thousand and three he was the last in a long series of interrogations totaling six in all that had been conducted over the course of seven or eight days all but a couple of them having been taken while he was in custody the government then use these incriminating statements obtained in this last interrogation by far the longest of all of them as the foundation to support a charge of first degree murder and eventually conviction for first degree murder and a life sentence because serious errors and flaws in the way that interrogation was conducted the way the incriminating statements were extracted and the way the trial was conducted however that foundation of the confession cannot bear the weight which given its placed upon it the first no collusion your honor there's something significant in the way the testimony was heard at the pretrial hearing because you'll recall there was a several day long pretrial hearing on this issue and the same individuals testified on the same issues at the trial and an important thing to recognize is that what i really focused on in the brief is something happened at trial after the initial hearing so it was not something that underlay the judge's initial ruling on pretrial ruling on that question agent leach of the bureau of indian affairs at trial made a much clearer admission than he had in the pretrial hearing that in fact on november sixth of two thousand and three when walker was put in jail and was incarcerated from that point all the way through the november tenth when he gave the really damning confessions on that day november sixth agent leach admitted that the b i had the tribal officers the fact that they both both federalism showed up thinking that he was at home when in fact he's already been taken into custody it was the kind of on your mind the notion that somehow everyone was working in tandem well your honor what it it shows that they didn't neither law enforcement agency knew exactly where he was they're both looking for him and in fact it is true that when that a couple of federal agents were pulling up to looking for him they saw the tribal agents were arresting them so they weren't literally out there working together looking together in fact i think it's an even stronger case because of that because what we had of is if they had been working together you might say the tribe was simply assisting the federal agent in arresting and then when the arrest was sort of tried to go out and arrest walker we know because you have this tribal warrant and they testified they knew about the travel warning and it wasn't for murder they can't even charge murder at the trial they can only charge up to an assault and they knew there was a warrant for illicit cohabitation the crime of living with your girlfriend so it's worse because the federal agents were not literally working hand in hand with the tribal agents arrested on a federal charge they were telling the tribal agents go out there and arrest them on your tribal charge we're going over them so it's the testimony of a of agent leach at the trial that that he told them to go out in a restroom what he said i don't think he used the word told he said we had them looking for walker on the understanding that they would arrest him on a tribal charge and then we would him and at the end of that this is the cross examination right at the very end of his cross examination after trial by the trial attorney for walker and the very end of you just read the words from the excerpts of record your honor i have to excuse him on the tribal charge he would be incarcerated on the tribal charges in the federal b i agents could go in interrogate him on on the murder charge and at the end of that cross examination at the very end he says well i want him in custody to interrogate him on the federal charge because it was easier to have him in custody is more convenient to have in custody than have not running around someplace so that convenient word it sounded to me like he was talking about geography there well you can see the point is perhaps he was talking about geography the point is your honor that he's conceding at the trial that they wanted him in custody to interrogate him on the federal charge and they used the tribal agents essentially as their agents to make that happen in a way it was understood course in a way that would not seem to make his presentment right best and of course that's exactly what that exactly what happened he was incarcerated by the tribe on a tribal charge with the same distant jobs who have made the ruling the is clear on the record from which it sent from what is added to the pretrial hearing evidence by the trial evidence that that issue had really changed and so that i think looking at the record now we can see that walker's presentment right really was infringed by the way he was put in custody and then of course the statute says you have a safe harbor if you're it's it's within six hours of being arrested on a federal charge to be brought before a magistrate well here it was more than a month before he was brought before a m what significance was a thirty motion was not renewed at that point your honor i don't i'm not raising any special significance to that i think that as i said i think the court can look at the record and see the issue was certainly raised in preserved by walker's trial counsel and it was fully fleshed out to the extent the witnesses were able to address it at the pretrial hearing but i'm saying what was added by the trial testimony allows this court to see that preserve issue was actually having more merit than this in the trial judge i think the significance of what was added at the trial is it answers your colleagues question about why you can say there was clear