when you're ready good morning your honour's it's still morning yes may please to quote i mark silversmith for petitioner napoleon brown and with the court's consent i'd like to focus on the griffin issue and particularly the prejudice to the gun in the hands mint this is of course a very strange procedural situation in which neither the state court nor the district court have adopted the position of the people in this  case it's true that in order to grant relief in a hay vs case we have to find that there was a constitutional violation after after twenty if twenty four fifty four thirty two fifty four backs out we still have to decide whether there was a constitutional violation there is a constitutional age violation well i'm biased our case law says definitively there wasn't some wasn't at the end of the story your case law says definitively there was no constitutional violation it's under miranda under salinas under malloy versus hogan there was under the state court own decision they found a constitutional violation because so much we thought i mean i don't understand what difference that makes how do we grant a b s at that point case law says no your case law doesn't say now ok i see what you're saying your honor i'm sorry i misunderstood you what your case law says is that creamery and the silence may or may not be a constitutional violation in that was actually with all due respect i would disagree because what the the tourney general has framed this in a way that i believe is confusing the issue is there is an invoke asian of the right to count and the right to remain silent that he's not going to talk to you upon his right of counsel and his right of silence so we have been invocation in this case there is no case in this court or in any other court that says once you have explicitly  both your right to remain silent that that can be used against you and if that can be used against you our whole system will collapse because then your position your founded a crime scene the police come up to you and say what do you know about this you say i would like to indication of the right to remain silent if my client had stayed at home and had never said i'm invoking my right to silence as the state court found that he did then i would have a problem but i don't have that problem because as the state court found explicitly he did not come in because he told the police through his sister and through his attorney who spoke to the police and said i can't let him talk to you so being that the state court that the people never acknowledge and that's an explicit factual finding by the court of appeal of the state of california and that distinguishes every case that the people have cited  there's not one case in there where a defendant said i'm invoking my right to remain silent and the court has said i would still find to say that that proves you're guilty that would destroy the entire system then we'll go back to ter principle and that we upon which the fifth amendment was found so then is extremely clearly defined by the us supreme court in swain against federal frenchmen the right of a person to remain silent unless you chooses to speak in an unfettered exercise of his own will and to suffer no penalty for such silence in the miranda they said  use of the fact at trial the fact that he claimed his privilege in the face of accusation may not the prosecution may not use that so that's not exactly me that the  mean you can disagree with that strongly i understand why you but that's what how i would i would disagree with you and i would disagree that it holds then and i would disagree that it's a stand that it could hold that after the more recent case the court in salinas vs texas said if you want to rely upon your privilege against self incrimination what you do is you tell the police i want to rely on my privilege against self incrimination which thankfully what mr brown did and his voluntarily then that is very clear the police let him go after he talked to them and he answered a bunch of questions and they asked him about a gun and then he didn't respond to that and they said his silence in the face of th police encounter about the gun was proof he was guilty this is quite different because what salinas said is that mr salinas if you wanted to rely on that privilege would have to tell the p don't want to answer that question because i would like to remain silent and remind my fifth amendment privilege that's exactly what mr brown did and that's why the california court of appeals said that there was a constitutional violation california court of appeal over read the protection provided by the fifth amendment and mistakenly concluded under federal law that the right to remain silent applied here in the in this early  then we're back to the genova question was there or can we grant relate because there's a constitutional violation in there so would your honor it is your honor saying that if i go and i please i'm going to crime so i'm trying to deal with the question to have you deal with the question that judge fletcher just asked and you have to raise what is the significance of what the state court did here let's leave the merits aside what the state court did here let's let's assume for prep purposes of this that our law as i say it is that you there is no violation here and the state says there is a violation here ok where does that leave us as a court with regard to haiti as well ordinarily twenty to fifty four it's also the question is not the ninth circuit it's the united states supreme court law and i is the court asserting to me that the law if you are at a crime scene and the police approach you and you say i that's not true the supreme court i cited a quote and i just put it to you from a lawyer versus hogan i just quoted to you from marinda versus arizona in wainwright versus greenfield they also said that in united states versus jackson they also said that in the fourth amendment context they said come our versus municipal court in d c versus little so this is been repeatedly decided in a group in itself that you cannot penalize the assertion of a right so if i if city is sitting in a crime scene and a police officer says what do you know about this dead body i'm not in custody and i say i'd like to remain rely on my right to counsel and to remain silent and discuss that in the presence of counsel there's a you're of you're at the limit here let's hear from the other side and then we will give you a chance to respond thank