client is a child and it also goes without saying that for a lawyer can develop a theory of the case or render a constitutionally sufficient representation the lawyer house to know what the essential elements of the of ense are that the client is charged with in this case counsel demonstrated that he was unfamiliar with the law of felony murder he did this in several ways and he did it in ways that were critically damaging to the fairness of the proceedings because his misunderstanding of the felony murder rule resulted in counsel conceding that his client was guilty of the predicate felony for that particular charge if the jury found that maria was guilty of the predicate felony it was required and the instructions that it received to find her guilty of first degree murder wasn't apparent to me i think you understood it i think you how do you answer the statement that maybe he was just trying to make the best argument he could under terrible facts and a lot of evidence against  a motion for a new trial he makes an argument to the trial judge maria is not guilty maria is guilty of robbery but she's not guilty of murder that's not the kind of argument that you make to a trial judge  understands the law that's true so the fact that he was maintaining this position even after he was out of the presence of the jury and presumably thought he had some shot at that argument before the trial judge that made maria appear much more culpable than in his original statement in particular he adds the facts that when they're in the house maria pushes arnolfo into him so she becomes an active participant in the attack  she adds that maria said remember what he did to me when he when he pushes arnolfo into him he adds now after telling after initially claiming that maria was up stairs during the entire attack he now adds that he felt  reviews he she did she did say this i think that it's important to remember that at that particular point in the proceedings jared had text messaged her and told her that her sexually abusing maria's younger sister quiet so what valid point you have a child who has just turned sixteen who has learned from jared that three year olds text messages that claudia has just has just told me that your uncle is he's been touching you and making in ways that make you feel uncomfortable now in addition to this these these touch this touching that makes you uncomfortable jarrett has now added fuel to the fire and sat your uncle is molesting your sister  claudia and i noted this in my reply brief the notion that the proposition that an individual thanks that sex offenders should die is not a particularly remarkable proposition there are states as recently as two thousand and eight where the majority of legislators in those states thought that sex offenders ought to die they passed death penalty in sex offender cases sex offenses are extraordinarily emotionally charged and more right and maria also that and at trial sad i know now he was lying to me about that i know now that he didn't really receive those text messages but at the time i hadn't seen the body i didn't know how violent the attack was and in my mind are not focused was really a bad person it was hurting someone who was close to me what with the friends who have been raised to be faulting the council for being effective what would have been an effective strategy a trial in this case holding the state to its burden of proof and not telling testify at trial was predicated on the advice of an attorney who didn't understand the felony murder rule if you're an attorney and you don't understand that your client is on the hook for first degree murder if there's evidence that she participated in the planning of the underlying felony if you don't understand that you don't see a risk to your client testifying if you understand any murder rule and you know that your client when she gets on the stand is going to say i participated in the play and the text messages that suggest that are indeed true the advice that you give that client is very very different and this is really this sort of pattern practiced this theme about how councils misunderstanding affected the entire proceedings if you don't understand the felony murder rule you cannot as a lawyer accurately advice a client about whether testifying is a good idea would it be reasonable under the circumstances of this case misunderstanding of the felony murder rule even when he was in front of the trial court and so it that's not a reasonable presumption to make when you know that counsel didn't understand why and those proceedings my other response would be  twice he confessed that he recanted and then assumes the police told him oh we have evidence you were there he then affirms his original confession and then adds additional details the evidence against the defendant in chandler was really extraordinary strong  had evidence that the defendant by his own admission entered the house where the store employee took place with the codefendant very much the sort of common design that we're going to go in and commit a burglary you have the defendant's confession that he saw in his confession he talks about i saw my codefendant go upstairs with a knife at that point the chamber confident didn't walk out of the room didn't walk away he stayed after the victim in chain and there was murdered the defendant took proceeds himself took them home told police that he took those proceeds home and also directed plea to them to the to the location of other proceeds so the reliability of the defendant's confession  chandler was extraordinarily strong because it was corroborated by these additional confirmed details about the presence of of the proceeds in addition the defendant's girlfriend testified when even further and said he told me that he is the one who actually committed the murder on the day of the murder has the defendant's girlfriend testified that he was the one a man could argue that the testimony of jailhouse snitches is particularly strong but you also had two jailhouse snitches who testified that the defendant can confessed to them that he had committed the murder the trial attorney and that she was presented with every bit as incriminating evidence as was president in this case but the supreme court said and i think counsel conceals his client's guilt of that underlying felony and counsel makes other errors in the case under those circumstances the prejudicial impact of an error like that is so strong that even when the state's evidence is otherwise would be sufficient to sustain a conviction under those circumstances we can't have confidence in the proceedings that wasn't a fair proceeding t of lawyers