good morning everyone it please the court printout see chose to confess to release those terrible images of teresa halbach that were haunting him the investigators encouraged him to get out but did not apply any improper pressure mr byrd help me with this if a police officer says just someone who is being interrogated let's get it all out today and this will be all over i have a two part question for you the first part is what would the average person think this means when would that person think i can i can go home it's done now the second part of the question is i want you to imagine it is not an average person but his sixteen year old with a very very low suggestion i think neither an average court person nor d'asti would interpret that statement as meaning that he could go home so there were twenty such statements thirty such state  there are multiple reasons why none of those statements communicated to dessie that he could leave number one nothing the investigator said actually promised a specific benefit in exchange for cooperation courts consistently reject false promise theories where there hasn't been a very specific offer second the only specific things the officer said the warnings they said we can't make you any promises and anything you say can be used against you those were warnings were there to prevent bassy from misinterpreting anything else that the officer said third well do you think someone with brandon's intellect understands that quote the truth will set you free is an idiom particularly when one is sitting in a police interrogation room haven't you know we the i don't think he would have taken that statement to mean that he can actually walk free we have evidence in this case that his will was not overboard and we have his demeanor he also volunteered many details in response to open ended questions but most importantly perhaps he resisted the officers over thirty five times on six different topics they asked six questions on four separate occasions about whether he actually shot teresa he consistently said no they asked fifteen questions on six separate occasions about whether the fire was going when he already got over there consistently said it was and that avery started it they ask questions in a row about whether  wires in the garage or if he consistently said no they asked seven questions in a row about what happened to teresa's hair he consistently said i don't know i don't have it they also challenge his answer with respect to the knife and they suggested falsely that teresa had a tattoo he did not give in to either of these suggestions either when the police officer said where cops were investigators and stuff like that but right now i'm a father that has a kid your age too i wish i could hug you and i will not leave you high and dry do you think those untruths cross the line no not at all oh another words i'm not a cop right now isn't that just a plea lie this was an interview the context is very important so the difference between an interview and interrogation is crucial when the officers went into the interview they assumed th simply a witness and they communicated this to him the first time that they talked to him on february twenty seventh they said there are some officers that think maybe you helped avery participate we don't think you did participate we think maybe you saw some things but we think you weren't involved so their statements must be understood in that light they thought he was a witness and they told him that so your position is that each of these incidents are segregated and finite and distinct and that he would not still remember those statements that they were acting as a father i'm just i'm not sure i understand the could well here's the different the different sessions you're saying that it's february twenty seventh when he said they were acting as officers but but as fathers and you're saying that then he was just being interviewed as a witness and so are you saying then that that ended at the next session that that wouldn't carry over at all to the next session no that was still true at the march first interview they still thought he was a witness at that point and that he hadn't participated and so also this aura of what i'm trying to get is this or a suggesting that they were fathers is something that just didn't dissipate  the idea that they thought he was a witness because you know all of their statements it's ok we're on your side that must all be understood in the context of what they thought because they commune well how did the investigators not act co when they clearly showed frustration when he resisted or disagreed with key details and then offered praise such as now we believe you i mean i think if you watch the video that they showed very little frustration or praise they were ultimately concerned about the truth they wanted to get the truth out and it was very clear at the beginning that as he was lying to them oh you mean and there were two and i did look at the tape and there were times to me that they seemed to be frustrated with his answers and his resistance their main concern was the truth the main message that they sent to dessie was be honest tell the truth don't make anything up they cautioned him repeatedly don't guess don't make anything up if you don't know it you don't lee was fifteen year old fifteen years old and he was illiterate he had lower intellectual functioning than he did i also think i read the testimony about suggestibility i think it's highly suspect i think they did a very good job on cross examination of of poking holes in the suggestibility analysis that was done in this case the test that was done for suggestibility was something like a complicated story from england was and he had to recount the details from it