before fifteen minutes of argument and thus essentially waived argument on his c j appeal number fourteen eight hundred seventy four i just like to call the course attention that he's a lot of work on this case in the last four years and also spent considerable out of pocket money his application was on a post in the case on the merits  site self alpert has nothing to do with this telling me right here now that you would have a really sure he had sworn to tell the truth then you would have said you were guilty in order to accept that point and this should set aside yes there's extensive repetitious questioning by the state holds story appears on page thirty two of the state's brief wouldn't want to do that no court you didn't want to you didn't want to do that to chat up but i would have court oh that's not helpful to chat no i would have absolutely court so what you're telling me is you would have taken the oath and put through basically what you've got is an internal new jersey rule that says that if you tell the court that you're going to you would not necessarily have but that you would perjure yourself and you were very direct  it was here we can't go forward they obviously thought about this rule and they thought that what they were doing was a follow up to what alford would require that there was nothing to to with understand but the question is why did they adopt the rule you didn't want to take the stand to lay a factual basis that you just admitted the aggravated manslaughter events and he could have said no i don't really want to take the stand or he said he could have said that but he also knew that that's not the way or he was not prepped for this conversation at all and he was concerned that if he just said i wouldn't want to do it but the judge would say well if you would have pled guilty court precedent is there to support your argument that the new jersey supreme court violated clearly established federal law traditionally bench washington ok this strickland is where you have coun performing below an accepted level of competence and there is prejudice that results from that yes ok somehow that applies if the the test under stric three were all one way there was not a shred of evidence that he would have claimed he was innocent tried to sneak by some kind of guilty plea that did not require him to say he was guilty he knew his lawyer in new jersey you have to say you're guilty or you can't enter a plea and it was if you just look at the facts it is unmistakable that he would have pled guilty and he would have said i'm guilty of aggravated manslaughter now he didn't know what aggravated manslaughter was he essentially said assume but it was murder and he said on initial number but i would plead to fuck well that was a hypothetical it would aggravated manslaughter is wasn't explained was a plea agreement here also i'm sorry was it explained to him that when was it explained to him if at all what aggravated manslaughter it was never explained would certainly have to explain or have to accept he suggestion that you can be guilty of aggravated manslaughter even though you didn't kill anybody if in fact you remedy at all because as the state says the judge should one inch to refuse the plea and mike can't imagine the plea being offered any of it i'm sorry i said i don't think anybody here can was if he perceived that it was twenty was twenty years he was offered twenty years and with eight years under supervisor he thought it was eight it was really poignant and the the basic point here your heart is that the state made up a rule which should never been the rule in new jersey up until two thousand on surely thousands of people the new jersey have claimed innocence and later added to guilty pleas this really the case to to to to attack such a rule i mean we have here is it is it's not a you don't have a profession of i'm going to this case presents an extremely important issue and the a c l u is deeply concerned about the state court decision that is under review that is to set it threatens the criminal offense the six women rights of the many criminal defendants who at some point in their criminal that the first is to set has been said it is the case that in new jersey it has led to people who said that has led to the denial of sixteen and relief to criminal defendants who received that advice from their k plea and laughter was a problem so what is unfair an unreliable with regard to someone saying not that i have perjured myself but ourselves into how the state goes about the process of accepting a plea ok so the first point it was just get on on the table is that under laugh where the analysis that this court and actually the new jersey says the supreme court should have done is to look at the reasonable probability that a trial court would have accepted the set of plea now he jersey there are two limitations when a plea can be accepted the known to be false that's a message that's important because what the rule in new jersey is not is that if a defendant has ever said he's innocent he's there after forbidden from pleading guilty oh no doubt about it but i just want to come back to the point about what the second limitation is so the so the second which is i'm guilty plea is that if a guilty plea is known to be false it can't be accepted in other words at  guilty to a crime he did not commit it's important to keep in mind that that's what the state rule is because in new jersey practice and i'm sure this is true in many jurisdictions defendants one assert their innocence at various points in their proceeding you might say that arrests might sit at a rain event they might say to conference with their way or they might say in pacifying a motion to suppress and they might say it after they plead guilty such as in trying to get the that i'm sorry the the point is that even though the point the point is that even though i defend it might say he's innocent and another that outside of the kilty but that goes to you but it actually is not the opposite because the question here is what would a trial court do if martin decide it came and tried to read guilty and this fact was known to the court the trial court would have to engage in an analysis of whether the guilty plea is actually false now there would be evidence to suggest false namely to set his testimony that the guilty pleas perjured but trial that evidence that had been introduced at the trial or evidence that had been proffered by the state during a guilty plea hearing and the trial court under those circumstances he was how he was acquitted of trials murder right and it's not just that there was an acquittal across all of at least the least the murder charge he also told the court that he intended to lie under oath it's not also not to not credit it because to set it had motivations like every defendant has motivations to misrepresent his actual culpability for the offense there is here to set his motivation would have been against him at that later trial for that reason eight trial court if it was accepting a guilty plea from to set up could discount what the set is said and it and even even though were talks about fairness and reliability of the process and a new jersey court says that under our rules is telling us that he would perjured himself isn't fair and it certainly isn't reliable how are we to say that that's a violation of strickland slosh well because i think i think in that question that the way that you framed what the new jersey rule is which is if you testify that you are in a circle disability determination that it isn't fair to say that you are guilty of something when you claim that you continue to claim that you're innocent of that something and it's also not reliable for us to go forward with the presumption that you were telling the truth when you tell us you will not tell the truth when the time comes yes so i i think i respectfully read decided differently i don't think the senate was about fairness and viability i think reliability includes what took place