had let's suppose you're right that the state has engrafted an additional requirement we have the decision from the illinois appellate court that whatever was done here was enough to satisfy that and we have the denial of the jewish in for leave to appeal from the illinois supreme court so i just see no way around understanding your request as the state fair enough point but the only appellate court which is the court authorized to speak to such matters does not understand illinois law and unless there was some federal due process requirements that this be whole when you look at the way this case was presented to the jury the jury necessarily had to find that the defendant acts with the full loney it's purpose you know there that the mob action is going on actually for quite a while on the platform even forget about the train on the platform before however this poor man fell down onto the electric rail happened so addressing the first idea that the instruction so we have the illinois peleg court deciding that this issue as a matter of state law was adequately presented i understand you don't think so but then when we step back and try to apply what you're trying to apply the pretty line of cases i don't see you know how anything that a pretty was worried about a print he's worried about an entirely different offen basically if you if you had committed these extra actions or elements then you had an enhanced sentence you had other sorts of things i don't see where that happens here  felony murder he and so the jury is asked to be commit the felony yes you know was a death in conjunction with a yes well your honor then where where does he get relief where does this mandate come where deceives finally where is this due process right so so far as predicting the supreme court the supreme court's literally said you cannot be found guilty of this offense absent a fact the thing they haven't done with the elf in the room they haven't said this is an element they haven't explicitly call this and they said you can't be convicted absent this fact but you just have a requirement for conviction is never enforced well but i guess you know again looking at the illinois appellate court's opinion paragraph twenty seven you know your client's not challenging that the underlying offense of mob action had an independent felonious purpose in making this morgan pelt davis davison argument and then they go on the next page and paragraph twenty eight they go through the actual instructions for the jury the jury been told about mob action and they say in twenty nine these instructions actually says the instruction read together adequately apprised the jury to must find the defendant activity flown his purpose of mob action that was independent of flung his purpose for murder there is the jury is never instructed you have to find that he intended to murder the intent that it's instructed about is the intent to commit mob action so they don't see it your way and then the question is given the deference that this court is supposed to give to what the state or did where is the i'm for decision other than just sort of a very broad decision in friend age that says but they're also unfaithful to the illinois supreme court of law that says that this question must be presented the jury by saying it can't be pounding guilty absent a speck in pelt that you know they found that he had a mens rea or you know this mens rea argument that comes  know it comes up i mean so this particular problem was supposed to be abolished they weren't they aren't supposed to be solely charging felony murder in these circumstances where there's intentional murder facts but i mean that's and it's it comes up i mean one of the cases or two of the cases the that's the problem and this was around a while a way of handling that problem but it's not being enforced in the court and they want to lie on these fact is it a problem i can certainly see your example that if you know somebody pointed a gun at another person you call that insult you know if they don't pull the trigger and yet that would those are just so linked together that in fact it's the murders that you're worried about this you've got this brawl going on for quite some time and if the guy had never however he got down on the track you know you would have had a mob action and you know it's just that way these things work sometimes but your honor in this case the state marked out the bounds of the charge which you know in a way it does by its closing argument to the acts on the platform in order for mob action to morning honors counsel please the court assistant attorney general garson session for the respondent like to start by addressing your first question judge would in order for petitioner she succeed on his claim he would need illinois along to be other than what the illinois court said it is in this case so how do you respond to his point about a pretty where new jersey was not saying that these were the elements but the supreme court steps back and says yes but these are the things that are necessary to get this enhanced sentence so you know you can call it a banana if you want to you know it's an element for federal due process purposes well your honor i mean review of the only s precedent actually shows that the only supreme court has never held that the so called independent felonious purpose requirement is a fact that needs to be established in order to find a defendant guilty of felt murder  what it has done is created a limitation on the state's authority to charge felony murder by saying you can't charge felony murder where the predicate felony is inherent in or arising from the act that caused the victim's death and that's what they mean by the independent following his purpose in davison which is the most recent case and it's also a mob action case where they upheld the felony murder conviction on very similar facts of this case they probably went to their greatest effort to examine and explain what they meant by independent for any purpose and equated it with on this limitation that says essentially it's a question of which way the causation flows if in committing a murder the act of murdering someone causes you to also commit another felony aggravated battery aggravated discharge a firearm for example then the state needs to prove knowing or intentional murder but if because there are all these consequences if you charge felony murder that relieve you  burdens of proof absolutely your honor and that's why the only supreme court created this legal standard to prevent abuse by by the state the state in a felony murder case doesn't need to prove the mens rea of regarding the app that caused the victim's death so why doesn't that line i mean at a minimum it seems to me that this is a federal issue it's legitimately before us as a federal hate b as corpus possibility then you obviously you've got to move to what is the supreme court say but that if you can't have it if you don't have to worry about self defense if you don't have to worry about some of the other things that are off the table if it's felony murder then it strikes me that your burden of proof is changed on which petition relies are situations in which the government the federal government in one case a state government the other agreed that there was a factual matter that needed to be a stablished in order to  prove the defendant guilty this is different the state courts have said this is not a factual matter that this is a legal standard and it and in morgan it's important to note they didn't find that the state had failed to prove th then look at the charging document and see whether the if the acts charged are sort of inherently part of the murder or not and toss out the indictment well that happens i don't think that there's any requirement for the court to do that on its own but certainly a defendant can move to dismiss the charge at that stage and the question can be answered without reference to the strength of the state court but this is a case where the state proved the mens rea of mob action they proved that the offender and set out to commit to to disturb the peace with his colleagues through the use of violence and in doing so cause someone's death and they did so do you accept mr melting characterization that this was just the events on the platform at roosevelt roaders that the whole course of the  into the whole course of of kind of the closing argument is not the evidence the trial those evidence at trial is the evidence the trial not to be circular but but clearly the defendant is and his colleagues were disturbing the peace through the use of violence when they started a fight on the train car when they attacked the victim when they then stepped back from the victim and his colleagues in both parties on it themselves and requires reference to the facts of a specific case in order to resolve that legal standard the mere fact that fact that you have to apply the facts of the case to the law to satisfy a question of law doesn't make the question a have reversed it hasn't been on a finding of insufficient evidence it's been on a finding as a matter of law it was improperly charging properly presented to the jury as felony murder because the predicate felony completely different every single case addressing this issue is based on the facts at trial you do not have those facts before trial and that's why it should be determined by the trier of fact it cannot be based on face because if you look at the case i cited from california that's where it's purely legal issue