also have five minutes or repub you'll see the digital time device on my screen when time has expired i will bang beguile finally please remember no photographs and only the court of the orders permitted to record these proceedings today are inherently coercive and that itself is the reason for the miranda procedures but in this case you add to that crack it just turned seventeen you was exhausted from mistrustful spent the day working outside and then was the intended victim of a drive by shooting at his house that almost killed his mother that year and the interrogation didn't take place and till about nine pm that evening he did not have prior history with the criminal justice system and then the police deliberately isolated can from his family including his cousin brittany miller who showed up to  he had acted cold blooded and that he had shot care for absolutely no reason now the best evidence in his case is the videotapes themselves and certainly at the beginning you can see getting out and standing in the corner and then we have a situation where in the initial hearing on this matter the court only used the st nine and ten minutes of the videotape before deciding that managements by both the court the statute in the case law regarding concerned adults and don't apply to correct because you seventeen and but that's inaccurate and based on all of these natters we don't have an affirmative waiver  we don't have a situation where the record shows knowing intelligent and voluntary waiver of credits rights and we see his will being broken through the course of nature of this and for those reasons alone he asked that this court reversed and written and for a new trial now additionally both in the litigation for regarding preg statements and throughout the pretrial and trout proceeding counsel did not rise to the level of constitutionally effective assistance of counsel the very at the very heart of attorney's role is to know the law a political to a case and to know or discover the facts including what evidence can and cannot be admitted at trial now an attorney has to choose and choose a defense based on the law and the facts and to protect their client from improper evidence and argument and counsel and escapes failed at each step and again in the statements and the litigation the statements counsel cited overrule case law did not cite case law on point that would have helped his arguments and then chose a defense of nd degree murder based on imperfect self defense and her mistaken impression of the requirements of that defense and a mistaken impression of what evidence would be available to help present that defense to jury now in particular and notable examples the council wanted to admit evidence that you witnesses he intended to rely on and would not be available and were not present and in particular johnny sure all and jared harat serai was in federal custody the state had decided not to call him so he was out of state jared harat state also decided not to call him and there was some information that he might not and competent to testify but counsel had chosen a defense intent and intended to elicit evidence through these witnesses either on cross examination or by recalling them and it was unaware that they would not be available at trial and didn't take the basic measures to secure those witnesses presents there was also as noted other evidence that could have and the issues within the brooklyn police department but based on errors counsel was also left reliant soley on cracks testimony rather than available support and based on now finally counsel also allowed the state to present evidence and that was improper without objection to argue extensively in opening and closing matters that were and highly inflammatory now based on the chosen defense the jury should not have heard and extensive evidence and testimony from brooklyn that yes they had gotten the person responsible no no one believes that garrett was involved in a sense and yet and this is hearsay there's no i'm not only does it improper evidence it was also irrelevant and based on the issues at trial and most notably you have a situation where if properly presented there would have been a reasonable basis to convict to argue such improper inflammatory things such as that crack stood over garrett shooting him it point blank while he was begging for his life now there is no testimony or evidence that supported that that statement and yet it bolsters the situation where the state in this case presented a false dichotomy of garrett as an innocent sixteen year old against cold blooded heinous craig miller from brooklyn when in fact the situation is definitely tragic but it's a situation of children making terrible mistakes and it is not good versus evil it is a horrible mistake that happened and it's case and craig miller should have been protected by counsel and was not due to errors of fact and law and for those reasons in addition to anything but cold blooded as happened in the heat of the moment in in a very short period of time and it does not justify a forty year term in in prison particularly for a seventeen sentencing hearing thank you  st issue i believe that a resolution of that issue pretty much resolved everything else because when you take the defendant's confession the video of him running through the parking lot repeatedly shooting the victim the video of his flight after the victim and his own testimony that makes any although on last friday none of them have anything to do with this case because they all range they are all the back to life sentences sixty six years that mean five years fifty years forty five years me eight years and fifty three years they have nothing to do with a forty year case so i think buffer completely resolves the sentencing issue and i think the question and the important question the before this court is the confession and defendant argues that it does but you can't get language much clearer than and here i'm reading directly from the statute the definition of delinquent minor shall not apply to any minor who at the time and the offense was at least sixteen years of age and who is charged with st degree murder well we have a seventeen year old charged with st degree murder therefore the juvenile court act does not the question and i think it's a really involved and arresting question as to whether these new miranda rights apply to this defendant  i read them and read them and read them and try to make them make sense and they are and i really think there's a word missing from them