Illinois Public Court third division is now a session. The Honorable Justice, Mark S. McBride, it's residing. Good morning, everyone. Please be seated. People of Berkut, do not. Before we step off, I would ask that both attorneys do come up to the podium and identify yourselves for the record. All right? Both of you can approach, please. Good morning, Your Honours. John from East Sting of the State of California, on behalf of Mr. Williams. Mr. Easing, good morning. Good morning, Sue Wong, on behalf of the people. Good morning, Moone. All right. So, each of you will have about 15 minutes to present our argument and from that Mr. Easing, you may save some time for rebuttal. Yeah, I'd like to hold on to about two minutes. All right. Okay. So, Mr. Wong, you may take your seats
. Mr. Easing, if you are ready, you may begin. Good morning, Your Honours, and may it please the court. I note that Mr. Munoz hasn't family present in the court today. The reason this case raised two issues about how the confluence of developments in brain science combined with Jason's history of substance abuse, meaning that Jason should have further opportunity to argue for a new sentence. Well, I expect this court will have particular interest in what the Illinois Supreme Court's decision in people of the House last year means for all these cases coming back on remand. I'd actually like to start with the second issue in the briefs, which is an ineffective assistance of council claim. Probably that's because the race between us and the State sort of go past each other as to what the nature of the claim is here. And I'd like to clarify a few things. On that point, wasn't there evidence about his drug use? Did not council present that evidence? And did not the court consider that evidence during the trial? And then, you know, ultimately it's something. And this is why I think that the people became decisions important. Both myself and the State agree. This kind of evidence of substance abuse is a double-edged sword. And people became instructs attorneys. If you're going to raise this evidence of substance abuse in sentencing, do the investigation that's necessary to give substance to give, you know, give force to that evidence. And council didn't do that. Council instead makes the argument relying largely on testimony that happened to come out of trial in the PSI and doesn't go beyond those limitations. When what council should have done is look at the science and the petition sites that's that's currently a study that talks about why the particular history of substance abuse is similar to Jason, would be particularly mitigating. The council additionally should have brought in some of the extraordinary facts in this video. I'm not sure that something council even actually reviewed that interrogation video because there's a change in council. And some of the facts are what has shown on that video is compelling mitigation
. That interrogation ends when my client is being pulled out of a polar vomit on the floor because he's going to withdraw. Could I just interrupt you briefly? The trial judge was the trial judge, the same judge who denied the motion to suppress. My recollections, yes, you're right, but I'm not certain. Well, does that make a difference? Well, I don't think it does because the motion, that video is clearly part of the record, but it was a part of the record that council didn't bring out an emphasize at sentencing. And in particular, the trial judge denied the motion to suppress and can't review the video. And then also proceeded over the trial in sentencing. His sentencing discussion sort of reflects extensive knowledge about the case, doesn't it? Your Honor, I'd submit that it's part of council's duty to additionally bring in facts, and not just facts that a court might have reviewed months or years before. Or are they emphasizing particular facts of sentencing? Are you re-arting that the motions to suppress shouldn't have been granted because the statements weren't voluntary? No, we're not raising that on appeal. We're arguing a traditional Strickland claim on issue two, which is that council didn't do his duty to investigate and present mitigating evidence. And some of the compelling facts of the video, and there are things that don't really come up that motion to suppress, because there are facts about his addiction. Are some of that? Yes, and some of the officers at the time that he was a regular user of alcohol and cocaine. That was in the video. Yeah, I'll give an example. One thing that is there in the video, but the council never quite realizes, is that there's uses Sarah Quill when we're hip-nulled with drugs of abuse in this case. That's something that later comes out in my client's affidavit, that when the officers are taking him to the hospital for medication, that actually is drug seeking behavior because he's going through withdrawal. And that's something that's in my client's affidavit, and it's never the record on direct appeal. Really, really, really getting a motion to suppress here. Many on it's a sentence in argument. No. I mean, it is squarely, if all squarely within all those US Supreme Court cases, or it's Romplo or CSV opting that have dealt with capital cases, where council has a duty to investigate mitigating evidence in particular substance abuse, and there's a long tradition of that. In the video, they were referring to, in the police officers in fact specifically, asked him about whether he was coherent, and did he understand what he was saying, and whether he was in any way impaired by drugs or any other type of substance. They did it, people, they asked him, we're not raising a suppression issue here
