please the court i briefed three arguments in this case but i will focus largely on the st one which asserts that mr area is sentenced to life in prison by a late both the th amendment and the only proportionate penalties clause his crime reflected the unfortunate but transients immaturity of a physically disabled bullied child with only a th grade education whose formative years were spent living in a gang infested neighborhood the trial court never made even an implicit finding but joseph repair of the corrupt and the evidence decisively refutes any such determination that he is among those rarest of juveniles for whom rehabilitation is impossible by re sentencing josep to life in prison without having accurately considered factors and medication in order to conclude that he's beyond a possibility of rehabilitation the trial court demonstrated a fundamental misunderstanding of the ever evolving sentencing standards for children at this point it's well established that miller required the sentencing court to consider youth and its attendant characteristics before imposing life sentences undeveloped spend it however a hearing that complies with miller is not enough to render that life sentence constitutionally found the hearing is but to determine whether a juvenile who committed even a heinous crime possesses at least the capacity for rehabilitation if that capacity exists if rehabilitation is impossible a sentence to life in prison violates the constitution our supreme court recognizes in home and reiterated in law and it bears repeating here under miller montgomery a juvenile defendant may be sentenced to life without parole but only if the trial court ambivalence by saying he thought joseph potential for rehabilitation was mixed the judge preclude the finding that dose of potential for rehabilitation isn't possible it should be clear the problem here is not that the judge failed to recite specific language or use magic words nor is it a matter of mere dissatisfaction with the court's ruling rather the issue here is that a sentenced to life in prison is unconstitutional without some type of determination that shows it is among those rarest apply the mandate of valor and its progeny judge ignored or dismissed crucial mitigating evidence of joseph youth and attendant characteristics as well as the rehabilitated capacity joseph has demonstrated while incarcerated among the most notable charles the line between o j was a juvenile offenders for whom life in prison is unconstitutional and those who are beyond the possibility of rehabilitation in ruling the trial court ignored or dismissed the trauma joseph experienced from an early age for example he suffered from her city's a life altering physical disability that required numerous surgeries but in its ruling the court described it as merely a medical problem joseph also experienced a devastating car accident in  one that he said quote ruined everything the judge never mentioned that just a lack of schooling is startling he has only a th grade education yet the trial court never considered the harmful impact that likely had on joseph intellectual and social developments the trial court in its ruling stated there is some evidence that he has been exposed to negative influences and that his older brother was a gang member of a drug dealer that some are grossly understates the extent of the negative influences surrounding justice and it's an accurate representation of the evidence joseph had two older brothers each in different games they grew up in the worst neighborhood in aurora they hung out in the streets they found a role model role models and older games gangbangers and kim that was the world just like me what the child the trial court's discussion regarding the miller factors indicate that justice character and crime were evaluated as though he were a grown man the judge seemed to prioritize the fact that joseph was just three months from turning eighteen as a crossing that the threshold rendered irrelevant the factors of youth that he was required to consider for a seventeen year old for example the supreme court has long recognized that children ability if they have one adult to consider the risks the consequences of their actions yet the judge here failed to apply that understanding to josep instead he made several comments along the lines of he should have known better that however is exactly the point of all this jurisprudence the brains of juvenile to have not yet developed to the point that permits them to know better and therefore act better finally if such upon earlier the judge did not give proper consideration to joseph rehabilitat capacity by completing educational courses and participating in various self improvement programs doesn't has demonstrated that he is committed to personal growth he says he participates in any program available to him and he's been doing this long before miller was decided those around him recognized his progress his brother has watched him mature over the years and described this as patient and calm an instructor for one of his self improvement courses called joseph answers honest and sincere and very good his counselor expat bill testified that joseph was for the most part a model prisoner who was never anything but polite and respectful to her certainly that is not the behavior or acknowledged that quote the admission of evidence and argument related to them and i factor does not necessarily mean that those factors are adequately considered or a value weighted to determine the defendant with the rare juvenile simply beyond the possibility of rehabilitation such as the case here where the evidence demonstrates that joseph is a changed man with sincere remorse for his actions he deserves a chance to have these many mitigating factors properly considered  my nd argument does pale somewhat with the st one because it shows that the judge either misconstrued or simply disregarded the science behind miller the judge abused his discretion by denying the defense's request for expert on and  a rehabilitation the judge said he would bases consideration on the facts and circumstances of the case and just of behavior in