error here when looking at the pretrial hearing you might think that the judge's initial decision on that was acceptable how could we say that the judge made it clear airwork when the testimony that he supposedly made a clear were about was not before him when he made the supposed there were the testimony comes later but then he's not asked whether he would draw a different conclusion on collusion well your honor that's a fair question  think that it's still clear from the record that there was an error made it simply because of the way the testimony developed that the if you're if you were to focus on only the initial ruling i agree that it seems awkward to say that was a clear error of course there are situations where an appeal court can find a clear error when looking at the circumstances within a particular in of live in which a particular ruling is made it may be understandable it's simply because of the way the testimony unfolded at the trial and how that some extent went significantly beyond what happened at the at the pretrial hearing that the record really supports this more than was apparent at the beginning but i understand your honest question i do think however that this court shouldn't ignore the sworn testimony given a trial that shows that in fact the circumstances under which walker was put in custody four days before he gave those damning confessions that led to his conviction really did give rise to an infringement of its presentment right allusion for purposes of delaying presenting the person to a magistrate or can it be collusion for any purpose like state federal task forces or federal tribal task forces you're on the language in the case law describes it and in the first sentence you just described the language in the case law talks about if it's collusion for the purpose of denying a defendant their right to a prompt resentment that's why i asked the question because i was thinking that it has to be clues in for bad purpose typically the police and city police or federal and state police or federal state and city they cooperate in the drug task forces and other kinds of child pornography and these other things and it's called cooperation instead of collusion because it's not for an unlawful purpose in fact around and i'm wondering if if the same thing is true here that the state and that heard the feds in the tribal authorities cooperate in order to find some person but unless they collude to deprive him with the purpose of depriving him of a have prompt presentment i wonder if there's anything wrong with not only is nothing wrong with it your honor it's there it's a fine thing the supreme court was very clear and over sanchez to say cooperation is a good thing sharing information is a good thing and the example in that case was where the state had been after somebody for i think it was a drug charge they found some kind of forged instrument that implicated a possible federal crime they told the federal authorities about it sharing information o'clock ratings a good thing to do to springboard off judge larson's question if they were can't work that way to try can't arrest or a federal felony i'm figuring they're already in the limited certainly i'm suggesting the tribe could help the feds find him and say hold him temporarily and turn him over to federal custody or simply say we found him here he is suspect of the rules for the murder was being arrested on narcotics trafficking charges and instead of interviewing them at his home going to where the body was held to go to the police station there's lots of cases that are like that your honor and in is a federal agent admitting on the stand we had been looking for him because of our federal charge we were preparing to bring we had been looking for him to arrest him to put him in jail in a way that would not allow his presentment right to attach even though we knew we wanted him in jail we were having him put in jail by somebody else so we could interrogate him on a federal charge out of honoring his right to be brought before a magistrate there's other circumstances your honor the tribe understood from the very beginning of this that this was a homicide investigation they started coming up with justification for putting walker in jail from the very beginning that had nothing to do with anything like a homicide first it was responding to punch somebody and then he was out on that and then they came up with they also charged lis they came to the scene of the crime or the scene where the body was and came up with something else to have him incarcerated the nature of those charges in the way they were brought in connection with this homicide investigation also helps to show the circumstances that this was really still collusion and of course the trial counsel made a proper showing that this was a pattern on this particular reservation eight prior instances where the same pattern was tribal incarceration on a tribal charge followed by federal interrogation followed by a federal charge but the point is i think that's the way it always works with all reservations is the f b i usually has very limited manpower and doesn't know how to find the individual indians anyway there's always something that the tribal police can think of and they arrest the indian for that put him in the tribal jail then the feds take the case and the tribe drops the misdemeanor charges i mean i've seen lots of cases just like that and i thought that's how they cooperated well your honor if they're cooperating when they when the if they're well ok i don't know the answer to that happens that way on all the reservations but the point is that the pattern shows and the facts in this case show that the tribal charge and that which is the justification for the