good morning your honor is new please the court rebecca jones appearing for appellant charles thomas the first time eighteen year old charles thomas who had attended special education classes during his school career and had attained a ged was ever interrogated by police he was told that if he did not confess to robbing ruthless during an encounter that ended up in her being murdered he would be laid down on a table to take a couple of needles he would be subjected to the death penalty he would lock the yard at c d c for the rest of his life he would be raped and sodomized in prison he would be kissing his whole life goodbye and he would be putting a rope around his neck and hanging himself he was told by police officers that the only way to get a chance in life is to fess up mr thomas was also told that his partner in crime had confessed and because of that the partner would be out of prison in time to get a few new while mr thomas would either be executed or in prison for the rest of his life less than two minutes later mr thomas confessed to participating in a robbery that ended up in the murder of a woman in subjected him to a capital murder prosecution from him a promise to speak to them before they gave him one of us have seen the videotape that was the actual proceedings here and i'm not sure certainly was not the impression i got from from from seeing the videotape itself i have to say i think because the respect that was just reviewing the videotape this week you're on and i look at detective wolf and you know from the back he's got this bro understand that it but i'm saying the video cameras behind detective wolf had a very high angle so it's hard for any of us to figure out exactly the size we're talking about i understand what you're you're dealing with yeah i mean do you have a record that says you know probably these threats what is your strongest argument that the state court ruling was an unreasonable application of federal law i assume you're are you raising that as a suggestion that he no longer wishes to talk without counsel and he wanted to terminate the interrogation correct yes well again looking at the videotape we're done we're done of a statement that i no longer want to talk with you detective i want to lawyer detective it's quite it's almost the reverse of the type of the saying well this is over this this we're not going to talk anymore if you're not going to talk we're not going to talk any more consider in determining whether the confession was the product of a free will and a rational intellect and in this case the police officers first soften them up and elicited a commitment to talk they said to him before they ever warned him are you ok talking with us and he said yes and then they said he didn't have no problem and he said yes then they gave him the warning and they said well this is going to be doing three things things on t v before news is just kind of a formality that we have to go through before we talk to people and they didn't tell him of because once the police detectives first have started talking to him and i think this kind of goes to and this isn't cited in the papers because it was handed down about about a couple days before i found my reply brief but it goes from the same  be talking to them before they've told him you have the right to consult with an attorney and make and talk to this person to make a decision whether it's a good idea to speak with us or not and in the other cases because they give the warnings at the very beginning of the interrogation it's much clearer intention to the defendant who's being interrogated your rights take effect right now you have the right before we ask you any questions whatsoever and that's the way  states it has to be said before any questioning begins that's the language of marina doesn't say twenty minutes after you have chit chat it doesn't say half an hour after you talk about things like the weather or the movies or anything like that since before any questioning says it doesn't matter whether it's incriminating or not incriminating statements the defendant has the right to be warned before he's given his before he's asked any questions and then to tally if the circumstances show that he's just being sort of led down this path to say  admitted during the interrogation that he smoked marijuana that's illegal tons of people doing he admitted during interrogation that he had possessed a gun probably illegally but that doesn't mean he's somebody who's been around the block and one of the things that you need to take into consideration under all the supreme court precedent is not only whether someone's been involved in criminal activity before in their life whether they've got had involvement with the with the court system and with the police before and he hasn't he's never going to arrested before in addition he was cops to get a confession the stronger the evidence that they had to do something untoward to get it and if you look at the facts and span overseas new york which is cited in our brief that guy which back at the cops for i believe days certainly hours and hours and hours and his friend who eventually extracted the involuntary confession from him by coming in that he was going to lose his job as a police officer he had to go in and talk to him not once but two or three times before he was able to get the confession out of that defendant so the fact that somebody pushes back at the authorities who are interrogating him is not evidence that they're not being coerced quite to the contrary it's strong evidence poor person priem court precedent that the cops had to reach resort to increasing sorts of tricks and coercion and pressure to be able to extract a confession from the person and if you look at the totality of this tape first the police officer start off with the lie they say well we got a utility person who saw you in the neighborhood that's not true we've got a mailman who saw you in the neighborhood that's not true the victim gave a dying declaration putting him in a house that's not true we've got your d n a in the house that's not true and you keep piling lie upon lie and it doesn't get anywhere so then after the lives are insufficient to extract a confession then they start with the actual threats which are sort of they're both sort of dual threats and promises of leniency this is the golden opportunity you have you have to make a decision right now where you want to go where you want your life to go where do you want to be five years from now well confessing to robbery isn't going to make him get out of jail five years from now or not in fact all he ever did was confess to robbery he never confessed to participating in a murder he was he was tried for