the department of corrections stating i don't think any psychiatrist can tell me that but the judge misses the point an necessary to synthesize the facts of this particular case and this particular defendant with the complex science of the juvenile brain so that the judge can make a fully informed decision about just as rehabilitate a capacity for example an expert could have studied and explained whether the characteristics of you have dissipated over the years or how joseph maturation impacted his rehabilitated capacity the psychological reports one of the judge told the defense to rely on was from nine hundred and eighty eight chance to defend himself against the hearsay allegations presented by the state regarding a legit gang activity which brings me to my final point the judge abused his discretion by allowing the state to present unsubstantiated ask their questions a little difficult this way you know exactly who's going to ask what so i'll try to limit counsel you can say that the court really didn't maybe consider the maturity of your client and he was being sentenced isn't in the charity or a sense of immaturity often related to impulsive behavior or someone who is easy to be pressured as a person so that he does things that you know he doesn't have a lot of time to think about i think immaturity is one of the i'm sorry impulsivity is one of the elements of immaturity but there's so much more that goes into it it's how you relate to the world you know how you prioritize things just it's not just impulsivity it's not just making split nd decisions that you regret later but it doesn't help that you disagree that on the date in question your client purpose was to kill these two people i believe that from my understanding is that he did make that plan before he drove over there and what i will say is that it was the planning of a juvenile so while it does seem that he intended to kill those victims i do think it's an important distinction that he was a juvenile making those plans there is if you kill somebody it really doesn't matter if you're an adult or a juvenile their d and he made those plans because he had some feeling about something it needs i don't know what he was feeling and i don't have the specific reasons for why those victims were killed  a go ahead i'm sorry oh i'm sorry that's ok you continue i've been miller court talked about that that you know there is a different science to a juvenile brain we have we have science  says that specially males brains maybe are fully formed until they're twenty seven or thirty i have a thirty year old and i'm still not sure what use is this argument but in this case if the trial counsel could not even identify the person that he wanted to hire or know what areas that this person could cover or would cover how exactly use of discretion for him to deny this request well st of all the statute does not require a specific person to be identified and that's the information that they were seeking it hearing i would call it on this motion was very short and there was not even an opportunity for counsel to tell them that an expert can provide information on lessons learned while reflecting on the  crime how the passage of time could affect the degree to which he was affected by upgrading whether he was the same person psychologically and behaviorally there's a multitude of different factors that could have been explained  i agree that those are things that could have been explained but wouldn't have made perfect sense with all due respect the council would have been more specific on who what and where under the circumstances because there was planned evidence concerning his background concerning his prison time evidence of his background to risk them lee a brother who apparently yes was gang related but did not want help the court in the the the common defense counsel isn't even really given the option to look at this it was shut down right away without any suggestion of well give me a let's come back and we'll we'll talk about this to see if those funds are required if this really does go to the heart of your defense i can't speak to what the side of the fence counsel was thinking or how they behaved but  you know a firm that's doing this as a pro bono i don't know how much time that they would want to spend looking for an expert that would not be paid for couldn't that have been put in his written motion that the corps is presumed to have read start what could have put in there but whitman put it there couldn't defense council have put the information that you say he was not given an opportunity to even address in his written motion so the court would have some sort of a basis that could happen but it wasn't required well it wasn't required but it didn't happen did it ok he did say generally what he was looking for you know you indicated that in your brief page i think it was sixteen that your client was exhibiting rehabilitative potential by enrolling in programs really related to education employment religion things that were being offered at various facilities how these programs show a proven capacity which would be an issue here for rehabilitation when at the same time it appears and will say for purposes of this question starkey or sharky of care member's name it that it appears that he is getting interests or his gang relationships were growing even stronger so how can those issues of relate to proven capacity for rehabilitation under government under miller there does not need to be absolute proof just other then of the possibility so he he does not absolutely have to show that he is completely different but at least taking the steps to learn to have been self reflection these courses baseband over a very long period of time and his alleged gang involvement is just based on hearsay and i it's it's not been verified it's not been cross examined affectively because the council didn't know about it until two weeks before so i don't know if there can be a relationship between that alleged gang activity and his desire to better himself personally well wouldn't a trial court or anyone reviewing this information including a court allowed psychiatry