his miranda rights twice and there he was given a similar choice to what mr he was given there did agents told him if you cooperate you know you could be looking at six years and if you don't cooperate give us answers you could be looking at six would a little girl saying look at how you look at her because i love you you cannot convince me that you did this intentionally and you see that twelve times and then you suggest how the accident may have occurred and this is after you just say i got back from the autopsies and i seen the injuries and i'm going to suggest you a scenario how these injuries could come about and then you tell this suspect that this was an action you would not do jail time how did you ever say that if this is an accident you will not do jail time this is one of severely even though he didn't confess to crimes yes your honor but then there's also this other of line of techniques where they suggest they tone unequivocally that this was not that this wasn't actually you did not do this intentionally and then they suggest how this pleasure good morning your honor is may it please the court my name is zachary billy onco assistant attorney general on behalf of the state of west virginia and the respondent warden when police officers inform individual suspected  signed each of those rights initial next to them and therefore he executed of waiver of his right to remain silent under the presumption that the united states supreme court is recognized in the cyber his statements decisions are a little bit conflicting we did present in our brief below this or but we actually offered affectively a concession that this was exhausted on appeal we recognized that in that should have applied sir i think that's that's that's accurate and this court and every federal court sitting in every federal agents review those as a matter of comedy that sort of deference to state court terminations and so we certainly think that  think i do not believe that the state of the prosecution needed to add an address those statement because they have a powerful statement from october fourth the third interview and so i mean i i did not try the case  completely read the transcript and i don't believe they brought it up at any point during the record his previous statements but so just finishing up briefly this is a read a regular perfectly within the realm of  in front of the petitioner what was happening was the police were aware of the significant and serious facts of this we're at a child and less than two year old child was found in who is in the sole custody of the only person who was in had custody of her eight in the morning till two when she was when he came to pick up his girlfriend and this situation was revealed that's what created a difficult choice not the police interrogation th look at blackburn rovers alabama where individual was held in a stymie room for eight or nine hours totally filled with police officers those are the kind of inquisitorial cases where the supreme court and this court and other courts have found that willing to let mr hayes speak to his girlfriend and tried to reach out to him they gave him a cigarette break they never told him at no point was you know that they had discussions with him they let him walk around they didn't do any sort of extreme or odious pressures that are beyond you know and so the totality of circumstances clearly indicate above and beyond the miranda waiver that the that the statement he gave was voluntary i can represent to this court i made efforts to discuss that extra judicially with dr martin was unsuccessful unfortunately i can tell you that dr murray is currently the chief medical examiner for the medical examiners office and said west virginia and presumably one does not become the very likely answer was yes because he had been hired by the medical examiner's office i'm open to the possibility that there's this two hundred percent chance that the answer would have been no but i'm still wondering how that does deals with ineffective assistance because certified which put in the mind of the jury the attack on his credibility and then subsequently during the hour long cross that you recognized earlier he had the trial counsel got several specific admissions that could be used to attack d former would be the state's position whether or not an individual satisfy sixty one twelve ten is about whether or not they can be literally hired by the medical examiner's office in fact yes absolutely the west virginia rules of important and recognized that the district court in this case judge johnson specifically found that dr mott there was nothing intrinsically wrong with this ball fish that is he was perfectly qualified to give the expert opinion he did in this case i want to say i know  expert is better than dr murray and during the cross examination for deer and getting dr marks to make those admissions that's just as good if not better than having the statutory admission and he didn't go into the question of the statute because inquire into the issue of the lack of occasion made it so that no difference should apply you're saying maybe the prejudice finding wasn't entirely independent of this idea that  through many motions that he did and that state court completely ignored these motions again in contravention of their own rules but turning back to the prejudiced prompt doctor says testimony does not and that is unreasonable and she and if you look at the only workers osment accused in this circuit they are the trial counsels blind acceptance of the state's forensic experts evidence was considered