good morning your honor is still fair on behalf of the attorney general i wasn't planning on discussing this i was actually planning on getting to harmless error but i'm perfectly happy to talk about twenty to fifty four because i  do agree with where this court is headed which is going to anyway sorry for me anyway or perhaps perhaps and or the stake under twenty to fifty for the state difficult for this court to say that it's objective leean reasonable when and we just agree it is not clearly established by the u s supreme court my question is really something else let's suppose we concluded twenty two fifty four g mean it's not unreasonable to think that this is the law but then so then twenty two fifty four d goes away but we still have to decide whether there's a constitutional violation here correct and then under our case law there isn't correct now mr i your opponent says otherwise he says that i'm misreading our case law you know this this court's case law is clear and there is a split in authority and there are good decision reasons to decide either way the use supreme around us i don't know what this court did and they went into more detail and oplan sure but an awful unsure what this court did is it went back to the fifth amendment which is where all of this comes from and the fifth amendment says no person shall be compelled to be a witness against himself so oplan sure looked at jenkins and it specifically looked at justice stevens concurring opinion in jenkins that said if there's no custody if there's no compulsion at by the government the fifth amendment is not implicated that's where this court and then then you stop then you stop right there you say the government did not compel this and therefore there's no compulsion under the fifth amendment and then it is that mess of all that's what this court said and off under and then in back men but this court has gone on to say and substantive evidence of guilt and there are arguments on either side but this court has gone one way and it would be very difficult to say well right under the do novo review if twenty to fifty four d slides out then under did novo review then the state prevails and also i would agree when you look at richter that language and rector saying twenty to fifty four guards against extreme out functions in a state's criminal justice system and so you just this you can't say it's an extreme male function when if this case were in difficult to grant it it's a high standard though i just wanted to correct statements on the reply brief about same brecht is similar to try all error not constitutional error but statutory error and that is just not correct under brecht there has to be a showing that the error produced actual prejudice under chapman and really the big crime in this case was the murder and so there was murder robbery carjacking it was this whole series of events and the petitioners defense at trial was an alleged and his silence tended to show that he didn't have an alibi because what happens is you have to look at well what was there and what did the silence show like and jenkins he didn't come up to the police for two weeks and they said and then he came up and he said it was self defense or and so the question is well gee why didn't you come to the police two weeks earlier and say i killed this guy in self defense you have to look at what the defense says and then the then the prosecution is a silence to saying if that was your excuse then why didn't you tell us earlier well in this case th hit the fact that he did go to the place station didn't prove that he was the guy with a gun i mean if all you show at a trial is this person they're going to go to the police department they're not convicted there was if he was so innocent why did he try to climb out the window when he was arrested and i'd like to also point out in the reply i saw that he said well maybe try to climb out the window when he was arrested because there were drugs at the scene like thirty two thirty one and so forth that basically she had heroin in her purse and there were eight people in that room and florrie harris another person and petitioner were all arrested but the five other people were not and so the idea is consciousness of guilt from the trying to climb out the window the argument that maybe he was trying to climb out the window because there were drugs there while the drugs were in her purse and she admitted that they were hers and she admitted also that she was selling drugs though she did not she eventually pled to possession for sale with those drugs your honor in this court this court decided the tax case which i said on page six of the reply and the prescott capes sign on six of the pie those cases both hold that when you invoke a right in that case it's a fourth amendment right you can't use the in vocation of a privilege to prove guilt and that is the issue that's not decided in aapl injure and that's the issue it after op under the u s supreme court decided salinas and they said if you are voluntarily not in custody and the police want to talk to you you must invoke your right in order to claim that privilege and that is exactly what mr brown did he was in in custody he invoked his right through his attorney and through sister and if the court holds as a matter of constitutional law that that can be used against you i frankly think that's a gross extension erosion of the fifth the member privilege in as an on the issue of silence but this is an issue of in vocation on the issue of whatever they were deciding they cited it yes they said they viewed what they were just signing as being an indication they said that it's it's it is on an issue that is not the issue before the court the issue before the court is once you have a factual finding  can the prosecutor go in there and say he invoked his right to silence therefore he's guilty that's the issue and that was also this was before salinas versus texas the court just said last year what you have to do invoke your right to silence to invoke that protection and that's what mr brown did in this case it would be a grocer rosen of the fifth amendment if you could then use the fact that you invoke your right to silence against you in a court of law to prove your guilt thank you thank you very much think your honor if the court needs anything further i'm happy to provide further briefing if we want for the refrain we will alert you by order i understand thank god vs attorney general now submitted for decision