. I'm raising a, what the issue of what this video says about the mitigating circumstances of sentencing. I'm not arguing in this court right now that this, his statement should have been suppressed. Your client was 26 years old. Yes, that's right, Your Honor. Now you said you were going to talk about the King case. Yes, Your Honor. And people be King, which is a capital case from 2000 Illinois Supreme Court, just this kind of issue came up, where there was some sentencing evidence of the client's history of, of substance abuse that would be mitigating, because you know, there's this long tradition of seeing reduction more responsive, more culpability when there's a history of addiction, but counsel didn't muster all that evidence. Because there, it was there, it was treated as aggravating and not as fully mitigating. That's exactly the argument that we are making here, which is counsel should have mustered, dissonance evidence, in addition to the kind of things so on in the video, in addition to the facts that are in my client's affidavit, to treat it as mitigating. In the case, it supports your claim vis-a-vis a 26 year old adult who had two prior felony convictions and the court did review this evidence that was presented. Well, Your Honor, there was some evidence presented, but not the facts on my client's affidavit and not any of the science, and that's the core of the claim is... But the science has to be attributable to your client. And isn't that what was one of the reasons why it was dismissed is that, although there was a suggestion about drug and alcohol abuse and how that can impact the development of a mind that's younger, and he did testify or provide an early affidavit that this had been an ongoing alcohol and drug issue, but doesn't that then have to be related to the client? Your Honor, I think the Slavery Study does really well because that study gives up... It's that he participants up to 24, where they did a call from the study and my client just turned 26. But the scientific proof has to be related. In other words, it was the obligation to present that this scientific evidence specifically was related to this particular defendant. All I can say is that my client is well within the universe of these particular studies, that the details are what.
.. I mean, you're interrupting, I'm sorry. But you keep referring to science, but what specifically should the Council have presented? What additional evidence in that area should the Council have presented during the call? Council should have looked at what the Neurosycology now says about what the long-term use of, in his case, alcohol cocaine, and now we know Sarah Pohen or HIPNAL, delays maturation and lessons responsibility. The Slavery Study talks about, for example, how even adolescent use of alcohol decreases young adult impulse control. That is something that if we look at all these factors, millifactors, we treat a tradition category mitigation. That study also, and there's others that talk about how useful use of substance is, make great susceptibility to peer pressure, and this is a case where part of the state's argument was that Ricardo goaded him into committing this robbery. If the lawyer has the choice to decide whether to use something in aggravation of medication, doesn't the court then have the same ability to determine in a particular case whether this is truly aggravating or whether this is actually mitigating? I would say that strategic decisions by Council are only do any kind of difference when they're made after a complete investigation. And the uncontested allegation here in my client's affidavit is that Councilman investigated none of the science. This is additional evidence that you're referring to specifically, was that part of the petition? The square bit of study that I'm talking about is the study that's said in the petition. Now we cite some additional studies that have unsurprising consequences like, yes, the history of cocaine abuse also diminishes impulse control. But the square bit of study is there in the petition and it's quoted at some length, Your Honor. What difference would it make in the outcome of this case if the lawyer had done all of those things when they didn't do an MRI at his break? Your Honor, the MRI in the brain will tell you what effect the alcohol has. And if you didn't have the MRI, the fact that there's a theory out there, what difference would it make? Your Honor, I'd submit it's more than a theory. We have, you know, science that says people in my client's situation have this kind of history and I'd point to case like, some do and some don't. The question is, without the MRI, you're just raspy, get straws, it's not going to change anything. Your Honor, and this might move into what's the first argument in the briefs is, if this case was on a man, I would certainly suggest to counsel that they move to do that. My client, unfortunately, is indigent, doesn't have the capital to go. What about your prejudice document? How can you actually say that there would be a difference in the outcome? There were multiple witnesses at trial, weren't there? Yes. Multiple eyewitnesses. And then the defendant himself testified and said he was got a little nervous, thought that he was under attack and he fired a weapon. That's right. I mean, how are you going to show that this information, which the judge considered, would actually change the outcome on a retrial? You have to say that
. The last, it's a resensing. And the US Supreme Court is clear, and this is where the state just misses the argument. One day, one day is prejudice. Any amount of sentencing has sixth amendment. That's the United States' weak letter. We do not need to show that this sentence violated the eighth amendment of portion of penalty clause. We have to show that you're argument on ineffective assistance. It's the effect of assistance at sentencing counsel. And prejudice is a reasonable probability that a reasonable judge would have done a sentence that was a day less. So 74 years and 11 months would be a sixth amendment who had this amendment presented would have been a sixth amendment. The same process in case. The same process in case. That there's some evidence or suggestion in cases that the judge would have sent differently. Despite all the evidence that was presented. And you're on a, I would say that. Does the court consider what happened to trial and the evidence presented in sentencing? Of course it does. But it did not consider the addition, the, because the counsel's failure to give this more substance, the court didn't consider those new facts in my counsel in my client's affidavit. The court didn't consider, the court didn't consider any of the signs because counsel never did the work to give, to give the mitigation substance. And that's what King directs. Now, I'd also like to talk briefly about the consequences of the Illinois Supreme Court decision people be housed. Well, we were the head and a lot of that. So we know, we understand that case