incarceration is pretextual ok in this case the federal agent admitted that he had them arrest the guy in support of an of an existing federal that pretext in this context is acceptable because of the supreme court said if we had a case that potentially they said like this and over it sanchez is we had a case where we believed that the evidence showed that the state same principles apply to a tribe arrested somebody  just facilitate a federal invest interrogation in a way that would not allow presentment rights to seem to attach we would support the idea that the clock starts ticking the stick there are start taking under section thirty five or one so i think the in this context is not acceptable i do think it's important to talk about the testimony of dr richard leo you're aware that dr leo would have testified on the phenomenon of false confessions this was obviously the central issue in this case given the importance of walker's confession to his conviction and the judge kept putting off looking at the issue of false confessions and finally said there's no tie in between leo's theories of interrogation and the and the record in this case in the interrogation well there really are a lot of in the testimony of agent coy of the f b i clearly shows what those tie ins are leo talked about telling someone that basically they don't have any chance of escaping conviction that the physical evidence shows they're guilty telling them i don't believe you  whatever they say using a polygraph exam and then saying you're not doing very well you're filling the polygraph and then the technique of minimizing and creating wedges where you say well maybe you're just helping your daughter take of that your wife's daughter take a bath maybe you just helping to use the potty when you touch her in a certain way maybe you are just giving to discipline when you hit her in the head a certain way he used all these techniques that were he or a lot of these techniques that leo talked about and it simply was not accurate for the court to say that there was no basis  specifically relies on one portion of agent leaches testimony which can be found on the supplemental excerpts the record page three forty six and three forty seven and if the court would like me to read that i'd be happy to just one of those and you have the  an agent leach only replied it would be more convenient but what do you make of the question on redirect when the court is asking or he's allowing leach to be his memory to be refreshed and the question is can you tell us now what you wrote that they answered you are going to read it or just basically or basically it just says we have tribal charges warrants against the and the tribal police are helping us look for the mother and her boyfriend i don't believe that that shows collusion it was clear from the agent's testimony that tribal police were helping law be a officers look for defendant walker because b i intended to interview him again testimony from agent moran who was the case agent in the case clearly stated they often ask tribal police to help locate individuals on the reservation because as the court has stated it's very difficult to locate those individuals in the tribal police have the knowledge to locate them right so the questions and you have the tribal police looking for walker yeah so you knew that if the tribal police who had a warrant found walker they're going to arrest him yes and then you and then you were going to question him yes and if they found him they would have told us what they found a question and then you were going to question him answer yes in the implication from that is i on november third he was arrested after he'd voluntarily come to be a office and answer questions after that he was released the same day the testimony is derived from this testimony that he was released the same day  testified that he was never told by any federal agent to arrest the defendant nor did he arrest the defense to help the agents question the defendant he also was also specifically testified that the warrant that he was arrested for november sixth was not only for illegal cohabitation but also for what what's called permitting a child's life which is basically child endangerment in the tribe so it was on two different you know how it leaves with the father knew this information or what the circumstances were surrounding the communications between testify specifically that he has no authority to execute or travel warrant that he that he and the tribal police are a lot federal law enforcement in the tribal police act separately both charge in order to facilitate federal interrogation of walker assume that for purposes of the question is that enough under the law for solution that starts the clock running at the time of that arrest call for purposes of prompt present months or does he  purpose has to go further and include the additional element that the reason for having the tribal police do it was to delay presentment until after more time for interrogation i think the case was clear that the  resentment and this court found that she had not proven such coolies right it often comes down to question of proof and i think maybe i didn't hear your answer to judge kleinfeld question if if if as shown that federal officers direct it for textual arrest for the purposes of delaying present and so they can interrogate over an extended period of time do you agree that if such proof were made and found by the district court that was a voluntary statement if it was a volunteer i think it was i'm unclear about whether or not that's a specific element of the court looks to determine whether or not that statement involuntary the question of whether someone's been presented assuming for the sake of the