearly applied to him and then at the same time the need for them to to investigate a marriage is going to trial and talk to a witness will here's what the problem is is that it's some point they could they could determine that their questioning of this witness who they didn't allow him they have an attorney this question is witness the constitutional test by u s supreme court decisions i think you're right and i think you're right i just thought that that the the u s versus du pree case mentioned something was directly on point as far as far as i can see it still good law is just saying the subsequent miranda where doesn't of doesn't overcome that request for counsel as i think the case stands for and i don't know if the u s supreme court has ever said that's not the case so you can mirandize him to the cows come home but you still can't solve this earlier problem that you're stuck with is that you've got this fourteen day rule the u s supreme court set up you can't just ignore that and they did ignore that and they went forward with it in and i understand it you know i'm i'm are up here arguing saying that you know they're trying to do their job to prepare for this trial but in in so doing they've they've incriminated this person instilled in afford him his constitutional rights that they're bound to and for that reason i think they have a huge problem is as bad as a result it may seem for everyone it is nevertheless we're bound we're all bound by what the u s supreme court says and they've said this get this fourteen day rule and it is still carried over he was still protected you know under the edwards umbrella he was still protected all the way over to this point where they're taking his you know their invest their their questioning for have read these cases over and over over again and i see this conflict between those two things and at the end of the day you know the u s supreme court says what the law is and they said what the law is in it wasn't followed here and it creates it creates a nightmare it really does and unfortunately i think as a result i think the confession is no good is what is is his right to counsel is violated and if that's the case then i would say that all six convictions were really in in almost complete is even talked about in here that that was the confession made all those cases a lot of those cases were cold cases that run solved until that happened so i'd have to respect their request and at that in based on that and based on the u s supreme court case i think you have to it deference applies to this claim preface it by saying that we win either way but i will say that epitaph once does apply to the claim and the reason can be found in harrington versus rector and i think the fact that in harrington versus rector the the entirety if i recall correctly of the supreme court the california supreme court's decision was i believe affirmed i think that was the all of it and if i'm all it said though i believe that's all it said and yet the us in the case where they say something wrong  it is it is different from a case where they say something wrong with the reasoning inherent in verses which are they said we have to we have to look at what reasoning could have what reason if we get the words right what reasoning did or could have supported the result reached by  the state court and it is it is the result on the assumption that if they say nothing we can assume that they use right reasoning i don't think it is your honor i think that it is based on i don't think it's based on any such assumption i think it's based on the idea that if they reached a result that  dresses the claim so we have to define what the claim is so the claim i think is defined as this confession was involuntary due to an edwards violation i think that would be the claim and i think the state court absolutely addressed the claim and whether whether or not the reasoning was  and i agree with my brother counsel that this is the essential issue here there is the one issue certified issue in the other case i think that since he didn't talk about it i won't either unless the of the nation of edwards without being involuntary can i think it's sort of is is deemed involuntary sort of as a as a legal matter i stand as a factual matter right it wouldn't be wrong and we're going to talk about the issue yeah absolutely that's that's the i think the crux of the case and i think the answer is we're one of one answer is absolutely that he wasn't in custody for miranda purposes house versus field can't be meaningfully distinguished  say that in in house versus fields he was moved from prison to a conference room in prison whereas here he's moved from prison to a conference room and unlocked conference room in in the washington county jail i don't see how  that that is a difference but as far as a distinction where this presents an inherently coercive environment that wasn't present in house versus fields that's not clear but is this case work out of just out of curiosity if the come on in and he comes in just for that purpose the case come out the same way exactly the same way yes well it's easier and i'm trying to figure out why all the custody talk makes a difference well because if he's in custody because what you are proposing is no different as far as whether he's in custody in the second interview where the analysis is different but the answer is the same he's not custody and so that it's important to figure out whether he's in let's put it this way each time it's voluntary ok all the way you know the whole it's voluntary all the way up to a invokes edwards and at that point they say ok fine we respect that you're free to leave and then the second time they just say hey we've got this trial you can be the witness and we find a time to come in so it's all voluntary does it make a difference or trying to figure out this miranda custody phrase and all that much work it's really doing here well can't figure that out what i'm not sure of maybe you're asking is the fact that they are even are you kind of asking about the of they aren't even interviewing him as to any of these crimes i'm making the point that each one starts out and ends well the first one starts voluntary and voluntary come in questions question gets uncomfortable he invoked his right to counsel stops the interview they respect that they say ok fine and of story having and he's