please the court and so my name is jackie ballard and i am from the office of the state appellate defender and i represent the respondent minor in this case austin am lawyers a matter to the reliability and fairness of judicial proceedings given the life altering consequences that follow from a delinquency adjudication lawyers are especially critical at that stage of the proceedings children like austin who have been charged with a crime and face the same potential prison sentences and adult sentences that adults do on entitled to defense attorneys the defense attorney who provides the same zealous representation who provides client elected is the state in its grave tries to recast the issue as one of the straight essential a and effective assistance of counsel claim and is trying to understandably back away from the conflict of interest claim because the standard for contra conflict of interest revers appoint mr novak as a guardian ad litem because that was unnecessary when mr novak walked into that courtroom he had already been paid by austin's parents to represent austin so from a practical standpoint when he walked into the court room and said i represent austin the court expressed a little bit of confusion about whether counsel also represented the parents and counsel said no why weapons sent the boys in this case both austin and his brother ricky who are both this case it doesn't matter to the resolution whether the whether the parents invision and counsel as acting as a guardian ad litum and i would suggest that any parent who understands the consequences of delinquency proceedings would not ask litum they would ask for a defense attorney to defend their child in this particular case when the attorney walked into the court room the trial court described the role of attorneys in delinquency proceedings and he had mohnish austin and his parents specifically mr novak was entering an appearance for your son's only he represents what's in the best interests of these miners which may or may not be what the miners or the parents think is in their best interest that is a classic definition of a g a o l under no other circumstances an attorney the parents can make that higher but the child is the one who possesses the right to an attorney and so we're growing list of what the parents expectations were when they entered into that into that into that when their child entered into the attorney client relationship he has any learning disability that's when those learning disabilities come to light in the record i would not go so far as to say that austin had diminished capacity austin as a minor austin has difficulty more difficulty than other children  i think that's a that's probably a good question whether minors understand any admonitions and quiet but in this case the court used very simple language and said this in turn is primary goal is to represent what the attorney thinks is in the minors best having said that i am not taking the position that an attorney never considers a client's best interests and relays those to the client and gives the attorneys opinion about what is in the client's best away there's nothing in that austin wanted an acquittal austin pleaded not guilty austin wanted to be acquitted when the attorney explained some of the steps that he was taking and the decisions that he made almost all of those  attributable to what the attorney thought was in the miners best interest and if i could just read a couple of excerpts of what counsel said because they're the kind of statements that would never come out of the mouth of a defense attorney in a criminal proceeding and explaining why he was allowing the state to present its case by videotape the attorney says because this is a juvenile hearing and then a few pages later in the transcripts he further explains i don't view such a proceeding as as adversarial as it might be if it were an adult case he gives us a second reason for allowing the state to proceed by videotape because we want to know the truth is ultimately the view of the parents he expounds because the parents and i agree with mr lee who is the prosecutor in this  case as well i'll bet if such acts happens they need to stop because an intervention is not inappropriate by way of government because to help these boys that these things happened and because we don't want to cause trauma to the potential witnesses none of those reasons are related to defense legitimate defense strategy those are all related to what the attorney and the attorney promised all of these remarks by saying i'm explaining why i'm doing this and conflict of interest if you have this hybrid representation this court finds that an attorney that the risks are too high when an attorney tries to serve both the expressed interest of the client and what the attorney thinks is the best in the best interest of the client that of those conflicting interests are so serious under the per se rule reversal is automatic with no further inquiry into the facts of the case if we step back to a next step and we talk about this being an actual conflict of interest because it was raised for the first time on appeal the miner in this case has to be able to point to specific choices or decisions that council made that work tributed to the conflict and then finally if we talk about this just in terms of ineffective assistance it's the traditional strickland standard which talks about whether council made an error or whether the errors and the burden falls on the minor to establish that there were legitimate strategic reasons for the choices that council made and also that the minor was was prejudiced by it's a much more straightforward analysis the closer the court gets to the per se conflict of