and then they told him when he was wrong but we know that dusty doesn't have a good memory for book knowledge and so it could have been that he just couldn't have remembered the things that were told to him you know  brief states that only a few times did the investigators ask questions that assumed a detail that desi had either not provided or hinted at the example the brief gives of course is the question who shot her in the head it seems to me that it only takes one incident one incident of planting information to taint a confession especially in a vulnerable suspect and the vital piece of information in this case of course was that poor teresa had been shot in the head before she was investigators finally came out and they really feel that the key part of the information that only the murderer would have known i guess what i'm trying to get at here in short is essential once enough it's an entirely appropriate interview tactic to confront the suspects with the details that the investigators know about the crime this court has said that repeatedly sturtevant hearted way those are head you know who shot her in the head you think that's all right i think yes i think it's entirely appropriate for an investigator to confront a suspect with what they know about the crime now obviously it's prefer for the suspects to come out with with it on their own but it's not always possible and it makes a lot of sense why dessie couldn't think about that fact at that moment the conversation that they were having was about what happened in the bedroom the investigators didn't know where to reset was shot at that point they didn't find out until later that she was shot in the garage so when they started asking about the head dessie couldn't think of the shooting because his mind was on the bedroom and that's where all of the other things happened so so i want to ask you some questions regarding the wisconsin appellate court decision you but first you agree that age is a relevant factor in determining whether confession is voluntary i do but the and the supreme court said and got other cases a juvenile confessions must be evaluated with special care so i want to know exactly where the list constant appellate court decision says or considers dash age and where it was given special care does his age is listed in the age and exactly what was said that the appellate court made reference to in their decision in terms of the trial court i'm just saying listing the factor doesn't necessarily mean special care there is no evidence that it did not consider age it clearly was aware of age it mentioned it this court in carter said we're never going to review a state court opinion simply because it was a factor in the facts section about his opinion and doesn't read it in the analysis so  opposing side has explained that as as details of that had been publicized i'm wondering if we had if you have any response to that general point and whether we have any record concerning which of those facts that he ultimately volunteered without suggestion might or might not have come from complicity i think there's a few minor points there is that there's a few facts that we know had been released by the police officers but the vast majority of them do we have a record about that not that i could find ok and then i also wanted to ask you and i i realize this gets fairly grisly given the condition of the body when it was discovered but is was there physical evidence of a rape or of the wound to the throat  because the body was totally destroyed so that those those come only from gases confession that's right yes and there were not have been publicized ahead of time that's right in with respect to the in the wisconsin court of appeals to opinion so the court has to refer to the district court the trial court found that investigators use normal speaking tones that's correct  i think that's correct right no threats right that's correct and they say no promises of leniency right now obviously there were vague promises of leniency right  i think in context no there were even implications at least for two reasons one they went into the interview thinking that he was a witness and they communicated that to him second they thought based on what bassi told them that to the extent participated every made him do it by threatening to stab him like he had staff to resign so their statements it's not your fault he made you do it it's ok a lot of those were premised on those two things they thought he was a witness and if he participated he was forced into well look  i think we all know that the police are allowed to induce confessions by some mystery action and deception right in essence out now fraud fraud you want promises as in some extreme  cases this will be a confidential discussion for example just between us those kinds of things can cause problems if if the if the wisconsin court of appeals had written no legally relevant promises of leniency i think that would probably be accurate here but it's not quite what they said i had but i think that's clearly what they were referring to and in any event i think there weren't even implied promises a lease even if there were there were specific warnings that contradicted any implications we can't make any promises they said that explicitly and we have evidence that his will was not overboard the reason is that the officers multiple times he volunteered many details you can see his demeanor so no i don't think there were even implied promises here what's the ma thirteenth to enter she is not introduced at trial because there is a ruling to that effect or because the government chose not to do so i'm not sure the answer to that  unreliable no i don't think so that phone call occurred from his own will he chose to make the call