also have up to five minutes for response you will see the digital timekeeping device on my screen when time has expired i will hit the gavel find my place remember no photographs and only the clerk of the orders are going to record these proceedings today now this is a limited issue though not a complicated the two issues before this court to decide that st issue are whether such a motion would have been  meritorious namely was there reasonable probability that had counsel filed that motion it would have been successful and nd that there was a prejudiced meaning there was a reasonable probability that the lack of that motion affected the outcome in fairness of the trial and now the perspective for these questions underlying the issue is that of seventeen year old  question is not objective and it can be based on a personal heard touristic of the defendant here in illinois so turning to the substance of the issues there were multiple interrogations and multiple sections of all relevant to this issue so i'd like to break that down piece by piece first to briefly discuss the custody issue although and the record makes this issue quite clear that there would be a reasonable probability that a trial court would find that the royce was in custody again seventeen year old the royce was picked up by police officers driven to the police station and the police took his shoes there was some questions off the record although again because no motion was filed whatever discussion did or did not take place before that is not a record and that being said when he was placed into an interrogation room left alone and then joined by two obvious ors who walked but his exit no reasonable person never mind a reasonable seventeen rights the police gave him a jumpsuit that said prisoner that there was no question that will royce was never actually free to leave nor would he have believed he was so in the st interrogation  majority of the beginning of the interrogation e as with all the interrogations here is police conversation now as this court will see when it if it has or or when it does watch the videos in this case royce's growing progressively more and more uncomfortable and at one point he sitting in the corner slumped down shirt over his head and says something to the officers he then pulls his shirt down and sa i don't want to talk to more that is a clear indication of his right to remain silent both through his words and through his actions however the police did not respect that indication at all never began to speak civil rights both trying to get him to talk that is a violation of the constitution and at a minimum there's a reasonable probability that had counsel litigated that issue it would have been successful and that error taints every single conversation every single comment that followed both in that interrogation and in the interrogations the next day next about ten minutes later in that same interrogation laura's very clearly says that he wants counsel that he wants he doesn't want to talk anymore and that he wants to call his mother to help him get an attorney now this portion of the interrogation did not come in at trial the the basis for that you know there's not a discussion on the record but that portion of the interrogation is not admit it but it is relevant to discussing why the interrogations the next day should also have been litigated answered pressed during that period of time that the police refused to let the rice call his mom they say he's not going to be allowed to talk to her that time they continue to ask some questions which that's just getting care interrogation because a response would have been would have been an admission that he had been involved in this incident at counsel counsel so i understand the st day there's this request for your client to talk to his mother but that's not part of the trial record but the nd day it is part of the record yes ok so in the st interrogation he did  that at the same time he asked for counsel he has to call his mother and then at some point knocked on the door said is my mom here and the police explicitly if her served during that and then say you know she's not going to be allowed to talk to you right now then we get to the nd interrogation it's important to remember that the rice has now been held over twenty four hours in jail without having access to an attorney without being allowed to call his mother and all of those factors should have been part of litigation that never occurred here and so you have a kid who's held overnight without his mother without a parent without an adult without access to an attorney that he's requested and then the police bring him back to the interrogation room and a little over twenty four hours later now again and there are conversations that occur off record that would have been part of the litigation had counsel raised this issue and those are not of record however given what we do know there is at least a reasonable probability that had these issues been presented they would have been successful so the record below so be it terry geishas part of the record and and you know even if we determine even if the court below were defined at the risk that reinitiated the conversation there's not a generalized desire to reopen discussions about the investigation that's not present here then when the officer says you know what did you want to tell us tellingly the rights remain silent you know and it takes additional comments from the police officers before he decides to respond to that because you know the police are at this point reply to that so that's a great question and to that it when he initially says that there's whatever response the rose gives is is hard to discern from the video you know he's  over and perhaps shaking his head perhaps mumbling but then when the police officer actually asks him what did you want to say he doesn't respond then he asks at one point well what do you the officer where do you want me to start as in you know where do you want what do you want me to say what so these are that this is not a conversation that evidence is someone who said oh i want to reinitiate interrogation and have these rights that i have already that i've already asserted but if we if we assume just for argument that he the mumbling response to the officers question do you want to talk to us again  if we assume that that was a yes was when was the next time he said i'm done i don't want to speak anymore well  invoke his right to an attorney sure so i'm not sure that those were explicitly made after that point and but i would argue even if you do even if you assume that that is exactly