is not to concede the guilt of their clients there are limited circumstances when they can do that when they are part when they are pursuing a legitimate trial strategy which was the case in all of this the cases that the state cited where defense counsel in those cases may not have been pursuing a brilliant trial strategy but you have in those cases you had a defense counsel was presented with strong evidence against the client but they either pursued a second degree murder case or a compulsion defense there was some strategy some slim hope that there was a defense for those defendants in this case defense counsel didn't do any of those things didn't there there was no strategy to conceding that maria was still two of the underlying felony defense counsel wasn't pursuing a lesser included offense there was no worry about the death penalty in this case that sort of conceivably there might have been a reason that he was seeking that he was seeking mercy from the jury in this case what counsel could have done is help the state those text messages came in defense counsel could have argued their text messages they're not face to face conversations you can't get great context from text messages when it came to jared riley's testimony when he was talking about exactly what those text messages meant and when he was adding all of these additional incriminating statements and actions from maria defense counsel because jurors had a pretty good a pretty good explanation for why heat why he had originally downplayed marias behavior in the case and now he was adding the use of these and promenading statements i was twenty years old i was in love with her i was a mole you know how guys do i was trying to protect her that's the kind of reasonable explanation that the jury heard in this case the text messages the fact that jared was claiming at trial that he was besotted with maria while at the same time he was text messaging and trying to develop relationships with three different women at the same time including the last one where he texts me read i'm too busy my phone is dying and then he turns around and has essentially phone sex or text sex with another woman completely undermines his explanation and the legitimacy of his explanation for adding all these additional details the real explanation the more reasonable explanation for the addition of all  fifty years he didn't get fifty years he got ten years he got ten years under her he got ten years under the maximum and i think that when you look at his plea deal ultimately you have his confession you have excused he is the killer so the fact that he's has entered an open plea he's not in really any particular negotiating position at all at this point his only hope is to say well if i throw maria under the bus if i give the if i make the state's job easier to convict  and at one point actually in his testimony when defense counsel asked is it your job here to make sure that the state convicts meridia is the answer is yes he knows exactly why he's there right so cops will get a pretty good job under their cross examination but he didn't impeach the few i know that big his cross examination of pure grade was pretty imputing can you spend a little bit of time talking about the constitutionality of the automatic transfer i can't  the supreme court in the last several years has done something absolutely extraordinary what it has said starting with roper where it took layard that the death penalty isn't constitutional as applied to all children and in graham where it declared that life without parole is always unconstitutional as applied to children who jump to commit homicide and finally with miller where the court said life without parole even for children who kill should be extraordinarily  rare and should never be imposed automatically coupled with that the supreme court in re j d b j l b said we're going to create a different set of rules in juvenile interrogations when we decide whether a juvenile is in custody or not but the supreme court has said is there are three developmental differences in children and adult and those three developmental differences mean children are constitutionally entitled to greater protections than adults are under those circumstances the first is lack of maturity that children make bad decisions we that's not a surprise to any of us thankfully children like the children don't often stumble across of the second difference is that children are vulnerable to peer pressure outside pressure pressure by adults in a way that adults are not and that that susceptibility to pressure from outside sources this is is coupled with the fact that children by perch with their immaturity have a much more difficult time extracting themselves from horrible situations than an adult of an adult would under comparable circumstances and finally the court recognize that the character of children simply is not  the child that sits before you at fourteen or fifteen or sixteen is not the same person probably that you're going to see when that individual is in her twenty's or thirty's and so what the supreme court did is they for the first time outside of the death penalty context created a categorical approach ok adopted the categorical approach for evaluating the constitutionality of statutes when they're applied to children previously under the eighth amendment if you were attacking and is it looks at the seriousness of the penalty and it balances it against the culpability of an entire category of offenders not the other thing automatic transfer of prison is not a punish is that the argument that i am making for this court is an extension of miller it's sitting at the reasoning in miller's that that we can't take these extraordinarily harsh adult sentencing procedures that are it's truth in sentencing whether it's the automatic application of an sentencing range attaches to the child but even if the eighth amendment isn't implicated at the transfer stage it's absolutely implicated at the sentencing stage when the trial or is required is required to apply an adult sentencing range of that however the concession of bribery in this case differs from the concession involved in chandler because here the defendant testified and part of the defendant's testimony included a concession that she had committed the offense of bribery question of whether counsel provided effective representation or not or whether counsel's decisions or failure to act in certain six certain situations had been strategic or whether they  that's not really the issue because the defendant is admitting when or prejudiced analysis that it's one reason why the concession is so prejudicial because it