good morning everyone our first case for argument this morning is murdoch versus dorothy number fifteen sixteen sixty  that just as if he were an adult we look at all the facts and circumstances through the eyes of a child a child doesn't have the same ability to waive his miranda rights and make a bow and to a decision to speak to the police and the facts and circumstances of this case a voluntary decision is impossible as a matter of law and that's what this case about now the boy statements here with the linchpin of the case against him the  stopped the car let them out and tragically the two men went off and shot two another man two other men but there was no evidence other than the boy's statements that he had any idea what was going to happen that day and even with those t steven with those statements in particular his first oil statement it took three tries to convict him and he was sentenced to thirty two years in prison now there's two ways to look at this case i'm going to focus today on the most narrow way this court can in a room at the police station from about three o'clock until about six thirty and he was then interrogated from about six thirty until about ten it's undisputed that the boy told them that the police told the boy that they were going to call his grandfather it's undisputed that the boy's grandfather was actually at the police station but he was not brought into the room it's under student that no other friendly adult was ever brought into the it's undisputed that no one acting as a juvenile officer was ever brought into the room with the boy it's undisputed that the boy had finished his first year of high school and had poor great so he was not sophisticated and siege in any way you could counsel it would be helpful to recognize two facts that cut the other way as well we've got a totality of the circumstances standard right and that's true we've got a boy who is a juvenile but nearly seventeen my list from the state courts of the facts that cut the other way includes his demeanor on the videotape showing him to be relatively calm he's given miranda warnings more than once there's no evidence he's been mistreated he's offered food drink visits to the restroom is needed he's not been threatened or lied to or abused the interrogation does not go on unduly long and no promises are made to him and he according to at least one version of the facts that i think we have to credit does not ask to see anybody else so  the problem the problem that i have particularly if we're applying deference under the antiterrorism ineffective death penalty case act is given a totality of the circumstances facts that cut both ways how can we use a as a matter of law it's unreasonable for the state courts to come out the way they did so but ultimately i think the state court reasoning comes down to is that  that physical coercion for these core trickery of some sort is required and that's not the law because so so what the state court has in that i don't see that br line rule you know the states displaying thank me i explain please and so the fact that most of the other than the physical physical distress this is not a case about physical distress but other than that the fact time by the state court that he understood his rights that goes back to a fifteen minute video which can't switch can't support those findings and there's three and i think it's clear reasons for that the first is that the video was fifteen minutes long over a three hour interrogation correct the police officer testified that his demeanor was consistent throughout with what was visible on the videotape he testified to back but that can't support stretching the video out into his walk so the video was in there that the video was there to support the police to cooperate the police ok given that it's not reasonable to infer based on the police who video is there to support that the video fact to be supports the police i don't follow that logic ok so the video is there the effective ways a third party witness of sorts to what's going on in the room ok to support the police so it's not reasonable to rely on solely on the police to say that the video covers more than it does police officers testimony about demeanor would have been a sufficient evidence cheery basis on its own for a court to find to make findings about how the boy was behaving what his demeanor was like correct that's true but that's different from using the video to cooperate the officers testimony why because we allow one witness to establish a fact by testimony if the witness is believed because because if you don't because if you establish a fact by testimony you recognize that at the end of the day we had the only people in this room the police and the child would enter the swearing contest and the state and this court's going to hear the testimony and they can create the testimony but this quote can look at all the circumstances obviously stances to make a legal determination as to whether the confession in particular in particular the ultimate question of whether the child was able to process the situation and understand his rights because the issue here isn't really whether the child was able to give coherent answers to questions like what happened on date x the issue is whether the child was able to process the situation and understand his rights and make a pound carry no indecision to speak that day that's why the ultimate question and that can't be turned into a credibility it depends on all of the facts and circumstances does petitioner challenge any of the state courts factual findings we have put we are not relying on the disputed facts we can put the disputed facts off to one side and focusing on the undisputed facts with with with the note that the ultimate question here whether or not he actually understood his rights in the situation is ultimately a legal question than this court is seen before and how it away so again first we don't have to have a child you said was nearly seventeen that's true however he still undisputedly legally a child and we although we can look at differences among children just like you can look at differences among adults but we can't do what the what this court shouldn't be extremely careful is moving the child from the juvenile box into the a don't box the law treats children fundamentally differently they're not expected to speak up the way they don't would and that why it has to be done somewhere and some disputed that my client here