psychologist sociologists whatever the field would be wouldn't these courses and the effort put into them and his counseling be weighed against what had been happening in prison because now those things can be considered big should be considered  i think that as you said a professional and expert could have been able to put that in context i believe it was possibly and people believe that this court did allude to the fact that often to just survive some people behave differently and that's not an excuse at all but it's just putting in context if these allegations were true ok and my last question relates again to your client's personal maturity and his personal circumstances and i'd not be disrespectful to he is he is the problems that occurred but how can having this illness or being in a serious car accident or being bullied either individually or as one element or collectively as a serious development show you some way here that your client was improperly influenced or pressured into committing these two murders or was in mature those elements his his disability his education the bullying they play into a lot of the immaturity and that goes to whether his brother influenced him because he did not have the same ability as other people his age to explore relationships and instead was just bully he was in a wheelchair he would be upset with these people it doesn't necessarily mean that they told him to do something but that there was pressure and these influences around him and that's the world that he saw when he was apparently a good have a good relationship with his mother correct he said that he loved her very much but that he walked all over her and she worked apparently a lot to make ends meet for the family and there is no evidence here that he was threatened or hurt by any of these people within his immediate life correct not at trial if you consider his statement allocution there was a statement regarding the sexual assault while he was in th grade by a tutor  considering the fact that he had all of these other things working against him the fact that you know he wasn't physically hurt doesn't necessarily weigh one way b s or the other required to assess was it not to mean the miller factors are reflected in an illinois statute at this point and the trial court covered every single one of them did not the trial court addressed the lower factors and the statute in his ruling but he did not apply that information to doses capacity for rehabilitation there's a difference between stating the facts and you consider well because this is a constitutional issue the judge's reasoning goes into whether joseph is beyond rehabilitation and therefore his sentence is constitutional maturity and you indicated in your argument this afternoon that you felt the judge omitted any discussion of the defendant's maturity at the time of the offense but are you not arguing as the saying goes out of both sides of your mouth because you indicated in your brief that the trial court took a backward look at rehabilitation and not a forward look so how are you arguing both of these things how does that apply to the trial process about sure the trial court seemed confused about this itself and appeared to glean what he could from what had happened previously and somehow meld it with what was happening currently so that level of maturity was not able to be assessed in any way and in this case it's particularly unique because there wasn't a sentencing hearing a lot of the other public published cases there was at least some type of sentencing hearing or some type of statements made by the judge here is a trial judge had nothing to go on if that answered your question ok you indicated also regarding the decision about whether or not to appoint an expert that an expert was needed to synthesize the facts related to the defend but that was something that was very different i mean the court had twenty years of actual experience of this defendant in the sense to use to a value way his potential for rehabilitation and that is a forward looking rehabilitation in the future that's forward looking is it not that it's ok and he used that information was given up he was and before him was very limited unreliable information without any contact without understanding who the person of joseph was other than assuming that because he was older he was different the expert could have been able to against the hearsay allegations i mean what happened in prison all those incidents how would an expert be able to answer for those the psychologist art experts put it into context instead of just viewing it as an inmate doing these alleged activities the psychologist could at least put it into context with who joseph was his who he has statute doesn't require that and it could have been brought up at an oral argument but the judge cut that short so they didn't have the opportunity to and may have been type of thing that they assessed once they found the experts whether they need this type of a valuation or this type of study well was that the responsibility of defense counsel at the trial level mean if the attorney didn't feel that the court heard him or her adequately and there was a motion to reconsider or some way to get that information in front of the court is there not and that's why i argued plane air because the that did not happen and the issue is so crucial to what we're talking about here which is understanding who just it has become and how he has changed and whether or not he is few questions i want to go back to what justice hutchinson had asked you specifically about the expert witness funding and so my question to you is  how you know is mitigating factors and rehabilitation specifically as genocide in the briefs how are they specific enough to address this funding the character and you and rehabilitate a capacity all examined and it is very general but as i mentioned before perhaps that was something that they were waiting to really discern when they got an expert when they were able to spend the time to get that person and to find the right person for that situation in its sentencing decision well you know as i stated i believe in the not