. They said that despite the fact that this, the, there was no specific evidence related to Mr. House that that was premature. And they set it back for a second stage of this. I mean, this is the panel of the original appellate court decision. So we're all familiar with it. Plus we're familiar with the Supreme Court decision. So yeah, tell us more than well. Before we move into mitigation, does that work well away from mitigation? What, what are the questions? So it's counsel's, you know, the counsel to determine, you know, what's the present in terms of mitigation and so on and so forth. But it's up to the Supreme Court to weigh that evidence and determine it. And he even presented some of the court clearly said that your client had the capability, the ability, and the capacity to understand what he was doing, how he conducted himself and he chose, and he chose not to do so. So, you know, obviously, even though counsel did bring up the fact about the drug use, the circuit court determined that's fine, but I'm not considering that in terms of mitigation. Well, the US Supreme Court will direct that we don't look at the particular, the particular sensor in the case. We look at a hypothetical objective judge. That's in Strykman-V Washington is the standard by which all these capital mitigation cases have been judged. And I also point out that P.V. King is similar. There it was, you know, the failure to give substance to us, so why wasn't treated as mitigating? Here, that's the prejudice that the, that the so court did treat as aggravating when had the science been brought and had the additional facts and brought in, it should have been treated as mitigating. And as to what do we do after house? I would say, I would suggest this case is just like house. We're on a partly developed record raising a proportion of penalties claim based on the, why my client's circumstances are like those of a juvenile and she has the exact same treatment of house, so that the very least it should go back for second stage proceedings. If the Illinois Supreme Court had wanted to issue another supervisory order in house and keep it from having presidential effect, the Illinois Supreme Court would have done that. I think it had two or three supervisory orders before the 2021 opinion
. Instead, the Illinois Supreme Court did set a general rule for these kind of cases that we should be sending them back to second stage proceedings. And that part of the decision is present that this court should follow. So if this court believes, as Justice Gordon says that we need more facts to be able to raise a kind of proportion of penalty claims to show why my, why my client is like a juvenile, second stage proceedings will be due under house to be able to give the opportunity to develop those facts. Anything further this time you'll have a model. Well, you're on us and I ask you that you've versed the dismissal of my client's post conviction petition and remand for second and a third stage post conviction, pleading post conviction proceedings on each of the claims. Make your arms. Thank you. One. May I please the court? I'm Sue Wong here on behalf of the people in regards to petitioners claim regarding the ineffective assistance of council. When we talk about the prejudice pong, the strickland analysis, the mere availability of a lesser sentence is insufficient to make a substantial showing what actually needs to be made is a substantial showing of actual prejudice. And here, considering the totality of the evidence produced at trial, as well as the aggravating nature of the petitioners offenses and the evidence that child council actually presented in mitigation regarding petitioners long term drug abuse and alcohol abuse. The petitioner can't make a substantial showing of prejudice or actual prejudice accruing from council's failure to present cumulative information. For instance, the affidavit about petitioner occasionally abusing his girlfriend's prescription medication and that he was experiencing symptoms of withdrawal from cocaine and alcohol during the custodial interrogation. Didn't he say he was hungover? Yes. Your interpretation of the video is quite different from opposing council. Wouldn't you say? Yes. In that, with our interpretation... It's an argument that for most of the first few hours, there's really no indication that he was under the influence of alcohol or drugs or that he was drawn from some sort of substance abuse. Isn't that kind of what you say? And then at some point, he actually goes to the hospital, but it's unclear what medication was he going for. Right
. Now, petitioner himself is very clear in saying that to the officers, I'm not dope sick. Right. Multiple times. I'm simply hungover. Yeah. And our position is that cumulative evidence of physical withdrawal symptoms, as well as the post... The pre-sentence investigation report actually contains petitioner's self-reported history of long-term drug and alcohol abuse. And that also includes... That similarly reflected in the self-reported statement that he was under the influence at the time of the offenses. So... Well, is there any of the three... We really suggest that this 26-year-old adult should get the benefit of the Miller protections either under the eighth amendment or the proportion of penalties. I mean, we're focusing on the proportion of penalties clause, but is there any case law? There's.
