[00:00:03] Speaker 02:
The next case for argument is Delgado versus McDowell.

[00:00:30] Speaker 00:
Good morning, and may it please the court.

[00:00:32] Speaker 00:
My name is Stephanie Adraktis and I represent Ezekiel Delgado, the petitioner.

[00:00:37] Speaker 00:
I would like to reserve five minutes for rebuttal.

[00:00:40] Speaker 00:
It is undisputed that a team of three experienced police detectives violated Miranda versus Arizona.

[00:00:48] Speaker 00:
when they interrogated 16 year old Ezekiel Delgado about his involvement in a double homicide.

[00:00:55] Speaker 00:
The detectives also deliberately withheld the Miranda warnings until they obtained a confession.

[00:01:02] Speaker 00:
The state court of appeal unreasonably applied Miranda and Missouri versus Siebert when it held that the midstream Miranda warning in this case did not violate Delgado's constitutional rights because it was not part of a plan or a protocol.

[00:01:18] Speaker 00:
The interrogation in this case violated the Siebert rule.

[00:01:22] Speaker 03:
The Court of Appeals sort of said it wasn't planned at all, it was sort of just a, there's no method at all.

[00:01:29] Speaker 00:
They said there was no method at all.

[00:01:32] Speaker 03:
That sounds like a pretty good description of what was going on, doesn't it?

[00:01:37] Speaker 00:
Perhaps it does, but it's the Court of Appeals' focus on whether there was a plan or a method or a protocol, and there's some background behind that because the Siebert case itself discusses the fact

[00:01:49] Speaker 00:
that police were widely trained to do this.

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And so there was testimony in that case that in fact the police officer in Siebert who used the midstream process had been told during his training to do that.

[00:02:04] Speaker 00:
But Siebert makes it clear that its holding is not limited to cases where

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The violation is the result of police training.

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It says that if the delay of the Miranda warning is deliberate, then the police must use curative measures to make sure that the Miranda warnings function as they were intended to.

[00:02:30] Speaker 00:
And so the Court of Appeal just, in this case, misunderstood Siebert.

[00:02:35] Speaker 00:
It focused on this.

[00:02:35] Speaker 02:
And you're quoting the Kennedy concurrence for that proposition, right?

[00:02:38] Speaker 02:
It's not in the main Siebert.

[00:02:40] Speaker 00:
In the plurality, it is.

[00:02:42] Speaker 00:
There's language in the plurality opinion that focuses on this very issue, because what they talk about is objective evidence.

[00:02:50] Speaker 00:
Look at not what the police officer is saying, because of course they have a motivation to downplay whether or not they intended to do this.

[00:02:59] Speaker 03:
But the Court of Appeals says, we take Justice Kennedy at face value,

[00:03:04] Speaker 03:
what is required is a deliberate plan to circumvent, right?

[00:03:09] Speaker 03:
And so I understand what you're saying, that there was some sloppy language used about, I think, the plan and protocol or something like that, or policy and protocol.

[00:03:18] Speaker 03:
But when you read both the trial court written findings and the court of appeals decision,

[00:03:25] Speaker 03:
They're not limiting themselves to that, it seems to me.

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It seems to me they're looking about these officers deliberately engaged in a two-step process and both said no.

[00:03:35] Speaker 00:
And the error, the most probably important error in the court of appeal decision is the way that it ignores the language in Siebert and in this court's decision in Williams that it is manifest, and Siebert uses that word, manifestly the most obvious reason why a police officer would not provide Miranda warnings until after getting a confession is to diminish the effectiveness of the warnings.

[00:04:03] Speaker 00:
And so they counsel courts

[00:04:04] Speaker 00:
to look at the objective evidence of the circumstances of the interrogation, the timing of the location.

[00:04:12] Speaker 03:
But the trial court heard these officers.

[00:04:15] Speaker 03:
The trial court did.

[00:04:15] Speaker 00:
Let me finish.

[00:04:16] Speaker 03:
The trial court heard these officers and made factual findings.

[00:04:21] Speaker 03:
Now, the trial court didn't say, I find as follows, but when you read it, it's pretty clear

[00:04:28] Speaker 03:
The trial court's discussion when he says there was no deliberate two-step process is based on a number of factual findings here that I don't see how, if we apply some objective criteria, can overcome those credibility determinations by a trial court.

[00:04:50] Speaker 00:
The Siebert decision counsels courts to do exactly that.

[00:04:55] Speaker 00:
Look at the situation from the point of view of the person who's being interrogated.