just because the courts take the miller factor that doesn't mean that they are assessed properly and it's the assessment and the application of the mi factors to this rehabilitation question that is really at issue and a large very large factors such as immaturity and the ability to recognize risk and consequences but not evaluated joseph was not considered within the context of who he was at that time and those factors just the judge did not take that into a of the two individuals was planned but he noted in his sentencing order the defendant had a loving mother he was impacted obviously very seriously but there's deportation so your argument then i gather is that the court didn't use the specific language of miller you know that in correct your honor the court does not need to give you any magic words but it needs to show the appropriate determination and and incorporate that into this assessment so the miller factors may have to be considered and then applied to that as far as the judge's consideration of of these certain factors  joseph lost his father i think when he was ten or eleven and that was really impactful on him because he was very close with his father but the judge just termed it as somewhat devastating joseph lost his brother when his brother went to a duel institution and that was devastating just as brant was killed in a car accident and that became a murder investigation and that was devastating and you have all of this within the context of this considering his deal see violations that led up to his segregation and ultimate return to deal see him two thousand and fifteen then the trial court give adequate consideration to experienced with the tutor or these you know this of these other activities that he liked to do as far as weighing the counselors  i don't i believe that those were not a fast as they should have been within the within the context of everything i'm not finding in that sentence right here but  be the court didn't use the specific language how can you say the trial court didn't give much weight just because he didn't make statements about it well there's no way to know because there was no other on no other explanation or description of what he took away from that  express remorse and regret and responsibility but the way that the judge explained it in his order does not seem that it accounted for much and that was my point you said he did the medication experts when defense counsel is capable of presenting such evidence and wasn't that done here with the testimony that we had before us and that was that i just discussed earlier no because those people couldn't speak to the specific psychological characteristics and the way the juvenile brain relates to them those people could talk about joseph was and who they see him as now but an expert would have been able to really explain he's carrying for example he experienced this trauma at this age and when a child experiences trauma at that age it affects them in this way there could have been far more developed understanding of josephs capacity for rehabilitation and when it went to the heart of the defense what this is all about it was an abuse of discretion that the judge outright denied any consideration sticks in your brief you argue the only proportionate penalty clause grants greater protection than the th amendment specifically does a grant greater protection in this case answers the confidential informant had provided years of reliable information in the past enough to establish that the state's evidence based on confidential informants was reliable for purposes of sentencing you know your honor being able to state that this person was reliable because of this sort of process having never even met that person or aren't considered inherently reliable or you know that's why there is process emanation those counsel is not able to cross examine him properly because they didn't know about this  he was the only one who do and didn't actually know the person stick the defense counsel didn't raise the denial of the motion for funds before the trial court so why shouldn't this be considered forfeited because the error for two reasons st of all the evidence here was close enough to consider that that could have been a factor in determining thank you mistake i have no further question justice does either justice have any additional questions i do not i do not think you are you stick at the end of the apple e's argument you will have an opportunity for rebuttal thank you thank you at this time mr hofmann you may begin your argument good afternoon your hono i'm not going to follo that were raised so i will begin with the question of whether or not the trial court's findings were sufficient under miller and its progeny the defense argument really is that it's not that the trial court didn't address or consider the miller factors but essentially the result isn't what the defendant would have liked to have  that's not the standard in this instance the trial court heard the copious amount of evidence and then synthesize that in a fourteen page memorandum opinion before which which outlines all of the factors that he considered before rendering his decision that the natural life sentence would stand or would be reimposed i guess more precisely  and that memorandum opinion indicates that the judge did consider the various factors that he did synthesize the information that he was given during the  hearing to come to the conclusion that he came the the the question about the issue about whether or not he was he considered immaturity impetuosity that he's big  begin to live his memorandum opinion with a discussion of that he said that you know this is not the that this crime is not something that was done by by impetuous nature he noted the defendants a judge he noted that the factors of the case and i'm quoting would indicate defendant's actions in killing the two individuals was not counsel to argue that the that the trial court did not consider or properly apply the evidence that he heard on immaturity  disingenuous because i think that the memorandum opinion expresses that very simple source of the information and so again we're