but nonetheless there is a new new step amended statute that states  that the officer shot continuously read to the minor in its entirety and without stopping for purposes of a response from the minor are verifying comprehension the following statement you have the right to remain silent this means you do not have to say anything anything you say can be used against you in court you have the right get help from a lawyer if you cannot pay for a lawyer or the court you want for free you can ask for a lawyer at any time the statute apply when that amended statute took effect three years after the defendant was interviewed and so the question is does  is read to to minors so superficially there's a conclusion that the statute is or is retroactive but i think those two really important pieces of language one from the statute on statutes and one from the united states supreme court which warrant a different conclusion the section four of the statute on statute says that proceedings thereafter shock and form and here's the important language so far as practicable to the laws in force at the time of such proceedings now the modified miranda warnings were enacted into law in july january urse two thousand and seventeen and the defendant was interviewed on july th two thousand and fourteen it was not practicable to apply these modified warnings three years before they were written you it's impossible  convenience and i would agree with that but in howard they were wanting to transfer a defendant from adult court to juvenile court he hadn't yet been tried they just want to take him back to juvenile court and the howard court said clearly transferring this case to given a court for a transfer hearing is something that they support and so it's easy to jump to the conclusion that that howard would apply in this case but in howard moving in the defendant from from adult court to juvenile court was disruptive but it could be done it was intervening to get but it was not impracticable ok good in the i mean the police obviously three years later they did and the exact language from the statute so that was the practical but don't you think that substantial compliance with the at least the concepts of what the language from the amended statute to you think that is something that should be required that they should have given because this is basically the difference in the statute is that it's read all at once with no interruptions and  i don't know how the police officers could anticipate a change in miranda that would occur three years later and there is certainly no way to go back and start all over again to say ok we're going to give you the new miranda  and then talk to you it's just impossible i would i would like to as further support point out the footnote in inland graph from the united states twenty nine and which the supreme court said the mere fact that a new rule is procedural does not mean that it applies to every pending case a new rule starting the filing of complaints would not govern an action in which the complaint had already been properly filed under the old regime and the promulgation of a new rule of evidence would not require  three years before it was amended it was not logical or possible to to use this unwritten language this   the issue is not police conduct and yes that's an important factor police conduct in this case is an important factor but what is that issue is crags understanding of his rights and whether he was able to and in fact did knowingly intelligently and voluntary and the statute does talk about police contact but the issue is the presumption and the proceeding in question is not just the interrogation in fact it is the motion on the here hearing on the motion and so we're not asking no one has suggested that we should understand miranda in the old way of doing things and so we need to take extra special care with children to make sure that they have a clear understanding of their rights and their ask you still important question s do you want to talk to me and do you want to lawyer and if we don't have that kind of clear admonishment to a child then we can assume that whatever procedure was used a knowing intelligent and voluntary waiver and particularly considering state of mind in this case and the police and aggressive questioning and we should cannot and should not presume that him signing a paper that said nothing about labor him answering questions that do not talk about waiving rights him having watched some police procedurals on t v means that he really understood what his rights were and the consequences of waiving those rights when our legislature has said that most kids do not so that is the issue it's not b s you asking the police to bend over backwards to have some sort of new interrogation it is did krag received his constitutional rights in this case did he make a knowing intelligent and voluntary waiver in this case and as the video and  prove that he would have been acquitted he doesn't have to prove that he was completely innocent in this case and he hasn't he hasn't disputed that he was the shooter and but counsel down due diligence had he done proper investigation had he known what state's witnesses would be available to call how he utilized evidence that would do and available to and support in this defense how he understood the law before making those choices this would have been a close case on nd degree murder and that is the issue that comes together with both the st issue and nd issue crime statements to police yes they were presidential and damaging and but they don't make this case any less close and just briefly and forty years it buffer is fired from clear that forty years on the line is or is not a fact of life  sentence you have a seventeen year old serving forty years that's more than twice his life time in prison for something that happened within thirty minutes of him being shot at in his home and his mother also being killed that is not justice and that is not and a sentence that takes and to mind the characteristics of youth and the characteristics of youth and mitigating circumstances in this case and what we know about don't store authority r a s and watches the senate races sixty six years figure off and watch the defendant receive seventy five years jackson and watch the defendant receive fifty years gregory and which the defendant received forty five years ago which is in which the defendant receive seventy eight years and her as and with the pen receive fifty three years these are all so far over the forty year buffer