is on the juvenile side of that line and so that relates to the fact that there was speak to an adult because one of the themes that i think runs through the states that he didn't request an adult and legally whether or not legally that's true it's disputed to one side doesn't matter because the law doesn't expect children to speak up in the same way as an adult because they don't know what they don't know in the way that it go on and on top of and more than that worse than that the grandfather child's grandfather was actually at the police station and was not brought into the room so that it that makes this case in difficultly worse than what this court has seen before because what you have to is a child you've got to shout in the police which is inherently coercive situation and the police have the power to within their own control to bring an adult into the room and make the playing field level and they didn't do it and so they did cause that an issue that seems to be where all of this came up in the first place and you can the court determined that after hearing a motion to suppress that that there was not a huge problem and so all of this has been argued before the court in on to the supreme court and also first about it was something that was some facts that weren't mapped considered by the state court the and one of them was the fact that this child had no criminal history in our state court you look at the state the only supreme court's analysis they don't talk about that that was a big deal  murdoch sought from that court in addition i have trouble seeing how that would be any different from an inquiry about the prejudiced prong of the strickland claim here but all what remedy would you get than what we've already gotten a hearing on a motion to suppress well ultimately he didn't get all of his evidence from the strickland hearing considered so he never got to have that time considered on and on the proper record well he he everything he offered was considered your object you're talking about the grandmother's testimony from the earlier hearing and talk that the grandmother's test already familiar is the key fact that was not considered later yes and that was a nothing to do nothing prevented him from offering that we don't know why it wasn't offered we don't have a record and that it's possible that his appointed counsel the second time didn't know about it we don't know but he offered the standard required him to put forth all of his evidence in two thousand and seven process much of it like the two thousand and ten suppression hearing process that he specifically asked for there's been a lot of scrutiny of the voluntariness issue at the heart of this and upset the finality of the illinois supreme court's decision on that or of the conviction would be inconsistent with pain be a slot in with the values of federalism and comedy that undergird that i want to focus on time permitting on a couple of record points and maybe one case law point and then we'll see where else we go and that m a lot of stress on the heart of the day and this court's decision and hardaway is is worth thinking about but one of the points that hardaway makes is that there are also differences in among minors so it's not just that minors as a group are different from adults it's that some minors are different from others and a fourteen year old is different from a sixteen year old there's also the fact that although mr hardaway had had a lot more encounters with the justice system the titian are here hardaway was questioned for about eight and a half hours before he gave his first relatively full confession and the whole story didn't come out until you've been in custody for fifteen hours now there's also a question of petitioner's academic sophistication that's been raised here and i would just like to point out that the sentencing record makes this look a little bit less dire than perhaps has been presented to you and if you're looking in the record within special education he denied having any mental or substance abuse problems his mother and her sentencing questionnaire and this is that page nine hundred fifty nine of the record describes him and there is support report card from one semester in the record and there's a mix of grades there some failing grades but there's also a b you just didn't drop out at age sixteen you know what happened why didn't you stay in school was that  the probation office judgment in that he had had a marijuana issue and and had been expelled at one point and his mother in her questionnaire her pre sentencing says that he's not necessarily a bad student but he has had some democrats and some conduct related issues you know the issue seems to be with the grandparents now you mentioned his mother too does not seem to be in the with their another of other questions i suppose that when even get into that i look at them as kind of strange that we don't know and that is he was driving a car at sixteen we don't know whose car it is least i don't that these other two about what why this sixteen year old has a card it liberty to drive someone else or was it their car or whatever and i know that's not maybe necessary here but it does leave some guests just like you bring up the mother that when or where is she ok you know you explained it i don't need to know i guess whose car it was and why he was driving it and was it his grandfather's car and two weeks later he's stopped probably they already knew  was driving a car maybe you don't know any of that i know a little bit of that judge many but i have to be a little circumspect about it because some of this was emphasized at trial and some was not i don't quite recall whether the the van was affiliated with his grandparents or with his uncle but there was a family connection to the vehicle that petitioner was driving as far as the background of why this shooting happened there's some discussion in the pretrial record among the attorneys and some motions and lemony that suggest that this had to do with some for tat robberies and were the it were how old were the tell from the record but the fact that the victims of this shooting had previously rob one of the shooters at a hotel and pushed his chair was aware of this and in fact there's some discussion from his lawyers sort of early on in the pretrial record that suggests that petitioner might have been at the hotel or that robbery happened so this would have been retaliatory and so for doing all this over again and