we're sort of at the the place where counsel says that that she's not arguing that you want specific words or magic phrases but in reality that is what they want because if you if you don't say the specific words then they're going to argue that you didn't make the finding i think that fourteen page memorandum opinion is clear when in its move you will all of the person and factors all the evidence with respect to those factors and then the conclusion  rehabilitation is that if the other major issue got counsel touched on in and again the same thing you know the court heard a great deal of information about we ability to potential and  ultimately concluded that you know this person was not someone who was going to be rehabilitated that in fact that the proper sentence was natural life imprisonment so the fact is is important distinctions because what the situation is that we're coming up against is that the defendant if the defendant doesn't get the result then somehow the court was wrong and that's not what miller says more says you need to consider the things holding gives us those factors and you know explicitly and this court considered them and came to this conclusion time and act actually in prison that the court could use to look at we had billeted dictate a potential and counsel said well you didn't put those things in proper context the question is what is the context of those things i don't i don't know what context we would put them in other than what the trial court did would just say all right i'm looking at you and looking at what you have done since you have been incarcerated in addition to the crime that you committed and i and i'm not finding this to be indicative of a person who should be released from prison  quote that's what they asked for the court said i don't think there's any that essentially said i don't think there's any thing about that that requires an expert which is correct situation but that's not what was asked for so when you're looking at whether or not the court abused his discretion well no i mean it was asked for to give an mitigation expert money for an immigration expert as to character and and record which were things that could be you know i didn't could be heard and was heard without an expert counsel certainly had the opportunity to come back i think i may there just  in spending the time or the effort to do that all of those things are speculation in st place and nd of all not really germane to the question of whether or not the court abused its discretion so i don't believe that so i guess at this point i'm just going to  the the court if what question do you have for me that may be a better way to proceed yes and subsequently we were then told for a while we couldn't consider what was happening in prison but then there was a case and the name escapes me right now what case that was but that we could consider what was happening during his any significant time in prison and here clearly mr area has had a significant period of time in prison is that correct yes all right so if we're going to do that and if we have to consider his maturity or his immaturity immaturity and if i ask counsel usually indicates impulsivity in love be mr love the was walking by this house he saw this woman who he thought was closed in his clothes in a t shirt only and he was sixteen and he decided this was his opportunity and he went up and ultimately had sex and killed her what was impulsive about this offense when you look at other cases like love the in cases where the convictions have and the senses of  i would argue there was nothing impulsive about this crime because as the evidence at trial indicated missed your arietta told his the people he was with on that night what he planned to do so he had the plan to go to the home to steal the guns that he believed they had to take money out of a safe that he believed was there and then to kill these people so with that in mind i don't think that there was anything impulsive at all about this particular crime this crime and again i i understand it just of had had illness had an illness had a car accident and mosses father he had a lot of lousy turns at that point in his life but and he i mean he didn't he wasn't thrown out of school to the best of my recollection i thought he quit school because of the muslim look better or he just didn't want to d involved rather heavily in his gang activity how you know how do we now take the evidence of what happened in prison against what happened as a youth in this case because this seems to with these people through the gangs because of joggle whatever but it wasn't as the original crime was now the crimes were not they were not gang hitchens my it wasn't your traditional you know you did something  member of our gang and this is revenge for that kind of thing it was at that sort of a gang killing those that weren't there weren't those kinds of getting killed but with respect to what is that you know how do you apply what going forward to i don't know if your question was to maturity in the past i i i think i think that what i would say about his what has happened in the you know twenty years since the crime while he was in prison is that he has continued to make poor choices as he did when he chose to murder two people and so i you know it appears that he has not made a lot of progress on the front of what sorts of choices are appropriate to make and not withstanding i mean no nobody is arguing that he had the most perfect childhood but at the same time he felt and he had at you know parents who were was working a home that he lived in you know yes he was done bad neighborhood yes but again but the again the trial court heard all that and took that into effect and did not find that it was you know the result of some kind of pressure from his you know gang or pressure from things family or you know any of those things that led to these crimes and it wasn't you know and again you know his familial situation was taken into account prior to the co determining that you know this is just a person for whom there is no place outside prison and i appreciate your answer and it did address my question but