coercive and fraudulent choice that the detective made to mr jamieson was based on a threat that had the can or side of an implied promise of leniency was tell me if i've got this right the threat as i recall was not a threat to beat him up or something like that it was basically a threat that his grandmother might be arrested and no that's not a threat that i would district attorney will start at the high end the high end meaning capital prosecution that is a threat it's actually a threat of violence i think on the order of arizona we're going to or you jeopardize your life or at least the possibility of spending the rest of your life in prison however and this is absolutely murder people excuse me that happens when you consequence that is false and your honor if you assert your innocence it may be that if the evidence is overwhelming that you will be prosecuted for capital murder but it is not a legal consequence of asserting your rights and standing on your privilege not to be incriminate not to incriminate yourself that was a false representation but it's the flip side in the ok things were really well established one was that deals could be made plea bargains are now no longer in the shadows the way they were in the sixty's and seventy's they're now explicit and on the record where people get lenience in exchange a plea and i thought the other thing that was well established by the case law was that it's constitutionally permissible for police to lie to suspects that they're interrogating well it is  honor with i don't think there is a case out there that that stands for the proposition that a misrepresentation by a police officer as to the legal consequences of either asserting their innocence well or of there are very few cases that deal with legal misrepresentations i think the best statement that i have found is in a district court opinion in this district garvan v foreman were judge also says that if you can  done otherwise the police can trick many represented suspects into making admissions in order to avoid the threat of a first degree murder prosecution and that is exactly what happened here in it the threat is important your honor but it's really the implied promise of leniency that made the threat affective because what hendrix said to remold was ok if you assert your innocence these terrible things could happen you may never see your daughter you could get the death penalty you could be in prison for the rest of your life but if you don't assert your innocence if you would not to the shooting but you say that well when i woke up that morning i didn't plan it it wasn't premeditated in that sense then hendrick says that will make a difference when you get to court and it's not just some  c as part of c r l f and i think or we've got the defense transcript defense transcript which page eighty and we've got the tape ok the defense transcript it's page eighty five ok it starts actually on it before ok so you can let me go home tonight i can let you go home tonight no i can't let you go home tonight you have to tell the truth that's all i'm telling on telling you the truth to tell the truth about what you did you know i get to go home ceterus or that part i can't tell you i'm going to let you go home because i would lie this is the partition talking about and then you getting to it will make a difference in your case that would make a difference on your case that's what i'm saying dude it will make a difference in your case down the road i guarantee you that is that telling the truth make a difference well i think if i think that takes a little bit out of context your honor be questions i just read the context well but the context the truth and he says that's what i'm saying dude inspector it will make a difference in your case down the road i guarantee you that i be true to you on that i promise you that that i can talk about i can't get you to go home well inspector hendricks made clear at another point in the transcript that when he speaks of the truth he only means one thing and that is a confession to having shot mr hoskins is the only place that we're guaranteed is used i think it may be the only place where they were guaranteed of years yes but that's interrogation is premised on there being two possibilities hendrik says either you had a plan you brought the gun with you to this it to the scene with a premeditated planned to kill th or you just happened upon him you happened to have a gun something happened and you shot him and hendricks specifically says those are the only two possibilities we are going to talk about that is those correspond to what my witnesses say and that is it everything else he considered a lie and he said this over and over again the problem is it was a lie and he had witnesses that pretty much established that it played a consists of statements that are truthful or not coercive what is coercive here though is just for the inspector to set it up and when he sees that the interrogation is not ending in a confession he turns t screw and he makes a false representation that all i'm asking you to do is tell the truth because there is first degree murder second and right on down the line and somewhere between manslaughter and first remerge in this case that's and i till i hear your side of it i don't know where it fits so i have to start out at the high end you know because that's where the d a is going to start this is there are lots of possibilities including the gas chamber there's life without the possibility of parole guarantee the promise comes in the context of saying there are only these two possibilities i know you shot him so either we're talking about premeditated murder which could end up with a capital murder or you can admit to having shot the guy but that you didn't wake up that morning and planet those are the only two possibilities so when he says that it will make a difference i guarantee it he's talking about  determination i would say that what the court the state court found is not an unreasonable determination the other point that i would i would make it's simple as is this that it would point out in our brief after the gram a statement jimerson continued to deny any involvement in the crime he did not admit any involvement until there was the actual one more thing before i say that let me point out that the inspector said don't meeting involvement after the tape of mr mack was play and it that's when he starts negotiating and i think in goshen there's about i believe that there were twenty pages of negotiation before he said something that was the state court i would argue that state court could reasonably conclude from that that what what turned the tide in his case was not any sort of alleged threat to the grandmother but was the playing of the tape a it have a substantial injuries effect on the verdict and i would point out that no it did not because the jury convicted the defendant of first degree murder if we look at mr jefferson statement he says several different things he said he point finally  admits shooting he says that he did it to scare another point he says that he did it because of the victim had threatened him he said it's him or me or the victim threatened him now if the jury had credited that statement that would not be first degree murder could arguably be an argument of genuine but on reached a belief in the need for self defense which would be voluntary manslaughter in california so the jury could not have reached the verdict  well i think personally that is the easy part of this because the court the california court of appeal not only didn't watch the videotape and not only credited only the prosecution this was asked to watch the videotape of this council correct  opportunity was available and was not taken advantage of well they were they were not asked to and that when that was a mistake but they were conducting do no do no review and i don't see how you conduct a noble review of an interrogation a without watching the videotap well it taints their entire analysis because they're supposedly making a didn't know so i didn't know vote determination that there was no coersion they don't watch it they only look at what i think is the less accurate transcript of what occurred and they're reaching their conclusions well i think it yes i think it does taint any conclusion they reach but the most important part is that they don't deal with any of the well i don't think the law does permit you to do that i think there are nine hundred cases that require you to look at the court of appeal opinion but which cases are those would be the trial court irrelevant the trial court was the one who saw the tape