[00:05:00] Speaker 00:
Are they being moved from their home to a police station?

[00:05:03] Speaker 00:
He was.

[00:05:05] Speaker 00:
Were they held in a little room with being interrogated by a couple of people?

[00:05:13] Speaker 00:
Yes, he was tag team interrogated.

[00:05:15] Speaker 00:
He had his leg chained to the floor.

[00:05:17] Speaker 00:
Under these circumstances,

[00:05:20] Speaker 00:
The notion that these police officers did not give him Miranda warnings as they said because they thought he wasn't in custody, it's absurd.

[00:05:28] Speaker 00:
He had been chained to a floor for 90 minutes.

[00:05:31] Speaker 03:
They knew he was... Don't we... Let me ask you this.

[00:05:33] Speaker 03:
Don't we have to disagree with the trial court's factual findings in order to rule the way you're asking us to?

[00:05:41] Speaker 00:
The court...

[00:05:42] Speaker 00:
The court should look beyond the factual findings that were made by the trial court and the court of appeal and I would offer that the magistrate, the district judges analysis goes beyond that and discusses many of the reasons why the trial court and the court of appeal got it wrong in this case.

[00:06:05] Speaker 00:
They didn't focus

[00:06:06] Speaker 00:
on the factors that sebert tells the courts they should focus on which is the continuity of police personnel we absolutely have that here they did not focus on whether or not the uh...

[00:06:19] Speaker 00:
the person who was being interrogated was interrogated continuously, and that's one of the most important facts in this case.

[00:06:26] Speaker 00:
The Court of Appeal doesn't discuss that or seem to weigh it as being important at all, but it's crucial.

[00:06:32] Speaker 02:
Can I ask, is there any direct evidence that there is a deliberate two-step strategy or policy?

[00:06:40] Speaker 00:
There was no evidence about a police formal written or informal policy, but if you look at the facts, it's obvious that's what they were doing because- So it's all circumstantial based off of the way things progressed.

[00:06:51] Speaker 02:
There's no wait until he confesses and- There's two ingredients to Miranda.

[00:06:58] Speaker 00:
Custody, interrogation.

[00:06:59] Speaker 00:
Both of them were obvious here.

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He was clearly in custody.

[00:07:03] Speaker 02:
So there was all this evidence that there was a back and forth between the detectives, and they did not seem to know what was going on.

[00:07:10] Speaker 02:
Do you think that was all feigned in some way?

[00:07:13] Speaker 00:
Well, not to be too judgmental, but they knew what was going on, of course.

[00:07:20] Speaker 00:
All three of them were the lead in the case.

[00:07:23] Speaker 00:
None of them claimed to be the one that was most in charge.

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They were all operating on the same information.

[00:07:29] Speaker 00:
They knew that there was a witness who had described a Hispanic or white.

[00:07:33] Speaker 02:
But wasn't the officers like, in fact, looking for what they, that person thought, that officer thought was the main suspect when all this happened?

[00:07:40] Speaker 00:
That's not credible at all.

[00:07:42] Speaker 00:
Okay.

[00:07:43] Speaker 00:
First of all, if you look at excerpts of record 415 to 417, you see the detective's testimony where he says, we found a phone at the scene of the homicides.

[00:07:52] Speaker 00:
We've looked up what number this guy had been texting with.

[00:07:55] Speaker 00:
It went to Elosa Brown.

[00:07:56] Speaker 00:
My client's friend, they started looking at, oh, who does Elos Brown hang around with?

[00:08:02] Speaker 00:
They identify my client.

[00:08:03] Speaker 00:
They don't get a warrant for this guy Lynch.

[00:08:06] Speaker 00:
They get a warrant for Brown's house.

[00:08:08] Speaker 00:
They're looking for Brown, and they're looking for my client, and they find them.

[00:08:12] Speaker 00:
So this interest in Lynch was completely much less intense than the interest they had in Brown.

[00:08:22] Speaker 00:
It shows by their actions when they got the search warrant.

[00:08:26] Speaker 03:
As I understand, part of your argument is that your client, Mr. Dalgado, was sort of a prime suspect, a target, if you will.

[00:08:35] Speaker 03:
They thought he was a shooter, or at least they highly suspected it.

[00:08:41] Speaker 03:
And that is evidence of the deliberate two-step process, right?

[00:08:45] Speaker 03:
That's part of your argument?

[00:08:46] Speaker 00:
It's one fact, yes.