a death penalty case you can kiss your family goodbye you're not going to be on the street what is the death penalty what is life without parole you're on you're going to kiss your whole life good bye only because you're sitting here stubborn and that refers to the sort of quid pro pro quo that judge clifton talked about during the earlier argument where he's being told you're going to kiss your life  because you're being stubborn a clear implication being if you confess you're not going to kiss your life the boss that's both a threat in a promise of leniency europe who got it what's your best case that this line of questioning is a which we cited all the woman was told is you can only save for your children and your children are going to be taken away from you know granted i can tell you speaking as a mother that's a pretty awful threat but that's not the heavy duty as it is fairly heavy duty but she wasn't being told she was going to be executed if she didn't that's at page seven thirty three of the reporter's transcript are most likely true in what that refers to although i don't i i wouldn't want my kid taken away from me but i think that would be a lot preferable to be having my life taken away from me or somebody telling me that i was going to be raped and sodomized in prison i haven't seen that kind of threat quite in any of the supreme court cases in santa again the guy was kept in custody for a number of different days and his friend came in and said i'm going to i'm going to lose my job and my wife and kids are going to suffer if you don't confess this is head and shoulders above that case it's not even comparable you know i think the closest thing out of this court is tailoring maddox and very interesting to me again and i think necessarily some innocent person who's just being ripped off the street that he was taken in the middle of the night and being prevented from contacting his mother and contacts from contacting his attorney but there were none of the other same threats they said that i believe the one of the our panel made the point that there was a critical witness who had been entirely disregarded by the california courts such that the california court cracked finding determination could not be treated as reliable set that aside and then the panel went off to make its own miranda no in our case the fortunately we have a transcript of everything that got said during the interrogation and clearly they didn't have that intel of the magic's but i think what we do have is an extraordinarily unreasonable application of all the frankly that you know the state court of appeal didn't make any particular factual determinations i mean they didn't sit down is that these statements were made and certain statements weren't made or this young man was you know it did have a better education and the defens alleging all of those facts are relatively undisputed the question is what is the legal significance of those facts and the voluntary yes and the state courts determination that police officers came dangerously close to but didn't cross the line of promising leniency and i have to say that determination to the extent that this court looked at that as a factual determination as opposed to a legal determination is just wildly unreasonable if you know the courts want to thank this guy kind of police conduct you know i just find it very troubling because again i find it significantly less egregious than all of the supreme court precedents that we've cited in our papers there's nothing that even comes close because you may want to reserve some time i went thank you very much and so let's hear from the govern morning your honor smith please the court daniel rogers deputy attorney general from the police first of all to clarify the question came up as to the certificate of appeal ability my understanding is that the issues now probably before this court are the voluntariness issue and the adequacy of the miranda specifically the advisable or the right to counsel the supposed to issues and the third the in effect of assistance of counsel for failing to raise the voluntary claim concluding that the statement was voluntary put into the context here on the can fairly consider those facts as to how effective the miranda warnings were and weighing whether or not the friend and or or mr thomas involuntarily spoken voluntarily or voluntarily certainly that's one factor in the totality of the circumstances test i think those could be looked at however i think that's a far cry from using this independent and the videotape is part of the record as the court indicated it has seen the videotape and it speaks far more eloquently to the accuracy of the state courts characterization of what is on th advocate could this quite simply is not the sort of brutal coercive interrogations that have been found in prior cases to have resulted in involuntary confessions first of all the interrogation begins at about seven o four pm and concludes at ten forty seven pm so you get less than four hours during that examined that's correct i believe however that and as the state court found and relying on the fourth and eighth circuit cases that within that type of advise it because there is no qualification placed on when the right to the have an attorney attaches that a reasonable person would understand that to mean that as soon as you're informed of that right that is when it begins now i understand that this court in a direct appeal case s versus nobody took the contrary and the minority view that further clarification on that point is necessary however as this court identified in it's a click it was a close case there was no united states supreme court precedent directly on point miranda does identify what rights the defendant has but the supreme court has expressed we declined to indicate that it is a close call shows to follow minority position that further clarification that the right to counsel has to be clarify that the right to counsel attaches the time of part answering any questions is necessary now so this is an end of the case and it's not unreasonable for the state court to rely on close case reasonable jurists can differ on this point reasonable jurist have differed on this point and for this court to find that not following nobody would essentially be reasonable application of the u s supreme court precedent would  tantamount to saying that the other federal circuit courts that have all the other position have been acting on reasonably in light of united states supreme court press and i think even nobody in the case that this court would not know that far it's a close ca however the other thing that i would mention just very briefly briefly to address the softening up issue  