hypothetical question that the arrest was pretextual how would you think that plays out in this case in terms of the legal analysis i think if there's a disregard finding that it let's say that the district court found that the arrest was pretextual and it was made for the purpose of allowing the federal agents to interrogate this person in custody beyond the six hours safe harbor required for present and if those hypothetically if that's those are specifically because the defendant is only complaining about the admission of this november tenth interview which in that case he he had been interviewed i believe on november seventh and invoked his right i'm just going to  present my right i think that's one of the elements the court would look at in this case i don't think you can separate it because in this case the defendant was taken in tribal custody he was tempted law enforcement tried to interview him on i believe november seventh the defendant asked not once but twice to see federal law enforcement to talk to them about the murder of this child i think the court then looks past that and looks at the circumstances surrounding the november tenth interview which are clearly not did to me and an arrest for cohabitation looks kind of precarious through all this day and age and i've never seen anything that suggested that indians on this reservation or any different about th t so to me an important question here is if the police if the feds act with the purpose of having the cry before arrest the walker just so he can be found and carry gaited conveniently that's one thing if the feds get the tribe to arrest walker so that they can build him a few days to wait before presenting them to the magistrate that's another thing the first is ok the second is not ok but i'm not sure i'm right about that does me shod make that right or is there other a law that makes it clear we're i am i believe the shot as it stands for the point that if the defendant is arrested on other charges besides federal charges and i show the defendant was alleging that the federal authorities were trying to avoid the prompt presentment the court found that there was no there was no evidence of that it was a matter of proof now isn't it a little theory it is a matter of proof but it's a matter of proof in this case that there is no evidence to support the defense position that there was collusion right but it isn't that what we end up with the at the end of the day is assessing the district court's findings and because it's getting back to judge  what it is right but i think that the evidence is that we have the tribal stories helping us look for him is different than we have the tribal stories helping us look for him so they can arrest him so we can question him and i am this federal right i think that's a huge jump that isn't supported by the record people use the phrase denying them is right without saying which rights his right i was particularly focusing on presentment but some of the other questions so focused on the course of confessions and that sort of thing and i don't know which rights you're or with regard to their expert witness dr leo because part of me i think it was wrapping up in the terms of dr leo's testimony and exclusion specifically with regard to the techniques that the defendants alleging being used it's clear by this court's rulings in past cases that many of those techniques if they were even established are not have not had been the not to be coercive specifically in this case the defense the court found that dr lee there had been  be were not found in this case in the defendant had never stablished the foundation for that testimony for example in one of those elements or one of those coercive techniques that the core that the defendant alleged was confronting an individual with their polygraph results the testimony from this defendant on his own was that he had to ask the agent what the polygraph results were he did not he was not confronted with those in any kind of confrontational manner with regard to leo there was no basis for his testimony and in fact the defendant was well equipped to testify on his own behalf with regard to the falseness of his confessions that were written and submitted into court and specifically the court and the jury was able to make a determination if any of those statements were false and they did so by of quitting the of one of the of the sexual abuse count if there are no further questions i would ask that this court can affirm i want to say i want to get back to the issue of the pretext and what exactly has to be shown there is a treatise it talks about this body of law and says that essentially the standard that's been created by the courts has rendered it more or less with an declared by the supreme court many years ago and reaffirmed consistently by this court by the supreme court will indeed the analogy and beyond that of course the test the only thing you could really add to the evidence here and say is missing is the agent saying not only everything i just said about how we had to try but looking for him to arrest him on a tribal charge that was for textual so that he would be put in custody so that we could go and interrogate him on a federal charge without stopping right there and one thing you can add to require beyond that agent saying and yes of course we did it that way because we wanted to deprive him of his federal presentment right that was the whole idea but you don't need that your honour's it's very clear that the federal agents and let the astoundingly ignorant of the law in the law that they deal with consistently in their dealings with the tribe because that beat that he had i understand that that's the effect of having the tribe going to arrest