he was warned that it was after and after the police you know if the service were not present at the time of the phone of course not but the police officers  had said to him i've we think you should call your mother before we talk to her you don't want to be lying to your mom well we i mean i don't know i still think it was voluntary and tightly voluntary because it was out of the presence of ask one other question about absolutely because you're relying on that but isn't that distinguishable from our situation because the investigators there only made one truthful promise to the juvenile that they'd they tell the judge about cooperation and our situation is different certainly it's different in that respect but we think it's the closest camelot that we have in terms of supreme court cases we think fair is the closest but let me just reiterate run t v history you're right so you're going to have that cut in different directions in every case there are many factors and it's this case that cut in the state courts favor and where that's true reasonable minds can certainly differ reasonable minds could definitely conclude that bassis confession was voluntary here he was even though he didn't have to be he was interviewed for only three hours in the middle of the day he was offered food and breaks both his mother and he consented to the interview he signed a memorandum waiver he resisted the officers multiple times which is no evidence that his will was over anything there's evidence to the contrary and all of the precedent supports the state here doesn't support dusty and things like we don't think you have anything to worry about we're in your corner we already know just jealous it's ok we're going to help you through this no matter what you did we can on and none of those statements are specific promises that's what the cases require they were directly contradicted by a statement we did we can't make you any promises in context it's very clear that none of those statements even implied leniency because they thought he was a witness and they thought he did threaten to participate and fourth we know that his will wasn't overboard because we have evidence evidence that he resisted the officers he provided many details and his demeanor doesn't look intimidated or threatened on the video tape i like to say i get you back your half a second circulation prior to brennan death his confession there was an extensive record built in state post conviction proceedings that is referenced by district court opinion in this case at r s a sixty nine sixteen year old mentally limited brenden das he confessed in reliance on a false promise of leniency that was under reasonably overlooked by the state courts in violation of section twenty two fifty forty three that promise was quote you're scared that you might get arrested but quote i'm thinking you're all right ok you don't have to worry about they told him this was true even if he gave quote statements against your own interest that make you look more involved and they gave him a free pass to confess to the worst we already know what happened they said and still they operate in leniency this message was repeated not once not twice but in a cumulative drumbeat over and over and was referenced before each major admission in the case in a writer yes have any split cases held confessions going to go home he thinks he's going to go to a birthday party and brandon das he thinks he's going to go back to school and why does he think these things again this drumbeat of promises that precede every major admission at separate appendix fifty four the police that was what we found when we did the research on the case law we found languages but excuse me we found cases like i was going to still linger in the tenth circuit u s versus monson in the ninth thomas from the eastern district of michigan which speak about attorneys aiding the state using the language of conflict using the language of attorneys who feel as though they're operating under duties that flow both to the prosecution and to their own claims those cases speak in the language of conflict which is why we raised this as a deficient under strickland you know you chose to pursue the matter under so often rather than strickland i mean of course all of them provides a more forgiving standard because it doesn't require a defendant to have to demonstrate a prejudice but in in of course in it you've got nick cannon's so i ok i think we need some help there certainly your honor to speak to mickens first of all we have raised a d two and a d one claim with respect to r t two claims there is no need of the text of the statute to show clearly established federal law in order to clear the threshold of twenty two fifty four d and then on twenty two fifty four a review this court is free to apply the sullivan standard that's what this court held in the whole case it noted that to ask you sir about some of the evidence introduced in the state court judge and make sure i have the record clear other than his in rome and regular high school classes was there anything else presented to show that he was not intellectually or an emotionally limited for example the high school he went to did it offer special education classes was he in rolled in any of those classes there was a record build in state court on that your honor brendan dessie had an i q of seventy right that was testimony at the suppression hearing he received special education support services so while he was in mainstream classes he received special xo was there and i done on him there's an ip in the record your honor and where the investigators aware of his intellectual or emotional limitations and if not was it necessary to basically give age your honor and they've been present at his