juxtaposed to mr to mr meyer as we can mr skinner was rational whether or not the whether or not it was arbitrary or whether or not it was related to some intimate or rational sometimes it can consider a point of view tack one way and then tack on a way and in a sense  completely agree with everything you're saying it might my point is that's not what i'm talking about what i'm talking about using your hypothetical the where let's say prisoner a or are litigant a being mr meyer and was as happened with mr little button but if context is everything here and when this occurred is critical to the equal protection argument i was as as luck would have her chance would have it i was mistress weakens lawyer in  thousand and it is a very brief opinion but the opinion stands for the proposition that the defendant must be informed on the record that probation was not available to the how do you inform him i mean one way to say it is to say you can't get probation recommend but that's how courts distinguish cases in how the law volves but the court cannot ignore its own rule the court cannot give mr skinner in one nine hundred ninety seven the benefit denied mr little in one nine hundred ninety mr skinner's case identical to your hypothetical judge mr skinner was told no skinner was told that if you go to prison you're going to have to serve at least five years in the nevada supreme if you go to if you go to prison if you don't go to the never really never explained that it's possible that you might not go to prison little was specifically told you have to go to prison and you have to go for at least ten years no he was not just a group that the change of plea transcript does not say that whose little little the judge didn't tell him is a bare minimum you're going to have to do ten years the change of plea transcript is identical to what was told mr skinner in skinner's plea memo and that was that you that this case this sentence this crime carries a minimum sentence and the rule was and again i hearken back to s week and i know it's not a very long opinion that the rule is what it is and that is the defendant must be of informed on the record that probation is not available to a person convicted of sexual assault it was as the as the nevada supreme court finally in two thousand and one without giving me oral argument in a per curiam published opinion over ruling almost twenty years a case there twenty two years of case law i finally did that because the rule was because they went as you said earlier just because you they decided to go in a different direction counsel i could interrupt for just a second what about the bryant footnote one the bryant court specifically limits itself to a case in which the nature of the charges is the only question that is presented in other words it's not a range of punishment cases that's a footnote one so bryant reserves that question bryant does not even discuss meyer s week and i agree if the nevada supreme court had chosen to reconcile and and overrule or modify the brain the mayron ass wiegand line of cases dealing with range of punishment they could have specifically done that but when they dropped that footnote and they said we're in this case deals with nature of charges only but they were saying by inference obviously not expressly is that they were not dealing with the question that straight so if a male and the female air were in the same position in terms of being having a claim to the state the male would be have a read and we could all look at this and say gee that's a very good interpretation of it in fact that is the best reading of read but i would have to go a big giant step further beyond that and precisely i do know however the court chooses to get there i would i wouldn't care and i know i would just urge the court to get there i really cannot nobody has ever explained to me a rational reason he from the attorney general's office in las vegas i think the i think the bryant case is an important case in this entire line because it was decided three and a half or four years facts of that case they were dealing with whether or not the defendant understood the crime and it was not dealing with this probation issue but the nevada supreme court in more general language and i think it's part of th mire as we can skinner little line of cases pacifically said neither us nor the u s supreme court is ever required talismanic phrasing i think when the district court judge said to mr goble on the minimum side you would have to serve at least ten if the two life sentences ran concurrently before you'd be eligible for parole do you understand this and he said yes in the same hearing after the plane had been taken when they were arguing the district attorney and the defense attorney were arguing about the custody status of mr prior to the end of this tearing at this comment there was no objection by mr little or no question by mr little  prosecutor at that point in time has requested a man to custody and said he should be remanded because he is going to spend the rest of his natural life in prison based on his plate and again there is silence so although i i i'm not my argument is not that silence is acquiescence in this kind of case but the fact that there was no comment or question from the defense that point in time showed that mr little everybody except except mr little it doesn't matter what he actually neal i mean if there's a line of cases before and afterwards and i know you dispute this if there's a per se rule i would ever agree with you so the fact that he in his can have a series of cases that applies one rule and then it gets to a particular party and says you know we don't like this