him on some bogus charge instead of simply arresting him on the charge we all know they're getting ready to bring he understand council why i can't buy either half of that particular argument i can't find the part that says the doctrine is a no a unless you get a confession by the federal agents that their purpose was to delay a presentment because that can be inferred from circumstantial evidence there may well be cases where somebody is danced around from one custody and one jail to another and it's obvious from the circumstances the delay in presentment is what was wanted no matter what the authorities claim and i also can't buy the other half of the argument that that was obviously the only purpose here the feds can't make an arrest on the reservation there i thought he is limited in their knowledge is even more limited had they pretty much are at the mercy of the spot their spouse didn't even have his own address your honor i agree with the first part wholeheartedly the circumstances should be enough to to infer that there was collusion and i think even taking away the testimony at trial of leach you have enough circumstances to do that here as far as the second thing is that i don't believe that's accurate i think that the bureau of indian affairs can arrest somebody i don't know whether there are special difficulties that arise when somebody's physically on the reservation but i haven't seen any suggestion in this record that the  federal government somehow didn't have the ability to arrest walker on a federal charge for something for conduct committed on the reservation which is it eventually what they did it i don't know the mechanics of how that was done but eventually on december eleventh over a month after he was arrested on the on the protection of tribal charge they did charge him federally and they did take him into federal custody and then a month month or more after he should have had it he had his right to present and observed by the federal government there so i don't think that that's accurate about what the  assume that there was a mile of the right present then in this case all right is that the end of it or do then we have to further analyze whether we take that into consideration and analyzing the voluntariness of the confession your honor that is the end of  and i'll point to several sources for that the over sanchez case the supreme court said that they have always held that a confession should should be suppressed if there if it's the product of improper collaboration if you find improper collaboration and again that's a collusion cooperation in this court's words and doe to deny someone a federal presentment right that in itself should be grounds for saying the confession should have been suppressed and because the confession was so central it can't be harmless error the conviction should be reversed i also point to eighteen u s c section thirty five zero one see if you look at that section of the statute it specifically separates out a finding of voluntariness from the issue of how long the delay and present it was it doesn't say if there was a delay in presentment you go on and look at the issue of  whether there was voluntariness it says these things stand on their own merits independently interestingly the me show case which the government referred to and that case the defendant raise an issue of collusion and didn't even challenge voluntariness and the court didn't hours after arrest on federal charges yes that's not ok that's not what i'm referring to there is a portion of the over sanchez decision where the court says if we find that that that the fashion was the product of an improper collaboration then we would say the confession should be suppressed ginsburg was talking about the statute says it's a safe harbor up to six hours it doesn't say what happens after six hours and that that's left for further construction and this court has construed has introduced number of principles and public policy and how and reasonable the delay is and so forth but that's a separate issue does that i'm sorry senator your question let me show case the defendant challenged and argued collusion and the court treated it as an independent free standing issue to determine whether the conviction should be affirmed she said i'm not she didn't even challenge voluntariness and again that the court treated that as a freestanding issue to examine and in the van point case this court said that looking at the question judge larson is raising about what to do after six hours you look at factors and one factor to look at as reasonable as and another thing you can look at is public policy and in the list of public policy concerns this court and van point says the need to avoid involuntary confessions is just one factor among many so again in van point just further evidence that voluntariness is not something you have to go on and show was lacking to reverse a conviction where there is collusion that leads to the securing of a confession which is used against the defendant so i think i mean this is on the record or at least i don't recall right now i know the timeline with respect to this questioning on several days after he was arrested was he kept in tribal jail he that was on the third on the sixth that's right he was arrested on the third as he walked out of the office of agent and they were waiting in the lobby for him they arrested him on the super filling and they let him out i believe was the next day i think he testified that was the same day but there's other evidence it was the next day so he was in jail for about a day on the super spelling and then he was out from the forest for the third to the sixth and the sixth is when the try at the direction of the of the f b i hey arrested