interest in this case so it doesn't matter in terms of how the issue is  zealous advocate and as and as a defense attorney i think it's significant in this case that in terms of got one goal talks about the right the due process right to an attorney in delinquency proceedings one of the got requirements is before you can ever have a waiver of competent counsel you have to admonish the minor that he has a right to an attorney and in this case the only admonition that the trial court gave to ostend was this admonition that if the attorney thought that something was in austin  interest then it was ok for counsel to proceed on that basis we're guarded less of anything else that the attorney calls the shots that's what best interest represent ultimately calls the shots and that's what best interest representation is about is what occurred in this case it's what occurs in in other delinquency proceedings i think in terms of the make us brief detail job of discussing what happen in this case this is what it's what happened the attorney want into the courtroom and the judge said you do best interest representation if if the judge believed that the attorney was supposed to act like a defense attorney there would have been absolutely no need for that admonition that you get best interest representation and best interest of presentation me as your attorney can override your can override your your wishes in that respect the minors position is the right to a real defense attorney unencumbered by best interest representation is gerren tede clearly in the terms of the juvenile court act significantly they are the amendments and in the provisions of the act that we rely on are those parts of the statute that were enacted after nine hundred ninety eight when the act became essentially adult to fight when it became much more punitive than it had been in the past article one provides for the general right to counsel to children and then article five specifically guarantees the minors all of the procedural rights as adults it prohibits the waiver of counsel under any circumstances and it's not just any counsel but it's counsel in the minors defense that language was chosen specifically and then finally there is there are there are times in which a guardian ad litem would be appropriate in a delinquency proceeding wouldn't be appropriate is for defense counsel to fill that role but the juvenile court act in the delinquency provisions provides for the appointment of a guardian ad litum when there's a conflict between the minor in the parent for example if the minor if the parent is a victim of the minor that would be want to example of that or if the court determines that a separate guardian ad litem would be in the minors best interest for some reason i would imagine that those sorts of the this separate guardian ad litum provision in the statute is consistent with the notion that when a child comes into court there is a guardian or a custody and or a parent who's there to worry about the best interests of the child that's the role of the parent or the guardian and the role of the attorney  child against the charge it's interesting that we preface the best reasonable doubt portion of the argument with you knowing when noting what happened in terms of what the trial court found the trial court after promising the parties to reach a relatively quick decision didn't issue a verdict in this case for months and when the court did the court did exactly that he found that we the three children who were on the videotapes were not credible one was wholly incredible one was a something went on here in this house something happened we don't know what it was the state hasn't proven exactly what happened but we've got boston said mission and in this case the circumstances of austin statements the police were highly suspect they were they were not it was not recorded by even one of the state's own witnesses sherry foley who sat in and observed the interrogation described the techniques that the chief of police used as a very aggressive and very loud austin was not there voluntarily he had been put in a car and driven there by his parents who had just discovered what was alleged to have happened in their house so he wasn't able to walk away wasn't able to drive said austin the material the information that he ultimately admitted to the testimony at trial is that the chief of police told austin that he was accused of leading one of the boys and fondl one of the boys and eventually after austin the subject to this very aggressive interrogation technique he is a boy who has never experienced this before has no prior record and no prior contact police he's repeatedly accused of lying by the officer a technique that is specifically been studied and referred to as the negative feedback technique was a suspect continues to deny that he's guilty the interrogator continues to accuse the person of lying and that particular tactic has the linked with false confessions again austin was vulnerable as a sixteen year old yes he was sixteen chronologically but he had substantial learning disabilities specifically learning disabilities relating to language so there are there are some serious questions about how he perceived what was being said to him and what he actually understood  and the state managed to videotape the statements of the children but didn't manage to videotape the statement that austin made and justice and found that under those circumstances when that state's remaining evidence was so flimsy and the only real thing that the only real item of evidence that the court hung its had on was the interrogation that the interrogation was so unreliable and the fact that it wasn't recorded meant that the state had failed