guy's face so we're going to try different absolutely you can say that that would violate concern of the members of the panel that courts have to have room to allow the law to revolve i mean the u s supreme court has made major changes in the law in the last ten years overthrowing years and years of cases crawford versus washington is the best example when the overall how versus roberts roberts versus ohio and lots of other cases in the capital context i know we courts need it in its rulings although although the pending on which way the court goes you may just have an equal protection violation if you get a rule that is more favorable a defendant's term and can't possibly is little's case because in the skinner case the nevada supreme court pointed out and i'm on page fifty one of that of that decision itself what they said was the state argued skinner knew probation was not available because the  he understood that he could be prisoned for a period not less than five years and i underline the word could nothing in there even close to when the judge perry said you would have to serve at least ten years and that's pretty stark language i would also point out that in my or in combination in my view a combination of meyer's the state myers case not myers versus ills of the state myers case and bryant control because they were both immediately prior to the two cases immediately prior to the play in one nine hundred ninety here what they specifically said was and again even in miers there's no requirement for talismanic phrasing on how it is that the record has to aware of that fact and then they say that the adequately informed meyer of the consequences of his plea created a manifest injustice what the supreme court had not said in my or or as we can or skinner was how the record has to disclose that fact and we jumped a little which was on judge hagan certified issue in two thousand and one little versus warden they did not overrule miers not a week as we can they clarify the issue of they said was to the extent that those cases hold that in nevada as a matter of nevada law a criminal defendant has to know non provisional crime is not on probation of all we uphold those decision we overturn them only to the extent that they imply my term not theirs but that they imply that there is some kind of talismanic issue tell us manic phrasing in the vatican there is when they crafted new jury instructions for the issue of premeditation and deliberation when they separated those issues a little bit in a case called by for and they told the district courts of the state this is the instruction you will use and they gave them a script that they had to read in my or in as we going in and skinner they did not do that and i think it's instructive where there is more flexibility here and you can see that because they did not say the they didn't create a scripted t smanic script to read from and say this is what you must do all these that in my are was the record the district judge has to ensure that the record discloses that he was the defend it was aware of that it doesn't say who doesn't say how it's a pretty flexible standard under state law and because of that flexibility they argue you don't have an egregious departure and that's the language that judge hagan used in order to have an equal protection argument here you've got to have a pretty of anything i think it adds little because it occurred after the fact it was a little bit of a modification i think it was an attempt by the nevada supreme court to meld if you will bryant explicitly male bryant and myers but i'm be a little concerned going after the fact because technically i think the better argument is i mean an awkward position the better argument i think for the other side is that existing case law was violated absolutely i was just trying to when i was looking at these cases in the line of cases it seems like we have the best we can case we have the skinner case i'm sorry we have the meier case the meier case the seventy nine as we gives eighty five we don't have the bryant versus state case which is eighty six which is immediately preceding the entry of plea in this case then the next case that i see that comes along is ryker in ninety five which again talks about the totality of circumstances and then of course we get to skinner in one nine hundred ninety seven which seems to go back to the per se rule as best as i can tell but it almost seems like the nevada supreme court was sort of in a state of flux they weren't quite sure which rule necessarily they were going to apply during this whole period of time perhaps in  state of flux but perhaps i think simply reflecting the flexibility of the test i think the primary case the best case that little has in his arsenal is meyer because that's the initial case here and i and i think it's bryant i think if you read both of those in perry materia both occurring immediately prior to the play here in one nine hundred ninety i don't see an equal protection from a complicated is that  they have to have a rational basis to distinguish the two circumstances if there's no rational basis you would lose if there's i would judge hayden help in this case and i would agree with him in citing the he speed the last twenty on constitutional issues certainly and in this case are my argument not only is that there is no agreed his departure but that there was no departure because meyer doesn't say how the record has to indicate only that it does and that was a finding by the supreme court under the standard of packer versus early in that whole line of cases on that investment in court made a finding that he that little was sufficiently informed