made a substantial showing of a constitutional violation whether trial counseling feeling to stand or a lesser included offense instruction on child dangerman rendered ineffective assistance under the strict standards in this case the petition meet each of the three criteria for advancing this petition to stage very first there is demonstrated mr grown would have been entitled to a child endangerment instruction of such an instruction th tendered second counsel's failure to tender this instruction in this case was not a matter of trial strategy because that was based on a mistake and finally mr around was prejudiced by counsel's error instrument in the case sets forth the plot outline of the lesser included offense the second prong of the inquiry asks whether any reasonable juror jury would convict the defendant of the lesser included offense while at the same time acquitting him the greater offense the charging instrument approach is a rather broad approach to interpret in whether a lesser included offense is covered the charging instrument need not set forth explicitly every element of the lesser offense it enough that those elements are implicitly contained in the charging instrument and even slight evidence is enough to warrants warrant an instruction under the circumstances in this case the difference between the charge defenses that the three types of murder that were charged in this case and child endangerment turns on the mens rea case the act is the same ha's in the car to enter the lake defendant knew of the strong probability that the death or great bodily harm would result child endangerment on the other hand calls for those elements are satisfied if they did and it causes a child to be put in one helpful way to think about this in terms of looking at whether the charging instrument in this case sets for the broad outlines of the offense of child endangerment is to take the actual language that is is used in the case and substitute out the intentional knowing and substantial probability mental states and substitute and the defendant knew there was a possibility of harm that would result if the charging instrument read way there would be no argument to be made that charging instrument didn't fully satisfy the requirements necessary to charge a defendant with that offense to charge the defendant with child end whether that whether this act was done intentionally or whether this was an act of colossal stupidity that ended and tragic results not the evidence in the case was there were there that there was evidence that mr le bron himself testified that he was aware of some risks when he pulled the car quickly on to the ramparts up close to the water his testimony that he was aware of summer that that but well forward if it was on a forward in line it was about when miss hand told mr looked around but one foot on the brake and one foot on the ground on the gas so that you got your foot on the brake as you're trying to back yeah and i would agree with you i don't think that there was any dispute that mr looking around was responsible for that car entering the lake his actions that are to go into the lake and the question is with what what was his what could the state prove beyond a was this guy sure pretty sure that this car was going in the lake or he didn't know that was going to happen with a car when in the way and that's the difference between child endangerment and then first degree murder and the jury was entitle to make that determination that th e test under the the the charging instrument approach is a fraud is a broad test and there's a reason for that because especially in these sort of highly inflammatory emotionally charged cases like this it is it would be very difficult for a jury to walk away and not let anyone take responsibility for this that for what for what happened here it's the u s supreme court has recognized that in cases like this it is possible that a jury if it's leaning one way or the other is going to find guilt because somebody has to and that's why getting a lesser included offense instruction is so important you late you give the jury all the options that are available t you don't run the risk it in a case like this you don't need a psychological expert like like mr brown had to know that it is human nature to want to blame somebody when something this horrible happens but the law saves us from ourselves in that respect the law the law makes us stand back and make says say we're going to give somebody a fair trial and we're going to make sure that the attorney who represents him tenders all of the instructions that are necessary to make sure that that trial was fair in this case it was not a matter of trial strategy mr justice was very clear that that that he an attorney for mossad and other attorney discussed with mr look around what's our strategy going to be are we going to go all car would go into the lake but what the record in this case does show is that there was evidence at trial that mr le grown was aware that there was a possibility of the car going in the lake and that is a the way that it was that that's what caused the death of the actor's phrase heard it was really about what was going on in the heads of these two people when that happened and the jury rejected the notion that there had been any sort of preconceived plan to do away with the what was the old version of staff she had only applied to caregivers in the fact that that that the defense also sought other lesser included offenses this was the strategy to sequester the offenses and then finally offense instruction is one of the few instances that where where it's really an official to the defendant it's not you don't have to prove you have to overcome this it's incredibly high purdon that that that th guilty on a lesser and not guilty on the greater and in this case there's a substantial amount of evidence that would have allowed the jury to do that and it was a matter of credibility it was conflicting testimony on on on the particular factors that dealt with mr his actions after words while there were some witnesses who testified that he was out there he was a cold fish there were other witnesses including a newspaper reporter who's probably the most objective person on the scene who testifies that mr le grown was distraught at the scene panicked and then came back out that's consistent with witness testimony that he was wet that both he and his hand were wet when they came out of the water there were other witnesses who testified they were dr tries we didn't see they they were wet it all so again it's one of the things that that's difficult to get your head around in this case why didn't they go back and try to save those children  according to remove they were your honor but it wasn't as it was not as simple a procedure as as that two minutes suggest and it were the children were in the car that was  rescue worker testified it tried to get into the driver's door i couldn't even find the handle he had to swim over the hood of the car to go and assistant now the rescuer that was on the passenger side of the car and although all three of the rescuers testified at trial that the ramp was dry and we didn't have any problem walking up in each of those rescuers were impeached with their tape their statements from pretrial depositions in which they described that ramp as clear and one of the record rescue response so far to say as when i was climbing out of the water i had to use my hands to pull myself up on the roof of the pavement to get out of the water so although the rescue took two minutes that doesn't suggest that this was an easy rescue work that it would have been easy for mr looked around to have saved the children if he had gone back a second or third or fourth time there was also and there was psychological testimony that he was that that that killing the children in order to to provide him with a with which lifestyle to which he become accustomed was outside of  