to prove its case in this instance and we would certainly urge this court i mean that would be our ultimate request for relief would be a reversal on reasonable doubt grounds at a minimum it would be a new trial whether based on this hybrid representation that occurred or the per a conflict of interest in representing a name to victim and the accused at the same time yes and that really is the primary reason why we seek reversal in this case is that he is required to register as a sex offender the same as an adult the only exception being he's not on the public registry but his required says he is required to submit to  sex offender registration in a case for ten years because this is a misdemeanor case that prompted the trial court to delay a verdict for five months and prompted just a sample to dissent on reasonable doubt ground police please the court i am assistant attorney general aaron o'connell on behalf of the people i'd like to start first with justice freeman's question in terms of the sufficiency of the evidence i don't believe that the circuit court found that details testimony was entirely incredible and it written order the court actually set up a sort of hierarchy and said willie's testimony was completely incredible jonathon's fell somewhere in between and dylan's testimony was quote suspect the court then went on to specifically cite the aspect of his testimony that it found problematic and that was a statement that he made pertaining to an alleged or a g type situation that occurred the court found that part of his testimony incredible the court did believe the respondents admission his admission was that he allowed dylan to perform oral sex on him now that was also a part of dylan's statement so if the quote believed the respondent said mission the court necessarily credited that portion of dylan's testimony and taken together the admission plus this corroborating evidence in the form of dylan's testimony the state did prove its case beyond a reasonable doubt now i'd like to come back to the issue of the hybrid representation absolutely this case does not present the issue of whether a juvenile's defense attorney can simultaneously serve as his guardian ad litum justice burke as you noted a guard litem is typically appointed by the court we have nothing in the record here where the court ever appointed this counsel nowak as a guardian ad litum and in fact the statue would have required the court to make a specific finding in order to do  so i believe that under this statute a juvenile is only entitled to a jail in the delinquency proceeding if the court finds a conflict of interest between the juvenile and his parents we know that no such finding was ever made there was no finding that he was a o there was no in this case there was no way no payments were made for him being appointed as a jail he was solely retained by the parents to represent the two respondents what proceed to a hearing counsel in his opening statement really emphasized that the charges were contested that was standing the statements that he made regarding best interests he made clear that the purpose of this hearing the state to its burden of proof now in his closing argument he argued strenuously that the children in this case were not credible and that the state had failed to meet its burden and it furthermore  we know that counsel in this case arranged to sort of deal with the state where the state would present the testimony of the child victim soley via videotape and in exchange for this sort of arrangement would recommend probation at a dispositional hearing now this is actually a remarkable concession on the part of the state we know that the conduct that he had measured to was seriously problematic if if in fact he was allowing another child to perform oral sex i mean two years of probation is not a typical sort of sense and the trial court  imposing the sense of the dispositional hearing actually lamented the fact that it hadn't earlier clarified that it didn't it wouldn't be bound by the state's recommendation so here is actually evidence in the record that the court but for the arrangement that counsel had entered into would have imposed more severe sentence probably committing him to the juvenile justice facility for a period of up to one year included a lot of allegations that in effect undermined the credibility of the children so the respondent benefited from having the court view all of these statements in their entirety so for example dylan's dylan's own credibility was undermined by his report of this or g that the court fined found incredible really says money was completely thrown out really the respondent could not have gotten a better result than the trial court ultimately found which is that all but one of the children statements were essentially not credible he couldn't he couldn't have asked for a better result he forced the state to present the live testimony and then cross examine the children they to emphasize that this is this state doesn't dispute a lot of the principles that the reste the respondent has advanced in this case the state doesn't dispute that a juvenile in a delinquency proceeding is entitle to defense counsel who will serve his interests loyally we don't dispute that this is to some extent coextensive with an adult defendant's right to counsel the question here is would this have it would this have satisfied the right to counsel for an adult criminal defendant and this is where we part ways and say absolutely in this case he received exactly the same level of representation that an adult would have received now on the one hand the professional rules provide a uniform guidance for both juveniles and adults you know under the professional