.. The conscious burdens does not support, you know, the extension of Miller to someone who is 26 years old. And in fact, in Robinson, this court stated that a defendant who was 24 years old with the history of untreated mental illness was well past that range. And in that decision, actually, the issue was brought up before the trial court in the context of emotion to reconsider sentence. Is the testimony of a defendant at trial? Does that actually rebut this claim of long-term alcohol or cocaine or any other abuse? He testified before the jury, didn't he? Was there any evidence in the record that he suggested that night? He was even... He had to wear with all to... He had contact with multiple people and then he was given a gun that he was going to try to sell or he felt he was being forced to try to sell. But then he said that, you know, he kind of like thought that he was going to be shot at, so he kind of... Well, isn't that sort of a summary of what he said? Did he ever suggest that he was completely intoxicated or under the influence of cocaine or even... I have been there for months and that these actions were, you know, totally influenced by consumption of drugs or alcohol. There was no suggestion that there was... That there was no suggestion from the petitioner that what he was feeling and what he was in his testimony exhibiting in his behavior reflected the hallmark traits of youth, for example, impetuousness and inability to assess risk and consequence and things like that
. Well, was there any other evidence in the record from all these other eyewitnesses who were their friends of his, non-friends of his victims? Any other evidence is to suggest that when he actually pulled the trigger, if this was all a result of his long-term alcohol drug abuse. To my recollection, no. Okay, so is this record rebutting the claims now? Our position is that it rebutts the claim that petitioner was under... Because of his long-term alcohol and drug abuse that he was affected or it had... There was an effect on his development such that he had the mental capacity of... Of course, to prior felony convictions. I don't recall of... Was one of them involving an attempt armed robbery or an armed robbery? Actually, I don't remember. All right. And the question regarding the video, including during the questioning, was it when you actually taken out of the room because he had to be transported to the hospital? I think I'm both occasions the first, and second. Yes, he was taken out of the hospital. I wasn't even able to drop it. Was it also vomiting? Yes. And he was given medication. It was unclear exactly what medication. The most... I mean, I know it was the anti-noisier medication or for some other medication. There's really nothing in his ill pony, I could David, to explain what medication he was taking or癌. Is there? That's correct. And there are, for instance, no hospital treatment records or anything like that. There's no such thing as... Well, the next show was a little bit... Not doing a job. Does that make up both ways? Like the resort? Again, I can't speak to it to the extent that I'm speculating that there would be, you know, treatment records. At minimum, when you go to the emergency room or the hospital for, especially under, you know, escort from long forcemen. And then during the interrogation and the questioning, wasn't it also repeatedly asking to take a break? And in fact, was taking naps and sleeping for, you know, for period of time during the questioning? Yes, he was allowed time during that duration to rest and, you know... So, all that, you know, we're going to the hospital, vomiting, you know, being somewhat, with a hard difficulty, doesn't it also maybe call for a different interpretation in terms of looking at the video that maybe something else might have been going on? Even though he was denying that he wasn't dobsick, maybe in reality he was dobsick. But he did mention, if I recall, that he was hungover
. It was unclear exactly what medication. The most... I mean, I know it was the anti-noisier medication or for some other medication. There's really nothing in his ill pony, I could David, to explain what medication he was taking or癌. Is there? That's correct. And there are, for instance, no hospital treatment records or anything like that. There's no such thing as... Well, the next show was a little bit... Not doing a job. Does that make up both ways? Like the resort? Again, I can't speak to it to the extent that I'm speculating that there would be, you know, treatment records. At minimum, when you go to the emergency room or the hospital for, especially under, you know, escort from long forcemen. And then during the interrogation and the questioning, wasn't it also repeatedly asking to take a break? And in fact, was taking naps and sleeping for, you know, for period of time during the questioning? Yes, he was allowed time during that duration to rest and, you know... So, all that, you know, we're going to the hospital, vomiting, you know, being somewhat, with a hard difficulty, doesn't it also maybe call for a different interpretation in terms of looking at the video that maybe something else might have been going on? Even