two months ago in the case of lewis versus current judge mckeague started oral arguments not with quite these words but by noting that the supreme court has repeatedly emphasized just how narrow havey this review is and   pinions like judge but tani's in this case that do not meet these narrow confines particularly relying on state precedent for the key point and i'm asking the court to follow the law and reverse there is no impression reading this and then watching again the video of the the interview was it it's very possible that had mr mckinney not interrupted the police officer that had he completed whatever that statement was intended to be after the play it had invoked the right to counsel that it could have been interrogation there a or sponsors of that yes that is true that the intro the interesting part about this case is is even if he had intended it to be it interrogation and even if we assumed that whatever he might have said would have been  cated statements you know and then which then we're supposed to figure out what to do with it no and of course in a habeas the burden then it says since we don't have a supreme court case that deals with that therefore we deny relie the other thing is is possible it is plausible that he was talking about something else but like i said obviously refers to something within the previous five minutes earlier he gave miranda warnings it is possible he was saying yes i have a little further on but like i said you have the right to remain silent and i cannot talk to you anymore and here's the concern for me ok and i'm struggling with what is the right test to apply and i'm looking at the  the michigan supreme court that holds in a pretty short statement that it wasn't invoked and and looking back at the supreme court law it's still me that the first question is what did make a nice guy i just assume wait until i get a public defender or whatever what does that statement standing alone maine because that was the first statement that he made why didn't they have an indication of the right to counsel we have assumed the entire way through that that is an indication that that is also yes and so so the question becomes what has the supreme court told us to do when we have an invocation of counsel if you evaluate this and the rule says if the accused involves his right to counsel courts may admit his responses to further questioning only on a finding of two steps that he and michelle i did further discussions with the police and that he knowingly and intelligently waived to the right he had in front and in fact the majority opinion saying as an accused subsequent statements are relevant only to the question whether the accused waived the right he had invoked in vocation and waiver are entirely distinct inquiries and the two must not be blurred by merging them together you know so why isn't that our test well to a large extent it is the test but the real test is going to be he disagrees that that's a test of ok so the statement that we have afterwards the second statement is i would say a pretty clear initiation of further discussions with the police that's correct but where in the record in a court finding even in your argument is there the kleine that the second st that that this defendant knowingly and intelligently waived to the right he had already in front and that comes down to a case called davis versus carpenter which came out of this court last august seven ninety he did not invoke the your argument if he invoked and then he stepped away from it by his second statement we've already had the i just assume wait until i get a public defender or whatever standing alone is a clear in vocation that is not the decision that is not the michigan supreme court decision the decision is the confession comes in that is possibly the reasoning i disagree that that's the reasoning but what this court said for our task we do not review the state's courts we review the state's court's decision not the intermediate reasoning for our task is it determine what arguments are theory support of the state court decision or that that first statement is in fact an clear invocation of the right to counsel so smith tells us got an indication here's what we do we asked two questions did you reopen discussions and did you knowingly and voluntarily leave i say my guess he reopened that's what that statement says yeah i'll talk to you about the other circumstances but where do we have or even in your briefing that says he also engaged in a knowing and voluntary waiver of the right that he had in the smith is contingent on one other thing that there was intermediate interrogation if there is no intermediate interrogation it can go on that statement show me where i understand that most of these cases do talk intermediate interrogation without question because what they're looking to is the ultimate confession but it seems to me we have a case here that is the pure smith case we have an indication he said like we recognize in our cagr case and justice and wait until i get a public defender so we've got the end detention now what does the united states supreme court tell us to do with it it says if there has been interrogation intermediately if there has not been interrogating that we don't have to worry about that and there was no interrogation in this situation though it's pretty clear that if somebody invokes the right to counsel it let's say there's no further discussion or statements from the police invoke the right to counsel and then you just keep talking even vote and you waived the harder question is did the police do something that over bore somebod will that then cause them to stop talking after they've already invoked and that's why we're focusing on this little furries here i just correct that is exactly the way to look at it in order to even take the second statement that he made into account to see in toto in totality if he really unequivocally invoked you have to determine whether that's that statement that the police officer made his interrogation that is correct and if it is interrogation you can't take that second statement into account at all you can take it into account to figure out what he meant by the first statement and you can't you can't consider it to be a statement against his interest is correct so you're it's an objection is that the miranda wall requires a police officer to come in and read you your rights about the right to mind remain solid in the right to have pailful and you can say to that police officer i want an attorney and the police sir can say ok would you like some coffee i think we'll be here another few hours how's your family do you know anybody else in the k and continue with this discussion in gauging the person and holding zammit that like haitian and as long as somebody can say there was no interrogation no matter how long you're held we don't do what smith says we don't have to ask if the defendant re engaged and then ask if he knowingly and voluntarily gave up his rights you're just going to assume if he ever begins to talk about it again and he is knowingly and voluntarily white his right kind of thought that was what this was all a buyout was not being able to overbet or someone either by placing them in a situation in which they had to respond or head to wait or were affected fully a captive audience and overbearing their will one state had said i  simpson is a completely different matter we have here you asked