miranda applies to custodial interrogation they're not interrogating you know twenty minutes they ask him a shoe size they talk about how big his feet probably right until you get about the last two minutes before the warnings are given and the last two minutes is the sort of commitment to talk discussion and don't listen to what i'm about to say discussion so now i don't think i think characterizing is the detective saying don't listen to what i'm going to tell you it's going to come out of more like heard it before you have to pay attention to this well the idea that he's heard it before the detected does indicate that i have to inform you of your rights before i can talk to you us something like that i mean there was some commitment made to continue the dialogue and by the by i got to do this so the momentum was built up to at least some extent it may have been most of the conversation prior to the warnings idle chatter but there was a purpose to some of the discussion immediately before the warnings well it is what it is it is and the  don't think in the totality of the circumstances that there is a basis to believe that the defendant did not believe that miranda applied or that those rights existed or that he had the ability to invoke those rights simply because the detective asked him immediately prior to giving  miranda you know you have any problem talking to us you know maybe he could have had a problem talking to them unrelated to miranda he want who knows as as  the tape is the best evidence of what happened and the detectives did make statements on the tape the state court acknowledged the very same concerns that  raising i would say that the stake or perhaps cage engaged in a little hyperbole when it talks about coming dangerously close to promising leniency things that that nature the state  detectives for instance the statement that about the getting a couple of needles in your arm to want something and go in and push an old lady down to get in walk out and then that's it is a whole lot different than going in there premeditatedly going in and knowing that you're going to kill that lady and then taking your stuff now you're talking like laid out on the table and take a couple needles ok versus ok then what happened what the ship went on they said things to encourage him to talk yes and i think you could fairly be said that some of the things were directed to make him think you'll do better if you talk  us what happened and if you don't the result of his talking was being tried for first degree murder and convicted and being faced with the prospect of the death penalty with the jury elected not to give him but any of the good things that he thought might come from talking certainly didn't seem to come his way well the characterizations the detectives the people he made is what are you going to tell twelve people what are you going to tell the jury yeah i don't think the detectives ever indicated that he would receive lesser charges something of that nature they kept saying you know what how will you explain what you did to these twelve people what are they going to think are they going to think you're a cold killer or are they going to think you're somebody that went in to steal an old lady's stuff and she got i think the detectives promises of leniency either express or implied have to go for it there has to be some express benefit out there that the defendant could seize on for a promise of leniency to overcome someone's free will because only what they saw as their demeanor very hard to get the answers that they're seeking and they're still the doing of course i'm sure they've got more than once correct they're both very experienced detectives however there is the flip side to that there is their demeanor but there and the videotape as the state court noted in the videotape supports this characterization he's seated at times he's leaning back sort of reclined in his chair he is they become heated with him he gets heated right back he challenges them he is not just meekly sort of being led along the garden path he's fighting them every step of the way this is someone who is  possession of his faculties throughout and he's fighting for his life he is being confronted with this conduct and he is trying to do the best because the  is apart from the possibility that that's not cricket is that illegal or is it sufficient to tip the voluntar bits and pieces and look at them in isolation these i think in order for them to be of such a gravity that his free will is over born there asked me some indication that he believed is that right as there are some a lot of that effect i don't know that there is a specific case law that says that however i think in the totality of the circumstances analysis you know in order for the defendants confession to be involuntary is free will has to be over born they have to be quick all right the first one i'd like to make to the court is that really that the time the length of the interrogation although obviously that's relevant factor isn't always determinative and in fact one of the best cases michoud have cited this to you child killer up protect you from the other inmates if you tell me what happened that's it one promise no indication of you know sitting in a little room for an extended period of time one promise that's enough to render the end confession involuntary second of all counsel said he thought that mr thomas had not been promised lesser charges during this interrogation in fact he had at the reporters transcript at page seven fourteen excerpt of record one ninety one of the detective says let's keep it a property crime let's keep it a property crime you just tell me it was a robbery and we can keep it a property crime that is a promise of a lesser charge and of course it's completely false as well false legal advice because under california law his admission to expand the certificate of appeal ability to expand this court's consideration of the issues to encompass all of the miranda issues and i've put in my reply brief that i certainly have no objection if the court wants to consider any of those issues soliciting additional briefing from the attorney general on those issues you know i cannot find a supreme court case that is as egregious as this one from the ninety navy promise of protecting somebody who's think accused a heinous crime maybe this young man was told your codefendant just confessed he's going to be out in time to get new tattoos two minutes later this guy confessed that is a threat and a promise of leniency they were repeated and escalated throughout this two plus hour interrogation and statements were involuntary thank you very much and thank you counsel he's just there you will be