though he was denying that he wasn't dobsick, maybe in reality he was dobsick. But he did mention, if I recall, that he was hungover. And, you know, he was very clear at the same time that he was not dobsick. And the medication that, you know, we could only specically, as to what medication he was given when he went to the hospital. Based on the video, it appears as though he seemed better when he came back from the hospital after being given whatever medication was administered to him. Now, again, we're talking about, you know, the additional information that Paulson Council mentioned is in regards to, you know, pharmaceutical medication. But again, it's cumulative of petitioner's allegation that he has a long-term history of alcohol and drug abuse. Please just simply, Mrs. Just additional or cumulative information that he's abusing yet an additional substance. And in this particular instance, it was Sarah Quill and Rohipnall. You just follow up on just a small question with regards to this factor about the drug use, maybe creating a mindset in the defendant in terms of, you know, taking on back in time. There are no cases on point on that issue, correct? I don't know. No, thank you. So, now, in regards to the, you know, the first issue, you know, as Paulson Council's brief, you know, house and actually, Harris, they both involved in house the defendant is 19, and Harris, the defendant is 18, and in those circumstances, the record was not adequately developed in the trial court as to defendants, specific facts and circumstances. And by definition, and as applied constitutional challenge is dependent upon the facts. So by reason the party who's making that challenge bears the burden of presenting an adequate record. And here, the petitioner had that opportunity at the second stage of proceedings to develop that factual record. In fact, he gave specific facts and circumstances about his long term drug use and the trial court examined petitioners constitutional arguments in the context of the record that he submitted. And the record was actually adequate to allow the trial court to make a determination as to whether the petitioner made a substantial showing of a constitutional violation to warrant an evidentiary hearing. And because that, you know, we're at the second stage of proceedings here where that showing has to be made. And again, at the second stage, the court is looking at the legal sufficiency of the pleadings or the allegations. At sunset, the court said that based on the precinct investigation, the defendant had the capacity and ability of more than what he was doing at the time. But doesn't that kind of support the defendant's argument here is that counsel here did not present enough evidence to establish whether or not he was affected by a long term use of drugs? Well, because the use of drugs or drug addiction can be a double-edged sword, it can go either way. It's speculative that more of that type of allegedly mitigating evidence would take the scale to lead to a lighter sentence
. And, you know, he was very clear at the same time that he was not dobsick. And the medication that, you know, we could only specically, as to what medication he was given when he went to the hospital. Based on the video, it appears as though he seemed better when he came back from the hospital after being given whatever medication was administered to him. Now, again, we're talking about, you know, the additional information that Paulson Council mentioned is in regards to, you know, pharmaceutical medication. But again, it's cumulative of petitioner's allegation that he has a long-term history of alcohol and drug abuse. Please just simply, Mrs. Just additional or cumulative information that he's abusing yet an additional substance. And in this particular instance, it was Sarah Quill and Rohipnall. You just follow up on just a small question with regards to this factor about the drug use, maybe creating a mindset in the defendant in terms of, you know, taking on back in time. There are no cases on point on that issue, correct? I don't know. No, thank you. So, now, in regards to the, you know, the first issue, you know, as Paulson Council's brief, you know, house and actually, Harris, they both involved in house the defendant is 19, and Harris, the defendant is 18, and in those circumstances, the record was not adequately developed in the trial court as to defendants, specific facts and circumstances. And by definition, and as applied constitutional challenge is dependent upon the facts. So by reason the party who's making that challenge bears the burden of presenting an adequate record. And here, the petitioner had that opportunity at the second stage of proceedings to develop that factual record. In fact, he gave specific facts and circumstances about his long term drug use and the trial court examined petitioners constitutional arguments in the context of the record that he submitted. And the record was actually adequate to allow the trial court to make a determination as to whether the petitioner made a substantial showing of a constitutional violation to warrant an evidentiary hearing. And because that, you know, we're at the second stage of