hundred eighty three capital trial the constitutional violations here were triggered by the court's extraordinary statement on the record he's not subject to the death penalty of the transcript there was reference of i thought you were reading the jury in this case why are we going here basically there's nothing there's nothing in the record is there to show that there was any quid occasion or that it wasn't i mean they  defendants can you generally deny that there's been any impropriety but they said that particularly the defendant would not have been expected that the question was know what he understood at the time he waived his right to a jury at the guilt phase and at the guilt phase he relied on that statement to waive a guilt speak english and was working through an interpreter but the evidence now on hay b s that of of his mental disability the court can take into consideration he to his understanding of the promise and waiver i'm so sorry i don't get what you're saying i think that his the question were the promise but there are no because we can take into account is intellectually disability we can use the fact of his intellectual disability as a basis to s reasonable meaning of the judge's statement was such that anybody of my normal intellect would have understood it in the context in which it was uttered as well as a promise not to impose the death penalty that representation our mr phillips said that is not said it was important he said because depending on which way the commonwealth was knowing that would mean with that would determine whether he was subject to the death penalty or not and at that point it was at that point the court said why do you want me in all this didn't you say it was going to be a way for he said yes and she said he's not subject for the death to the death penalty as long as he has me for a charge if the penalty turns on the evidence which is what the pennsylvania supremes court satchell finding was she was really making a statement about if the evidence goes in a the objective standards reasonably justified the defendant's mistaken impression and that's the standard the pennsylvania supreme court should have been applying to this exchange that took place at the pretrial hearing they should have been the masses is the impression the words made on mr pereira and how they impacted his decision to waive a jury trial so this is the promises question  just the way out  well you know you're asked about promises of you you you know no promises which i mean inference you you you you want us to draw is he couldn't have understood that question to be referring to this guilt face and the penalty phase and if you look at the pennsylvania supreme court's opinion on appeal from peace jauregui you will see that they were considering both heels and penalty something that the judge really couldn't say nonetheless on in that exchange that was what she said she tie the penalty to the way for she didn't tie it to how the evidence wen and she tied it to the way for and i think from from the plane the plane words that's how anybody would understand it but we can't let this court can additionally take into consideration the person who is hearing those words and his ability to understand them but to go back to your question about about the adventure of hearing so this i think would be issues and the issue of whether he relied on it now recently you know objective  and i think that's true which ever way you read the promise factual findings and even fair support in the record they must be presumed to be correct now the petitioner concedes in this reply brief page twenty four but he's never claimed he was incapable of making a valid jury waiver the claim the simply that what the judge said very end of the proceedings on friday didn't cause the waiver on monday morning it is favorably and as the district work correctly found for the supported by the record and that's enough i believe to resolve this case it will do is also could be as a matter of resonator procedure the the decision becomes final when it's when it's officially confirmed on the record by the by the by the defendant but i think as the court has held and there isn't there isn't a requirement of a comically the only issue is whether the decision to waive friday before the monday when you're going to have a multi defended death penalty trial begetting that we don't really know because our affidavits don't say about the substance of what counsel and the client wan waiver and the records silent about working we have known or not at that time about the right to a jury even though as we know he had just had two death penalty jury trials before juries in rest of the previous three well where with the support the supreme court said rove acquitted appeals granted relief on the basis that there is no evidence in the record about whether counsel gave adequate advice about the subject that he had to make it and when the petitioner is arguing there is no evidence or there is insufficient evidence in the record about what counsel and i may have discussed were what may have understood about the right to a jury pick a jury and then prepare in the opening arguments were my preparing have to start being the prosecution's case which is going to begin immediately on monday morning because the probably aren't going to be even opening arguments because it's a bench trial with a lot  who we have a record is the last thing that he hears before he waves his right to a jury is you not get the death penalty with me that's the lesson here is on friday now monday to have a car that's the first time with this waivers moralized right it's the first time it's  this didn't you say it was going to be a waiver of kelso that's correct or not i haven't just not we haven't decided not not my client has made the final decision not i can't say or  where the client is allowed to insist and the rule of the client the client has the final say in when the movie disagrees unlike most decisions but that's not that's not what's being argued here there isn't any suggestion that the client would it would have disagreed over have this completely unexplained line it encounters affidavit where he says i know what i just i know what i said to the judge but had the judge not said what she said i would have done  to the client that he do exactly the opposite of what i had just represented to the court not five seconds earlier without any explanation or any explanation that they have seen fit to share with  whether it was a knowing and voluntary waiver that we can take into account he defendants intellectual disability as of june seventeenth and i guess the of both her statement and the judge's statement on friday and then his ability to wait a month well first i think the issue about the client's misunderstanding what the judge said that that sort of that sort of drops out if we accept the state courts finding trial but he was obviously capable of understanding the proceedings able to participate you know fairly actively in his own defense and obviously you know was able to testify at some length and in his own defense  there isn't convincing evidence of a budget and you know it or in our view councils entirely i mean after all these years entirely unexplained assertion that statement was ever made and i would return to the point that the court did not find that at that stage mr made a knowing voluntary and intelligent presumption against waiver of fundamental constitutional rights the commonwealth is in fighting the court to make a lot of presumption the record here  tried to jury and one case back in one life in those cases he had never been presented with a choice of a jury trial or a trial with a judge who had should have been obvious because it is experience was wow that would be extraordinary there you've just told me the problems that she promised that it's amazing that's extraordinary w