[00:08:48] Speaker 03:
Let me just throw something out and have you respond to it, which is, it doesn't seem to me like they were treating him like that sort of person.

[00:08:56] Speaker 03:
In other words, if Detective, I'm not sure how you pronounce it, Mo, M, Mo?

[00:09:00] Speaker 00:
I think that's correct, Your Honor.

[00:09:01] Speaker 03:
Yes, yeah.

[00:09:02] Speaker 03:
Detective Moe goes in and talks to him.

[00:09:05] Speaker 03:
There was a finding that there was, he was surprised, right, that he was shackled.

[00:09:10] Speaker 03:
There was a factual finding of that, right?

[00:09:13] Speaker 00:
The court said that, yes.

[00:09:15] Speaker 03:
Right, and you see the video, and he looked surprised.

[00:09:17] Speaker 03:
I mean, I don't know 100% if he feigned that or not, but he looked surprised.

[00:09:22] Speaker 03:
And then he questions him for a while, questions, believes he's lying, it's pretty clear about his whereabouts that night.

[00:09:31] Speaker 03:
Detective Lonteen isn't watching this at all.

[00:09:34] Speaker 03:
Detective Moe leaves to go find Lynch and just tells Lonteen, I think he's lying about his whereabouts, and sends Lonteen in.

[00:09:43] Speaker 03:
So it doesn't seem like the sort of interview that's being conducted of a prime suspect.

[00:09:47] Speaker 03:
It seems very haphazard, almost, which really seems to me to gravely undermine your position that this was, that the objective evidence shows this master scheme going on behind the scenes.

[00:10:00] Speaker 00:
The magistrate's report directly addresses that issue.

[00:10:04] Speaker 00:
And as the magistrate points out, the police at that point knew that they had three suspects, because that's what the witnesses described as three men running away.

[00:10:13] Speaker 00:
And the police clearly thought that Delgado was involved.

[00:10:19] Speaker 00:
As the court points out, even if they didn't think he was necessarily the shooter, there were other crimes that were being committed at the scene, the robbery of the purse,

[00:10:28] Speaker 00:
the drug transaction in the car.

[00:10:30] Speaker 00:
So the notion that one could interrogate Mr. Delgado even about those lesser crimes without giving him a Miranda warning is simply inaccurate.

[00:10:39] Speaker 00:
They at least thought that he had done those other things, even if they didn't think that he was the shooter at that point in time.

[00:10:47] Speaker 00:
And Lonteen, most of all, who is the person who committed the violation in this case, it was clearly Lonteen.

[00:10:54] Speaker 00:
He walks in and he tells Mr. Delgado again and again and again, I think you were involved in this double homicide.

[00:11:01] Speaker 00:
Accuses him of lying.

[00:11:02] Speaker 00:
Under all the precedents that discuss what is interrogation, that's interrogation.

[00:11:08] Speaker 00:
Is this guy in custody?

[00:11:10] Speaker 00:
Clearly he is.

[00:11:11] Speaker 00:
He has been transported, locked down to the room.

[00:11:14] Speaker 00:
Any experienced officer, much less someone like Lonteen, who had been a police officer for 20 years, all three of these officers had two decades and 16 years of experience.

[00:11:27] Speaker 00:
They clearly knew that they had to Mirandize him at this point, and they didn't.

[00:11:32] Speaker 00:
Lonteen didn't do it.

[00:11:33] Speaker 02:
Council, you're at four minutes.

[00:11:34] Speaker 02:
Do you want to reserve the rest of your time for rebuttal?

[00:11:36] Speaker 00:
Yes, thank you, Your Honor.

[00:11:54] Speaker 01:
May it please the court?

[00:11:56] Speaker 01:
Deputy Attorney General Charity Whitney on behalf of the warden.

[00:12:01] Speaker 01:
Delgado's case illustrates better than most how reasonable jurists can disagree.

[00:12:06] Speaker 01:
Different courts have viewed the same interviews, the same videos, and the same record in this case and have come to different conclusions about a number of different issues.

[00:12:18] Speaker 01:
EDPA's standards were made for cases like this one.

[00:12:22] Speaker 01:
Because the state court's decision was reasonable, even if other jurists might have come to a different conclusion de novo, this court must affirm the denial of the writ under EDPA.

[00:12:34] Speaker 01:
I'm happy to answer any questions the panel may have.

[00:12:40] Speaker 02:
Judge Gould, do you have any questions?

