it morning to counsel for the united states and i'd like to make three points during this morning's presentation in the context by st setting the factual background that this is a tragic case were two young american soldiers were going to jordan without getting too much factual details one soldier the apology shot his buddy and killed him the issue at trial solely was the mindset it's time the fatal round went off and i'd like to begin with the st point  being the lower court failed to apply this court's rulings in monkton datsun which states that when there are substantial questions of constitutional law that are largely free from factual issues i considered where it had to be considered was in the military justice system right so if we return to the war and how was it not considered in the military just as listed or to be applied for the article one tribunals was whether or not revealing supreme court standards were apply and whether or not the full that those considerations raised on direct appeal and the other one system were fully in fairly adjudicated in opposition based on the record is coun had twelve witnesses available to him on the single issue of whether or not specialist paige intended to kill his buddy rather than whether or not this was a mindset of culpable negligence and defense counsel under v washington never called any of them to include two police officers and two police reports which were exonerating in terms of actual guilt because page pled guilty to manslaughter he knew it was a terrible mistake any regrets it to this day but at the same time the government went forward and tried to prove murder and premeditated murder in did but the challenge go was the testimony of those twelve troopers who were on the ground for five months with page never made it to the inside of the courtroom so on a direct appeal page raised them very constitutional issue to say reasonable counsel would have hauled those witnesses means that we review it for whether it was decided correctly and i see this two different issues one is did the military tribunals fully and fairly every case is considered in reaching its opinion is there can you point us to something that no your honor and that's not visitation that we're presenting instead if we take a step back we have twelve witnesses two police officers two police reports in an entire body of law that was ignored all sitting in front it was wrapped in a trance clear a bag and the our courts of the united states are reluctant to touch it because they think that the military won tribunals and the expertise to get you know the fact that he doesn't have anything on his computer saying i want to kill another person doesn't in any way advance the ball it's irrelevant because it doesn't tell us what was in his head you might wisely not put it on ery assessment that through further investigation a different conclusion was reached to charge him with a higher on the court said they don't really have much to offer because analysis interview canvass blanket interviews of the entire number of personnel who were there that day testified under oath that in eric's periods they saw nothing in pages mind set that he wanted j p the victim in this case terribly to be killed to be murdered it was a tragic accident so to stake a step back here how can we as article street american jurists when we look at twelve witnesses two reports counsels fully unaware of them our client is sitting in a trial for life end admits that it was a tragic accident and you don't even try to put these people on and then the post justification on appeal is i didn't think any of that evidence was admissible and that's a misapplication of the rules of law so all of these these come together to say how can this evaluate how can this trial in resolve the substantial constitutional claims the article three courts as the ultimate arbiters of what the law in the constitution is should evaluate the merits and make the decision the deference to the military courts is not appropriate and here's another example your honor is one of your perks for example this morning didn't come to work and income to work for a nd day you may counsel that person or you may fire that person but you know yes in the five months with which i had served with him in a desert for twelve hour shifts i saw no animosity yes on nothing between the two of them they would ever give me reason to believe i knew both of them and in the time that we serve transcript of which is before the court right now and you can read the testimony we don't know how reasonable counsel under prong one of strickland the washington can say i'm not even to try to put that on that is it's a difference between life and ten years is a difference between premeditated murder and manslaughter you know that you said that's one part of it what's the other part of it in terms of the other part of that your honor is the court was brief not specific intent to murder in the lower court and the military tribunal completely did not consider any of it and that's problematic because burns counsels that the process is legally inadequate one of which being the finding legally inadequate as failing to apply prevailing standards that's where this case is very problematic it admittedly the standard of review is narrow but this is the to help his but he said oh my god i needed it try to plead guilty three times to manslaughter the prosecution would have none of it but then when he did he finally pled guilty to manslaughter the th time naked in other words a very robust case and those of us who have been prosecutors and already fans insole you would have to call those witnesses and develop them and so under strickland ordinarily we would provide tactical deference right when the post soldiers point their pistols at one another believing them to be safe in the and ready to fire position but they're ready to fire and one soldiers killed that's what the example is in the media report marshall that standard too smirch my brothers and sisters on active duty i'm a retired lieutenant colonel myself in the reserve having prosecuted and defended then their military officers st managing careers they're not dedicated jurists so the idea being you can ignore all those witnesses who would have come in and if i were on trial my god i would be so sad that i'm doing twenty six years in the penitentiary when the case  respondent the commandant of the united states disciplinary barracks your honors i think this court can appreciate that these types of cases are very fact dependent and that mr marrs plead for this court to accept the idea that a particular case law exists that supports his position somewhat misses the point certainly there are cases throughout the military appellate system which demonstrates that certain events and certain acts on behalf of soldier supports the idea that manslaughter is the more appropriate charge but those are very very fact dependent each case is really burdened with its own problems in its own facts there is not one uniform set of facts that applies in a manslaughter situation and you know are up for a minute i  i kept thinking someone might tell me what evidence came in as to the motive and intent here and i really didn't see any judgment to the the evidence that the army presented during the court martial proceedings involved the rebuttal game or dismantling petitioners argument that he had a round the day before and had mistakenly assumed that he cleared his weapon through that they were able to rebut the titian ors arguments that he had in fact  chambered round during an event which is is described as the same in truck vent where he had gone along with two other service members to approach a sand truck that was approaching the  control point and that he a chamber around the government had