proceedings here where that showing has to be made. And again, at the second stage, the court is looking at the legal sufficiency of the pleadings or the allegations. At sunset, the court said that based on the precinct investigation, the defendant had the capacity and ability of more than what he was doing at the time. But doesn't that kind of support the defendant's argument here is that counsel here did not present enough evidence to establish whether or not he was affected by a long term use of drugs? Well, because the use of drugs or drug addiction can be a double-edged sword, it can go either way. It's speculative that more of that type of allegedly mitigating evidence would take the scale to lead to a lighter sentence. And in fact, there's a Supreme Court case, Glover, that talks about the reply brief that mentioned any sort of lesser sentence, however small, you know, would be an indication that regarding trial counsel's sufficient performance. But actually, Glover, when you read the opinion, it actually rejects the idea that when you look back in retro's fact, when a court looks retrospectively at counsel's performance, that the trial strategies in retro's that might be criticized for leading to a harsh sentence, that specific argument has been rejected. Because the mere availability or possibility of a lesser sentence, even if it's one day, is insufficient to make that substantial showing because what is required is a substantial showing of actual prejudice under Strickland. Anything further Mr. Walnut? No, that would be all. All right, thank you. Thank you. We'll hear you off. And we'll rebuttal from Mr. E. Sting. Mr. E. Sting, did the trial judge really ever reject the facts that were presented? In other words, although the court didn't find those facts aggravating, was there any suggestion that it disavowed the fact that your client had a history of alcohol and drug abuse since the time? You're on a court in fact treated as aggravating because counsel didn't bring in the science that would have given it the mitigating force. So you're saying he said that you don't back this up? Or did he say, as Justice Ray has just recently pointed out that he said that at the time that these offenses occurred, you had to wear it with all to know what you were doing. Yes, it's that, Your Honor. He treated it as if he was trying to argue some kind of volunteering and toxication defense and thus treat his aggravating and didn't look at what we now know about the compensation. Is it the record of the court of the whole conclusion by the trial judge based on the defendant's testimony and the testimony of all the other witnesses of trial that this really wasn't an alcohol or cocaine-induced homicide? Your Honor, I would submit all the evidence in trial and clues to my client statements that he was doing this because he was curving the rock and... He didn't say he was jumping because of alcohol or drugs. He said he was fearful
. And in fact, there's a Supreme Court case, Glover, that talks about the reply brief that mentioned any sort of lesser sentence, however small, you know, would be an indication that regarding trial counsel's sufficient performance. But actually, Glover, when you read the opinion, it actually rejects the idea that when you look back in retro's fact, when a court looks retrospectively at counsel's performance, that the trial strategies in retro's that might be criticized for leading to a harsh sentence, that specific argument has been rejected. Because the mere availability or possibility of a lesser sentence, even if it's one day, is insufficient to make that substantial showing because what is required is a substantial showing of actual prejudice under Strickland. Anything further Mr. Walnut? No, that would be all. All right, thank you. Thank you. We'll hear you off. And we'll rebuttal from Mr. E. Sting. Mr. E. Sting, did the trial judge really ever reject the facts that were presented? In other words, although the court didn't find those facts aggravating, was there any suggestion that it disavowed the fact that your client had a history of alcohol and drug abuse since the time? You're on a court in fact treated as aggravating because counsel didn't bring in the science that would have given it the mitigating force. So you're saying he said that you don't back this up? Or did he say, as Justice Ray has just recently pointed out that he said that at the time that these offenses occurred, you had to wear it with all to know what you were doing. Yes, it's that, Your Honor. He treated it as if he was trying to argue some kind of volunteering and toxication defense and thus treat his aggravating and didn't look at what we now know about the compensation. Is it the record of the court of the whole conclusion by the trial judge based on the defendant's testimony and the testimony of all the other witnesses of trial that this really wasn't an alcohol or cocaine-induced homicide? Your Honor, I would submit all the evidence in trial and clues to my client statements that he was doing this because he was curving the rock and... He didn't say he was jumping because of alcohol or drugs. He said he was fearful. Well, he thought he was going to