i guess maybe the simpler question is counsel's  very often in her argument that the expert would have looked at circumstances then and let us know you know about the person that he is today how is the person that he is a who has a lead you know had an infraction where he ordered some of the latin folks to injure or seriously hurt someone different than the person he was when he was sixteen years old and killed these two people it would appear that he is a much different and in fact i'm not sure that that that kind of expert testimony would be helpful in event because i'm not sure that they would have been able to say how different he is today that somehow he was then it appears that he was now and then a person who you know for whom the gang you know the gang life is something that he is questions i do thank you good afternoon counsel in in the trial court's comments that were made in sentencing the defendant the trial court referred to choices that were made and the opportunity for reflection before the crime was committed and by doing our by making those comments didn't it show us the judge the trial judge saw the defendant through the lens of a fully grown adult as opposed to a juvenile which miller tells us needs to be looked at through the lens of diminished hope of culpability i guess i'm going to conclusion that because you say there was opportunity for reflection before you did these things is indicative of putting you in the lens of an adult i think that what the court was saying and the court's suggestion was this isn't indicative of somebody who was acting impulsively or out of immaturity but in fact out of somebody who thought about this is what i want to do and i'm going to do it now and he clearly will judge the trial judge clearly understood that the person was a juvenile that that was something he had to look at so i guess where we are we have to assume that when he says i took into consideration you know i know that you were you know under the age of eighteen and i know that you are the things that miller tells us we have to think about that he actually thought about them because he says he thought about them and and and so i don't think that his saying you know you had opportunity to consider what you were going to do and you chose not you certainly that was perhaps particularly germane to the idea of impulse like so it wasn't as though i'm in a situation and i'm and i you know i'm aggravated and so i pull out a gun and shoot you that's something that might maybe as impulsive this clearly was not that and again i guess my my answer to your question  i do not think that simply saying that you had an opportunity for reflection and you didn't take it indicates that you're looking at him through the lens of an adult rather than a juvenile i think it just is indicative it was a fair one part of talking about the factors of immaturity and impulsivity that it was the court saying this wasn't an impulsive thing that you did you had opportunity ok why should we not conclude that the trial court here in essence i think this is what opposing counsel was arguing in part gave lip service to the defendant this functional environment and physical challenges well i think that i think again it's there's it's clear that he did not have a perfect operating he obviously had to go issues he did have a home environment that again while it was there there was a great honestly agreed to the stability to that home environment notwithstanding that it was happening in a neighborhood that was scuse me that was considered to be a dangerous place with a lot of gang employees you know he had somebody you know putting a roof over its had going to work every day working hard to do you know to keep the family you know in good on the table in a place overhead and so i think it's you know it's because i think perhaps environment is somewhat overplayed in this case because again not everybody grows up in a situation where you have only one parent for a lot of that time and you only have and you live in a bad neighborhood ends up being a you multiple murder you know that's so i think that the court could consider those factors and still all if you know well you know  the court did you could still find out that this person is you know not a person for whom a life outside of prison is appropriate based on all the other factors i don't i just think that it's not it's services i think that so i hope that if you question yes it's out and i just have one final question at this point in light of the critical role but the issue of rehabilitation and rehabilitat that isn't what the motion asked for i mean that they weren't asking for someone to talk about is rehabilitated to come to i think they were asking for so much talk about his character and his you know sort of let's look at what kind of a person is which i'm not saying that  hearing of people that can speak to character and development as the defendant brother did and said look this is not the same person he's you know he was a kid under bad influence but now we've got the old person who appreciated you know the situation you know what he didn't do and is a different person you had those you know counselors who spoke to the fact that he was a you know a good person  expert in this case i'm not i mind you i don't know that that that makes a difference because i think the court was well versed on the idea of what is you know what is the juvenile the whole idea of a juvenile brain being different but that's not what was asked for and so it can hardly be an abuse of discretion where the court should not have just said oh but you know i know you night asking for an expert on x but i think maybe it might one expert on why so potential for rehabilitation is being mixed doesn't that show he had some potential for rehabilitation that would have precluded a life sentence no i don't think so i think  again because there's not a need for you know we've established that there's not a need for magic words for you know i think what what happened in this case is that you have a judge who talked to a lot of  you know in print a lot of the facts of his thought process and the factors but