what happened in the beginning of that interrogation other you know body language and comments don't evidence him knowingly and intelligent waiving his rights that he is simply saying yes i want to talk is not you know enough to overcome the fact that the police did not honor his previous indications and that he is not he is not actively participating at the beginning of this intel they wear him down continue to deny access to his long after that statement the interrogation continued before there was a break and a break the st order in the officers coming back and saying i understand you want to talk to  there's two separate points and i think i make clear in the briefing that there's a there's a point where the royce pulls his shirt over his head and i firmly believe that if litigated that would show that he counsel at that point of course what the officers harry butler roy said those were all matters ripe for litigation for counsel who had access to the client what's clear from that is  after that he pulls the search down and says i don't want to talk to our police jump and continue questioning for about ten minutes then at that point there they decide they're going to do a gunshot residue testing and during that is when the roy says again you know is that something to be effective you know can i get my attorney i want an attorney as for mom says he doesn't want to talk anymore again and so at that point the questioning that continues  absolutely takes a different turn you know there is a recorded compliance with that request in the sense that however you know while the officer is still doing the   testing and then they decide they're going to get a warrant for that so they break in and they keep him in that room for hours they come back to do the questioning to take his clothing so at those points when they go back in that under you know police  or under the guise of police procedure they still ask questions which you know an experienced officer doesn't need input from a seventeen year old about which clothing to take or whether he's right or left handed by the way a question he have these questions continuing when the officers go in to do those things so it is not a continued barrage of questioning however it is undermining the royces rights that he has behalf of the people the state of illinois i am going to start actually with the re initiation or the you know the the allegation the defendant  right to counsel at some point at the end of the conclusion of the st interrogation which is when the officers and terminated but i think it's also important to note that the incriminating statements the defendant made with regards to statements about between the st and nd interrogation but what we have here is a different situation where the question really is presented before counsel and again i want to emphasize that this is a question for this court with regards to a council's you know reasonable assessment of the evidence and the you know the likelihood of a successful motion to suppress and whether councils you know decision making in that regard which we presume as a matter of law occurred here was unreasonable under the factual circumstances so here where the allegation is that the defendant  is not an issue so i think we could really probably fast forward to the re initiation and look at the circumstances that surround that what we do have on the record at least in the in the recording to be specific  is that you know we do know that the defendant invoked his right to counsel and didn't want to speak any more we do know that he had no further questioning occurred at that point the next communication that we had between the officers and the defendant is where they're back on recording and the defendant is there and he's asked by the police whether he was wanting to  speak to the officers again and whether he was doing this voluntarily and this was you know a defendant he had acknowledged and agreed that this was what he wanted to do notably this conversation occurred after the state had obtained a warr so we're not really dealing with any questions anymore at this point whether about the finding those in custody if there is ever any sort of lingering question leading up to the certainly at this point there's no doubt he's in custody  circumstances i think st has to take a step back and say are all my going to be able to convince the court well let me rephrase it to be perfectly straightforward honest it's a st amendment issue so the burdens on the state on the threshold so the question for counsel is whether do i believe that the state will be able to establish based on these factual circumstances that the defendant voluntarily agreed to speak to the officers again is there persuasive objective criteria that i believe that if the state were to present this evidence in this recording to the trial court that it would not be convinced that the defendant's agreements to speak again to the officers was not voluntary and the answer i think to that that a reasonable attorney could make you know one that would be perceived by trial counsel here but there's nothing here to suggest that the decision or the perception that the defendant that the state could could meet its burden of showing that the defendant reinitiated a conversation c be met if that's true all right and the st you know part of the inquiry is who initiated the conversation and here it's the defendant who acknowledges on the record that he sought out to  great deal is well on appeal the defendant was remarry and dies the records show that the recording does show that there's nothing to indicate that the defendant was not you know aware of what he was doing and that he was doing so you know voluntarily so the question isn't whether this whether trial counsel could perceive that the statements that defendant provided subsequent to that were not a voluntary because in the end the state in order to get these occur slowing staver of counsel being prepared and making a rational and professional judgment not the assumption the other way around that the timing of it presumes a court that counsel did not have the opportunity to  honor i'm not quite sure who you're seeking and i exist is this are you saying that this is additional evidence to show or suggesting to show the council was not properly representing the defendant i presume well i don't know i don't i really don't know the reasons for those continuances your honor and i certainly don't disagree with the proposition that you know counsel ought to try a case  you know as expediently as possible but if a client is sitting in jail but again i just sort of go back