now back living in his house hypothetically home it's also house and now they call him and they say hey you know you're the lead witness in this case we'd love to talk to you before the trial once a good time to come and he voluntarily comes in they just start the conversation honest you know it's separate issue it's not even suspicion of crime it's about getting ready for the trial finally the testimony is going to be does it make any difference i mean is that there's a fact pattern change any of the analysis it doesn't because in both cases he's not in miranda custody now in your hypothetical he's not in any kind of custody including miranda custody but in the facts we have here he was in custody but not in miranda custody so so so your hypothetical we don't have to talk about miranda custody because he's not in custody but in in the facts we have here we do have to talk about miranda custody because he was in custody we can't say he wasn't in custody because he was in prison for crimes he had been he had committed long ago so he was pretty custom means by definition effort to leave not being free to leave creates other pressures ok right i  your point and the reason miranda custody is different than custody is because the the reasoning underlying miranda is that when you're put in custody when you're arrested you say we think you did these c f c s you're coming with us lock you up and now you're going to tell us about it that's an inherently course of environment and here there was none of that because he lives in custody he lives in the custody of the michigan department of corrections and they just brought him to a conference room in the washington county jail and as you pointed out to talk to him as a witness in a case so they didn't even i heard repeatedly from my brother that they that they liked him as a suspect in the c f c s and i don't think that's clear from the record at all they initially asked him about the c f c s he didn't answer and then he invoked and then i think i think it's just as clear from the record i don't think the record is very clear on it but i think it would be just as reasonable to look from the record and say at that point they said well i don't think we're going to get him on the seas we don't have an eyewitness i d and he's not talking and so i don't think that they did want to pursue him for those c f c s of that but let's say it's not an epic case just out of curiosity why isn't the process procedure of the appellant's lawyer suggesting a good one that you know if you invoke  you either just don't talk to him ever again or if you're going to you honor it by getting him counsel even if it's for a separate you know appearance and trials a witness but that that that's like the good at that's the good procedures or why is that not so something i'm missing about that well i don't get i'm assuming it's not an epic case i don't think you could fault the prosecutor or the washington county sheriff's department if they arrange to get him at an attorney why shouldn't they be required to do that because that's not their job it's not their job to get him an attorney as you said they didn't prevent him from seeing an attorney he's not in their custody they send him back to his home sixth amendment right to an attorney when you're a witness you probably at that would probably say that yeah exactly he was a witness they they had a choice they could either keep working on him on the c f c s in which case they need to make sure he gets counsel or they can forget about the c f c s which it appears they did until he brought it up again and they can say all right well all we've got him for we've got him he's an empty o c custody and he's our star witness in the case against the murder of lisa shah and so we don't need to get him an attorney for if you want to take a second meaning seemed like they just talked about going to a baseball game is totally unrelated well it's really not that unrelated right i mean this fellow is in custody there's a lot of possibilities here it's unrelated i think it was entirely unrelated to the five other crimes that were here about the the two robberies in the three c ses it was only related to the murder of lisa shaw and it was only an interview with him as a witness now i'm not going to say it's as casual as a baseball game because they were sort of suspicious of him in terms of he had made some statements and then he had made other statements that were inconsistent with those statements and they did need to see are you telling the truth are you framing someone up are you going to fall apart in front of the jury in cross examination are you going to there's a lot of concerns here that they needed to address so it's a serious matter it's not a casual matter but as far as him being a suspect in either the l own volition without being questioned about in fact the police before the interview and they said look don't talk to him about any of these other crimes we asked about him he invoked his counsel talked to him about other crimes after he brought it up they talked to who are up why why should the rule again without it why should the rule be that when you bring up something as to which you've asked for an attorney then you have then you need to get him attorney is because that word says the exact opposite edward says that if the suspect reinitiate conversation then then you can talk to us with respect to the c f c s it's a real initiation is that your idea i would say that it was a real initiation with respect to the c f c s now the state did reinitiate contact with him and so in terms of the in terms of the big picture and then the murder so yes with respect to the c s c can convictions he's confessed even though earlier with respect to the same c f c s he's asked for a lawyer before he custody is disposed of but he wasn't and if it's an edwards problem as the district court correctly said if it's a number of words problem we have to look was in custody before it was in custody after because he wasn't in custody after it doesn't count so it's really to two independent rationales absolutely  it's all right so again and and the police the washer county sheriffs when he starts talking about these other crimes they're not required to put their fingers in their ears they can listen to what he says if he wants to  there's nothing that prevents them from hearing him out and hearing what