him a lot of questions idea why he didn't want him to ever really easy answer in the second place you watch the i sure have you help and there is no overbearing in there and we're not talking overbearing with a strong case that statement and especially we're not taking a look at us supreme court case let's not forget the a d p a standard which is the most important thing here other than the getting very close look at me just a few to summarize because i'm struggling with what ten should apply and i'm looking at supreme court cases and i'm just trying to figure out in this kind of situation don't we apply what the man thing is because we have an invocation and then we have the two step but your position is that those  position that is correct and the way the judge mckeague was analyzing it is absolutely one hundred percent correct thank you and in that situation i ask the court to affirm his bachelor before i reverse that you have any question well graph from the state appellate offender office on behalf of james mckinney your honour's the prosecution is ask you to review the state court decision and i agree that's what we should do first district court summed up best when she said the michigan supreme court on reasonably nor the fact the petitioner made a second statement only after the detective responded to his unequivocal requests for counsel and that's exactly right there on the michigan supreme court said mr mckinney's to statement that the second statement f  mediately after the other but that's not right the second statement happened only after the detective intervened with further interrogation well it's really kind of semantics that if you watch the tape he invokes i don't i don't think maybe disputes that the detective then says a what is it about five words before he gets interrupted this is all just one continuous sequence minutes in discussing it we can we  periods and periods to appear on the piece of paper but it's just one continuous dialogue here well we don't see a transcript really wouldn't necessarily show whether there are any gaps or pauses or hesitations or anything like that but we have the benefit of the videotape that you would concede doesn't show any of that right well the in the videotape my client clearly invokes his right to counsel i think both men pause for a moment and i think we agree with that and then the says well that's fine and if that's all he said this might be a different case and he walked mr mckinney back to his cell but that's now a dead he said he continued and he said but like i said and he's talking about his earlier attempts to get mr mckinney to talk statement i agree with you that my client did not knowingly voluntarily waive his right to counsel i also believe and i'm arguing that smith is specifically violated because there was intervening interrogation and smith tells us i think well what we're trying to figure out is do you agree that we have to look at whether the statement well that's fine but like i said is or is not interrogation is that important or critical to the end result resolution of this case if that is interrogation i don't i think that smith definitely size that statement my client statement should have been suppressed that's i suspect everybody agrees with that too so if it's but if it's not interrogation then is there a violation here of clearly established supreme court law if that's not interrogation so if that's not interrogation i agree with judge str discussion that you know there's not a knowing in voluntary waiver of the right to counsel but but i did but i don't concede that that was not interrogation and that's certainly the you're so you think you win whether it's interrogation or even not entering yes i think that but i think that the hypothetical that it's not interrogation is not i believe it's interrogation i believe medically not and then asking you whether you agree or disagree that it's interrogation i get that i'm just asking you which i think is the same thing to trances ask you if it's if it isn't interrogation if we find it's not interrogation is there a violation of eyes him again after he he makes his he makes his unequivocal invocation the detective says well that's fine but like i said at that point he interrupts oh so was  we're just trying to figure out what you what you what what you want to say in this case well first and foremost i think i want the court to say that the judge that the detectives intervening statement was interrogation is the primary of the possible responses to yeah but like i said were they for mr mccain to respond with his weight or his birth date or any of those kind of booking questions now of course not those would have been responsive the only two things that could  responsive to the detective's intervening question are no i still want to invoke my right to counsel or i guess maybe i should talk to you and that's clearly what the detective was after there's so that was all these arguments about whether it is or is not interrogation are covered very well in your brief we get all that all i want to know and if there isn't an answer just tell me you know that's why if it if it isn't interrogation then where do we go from there if it isn't unusual in the supreme court law to recognize the fact that throughout proceedings a right to counsel can be invoked and was a denver oakton was we've got that statement throughout i would sit in davis the recognition that this is a right that can be quite dead in any stage of the proceeding so what i'm struggling with is when you're doing this i'm invoking nael and then i'm waving and then two days later you invoke again what is the test that we look to how do we figure out you know it's not one time you're done it's you do is you ask did they really open that door and did they knowingly and voluntarily what it is and why wouldn't we apply just the normal principles to make that determination it's not a question of remand or of rewarding them it's a question of whether the evidence suggest that i sue has made clear in vocation have nael changed my mind agreed to talk to you and knowing million voluntarily waived what i invoked why wouldn't that just be looking at that situation and saying is there indication of are and that's what i'm not finding in this record i agree with you your honor and judgment point if if that's the answer to where ever the question was buried in there the he the n says we can talk over all the other circumstances how could how can you not read that to be an unequivocal indication that he's willing to talk there's nothing in that statement that suggests the knowing a voluntary waiver the understanding of his right and the willingness to forego it but that goes back to the question of whether you have to remove them again even judge trances it's that that's not the question he six seven words are then said and then he goes on to say we can talk over all the other circumstances why why how would you read that phrase of his to say that he's not knowingly and voluntarily agreeing to talk but your honor you asked what would what should the police you ask me what should the police have done and the answer to that i think is they should have done it mr mckinney asked  should be given a public defender if they had done that there would be they would have honored smith for selling only clearly and it would have been a borderline case at all so you say we don't look toward to what they did do to determine