[00:12:42] Speaker 02:
I have no questions.

[00:12:44] Speaker 02:
I have no questions.

[00:12:46] Speaker 01:
Well, that was really quick.

[00:12:47] Speaker 01:
Thank you, Your Honors.

[00:12:59] Speaker 00:
Given counsel's brevity, I may shift to another issue, but I would ask the Court to look closely at the Ray's case, which is cited and discussed in my brief, because this case, Mr. Delgado's case, is a better

[00:13:15] Speaker 00:
situation for suppression than that in Rays.

[00:13:18] Speaker 03:
Rays versus Lewis?

[00:13:20] Speaker 00:
Versus Lewis, yes.

[00:13:21] Speaker 00:
And that case is on all fours in many ways with this case.

[00:13:25] Speaker 00:
You have a teenage defendant, a person who is very young.

[00:13:29] Speaker 00:
It's a homicide case.

[00:13:31] Speaker 00:
The government actually had a better argument in Lewis because Mr. Lewis was transported back and forth to his own home between the interrogations.

[00:13:40] Speaker 00:
So when you look at what could be a curative measure, I mean, that

[00:13:45] Speaker 00:
is a chance for him to reflect, it's a chance for him to think about his rights.

[00:13:49] Speaker 00:
But in this case, we had none of that.

[00:13:52] Speaker 00:
We had a continuous interrogation where Detective Lonteen elicits the first confession.

[00:13:59] Speaker 00:
And he doesn't even stop there.

[00:14:00] Speaker 00:
He doesn't stop and say, you have a right to remain silent, and I need you to really understand your rights here.

[00:14:06] Speaker 00:
He says, now we're going to go back over all these facts again.

[00:14:11] Speaker 02:
I thought he didn't know whether or not he was Mirandized and that he got a text message saying you got a Mirandized at that point.

[00:14:20] Speaker 00:
He knew that he wasn't Mirandized because he hadn't Mirandized him and he discussed with Detective Moe what had happened.

[00:14:28] Speaker 03:
Apparently, according to them at least, it was a very brief conversation.

[00:14:33] Speaker 00:
But one of the things that's conflicting about how the detectives presented this at the suppression hearing is they said, well, we didn't think he was a suspect and we didn't think he was in custody.

[00:14:42] Speaker 00:
Well, if that's true, if everything they were saying under Olaf at the suppression hearing was true, there would have been no reason to mirandize him.

[00:14:49] Speaker 02:
So they knew he wasn't Mirandize they were telling the court under oath at the suppression realize the the the uphill battle you have, though we have to overturn credibility findings of the state court.

[00:15:01] Speaker 02:
I don't I don't even know if I've ever seen that and under ed but The court can also

[00:15:08] Speaker 00:
find as it should that the State Court of Appeal decision unreasonably applied Miranda and Siebert.

[00:15:15] Speaker 00:
And in that circumstance, the standard does not apply because the state court is unreasonably applied the clearly established constitutional standards.

[00:15:25] Speaker 00:
The magistrate's report also very clearly and helpfully analyzes why the testimony of the detectives at the suppression hearing wasn't credible.

[00:15:36] Speaker 00:
And one of the factors that should be highlighted is that an officer who was not deliberately doing this end run around the Miranda rule would have stopped immediately when the person started to confess and said, I need to read you your rights, you need to understand these things, do you wanna waive your rights?

[00:15:56] Speaker 00:
He never did that.

[00:15:58] Speaker 00:
Instead, he said, he waited until the entire scenario had been described and then said,

[00:16:04] Speaker 00:
Well, now we're going to go over all this again.

[00:16:07] Speaker 00:
That in and of itself shows an intention to violate Miranda because why would he tell him, not ask him, but tell him that he's going to repeat the story and then read him his rights?

[00:16:22] Speaker 00:
It doesn't make any sense.

[00:16:24] Speaker 00:
It comes off when you see it on the tape and when you read the transcript as a deliberate

[00:16:31] Speaker 00:
and run around the Miranda rule and as a method that was used to diminish the effectiveness of the warnings.

[00:16:38] Speaker 00:
And that is exactly what the United States Supreme Court was so concerned about at Siebert.

[00:16:42] Speaker 00:
They did not want to see this practice become widespread because it essentially eviscerates the Miranda rule.

[00:16:50] Speaker 00:
Thank you.

[00:16:50] Speaker 02:
Thank you, counsel.

[00:16:51] Speaker 02:
This case is submitted and the court is in recess for today.