in the end he was aware that in order to impose that man to a life sentence again you needed to be of the opinion that the person was dead you were being a vet and that meant you know you it was the food wasn't a person who should be out amongst you know the public ever again and that's the decision you make i don't think that the fact that some i think what he was doing was he was giving voice to defendant's brother who said oh you know look he's a different person than to the counselor who said look he's such a nice person  delightful to be with which mind you might have been how someone might have spoken with him about him even at the time of the committed the murders he might have been a polite and pleasant person in the right situation none of us know it but i think the judge was giving recognition to that but in the end what the judge decided was this is the evidence that he heard was this is not a person who can who is rehabilitatable such that he should be out of evidence you consider this person to be one of those willing to vigils which clearly judge the challenge for that make that conclude conclusion but i don't again there's not been really a discussion of how well the again the motion didn't ask for someone to come in and talk about you know i mean i think what judge mcallister this these are matters about which i am capable of making a determination based on what the evidence that i will hear on character and you know you know the last twenty years in prison and how things have gone and how he is now and what he's done throughout that time  and i don't i don't think that he i you know i don't think that he abused his discretion and think you don't get an expert to come and talk about those things that can be just turned from my constitution is in you know in many ways follows the th amendment in terms of all kinds of factors that moreland them home and with more specificity from  i i have to say that your behavior whether you i mean over the course of the twenty years the mystery of the has been in prison he has been engaged in litigation of  conviction and or his sentence and with that in mind it would seem that in any event whether you had a life sentence or a sentence of you know rebuttal thank you i have two main issues that i want to first of all just want to bring it back to what this is about it's about the fact that there is no determination that joseph is one of those rare individuals that is absolutely and beyond the possibility of rehabilitation we're not looking for perfection we're looking for the possibility of rehabilitation where the judge says that this possibility is mixed there can be no inference of logic but that also means that joseph is so in corrigible that he can never be present second regarding the experts the motion that was filed includes more than just use including his character and record it talks about how there are no witnesses and mr his life who can provide a certain type of objective and specialized testimony and expert witness could provide in this matter and where it is so crucial to the heart of this issue denying those funds for the possibility of even being able to consult with an expert like that denied him a fair opportunity a fair chance to make his case  hearing also i want you to see two other thing if it is a trial court's job to determine in corage ability that's absolutely what miller and montgomery are telling us at home and says it repeatedly and it's repeatedly been said in cases from this court in convey the judge must use those factors to evaluate evidence that mean there's it just it's repeated and so the thought that we can just assume that this is the finding of the   it's not the gravity of the issue is extreme and it needs to be given such consideration the thought that his home was stable is very overly generous description i don't know how you can consider our environment stable when your dad up that leaves when you're twenty years old and you've got a disease that your brothers  to describe is that it's it's not accurate just because he had a home and he had parents at one point doesn't mean that these other factors working credibly traumatic for him them by himself now twenty years later when he is thirty seven or so he is he gets five infractions at the in prison and he goes into administrative i think it was called detention because of difficulty in abiding by the rules and not threatening people the only of the five infractions the only one that wasn't really a threat and i would say that again pretty generously was when he was admiring the counsellor's nail polish and wondering if you have the same thing on  feet how are those two people different if he isn't mature when you thirty seven now maybe he has a disability and nobody's been asking to find out if he has a disability just  a kid when he was seventeen and now that he's thirty seven and does the same thing what does that mean i don't mean to those infractions and the alleged gang activity are not the s his character so to judge him just those is is not appropriate where you're looking to compare him to and in touch with a mature child so i don't believe that those infractions really tell the whole story well they're pretty significant i would have killed my so we allegedly our not allegedly but the infraction says he said out members to harm another member for some infraction that he committed and when he's not busy with the folks he's going to school are you saying this is exactly he went to school it is showing that he can be rehabilitated no i mean no you're out are more complex than that is the point i'm trying to get across is that those infractions he said that he has learned from the discipline from those infractions he has acknowledged and i take the responsibility for that so the fact that he is also trying to better bridges thank you just says that after you have any questions i didn't ask and i do not either so at this point the court thanks  both parties for your arguments this afternoon the case will be taken mender advice man disposition will be rendered in due course mr clark you may close the case and terminate these proceedings thank you thank you