he has to say what is your strongest case you think it's towards i think the strongest case is house versus fields i think the fact that i think our facts are actually better than the house versus fields facts if only slightly and so if the fact is that that wasn't miranda custody i think that it sort of follows perforce that this wasn't miranda custody and s and house did not involve the edwards pro oh it didn't involve that problem but it is it's still the fact of custody is dispositive i mean if if he was in custody well we've got three initiation argument as well but at least as far as the lisa shaw murder the fact of custody i think is is dispositive there talking to him about this case and so so house versus field as this isn't miranda custody and i think what you have to look at i think the key question there's a lot of deference means there's a lot of leeway to be afforded to the result reached by the state court but i think the key question is why was he even there and that's and i think that's in house versus fields he was there being questioned about the crime that he was a suspect in and the crime to which he ultimately confessed and that was argued to be a problem and it turned out not to be a problem in here he was brought in as a witness the star witness in a proceeding against else he wasn't a suspect in in any crime at that point or at least he wasn't brought in as a suspect in any crime at that point and and so i think that's a that's a huge factor among several factors that lead it lead to a reasonable finding and in fact a correct finding that he was not in custody for miranda purposes at the time of those interviews i think that covers the points because you know i just i just had a concern that you know your theory let's just put it to the side might actually be hurtful to criminal defendants so the way your theory works is if you've got your suspect that of a suspect in a crime the conversation gets sufficiently nerve wracking that you invoke your edwards right but you're also simultaneously about to be a witness in another case the way your argument works you always have to get a lawyer and you always have to cure the edwards problem means every time this oddity happens the police can't talk to the client until they've gotten permission to cover everything it turns out not to be good for the criminal defendant because the crim fan in might well want to preserve the right not to talk about that other stuff but still be a witness in a case and get whatever benefits come from that so it seems it seems actually kind of perverse and unfortunate because you want to pull these things together and i would think most common defense would want to keep them separated because many are going to want to be witnesses because they might be the right thing to do but it also could be helpful to them that's a great point your honor and my my comment would be that  the prosecution has a lot of tools to cure the problem they could say listen we want you to be witness in this case and we're willing to give you immunity as to something else over here or to the extent you might be implicated is  can talk about the being a witness in the case they have to grant immunity is the first one no no i'm just saying that there's alternatives for them to deal with this situation where they don't have to worry about losing that witness necessarily this case was unique in that they brought it under your theory that casey could have come in for the witness thing and said hey you you invoked your edwards right we can't talk to you again but yet we have this trial so we're thinking about using you as a witness and he's like no no i want to be a witness and then they say ok we better talk to a lawyer we're now he has to come back and in order to talk about the witness testimony he has to his right to talk about the other stuff well again i can there are tools available to them for example he could waive his the defendant could waive his right in writing to an attorney in order to provide that testimony them he could have done that and eat it that means they could then start talking about about the other things other things it could be nearly defined at that point if they were if they're being true to what they really want to news they want to find out about lisa shaw they could to confine your questions to them so i don't want to hear about these things we're just going to talk about that thing and i think they would have been ok but they just opened it all up after he had asked for an attorney and that with respect to this that used with respect to the other crimes that it was not ok that's what i thought you just said no i was saying i was saying that they could have tailored their questions in a way in not not ask about these other things they said look you know it only asked about shah that i can ask you about it but  interrogation focus on a different crime arizona versus roberson forty six us six seventy five so i'm just saying you have to clarify for me because i thought you agreed to something that i don't think you meant to agree to maybe you do which is that if they had only asked about lisa shaw's case then even though he admitted to murdering her that would have been ok did you say that or not because i thought you said no i was giving you a hypothetical i respond to your opposing counsel saruman about harrington purses rater see right about that or is he wrong i think he's wrong about it what's wrong with it because that's what i that's what i was trying to ask you before and i am not sure i the courts don't make if it would have led to the decision that they did make or something like that but if the if they made that decision in violation my us constitution rick they made it then it depends on how clearly not clearly established but how unreasonable an application that was that's what the difference is unreasonable application right and i'm trying to ask do we apply the unreasonable application standard or not he says yes we do because of harrington you say it's a violation that's not answering my question about whether we apply then reasonable application standard or not are you with me i mean with you i just feel that you don't get there you don't get you don't get there because because of the u s supreme court's decision you have to solve their problem first before you get to all these other issues i think you're interesting case