would be a requirement that jury had to convict her any rational dream applying the law in face manner would have to convict her because there was no other argument against filming murder if she had committed the robbery suspects would we even be having this argument if the trial court had counsel acted competently and made all these decisions in awareness of the law and that has to be shown by the defendant has to show that to the contrary that record in this case is just not sufficient for this court to decide that co session so if the defend it takes a stand and admits that she committed robbery and the council gets on an argument says well maybe she's guilty iraq well is that such an unreliable thing to do when you can't win a coin it just testified to that it is that his refuse to presume prejudice under the cronic and how to rewrite the case but chandler was a case where they did find it reasonable probability of a different result well that's a lot easier to find a reasonable probability and a lot easier to have le confidence in the furnace when a council like in chandler does almost absolutely nothing to further his client's case in fact anything he doesn't do which is the concession damages the case affirmatively here or else it was doing much parole was included as along with the categorical rules which apply to the death penalty because in many cases for a juvenile specially life without parole can be in some ways worse than that somebody who's only court perhaps in the nation to strike down the mandatory minimum penalty for juveniles that is this low as twenty years of the up with no good conduct credit and the fact the transfer is not punishment and sensing consequences only attach upon involved and that the murder was a pile and i don't see senseless and the text messages she's agreeing she says yes when riley talks about killing a bad man she said the touching ends tomorrow she said he must be eliminated referring to the victim riley said thinking about cutting stroke which ironically wants what happened to the victim she said do what you need to do so she clearly intended on having her own back so it's not a situation where  it's really up to the legislature to decide those penalties within the bounds of of the constitution the family has to show a constitutional violation we're going to validate a statutory penalty and with respect to the facts of this case her youth was taken into account and she got a much more lenient sentence than a bit more sprightly once person committed a murder she was only convicted by accountability and she got much less time than the job riley did and that the trial court didn't take into account her usefulness about the fact that the automatic transfer is what gets the child to the adult court and then subjected to a mandatory adult son but the defense knowledge is that the cases so far on that point  usefulness at all into account would be flawed essentially usefulness is taking time here he says just have a wide range of penalties twenty to sixty years for the most serious crime in the state so that is nothing room to give judge's discretion to  thank you no thank you or to impose probation in the case of murder that the position is that the automatic application of that sentencing range violates the amendment because it's the if the moment is applied to juveniles requires courts to have discretion when it comes to applying harsh sentencing provisions i think you have discretion between twenty and sixty they do have discretion between twenty and sixty but what they don't have at their disposal is what the court would have had if the case had remained in training have remained in juvenile court you may have a judge who thinks under no circumstances does this child's belong at all or this is a this is a child that if i had the discretion i would put this child i would keep this child in juvenile court probation for first degree murder for juveniles in juvenile court is not an authorized disposition for juveniles in juvenile court they're required to be held in the department of juvenile justice until the age of twenty one so as a practical matter if this were it would find that the automatic application of the to have discretion in making the decision whether or not to transfer and then you would also want the court to have discretion as to whether or not to use check the minor into the twenty to sixty range yes your honor this court agrees that the not to impose the twenty six year you're saying once you decide to transfer they're subjected to you to sixty that's not an issue i think under the current statutory scheme given the judge discretion where to try  of the juvenile has the opportunity for a discretionary transfer hearing at the front and i do believe that that satisfies the eight them that there has to be some discretion somewhere in that somewhere in that arc proceedings from transfer to think i would agree with i would disagree with that just a little bit because what happened in chandler is the defendant in chandler argued defense counsel's performance in this case was so bad that it fell to the level of chronic it was the equivalent of doing nothing at all and the supreme court very specifically rejected that notion the supreme court found defense counsel's performance wasn't so bad that it had mounted to no representation it wasn't so bad that qualify for chronic the court recognized that in this case they they found that the trial counsel did some insufficient cross examination but had knowledge that in with some witnesses trial counsel did engage in processing nation these inquiries are very fact specific but what chandler i keep going back to chandler says is when trial counsel is under a misapprehension of law and counsel can see the guilt which is i can't think of a worst mistake for a lawyer to make that to concede his client's guilt to the jury that's been called there to determine whether the the jury whether the client is guilty or not so when you have a mistake of law that leads to a confession and that's coupled with other trial errors that in this case we have other errors under those circumstances it's enough to satisfy strickland it's interesting the court's discussion of the prejudice problem in strickland they don't really touch on how how very strong the evidence was in this case what they do is they say this error is so bad and then if i could quote very briefly  defective performance surely prejudiced the defendant as the jury was forced to convict the defendant of the offenses charged that's what happened here that the only fact that the supreme court points to in chandler is the fact that the jury was compelled to find a guilty