role one point one four that regardless of the age an attorney is expected to judge the capacity of the defendant in terms of determining how how much of the normal attorney client relationship can be preserved in particular instances so we're not actually arguing for a different result for minors the fact is under rule one point one four it specifically cites minority as a source of diminished capacity so it should be expected that minors would more often be found to have diminished capacity but the same rules also apply to adult criminal defendants so the question in this case is just as it would be in an adult case did the attorney satisfy the strickland standard here and clearly he did it and we know from the presentation of the evidence that ricky was even acquitted because of this agreement to have the state proceed by week in testimony in addition he did get this really dramatic concession and terms of the probation recommendation at the dispositional hearing nothing distinguishes this case from an adult situation and even in the adult context defendant does not determine every single step in the litigation in and in a dog context whether to cross examine a witness and how to cross examine a witness or strategic decisions that rest with the attorney anyways these are areas where an adult's expressed wishes in terms of a particular course of action would necessarily guide the attorney's actions because the attorney is the professional who has the knowledge background to know the best way to proceed in terms of what were the express wishes here we know that he wanted an acquittal and it we know the counsel thought strenuously to try to get an acquittal for him that would be identical to what we would expect if he had been an adult cou yes your honor this is a fairly unusual case the defendant is relying on a per se rule that this court has adopted when there's a clear relationship between counsel and the victim and counsel and an offender but the facts of this case do not match up to that sort of a relationship and one thing i would especially like to note is that although the  response vicky was an alleged victim of respond then respond it was also an alleged victim of ricky it was nearly identical charges and this isn't i don't believe that his ricky's petition is on the record but we know from the transcript september twenty fifth the two thousand and six pages one and two it does especially with the charges are and it confirms that they responded it was an alleged victim of ricky so we don't have a situation where either of these two individuals has these charges correct correct and the state charged each one of them with certain kind of conduct correct in the petitions in the petition so this is not a third party this is the state that  charges they are listed in the petition that is true but if you look realistically at what occurred in that case and what the case was about this wasn't even though it was included in the petition it wasn't a point that this state really argued for at the closing argument for example or opening statements it appears that even though they were named in the petition it was more that the state focused on the other aspects of the charge and almost declined to prosecute this particular act and so really the only evidence at all that we have that that he was an alleged victim is in the petition but if you go forward and you look at the avenues and you look at the arguments the state really didn't press the point that one was a victim and one was the offender instead in the case it's better understood if you look realistically at the circumstances that these were two respondents in nearly identical circumstances they shared a common defense of undermining the trial based on the pleadings or do we have to analyze it in terms of all the trials conducted the court is never adopted a rule that says just because it's in the charges that that gives rise to a conflict where the has found a conflict it is looked at the nature of the case as it proceeds so that there is no clear answer to that but it does make more sense the per se rule is it has a dramatic remedy and it the court although once you get to the per se rule the court doesn't assess whether he has proven prejudice the court does have to make a threshold determination that this actually falls within the type of relationship that the per se conflict rule was designed for and in its rationale in explaining the per se rule is that what conflicting loyalties lie to one person who would have a benefit if the defendant were convicted and if you look at it that rationale in this context it doesn't fit because here they neither of the two of them would have benefited from a conviction against the other they had an identical defense in this case from the adult context the court should apply the exact same rule that it would apply to adult defendants and when it applies that rule the strickland role in this case it should find that this juvenile received just as good representation as he would've had he been an adult first of very briefly in addressing the state's best interest hybrid argument the state makes clear that it's not arguing for a different standard and delinquency and adult proceedings but in this case that's exactly what the appellate court did in its published opinion so it is necessary for this court to address the issue regardless of the state's concession about what kind of representation a child is it is entitled to this opinion and and also an almost identical opinion in r masses sitting out there out of the fourth district approving of representation where an attorney who's supposed to be acting as a defense attorney can also act as a best interest to charlie and significantly