psychological makeup that given his psychological make he was the kind of guy who would normally walk away and latch on to another woman to take advantage of that for all of those reasons i think that the evidence really on this on this issue of the men constitutional violation to survive the motion to dismiss which means that it would be important to actually examine the titian in the contents of the affidavit to see exactly what mr le grown has alleged that is the  nothing in their petition to that effect there's no showing in the petition or allegation that would have to be taken it's true it's true at this stage and proceeding that that's in fact what the defendant had asked his attorneys to do research and and tender every possible included offense instruction that was available that's not the allegation that's not the petition and that's not the issue this case so therefore the state's response has gone along the lines of the traditional analysis of when an allegation is that the council particular misapprehension of why that the council was operating under so that what this was a decision that somehow i think counsel could have made because there was a situation where if you're tendering a lesser included offense you're essentially stipulating that the that was charged would be that he will fully and knowingly put the car into the water now the difference between those two offenses is that under first degree murder there has to be acknowledged a strong probability you've got a great probably heart that risks the balance in the world so it's not a situation where if i drive children over a bridge and there's some hypothetical possibility that bridge might collapse that makes me guilty of misdemeanor child endangerment simply for driving my children over if i had a child or any children over a bridge that that would be willful challenge that's not the nature of that offense it has to be a substantial enough risk to support criminal conviction letting your children walk to the market if it's not a busy street i mean it's a very fact intensive an car with children of young age who are strapped in the back seat into a lake on the ramp such as this there can be no jury question that what the defendant knew at the time would have been at least a strong probability of death or great bodily harm it's a very low standard by comparison to what would be required for a willful child endangerment conviction so it on words the the effect the charge does identify willful permit that instruction to be tendered on the facts of this case because the risk would have been so great and the harm would been so great that there was no possibility a reasonable jury could have found him not guilty of murder w same time convicting him of in her case because they would have been statements she made there would be here's a sample so but the fact is that it is strictly prejudice requires that the defendant be denied a fair trial and that essentially if the allegation that he's making now is that he to compromise their hurt by disregarding the evidence of guilt on the green or offense understanding of course that the jury in which defendant receives in fact convicted and under strict plan you have to exclude such possibilities as  seeing the likelihood of more favorable result so when the only allegation is that the jury was not presented with an additional option that is the possibility of compromising their  he might have been though they might have been right place but it was still a tragic accident that was a serious from the beginning to the end of the defense case now if the theory would be something different the testimony next i don't know if the defendant authority in this case for doing so but to the extent that those jurors remarks should be considered those remarks indicated that the jurors were unanimous definitely man who works on the third hand which would be knowing  he said it spun like on gravel and then the car with water which is something that was never able to be here acted not only by the prosecutors reactors but by his own fence expert could not get the tires to spin before the front end in fact enough time for the car not only to hit the water into the water and be three feet in the water and then have the car start flowing and at that point now the point of no return hitting the accelerator pedal will do no good it will simply spin the wheels because there is no happen that way and the defendant's own testimony it's spun like on gravel before he hit the water could not have happened so it seems like he has no way to defend himself from physical evidence and so the tim finding the location so that the nine one operators would know where to go but of course he's now trapped by his own dilemma it's a make why in the world do they go out to a deserted area at that time of the night wait until the back person leaves several minutes and then take the spot on the ramp and he wanted to go home and smoke marijuana and watch movies he didn't want to go out there it's supposed to make him fight he's in charge he likes according to the what they call jailhouse snitches but but that's that's just an inference from the record so with respect to the the other issues i just wanted to make comments about the defense may know showing that even if you  incidental acts for an exchange for an in support of maybe child dangerman struction is not going to give him that struction and that would not have been something that counsel would have had a duty to tender based on the allegations he par close to the water or that he didn't hit the accelerator hard enough or whatever theory would have been so for those reasons even if that were charged that's the set something that know that there was certainly going to be death that was kind of death or great bodily harm that was going to resolve that but the act itself we have to separate the defendant's intent from the act itself act itself is the physical things  ground did cause that car to go into a lake and by they're not backing carefully by smoking dope that morning  he was responsible for that car moving in the lake but the question is what was his mental state at the time and so causing is causing is a much broader term that will only know that car's going to go in strategy this state argues that instruction on child endangerment would have been inconsistent with the defense's theory of accident the same is true of the reckless state of mind that was contained in reckless homicide that the state that the defense tried to get in as a lesser included offense of the fact that the defense ultimately argued to the jury this was an accident that's their best shot because that gets the defendant completely acquitted you can ask a jury for acquittal based on accident and also proceed on  with the theory of the case the most obvious examples being second degree murder which includes an intent and intent to kill and then the reckless charge which doesn't and then finally the state points to some but some of the physical evidence which the state says for us out of the defendant's case again the standard in this case is was there some evidence that the defendant didn't possess the requisite mental state for first degree murder and i would just out very briefly on the whole notion that the defendant testified that the tires son but the experts said they didn't get on gravel they spun once the front end of the car lifted off somebody who's sitting in a car that's enter the way i think it's not realistic to think that you're going to get a perfectly accurate accounting of what happened because of the shock of what's occurred when the when when the car goes into the lake and then finally the state argues that strickland doesn't require perfection and i would agree that strickland does not require perfection but strickland requires a defense attorney at a minimum to be familiar with lesser included offense instructions and if he's not it necessitates researching that's what defense