whether it was or wasn't interrogation they can't say anything at all they can there are plenty of cases say they can do things like continue with routine booking questions administrative matters is there any what's your best case that says that a free from the supreme court that says a phrase well that's fine but like i said that's then interrupted by a defendant who says that he is willing to talk about other circumstances clearly establishes the law that that was interrogation just give me your best case that's cases we're down versus an issue there and i mean when we when we apply that test to to this to this intervention by the officer you  the test about what is interrogation so that it's always the test that we that we have to have to apply and there are our key differences in this case from in us in us there was not a formal interrogation the defend it was being transported by the police this is a formal interrogation he's been he's been sat down he's got his coffee they're clearly in it for the long haul he's been he's been right is right in this the officer statements were not directed at mr innes they were directed at each other here the detective is talking to my client he's trying to get my client to keep talking and most importantly the big distinction i think between inus where the court said it was not in each other you might reasonably think that a suspect wouldn't reply at all that he would just sit quietly in the back seat but here that's not the case there was going to be a response there sitting alone at a table you know in a room and the the statement called for a response and what response might have been a routine booking answer no the only two responses that would have been responsive war i want to continue to invoke my right to counsel or rethought i don't want to why why would the portion of the sentence that the detective got out be reasonably thought to invoke a response at the time that the your client interrupted him and said he's willing to talk about other circumstances not exactly clear what you're asking well let me ask it in another way one of the odd parts about this what i think makes this hard is that we're trying to figure out the import of what the detective said after he invoked his right to counsel when he didn't even get the full sentence out so that's why i was talking to mr schoenberger that it may well be possible that had the police officer completed his sentence phrase whatever it was going to end up being that it would be fairly easy to tell whether it was or wasn't interrogation but he only got seven words out before he gets interrupted so what is there about those seven words that would show reasonable police officer that in that starting with whatever he was going to say with those seven words crosses the line we know what he's talking about already but contrary to what you said mr mckinney like i said like i talk said to you earlier when i want you to give me your side of the story but like i said is contrary to what you said about the fact that you  want tourney i'd like you to refer to my previous statements where i've said it's really in your best interest to talk to me now and give me your side of the story that's what he's saying that's mr mckinney new that we look at that and we all know that that's what the officer is talking about all right so we should ignore the first three words of the well let's find you're not relying on those now if he'd stopped there then that then mr so if so this whole case then turns on whether the words quote but like i said end quote turns on what those mean and would a reasonable person have have assumed that that was in an invitation and that that was interrogation that right there might be a further  discussion about whether the the right was knowingly voluntarily waived aside from that but if that is interrogation and i'm governing arguing it is then smith has been violated and you think that th that ask answers the four question the question as to whether those four words are interrogation absolutely clearly and not only does it answer it it answers a clearly very clearly ok fair enough i thought to get pretty well spells it out  you have any more questions on that one quick question on the supreme court of michigan decision oh look i'm trying to figure out from the line going to that if they are how you reached the determination that the case hinges on interrogation because with this the decision says it's an unequivocal it was not an unequivocal assertion it cites a day this cites to four fifty seven it davis that is really just a generic explanation of miranda rights how do you lead into understanding that this is an argument over interrogation to reasons in the first place that is the only argument that was made to the court and it just shot just went straight over it the second reason because this is a d p a and i was citing davis versus carpenter it says it doesn't matter what the decision is i'm sorry it doesn't it's the decision that we look at not the intermediate reasoning if we can come up with the you can better off in an argument so this is the the argument that you posit that i must have been looking at that interrogation that that is all that was one  machine supreme court took the further phrase well we can talk about those those other circumstances into account in determining whether or not he had clearly and unequivocally invoked his right to counsel yes they did the only way under supreme court law that they're allowed to look at that further statement is if the intervening statement is not interrogation absolutely so while they don't say that they had to have concluded that it wasn't interrogation and because the issue was presented to him and there's no other indication that they didn't understand that issue under harrington versus richter then i have to say anything about it there must be what they met is absolutely basically the way the analysis goes yes davis versus davis versus carbs or cites to harrington that is correct that is absolutely correct and the thing is those four words the reality is yes what those four words mean but also is there a supreme court case that sense that those four words are that way or a reasonable application not an extension but an application and cite oh i'm sorry citing two cases on that their general statements but jones versus bell from last august judge mckeague subpoena and the colonel defended as to represent himself and forever says california is very established we know that b ferrari he had asked a few weeks ahead of time in jones he asked the day of trial and work were always flattered when you when you cite six or eight cases if the author of them and if we were on the prevailing side but hasn't the supreme court clearly told us that the only circumstances under which we can look at circuit law is to see if the circuit has interpreted a supreme court case correctly or incorrectly in a certain way and it's thereby binding on us under the panel the supreme court  said we can't look at circuit law to develop or evolve or interpret the supreme court's decision as to determine if it's clearly established and that's not what i'm asking you to do ok so so it was so with that in mind bridges the gap there in other words the same thing in the present case you don't need circolo to say that supreme court still does that dozen times that's right in the present case there is no case that bridges the gap between in us and these