more evidence were coming in in a trial you might even thin lot of scrutiny the court thought long and hard about it analyzed the long records took some fairly sophisticated arguments and one of the things that was talked about in the on ice supreme court was this video issue that my opponent has also brought up and  it's a little odd to be suggesting that because we have this additional evidence of fifteen or twenty minutes of the encounter it shouldn't be considered none of the courts here was under the illusion that this video represented the whole of the encounter and we did have as judge hamilton's questioning pointed out i detected a machine ski's testimony that petitioners conduct in the video was representative of his conduct throughout the entire encounter and i would add to that at the time that this was being argued in state court petition i wasn't sang oh well i had a really hard time before the cameras started rolling and then i pulled myself together for the camera and said his theory was that if you watch the video what you'll see is a scared youth in voluntarily confessing and that's not what the courts to evaluate this list record let me tell you what concerns me most about this record if i understand this correctly the key admission by mr murdoch about his knowledge in advance that the other two men intended to shoot the victims appears only in motion skis bit more nuance that i direct had to that so in the written statement he does mention that he tried to dissuade the shooters from doing whatever they were going to do because he didn't want to be there so even the written statement seems to betray some inkling that something really bad is about to happen the written statement sounds like not enough to convict however as a practical matter it certainly would have been difficult to get a conviction on that and the mis trials that the first arrest trials show that the state had some trouble securing the conviction so the concern that i have had if i understand this correctly during the videotaped  confession or interrogation murdock was never even asked by the officer whether he had known in advance that fleming entraps the shooters were intending to shoot up and earlier and and even if that troubles some viewers of the record obviously the state courts did end up crediting machine ski's version overall given the critical he's testimony about the oral statement played where i gather murdoch was quite explicit that he knew what what the shooters intended to do it's hard for me to see a legitimate reason for not asking him point blank on videotape about that and it starts to at least raise in my mind serious questions about the credibility of provide on the merits there because this thirty plus year sentence of a juvenile and is on that point yes and i think the best i can say about it judge hamilton at the towel mission scheme knows what that means and yet at the very worst this is sort of you know not the most optimal police work it's not the savviest questioning that's ever happened but that's not a sufficient reason either on the twenty to fifty four d or even twenty two fifty four eight to upset the state courts credibility determination but i know that there is some doubt here and in this case that doubt must be resolved in favor of there there were yes so specifically in the twenty ten post conviction proceeding at separate appendix sixty there's a specific finding about petitioners request for a guardian now that this is delivered in the context of so you know it's a sort of oral summary of the court's rulings but i think if you read it carefully there's credibility finding there about the request for a guardian as far as the illinois supreme court they definitely recounts definitions ski says that petitioner can request a grandparent that shows up in paragraph twenty of the illinois supreme court opinion and then the credit machine skeet generally in paragraphs forty forty two and forty six so they don't necessarily go to point by point and talk about each specific contention petitioner differed on but it's quite clear from giving the opinion a fair reading that the illinois supreme court credited machine skill over petitioner generally and also on other very specific points like for instance this promise to let him go if he gave up the trigger  man and that was really the focus of a lot of petitioners argument in the post conviction hearing he obviously was trying to get the courts to credit that notion of a promise that would have been a much clearer path forward for him because it was two weeks later when they were trailing him or whatever however they and i we don't know any of that that's what i wish i did know more than we do have to know it but it's something that would be a lot easier to know why others in texas and w and i think judgment in that just reflects the fact that all of these cases flecked certain snapshots of people's lives and they leave out a lot of biographical details just because of the nature of things that we might want to know in a general sort of way but when it comes to the law the answers here are pretty clear and the judgment of the district court be affirmed there are no further questions thank you to i said that's not legally relevant and third whether or not missions try missed that promise that if the child gave up the trigger man he could go home everything else i think i think is basically undisputed and i agree you're on about the oral statement but that would not have been enough and if you want to try and do that the prosecution hammered on it in their opening and closing statements the prosecution put up another police officer detective willis whose sole purpose as evidence was to cooperate that statement and he was impeached by the fact he had not filled out a police report and i'm making make a final point about the age of the killers if you are going to the i p o see website i find out th fleming who was one of the shooters would have been twenty years old at the at this time the other shooter was a gentleman it was a man named cortez tracks based on going to the ideal c web site does not appear that he's currently incarcerated in illinois for this crime we you and your firm have the thanks of this court for your excellent work on behalf of your client and on behalf of the court and we also thank the state for the excellent presentations case will be taken under advisement and will move on to the second case after a moment or two to rearrange things