school that's where they first picked him up i don't know whether they knew his precise i q score but it's not known whether or whether he was getting those kind of support services that's not in the record but it's not important here whether they knew all this the question of volunt ninety five percent of the population a concrete thinker the kind of person likely to interpret idioms like honesty will set you free literally the repeated drumbeat of messages that were sent to him clearly clearly overboard his will  what about rob look i've watched the whole thing i don't see a will being overboard and what i see also are going to warnings we can use this against you and we can't make any promises right  you say so we've got all that we've got all of that and we've got vague promises about the benefits of being honest right and i don't see any case law comparable that would let us say this was contrary to clearly established federal law on voluntary as well your honor several points we have a d to attack the district court granted its relief i merely on d to ground still again fairly sound the statement the no showing this was an unreasonable finding the best supreme court authority is blackburn which is stablished is that a confession has to be the product of rational choice key word there being rational that notion has been amplified by this court to mean the product of free will that is and that's been distorted by a false presentation of the consequences of confessing or say or any objection to the admission  to brendon's mother in the trial court there was not your honor and there was a good reason for that mr kaczynski did not turn over the evidence related to the provenance of that call including the videotape of michael kelly interrogating friends and at the on may twelfth he did not produce that to successor counsel the trial counsel was totally unaware of how that phone call had been brought about that only came out and post conviction thrown out why wasn't it enough to get the phone call to jacey's mother thrown out under a fruit of the poisonous tree argument none of that had been turned over to them they were in the dark at cross conviction with the first time that they confronted that series of facts that series of events that in fact led up to the phone call and they called the admission of that phone call damning they understood that it was difficult but it was a challen for their case but they didn't have the information they needed to make the proper motion to exclude it at the time as the fruit of ineffective assistance of counsel me ask you this how the investigator statements and everything will be ok coercive or promises of leniency rather than simply false promises of no benefits well your honor they didn't just say everything will be ok they told him they started out the whole interrogation we know you're scared of a rest but you've got nothing to worry about as long as you fill in those blanks with statements against your own interests i'm thinking you're all right you're ok that's enough for a sixteen year old developmentally disabled child like brandon deathy that's enough to produce in him an understanding that he was going to go back to school after confessing to rape and murder which is exactly what we see on the videotape unmistakable evidence that he confessed on reliance on these false promises and one from a saying is that you're asking us t weigh factors differently than the state court did it isn't that what you're really doing that is not what we're asking your honor we're proceeding under d to as well as the one so under the two we are attacking the state courts and a reasonable finding of fact that no promises were made it's not a originally assessed by the state court if the state court found no promises of leniency so it never considered the true totality here it never considered considered the way in which these promises interface with brandon's vulnerabilities h so that either they are seized memory or his imagination it's not in the media you're correct it's either his memory or his imagination and as this at the district court it's that are trying to get him to say well it's clear he's been very resistant up to that point he's been very reluctant he's telling a contradictory story that doesn't make any sense and they're calling him on it it comes out very slowly and painfully but he volunteers your honor i would respectfully disagree very every step of that of that confession every new fact what went inside you went inside the house yes and then and you're holding them responsible for all the details that come after that i'm not holding them responsible your honor but i'm pointing out that what happened was they use false promises of leniency five minutes after they give him each step they allow him to try to tell a story on his own and what does he do in those moments he provides information that is provably true he describes after they put him in the trailer there's this whole account that they allow him to spin where he's trying to guess how she was killed this account of throat cutting and stabbing and you're cutting a bloody scene that would be almost impossible to clean up from but there's not a trace of forensic evidence from teresa halbach in that bedroom much less friend in death so these moments where they are allowing him to spin on his own are provably untrue or they are like clockwork  the fact that she was there that the fact that her bones were found in the bonfire pit behind steven avery's house many aspects like that which many people in the state of wisconsin knew and of course it was established in the staples conviction record that of course his family were watching the news about what was happening to their relative and to their home let me take you to