in this case at the adjudicator phase of the proceedings when he had when the when the miner enjoys all of the weight of the weight to be proven guilty beyond a reasonable doubt notice confrontation cross examination i would also note that even if the court appoint counsel as g l g l in this case that's how counsel behaved to counsel described his role as a best interest attorney so whether the appointment was a formal g a o l or not the attorney in this case operated under conflicting interests a duty to serve the best interest of the child and a duty as a defense attorney to proceed under the expressed interest model where when you're saying the attorney said he had the best interest of the child or those are words or  as opposed to any attorney having the best interest of his or him wanting the truth to come out yes your honor and if there were only a fleeting reference to best interest we wouldn't be standing here and making this argument it really is the combination of the trial court's description of council all i think that the response to that is twofold first is we have to take counsel statement at face value that the reason he did this were for reasons unrelated to what we would normally consider a legitimate defense strategy i would also take some issue with the notion that counsel really benefited his client by by a by stipulating to these videotapes by stipulating they came in substantively you have counsel really believe that these statements were so unreliable and so damaging he still could have excluded he could have excluded them at one fifteen ten hearing and then if the state called these witnesses he had an incredibly powerful impeachment tool at his disposal in these statements where these w these foster children can't keep their stare stories straight within their own stories or outside their own stories so it's this combination of court to try a bit of trial counsel attributing it to an improper reason and the fact  the the agreement for the state not to seek prison there was a particularly powerful concession it is certainly important when you can always negotiate a deal with your to keep your client out of prison but in this case counsel didn't discuss that decision with his client during the proceedings that preceded trial when they were just gusting this whole notion of what were counsel really and tosses in at the tail end of all of his out there wrong reasons for making the decisions that he makes he tosses in at the end oh and by the way the state's attorney offered a quid pro quo and they're not going to ask for frank or situation in this case and the trial is in the trial court explores that a little bit and the court says mr and mrs m are you satisfied with that deal did counsel discuss that with you and austin's parents said yes we sure did discuss that the trial court never asked the attorney's client whether the attorney had discussed any sort of a deal or concession with the client aside when that conflict was present in part of the discussion where he's there where he's talking about why he's making certain decisions he says i cannot imagine representing both of these clients if we were an adult criminal but in this case again it's complicated because counsel didn't understand the role that he was starr was was charged with a felon and the other thing that i would note is that the rules of professional professional responsibility control all conflicts of interest but yet this court creates special per se rules of common conflict of estrus and said there are certain conflicts that are so fraught with danger that are so difficult to find the prejudiced behind that we are going to true counsel's obligation so this course is we need to create per se rules for the this exceptional category of cases even though the rules of professional responsibility would otherwise obligate counsel not to undertake he operated under two distinct per se conflicts one is the conflict of interest based on whether he was serving best interest or expressed interest of the single client he also argument to in the brief he also operated under this person a conflict of interest base absolutely yes his right to a defense attorney i would ask this question reject the state's invitation to explore further victim based conflicts and dig further into the facts of the record the rule is very clear interest even though counsel's rep representation of the victim in that case he hadn't had contact with the victim for over two years and the representation was not active there is a critical critical reason for not allowing attorneys to undertake that type of representation and by taking what is otherwise on its face when you look at the charging instrument a person a conflict of interest in saying well let's take a look and see was it really a conflict did they really conflicting interests that takes that takes the analysis down the path that this court has said it doesn't want to go in person conflicts there's no inquiry into the facts per se conflict is a personal conflict and there are certainly scenarios under which this court could imagine where you would have a victim and an accused where the victim wasn't necessarily the accuser had not walked down to the police station and made an accusation against the defendant but the state still has a very legitimate interest in prosecuting that person and i would think for example the i think the easiest example that comes to mind are domestic violence cases where women are unwilling to press charges against against their abusers with this court to say that that an attorney who represented the victim in a domestic violence case and the accused batterer wasn't operating under a conflict of interest i think that the answer to