fact it is one of three alternative ways outlined in the really case in which you process can be violated when it comes to advising someone or not advising someone about their fifth amendment rights really says that vague and state court concluded that mr hutchinson could not show that the court had just turned one had actively misled him into believing he was at liberty to refuse to answer incriminating questions simply doesn't bear out the construction they put on it if there were any doubt about that it would have been completely dispelled by the subsequent decision in united states versus lab where the court put the convention or between the first and second alternatives and then put the phrase and certainly not between the second and third alternatives if mr hutchinson show that any one of those three ways of committing a due process violation occurred then he's entitled to relief here everyone agrees that the washington state supreme court's opinion in hutchinson one was contradictory the washington supreme court could refuse to answer incriminating questions really is a tad different in really he doesn't have a judicial officer i e the trial judge saying wait a minute here's how i interpret it do it this way so he doesn't have a state neutral state officer telling him well it's messy all right and those guys don't know how to write and they don't know how to tell people what to do but i'm telling you what it means well that's true i mean there was a priest as the article is god speaking through this person and in your hypothetical i think the person mr advised by the oracle should win but it's a little different for me it is a little different  even the prosecutor in this case told the trial court that he couldn't understand what the lesson supreme court decision meant he said it was a puzzle and he couldn't figure out exactly what does it mean the heaviest court in this case said it was ambiguous and under that interpretation that there wasn't a fifth amendment right turned out to be correct in really as well your honor turned out nobody ultimately qual with the fact that there was no fifth amendment right but the person was given an assurance by in that case somebody who appeared to be acting for the state was acting for the state appeared to know at least two of the people were given express assurances that you can rely on the fifth amendment even though they were wrong one of the people mr brown was told absolutely nothing absolutely nothing at all about whether or not he had a fifth amendment privilege he asserted it and everyone sat there silently and didn't quarrel with him and mr brown's conviction was reversed in railing because the court said that commission gave the impression by its silence by not quarreling with that you have a fifth amendment privilege the trial court here leave any such impression a trucker here said this is what i think it means  believe you when in this case somebody made the judgment the trial court is wrong i'm going to take my chances on appeal and you may have an argument there but i don't think it's really but really the commissioner was wrong w n it was commissioner who was speaking in this case it was the trial court who was speaking that's who the defendant has the opportunity to listen to well even when no one speaks mr brown wins his argument  dead flat wrong i must allow got conflicting advice from different quest for leases of the state department one came at one time saying no problem going to cuba and another came in another time i also run out of time i'm out of time so what i will do if i may is just make one last point about who the court is speaking who gets this advice this is crazy conflicting advice it's a man who is a paranoid schizophrenic with dyslexia attention deficit disorder and borderline mental retardation who was told by his attorney yeah that courts the supreme court said you don't have to answer anything incriminat felt this playing up the proper honorable thing to do would be to grant his wrath here and now because we really did say to them on examination you can refuse to answer any questions yes you that what he really told them that that was the opinion or those were the views of two members of the washing the supreme court i'm talking about what all i'm saying is that it does sound like it would have been the proper and honorable thing to do the rest of it is not tracking that it is in fact the case that they did say that he would just no ifs ands or buts just playing out refuse to answer any questions yes your honor but i think that it has to be put into context where it was that that occurred that immediately preceded the actual holding of the court where the court signaled to the world we hold the following may address the questions that were being raised on that appeal that interlocutory appeal one of which was mr hutchinson has to submit to a mental examination by the state's expert no ifs ands or buts his counsel can be present  next paragraph that all well you have to answer the question in the trial judge will protect you those are vastly different concepts i did but that's certainly arguable your honor and there was that ambiguity in that in the court's decision i think however the trial judge got it right when he said that this is the way we're going to proceed this is what's going to happen here and this was just shortly following the washington supreme court's decision being issued on january thirteenth  hundred nine the judge laid down the law and said this is how we're going to proceed you will in fact submit to an examination by dr muscatel i the trial judge well through in camera review or through exclusion of testimony bearing on that  incriminating statements that may come out i will place up the fifth amendment issues here assuming that this evidence is presented at trial because the waiver i guess there's a question when does the waiver actually occur of a fifth amendment privilege does it happen at the time of the interview or does it happen at the time when the defendant actually asserts the diminished capacity defense at trial and in fact submit the evidence to the defense experts that was that the trial judge's instruction to the parties that that was how the case was going to proceed from that point so any ambiguity that there may have been in the court's decision the judge clarified shortly thereafter by instructing the parties how it would be proceeding and mr hutchinson had fair warning here exactly what was going to happen of the trial court clearly quick to have mr hutchinson on notice of the consequences of failing to submit to the its citizens under criminal sanctions in language so vague and undefined as to afford no fair warning of what conduct my transgressed them here mr hutchinson did in fact have warfare warning use put on notice that experts would be excluded if you didn't submit to an examination by the state's expert any got that from two separate actors from the washington supreme court and also from the trial court on remand from the washing supreme court and it's also supreme court in this case is entitled to deference under twenty two fifty forty one and that the supreme court properly pride that really versus ohio decision now we've heard some argument about  ohio marks versus united states and united states versus loud i believe that those are nothing more than judicial glasses at least two of them are first of all in the marks decision there was no citation at all to railing so we can't really say that that builds upon with loud there was reliance on way me where the court said ordinarily citizens may not be punished for actions undertaken in good faith reliance upon authoritative assurance that punishment will not attach but they're all and they're all emanations at the same core principle aren't then i think your honor they may stem from a due process core i don't know that they are i don't know that loud or  decision in light of marks in light of and in light of a lot of first of all mr hutchinson these cases were not relied upon in the district court by the way it was not in  rainy rainy radio all the time it is not banned in marks or doyle or other cases it's been premised upon reilley and the allegation in the hague is corpus petition was that washington supreme court violated the reilley doctrine so i think those other decisions although they might be interesting and they they may amplify what the supreme court announced in reading which is ohio they don't really add anything to mr hutchinson cbs corpus calling and whatever might be the precise clearly