during the during the parking now here here it's you know martin just said it received bad advice from his lawyer the trial court and you call it the vision would be done but the i think we can probably assume they're not going to be over but simply maybe they might but i doubt it so then what so then i think the other option would be it would yes that's what it would be and does he end up any differently well i think well i mean yes he could end up in a different circumstance because even though i mean always it would well he's right so it's ok so there is a double jeopardy problem there i i agree but that but he's acquitted of murder right he in new jersey is that a guilty plea can't be accepted if it's false what we know happens in practice is that defendants do assert their innocence but are still allowed to plead guilty and the reason is because trial judges you there are no credit those assertions of innocence because trial judges find that they just lack enough information to make a decision one way or the other about whether the guilty plea is false and so they are allowed because he pleaded for civil courts hard to walk away from a profession of i'm going to basically perjure myself on the record  but on the other hand it's not that different i mean really would really have trouble with this because as trial judge for sixteen years and i have guilty pleas and i always make sure there is a factual basis for the guilty plea and if i if i saw some hesitancy on the part of the pleading defendant i would question that defendant some more and if i was satisfied that he did not believe he committed this crime i wouldn't accept the plea and that's almost like  to do we have to be sure that there's a factual basis for the plea right and i don't and i agree but what to set a testified about testified to was that he said he said he was actually innocent and would perjure himself but if you have an opportunity feel guilty he would do so at that had he been given the opportunity to plead guilty a trial judge would have been able to engage in this in this exact colloquy that you're talking about and a trial judge at that colloquy could have been convinced martin to set it was fitting during the p c r hearing because he had good reasons to misrepresent what his him to misrepresent his actual culpability the other point i would also say to you is this case although it does involve this strange set of facts where to cite it as a fight at peace you're arguing that you would go ahead and perjure himself has not been confined to those bounds to the contrary defendants are now being i should actually say if they ever asserted their innocence so for example if a defendant ever told his lawyer an innocent but then decides to plead guilty i think those are the cases to raise this is largely i mean really could i suggest you guys this question of the outset here aren't you picking the wrong sort of actually try to bring this particular amicus brief issue up it doesn't seem like that it's the right set of facts you could end up with a presidential opinion going the other way on something that you're saying the market should have waited for a better case better set of facts right so again we chose this case because to set a you know is that it's a set it is the precedent that gave birth all of us your cases that we are so concerned about but if one thing i would say is if a court is if the court thinks that the facts of this case are extreme and unusual i mean i think that would be important decision to highlight i mean that would be an important fact to highlight because the new jersey court certainly i've not read to set a so narrowly thank you very much  as easily as any one of the would work well we're just asking that we would prefer that our own state supreme court take a look at them because they never be ruled as a matter of law on the prejudice from about and what this case is not about personal this case is about this case is governed by the a p a so that's the overriding standard that this courtship i got that in and that that the new jersey supreme court stages are saying they're innocent that they're saying you know they're entering pleas of not guilty there is not and i could see i can say there's not a judge in the state of new jersey as your honor pointed out that w not going to accept the guilty play so all these you know these parade of partners that the a c l u and petitioners counsel is raising just aren't true our courts putting a premium i mean one of the concerns here is what i think is probably what on some of the a c l u is concerned is what are the consequences of within the jersey supreme court here whether the decision if it if the the side ahead asserted his innocence a trial and we need to focus on whether she would have pled guilty and that's not the test the test is whether whether they would have accepted or entered the guilty  did they go back later and deal with the aggravated manslaughter how did that come up that amount but it came up in the context you know what he was indicted on murder first degree rector and second erroneous thank you thank you very much you're guilty how do you explain that clarify some facts from if you would a chart it clarifies some facts to me if you will what was the plea offer initially was it twenty eight yes  i thought it was thirty but it's a long time anyway so the point of what he said in two thousand baht i have is totally irrelevant to the question of wo accepted there is all the evidence that it would have been entered and accepted because he didn't claim innocence there's nowhere that it's the state says he had this repeated claim of evidence of innocence ed no i'm guilty then what would be the point of granting him a new trial which was the rule in that case that's what he was supposed to get if he proved this case if he got to do trial they would just introduce the evidence and he smore under oath he was guilty what kind of a trial would that be so i submit that with unconstitutional to put him to that choice and then to deny him a remedy for ineffective assistance one that would have been accepted but the point is the judge wanted to know if you claim innocence how do i know you would have pled guilty that was the that was what the judge wanted to know they can't put the defendant to a choice like this if you want to remedy for in effect people assistance of counsel and the judge asks you if you're guilty you have to say yes you give up any rights you might have to defend your guilt if you go to trial you'd better not say your incessant you better not even under new jersey law now you better not not even what color your lawyer to cross examine the station witness or you won't be able to plead guilty what you just you decide to do it again it wasn't just that he said he was was innocent he said that he would lie in order to get the aggravated manslaughter yes you're a but but i remind you that that was a hypothetical that wasn't actually applicable to this case he did not have to lie he did not have to say i killed the man that's what he had that's what he was talking about i would if i had to i go see i killed the guy even though i didn't the fact is he didn't have to say any such thing so when he said i would have been willing but in effect didn't have to but but looking at this from ten thousand feet what you're asking us to do as i said before is to extend the reach of  if the attorney's conduct affected the outcome of the case the defendant can establish prejudiced because they traced conduct if it did not reduce confidence in the result of the trial fred well said that unreliability or unfairness does not result in effect because the council does not deprive the defender of any substantive or procedural rights which long titles him he was entitled to adequately co but to deny him a remedy because he said that which was hypothetical and which he had to say otherwise it wouldn't be any point in seeking a remedy because the remedy was a new trial he could but how could you get a new trial if