attorney from helena montana i'm appearing on behalf of the juvenile in this matter and i would like to use seven minutes to reserve three minutes of my argument this case  e before the court on an appeal from the decision of the district judge to transfer jurisdiction request the prosecution of the case from juvenile court to adult court it's our contention that the must consider when deciding whether it's in the interest of justice to transfer prosecution from a few to adult staff in our view the court focused on one primary offense which was a murder was so brutal and so alice the juvenile simply cannot be rehabilitated and in our view that violates that is the assumption that the juvenile committed transfer hearing is that the real effect of the transfer order is to increase the understatement from official detention or formal the pension until the age of twenty one to mandatory life in prison appropriate for the district court to assess the guilt george bush well i don't know but every public orbit in this instance what the court did was rely on a second circuit case maximum and here we have the juvenile delinquency act which the section for a maximum of which is twenty one years of attritional detention other than the fact of a prior conviction must be submitted to a jury that there being more than an assumption otherwise it's basically the prison to mandatory mandatory transfer well as a as a practical matter what you say has a certain amount of common sense  assuming that the case is transferred to an adult proceeding and the exposure is then whatever the penalty is for the crime tried as an adult we all know that as a general proposition once the primus charge the number of defendants who get an acquittal that's fairly small that that's not a guarantee of course but as a practical matter that either you're going to get a plea or you're very likely to get a conviction thereby decide to rehabilitate of purposes of the juvenile delinquents the vet and trance and the juvenile should be transferred the prosecution as adult as an adult be due process problems with that as an additional matter since the presumption of innocence that is that every stage of the proceedings even in the jury deliberations and so you stand before a court in f to prove one's innocence it's appropriate to treat an individual as a juvenile until the age of fifteen at which point the do judicial determination whether it's in the interest of justice transfer and then the child well that's not the system that we have here although again the prosecutor may make that carving station ultimately it lies in the hands of the court you know the court again cannot hear from the other side but we'll give you a chance for about statutory procedure that is in place was followed meticulously by judge had the discussion about whether i'd district judge can take into account on to balancing that crime with the other factors and that is taking into account that crime and balancing it with the other factors the statute require him to balance it again this case the court did not commit those errors that are common such as fail to make findings about it particularly factor or fail to balance the factors did the court did exactly what the court was supposed to do these are not easy decisions in fact judge hasn't specifically said this was not an easy decision but the bottom line is it is an exposure of more of a penalty but it is certainly not a guarantee of that penalty so if you're talking in terms of an apprentice the argument and whether that's constitutional t the defendant to a greater penalty that is not what is done here it is simply the vehicle by which to try to give the court jurisdiction that it doesn't have at the outset to go against the juvenile as an adult and  cases that is the situation and quite frankly a lot of hand in hand the nature of this offense which which the court follows nelson which tells the court that compelled to do so i'm not sure what he would do you yourself that is countess of the whole situation i'm not sure what he would do if he only were allowed to but we're not required to assume the truth your honor i i believe that yes that the record is clear that the judge would come to the same conclusion because even though he made that assumption he didn't simply just rely on that one factor and ignore the rest of the know or else that would in fact be clear air so whether he was felt compelled to consider the offense committed or whether he felt there was some discretion in considering the offense was yes it would be error your honor because over the course of the past to make findings on each factor and if you completely ignore the nature of the offense that would be a laugh the findings on one of the fact you can't be you can't divorce the nature of the stance from the presumption that this person committed the offense that's the decision the court is making the court is not making exactly when decision that some person over here committed this offense and should be transferred the court is making a decision about the defendant in front of the court at that point what that defendant is charged with and then all of the other five factors that go into that defendant's background you couldn't simply divorce there would know there would be no purpose for the analysis but what about what about the case and i'm not sure this is the case but what about the case where the judge based upon what he has and proud of him or what she has in front of her looks the chargers looks at whatever testimony comes in in terms of psychological and so on begins to have doubts and says you know there may have been overcharging here and all this may not  and that is there is no way that a court is going to take and i must assume that the defendant committed this offense and then learn about that nature of the offense which could charged the the court definitely should consider the nature of the advance and did so in this case and in the view of the government that's why it makes very little difference whether the standard is must or may here because the court made that assumption under nelson but then consider the nature of the fans did not simply just stop there and not make any findings on the nature of the offense in fact but it but it seems to me  and if you adopt the assumption because you must adopt the assumption that the that is true that may influence things like your notion as to whether or to what degree this juvenile may be rehabilitated because you're assuming that he did this horrible thing well if you did this horrible thing that made them tell you something about the chances of being rehabilitated and the other hand if you don't assume that the you may come to a different  away from what the statute requires there is no requirement that the decision of guilt or innocence be decided this is a need by which to decide completely different process your honor whether it's better would be completely different it's certainly not what we have congress could rewrite the statute to do that has you know what my problem with it and i'm finding this a difficult case i understand that the circuits are pretty much  nature of our case in this case will be a hotly contested case a trial with all kinds of defense presented by every juvenile including this one so to say what the penalty would be is simply speculation at this point but discretion but i think in this case this is distinguished from the other ones because there is you know there's a case that was not cited off site for the court it's united states juvenile three forty seven truth and i think we've got a different player on the other side