closing arguments for because in closing arguments ah the people have confessed to crimes they haven't committed is that a permissible argument well your honor certainly not appropriate in this case to suggest that nobody thought the confessions were in any case because we know that to be factually untrue in fact we have an amicable brief exactly to that effect establishing that false confessions happen under circumstances just like this to kids just like brandon their texture they can be textured with detail there are examples in the em of his brief of cases like the central park five other famous cases where young defendants gave interlocking detailed confessions that sounded true that relat proven false so we know that we know that not to be true and i would also point out that in the end because brief i think it speaks volumes that the law enforcement interrogation trainers who joined the end of his brief say they use this interrogation video as an example of what not to do that's how unreasonable the state court decision was in this case trainers use this video to show what not to do they're not suggesting with constitutional bit more a bit more certainly your honor with respect to mr hitchens he's in effect of assistance of counsel we have raised both eighty two and a d one thing so let's address as is not essentially mickens is not an issue with respect to the plan because under d two there is no requirement that clearly established federal laws be identified to cross to cross the twenty to fifty four day threshold that's what this court said in suggested in the whole case in which it noted that the mc instict is unclear we don't know exactly what's prescribed and what's not we're going to rely on our own precedent which applies tyler vers variety of different conflict counsel says the dimension in the appellate court decision of age was sufficient you don't agree with that view i don't agree and because it made reference to the underlying crime reports finding that the court really didn't need to do anything more i don't agree with that view your honor particularly again with respect to the two violation here we have it's a state trial court that found no promises of leniency we have a wisconsin  adopted that finding and then premised on that erroneous factual finding they way that the remaining factors didn't sufficiently account for the fact that he's sixteen years old didn't address the way in which the this message of leniency would be heard by a sixteen year old with developmental disabilities there is no need when you have someone like brandon jesse you don't have to make explicit statements like you're going to go to prison but for less time you don't need to do that with someone like brennan deathy it's enough to say everything's going to be ok you have nothing to worry about is there any physical evidence at all that ties stassi to the work that ties  the murder no your honor there is nothing that did not come from the fact feeding that occurred during this interrogation x i expect you'll hear state suggest that he led them to a bullet in the garage that's not the him no no brennan we know something's happened in that garage we need to get the honesty about the garage that's when he moves the murder into the garage then they researched the garage and discover this bullet that but the interrogators account in the issue of her bag and phone and camera that were missing that was provided by the investigators absolutely your honor that's one of the classic example sequence of events in which they teach him they teach him the answer that they're looking for when he cannot come up with this information they end up feeding him specific facts her  i want to start with judge hamilton's question about what is the most relevant supreme court case most relevant supreme court case is fair fair michael c v fair here the court held that a sixteen year old can make a voluntary steve even without the presence of friendly adult the police there made statements that were similar to those here in the supreme court said those statements were far from threatening our forces isn't that the sixteen year old that had a lot of experience with  the police i think he had more experience didn't ask to the gas he had not so that's a factor that cuts in the other direction but there are other factors the cut the other way so be unfair the police arrested the sixteen year old das he wasn't under arrest and they also denied his request to see his probation officer nothing like that happened here again i think it's the closest supreme court case that's not perfectly on point obviously there's going to be factors that come from different directions in every case i second want to just recap our four no court has ever held that and we're on p b s through here so there has to be clearly established law to establish that principle and there is not also specific warnings contradicted and implications from any of those vague statements the context explains all of those big statements and we have specific evidence that bassis will was not overboard and i want to dress briefly your questioning about sullivan counsel for the opposing side cited hall the united states that memories of teresa because that's what you would expect would be burned into his mind and none of them were suggested by the officers he remembers her screaming help me and seeing her naked and chained up to the bed your members are crying and pleading with him to stop while he raped her your members are breathing after avery stabbed her in the stomach and that she still struggling to breathe after he cut her throat he remembers that her belly wasn't moving as they carried her out to the garage and he remembers the awful smell as her case will be taken under advisement thank you