put on evidence to rebut back showing that that san truck incident did not happen the day before in fact and events that other soldiers were that that the visit involving the jordanian military force and the americans and so for all intents and purposes they demonstrated the base was somewhat shut down so the defender just argument that he had in fact on four separate occasions decided to forgo his training and not clear his weapon and they describe all four instances where he would have had to have as the process is when  man clears their weapon there were four points in time where he would have had to have actively decided not to follow his training and therefore decide to simply  hand his weapon and not clear the weapon the protocols and allow that round to continue to be chambered in his weapon rd they were able to put on a what the military qualified as an expert someone who would have to demonstrate that the shot taken by petitioner was a very thought out deliberate act on his part because of the distance and had to go through the process of chambering the round thinking through the process narrowing the focus of the shot and actually hitting the victim in this case in the head from several meters away and at the end of the day that evidence was present now here's what's important i think to to circle back to what jack hart's had said is that while the army court of criminal appeals did not look or did not give a written opinion on this which they are not required to do and this court has well established precedent which says that this court does not take into account the fact that they did not take into consideration or did not write an opinion about this issue i think that cuts against petitioners argument because if you look at footnote three of the opinion from the army court of criminal appeal it's important to note they granted motion to attach their verbatim transcript of the article thirty two hearing which means they looked at and considered exactly what he wanted to be placed in because the article thirty two dollars court heard the evidence of the service members who mr mayor talks about testifying to the lack of any motive on the part or any animosity on the part of specialist page and the victim now at the same time this court has to appreciate article sixty six of the uniform code of military justice and that is important here because it obligates the army court of criminal appeals to review the record beyond a reasonable doubt of the crime for which he was also mentally convicted at the same time i think it's important to remember that his case was tried to the court it was not tried to a panel and the judge that was taking into consideration this evidence when looking at the record did an extraordinary job identifying the rulings at which he was deciding as to whether or not to admit certain evidence he was giving the basis for those rulings and establishing a significant record and at the end of the day this court has made it very very clear in in a number of opinions that it does not fit to reassess the facts defense counsel that he didn't think this other evidence was a miscible so yes or no on whether that was effective representation and if the court read it in the in the army court of criminal appeals opinion they cite to the strickland standard and reference the fact that that evidence would not have been admissible out of opinion evidence about what other members thought or what they saw because it was opinion testimony the court was clear that in its opinion that the case revolved around the moments in time when specialist page decided to twelve people in the union would not have been admissible to say that it's stated it is it i'm reading from the opinion drug charges it is impermissible for a lay witness to testify as to their personal a specific motive or intent to kill and they ultimately made that determination the bat would have been inadmissible now well but that's not i mean yeah they can't get on there and say i have i opined he didn't have the motive to kill but what they can relate properly is that i spent you know seventy two at straight hours with him and time i think the court has to appreciate where the defendant's counsel or where petitioners counsel were at the time and to issues that they really were i think reference was the idea that if they put those individuals on the stand it opened up the idea that there was quite a bit of animosity toward this victim and for mr mayor to to and i have great respect for mr mayor so don't take this in the wrong way these were not buddies ok well him in the material but the record there there is a suggestion that presenting these witnesses would have backfired but because there was  judge hard as to whether or not full and fair consideration was given by the army court that there is that part of my record on appeal i do not believe that mr meant that no i believe that it is mr mr mark did put the article thirty two  transcript i believe that's the largest part of the appendix in this case you know there was still would see apparently if you the victim was promoted and we know how long before the shooting that promotion was i don't have any evidence at hand to know that he was promote how far in advance he was promoted we simply know that there was a bit of animosity based upon some of the statements  or some of the things that that the victim was saying to other service members that were crude or otherwise inappropriate as well as the as well as his advancement which is it is presented that he was even laughed ready and said that the other members of the unit would find it funny that he killed the victim because everyone hated him so much and that statement was of course placed in front of  the court at the time as well which further establish some sense that maybe there was a motive in this case and the government highlighted that that statement that specialist page that made just shortly after the shooting and to indicate is that that statement led least toward the idea that there was something more that was going on here thirty two dollars transcript include anything about those kinds of dr firing being authorized and encouraged i don't know judge murphy i don't know that there's a dispute that they encouraged service members to engage in dry firing at in animate objects that was a common common training but certainly they they trained against  i believe that there is some discussion well i suspect that you'll find there's quite a bit of discussion about what is called glassing or dry firing but glassine of course is aiming at another service member to try to but when they dry fire instead of pointing at an inanimate object d they would in fact point their weapons at other service members the extent of that i think was certainly and could have been in dispute at the time as to whether or not that was going on on a regular basis but at the end of the day the army court of criminal appeals appreciated the fact that it came down to the point in time as to whether or not titian or had the intent to shoot and stacked against the evidence which was rejected in refuted at length d his d argument that he had chambers around the court ultimately concluded that the trial judge was correct in convicting him of the more serious charge but in the very short time that i have left i cannot understate that this court standard of review is so incredibly restrictive in this sense and it is important to remember that again that this court really does not sit to reassess facts that were fully and fairly considered and these facts were briefed at l both parties and i think you can see that from the army corps criminal appeals opinion when they realize the narrow set of circumstances that they had to look at to determine or satisfy for itself as to whether or not