to the comments i made earlier that i don't know what counsel is doing or not doing or  what the motivations were for a case to go on as long as it did i mean you know to be honest with your honor sometimes cases don't get better with a j do they get worse yes you know and i say that and i say that not to be flippant or to toot toot too you know to to to impugn what you're suggesting what i'm saying is that it doesn't necessarily become you know a de facto evidence of ineffective assistance of counsel at least from a strickland prejudice standpoint that the length of time between charge and trial l try not to stretch this out too long but i do i do make mention of the fact in the brief that the defendant was seventeen at the time of the commission of those murder and that if that time was prior to the members of the juvenile court act for defendant turn where the age of adulthood was seventeen and eighteen now before everyone jumps on me for that i understand of course that her son's and purposes under miller eighteen years old as a juvenile age the cut off point the point that i made and i tried to make in the brief here and this relates specifically to that question of access to a parent in consultation the parent and that's something that is particularly important where it's a juvenile involved at the time of the officers were engaging in conversation with the defendant he was not at that point legally a juvenile he was an adult if under the exclusionary rule the purpose was to deter police misconduct in to punish officers who are willfully violating the law at least at the  the context of whether the juvenile court act was being complied with and that would include you know consulting with a parent or interested adult or guardian or a juvenile officer is not a consideration here for purposes of whether the officers are violating some some legal script and now having said that i understand that given the defendant's age and the request for the presence of the mother is certainly a factor to be considered two points to make their number one the presence of mother or a parent even under for a strictly juvenile case which we can assume for the sake of argument here is what we're dealing with is just one factor among many and we go into great detail an argument that there are numerous factors here which which suggest that  endant statements were voluntary number to the defendant having requested a parent or want to speak to a parent before the beginning of the nd interrogation that's worthy to note that the defendant apparently reinitiated this nd conversation although he and number three the recording will show that one of the purposes or reasons that the defendant wanted to speak with his mother was because he just simply wanted to talk to her about his situation in the sense of that you know i think the state was i'm going to be go i'm going to be want to talk to her for i get shipped off or something to that effect i don't disagree with defense counsel that bad v's considerations are not you know i mean i agree as counsel to these are material considerations asked his mother to help arrange to get an attorney he was specifically denied access to his mother no one provided an attorney and i passed it to the court no one does a seventeen year old kid who hasn't graduated from high school yet who has learning to disability how does he have to sit in a prison cell by himself or in jail so and so without access to any help from a parent without someone else providing an attorney  before whatever request he did not make it to the police it was coerced then yes he tries different tactics in the nd interview to try to get to speak to his mother he you know he does it some points and he wants to talk to them or he g  and you know again i do the issue of being seventeen in the juvenile statute is really a mr action here we know that they concerned at all factors is  important even for seventeen year olds who are not subject to the act but just as we're going to go to your question and yes the whole the whole of this litigation the whole of the trial the whole of these statements are important to decide whether counsel is reasonable and you know while we presume reasonable innocence strategy to any degree at every turn this attorney proved it's wrong you know we're waiting three and a half years without you know any discernible reason and each piece of evidence you know in this is where it is you want an issue to ducktail each piece of evidence against the royce there is a basis to challenge its admi ibility or its credibility and counsel repeatedly fail to do that you know we have an eye on one call where the caller is an identified someone off a call names law royce we don't even know if that was a witness so you know that wasn't challenged at all we have probably a serious problems with the key witness who you know apparently statements early on in statements and at trial seem to be very different and all his issues were were should have been litigated and would have impacted the case here you know we don't assume that all of these decisions are reasonable in this context and particularly so where there's such clear indications and absolutely no indication and you know we don't have you know counsel mentions the issue of attenuation well you know what we look at is you know the mostly factors a was the were the initial indications scrupulously honored and they were you know we don't we have one indication clear indication to remain silent and then we have implications for the right to remain silent and counsel and neither one of those is scrupulously honored then we throw the seventeen year old kid in jail without getting to talk to his mom without getting to actually speak to the attorney he requested we wait twenty four hours we proceeding but he doesn't evidence a willingness to talk he is asking the officers what they want from him and later bargaining saying i'll help you if you let me talk to my you know that's not momentary and no reasonable defense attorney listens to these tapes watched these tapes and takes no action at all to suppress any part of these and you know the prejudice can't be overstated you know we have in the st interrogation towards the confesses and then later we the jury gets to see him go to the scene with police officers so that is the state's case you know without heart parts or whole of these these videos this is the whole case changes you know you can't and counsel both of you like we are aware of the fact that there is a motion to supplement the record inside additional authority and we will consider those along with the case and we will issue