be shot at, didn't he? That's true. It was partly that. The word comes up because it's first gestive by detective in that questioning. He ends up using it several times. There's also a curse shortly after he's using cocaine with his friend. That's the same. That's referred to in his testimony and the record. You know that volunteering and toxication does not exist today. That's correct. When we're arguing with volunteering and toxication, we're arguing that my client had this been correctly presented and would have one day less of a sentence. That is all we need to be able to show a six-menifilation. And the service that counts or does it? If all you're saying is that all you have to show is that the judge would give him one day less, why wouldn't that be available to every single defendant? Because any judge could change it from one day to the next. I mean, I sat and said this people, but someone could say that someone would have been more harsh than I was. Or they could have been more lenient, although that probably wouldn't be the case. Do you see what I'm saying? Your position is suggesting that one day is like... I mean, I don't understand the logic. And counsel doesn't agree with your interpretation. He says, Glover says exactly the contrary. You wonder when the US Supreme Court reversed the seventh circuit in Glover for saying that there's no diminimous prejudice. It definitely did hold that any time in prison it has six amendments and difficult purposes of prejudice
. Well, he thought he was going to be shot at, didn't he? That's true. It was partly that. The word comes up because it's first gestive by detective in that questioning. He ends up using it several times. There's also a curse shortly after he's using cocaine with his friend. That's the same. That's referred to in his testimony and the record. You know that volunteering and toxication does not exist today. That's correct. When we're arguing with volunteering and toxication, we're arguing that my client had this been correctly presented and would have one day less of a sentence. That is all we need to be able to show a six-menifilation. And the service that counts or does it? If all you're saying is that all you have to show is that the judge would give him one day less, why wouldn't that be available to every single defendant? Because any judge could change it from one day to the next. I mean, I sat and said this people, but someone could say that someone would have been more harsh than I was. Or they could have been more lenient, although that probably wouldn't be the case. Do you see what I'm saying? Your position is suggesting that one day is like... I mean, I don't understand the logic. And counsel doesn't agree with your interpretation. He says, Glover says exactly the contrary. You wonder when the US Supreme Court reversed the seventh circuit in Glover for saying that there's no diminimous prejudice. It definitely did hold that any time in prison it has six amendments and difficult purposes of prejudice. Until recently we used to argue fines and fees cases and occasion you'd see one of these five dollar fines go away on ineffective assistance. What do you support your position with? That here that you've shown that he could get one day less? What is it? This is the importance of the counsel's failure to investigate the science and that's clearly a shame. What a authority or support do you actually have that suggests that some other judge would have given one day less? Your Honor, I would say I believe there's three or four US Supreme Court decisions in there, including for example, CSB up to which the capital case that are reversed death sentence on a failure to investigate substance abuse. I'm just asking you, what reasoning do you have? What support do you have in your brief? Or the cases that says another judge would have given him one day less? Well, it's an objective judge, Your Honor. An objective judge. I mean, this judge never looked at because that would be the obligations under Illinois Sensing Statute and the Congressional Panelist's clause. What would you say would make that objective judge give him one day less? Because had the science been presented and links in all to all these traditional factors and mitigation. This is detailed in the briefs, such as the diminishing of impulse control, such as the susceptibility to peer pressure. And there's a long history going back to Robinson V. California and this is all detailed in the briefs. What are the six year old adult offenders? Any 26 year old adult defendant who can show my clients particular history. What cases are you suggesting we review for a 26 year old adult? In terms of ineffective assistance, most of the, almost all of those cases are going to involve adult defendants, often much older than my client, because they're capital cases that are being adjudicated by the Illinois Supreme Court and the US Supreme Court. So you can look at King, you can look at Rampal, Avibair, you can look at Strickland itself, you can look at Syros V. Optin. In terms of a house like argument, well, the Illinois Supreme Court says we just have to show that in circumstances are like that of a juvenile. So this court house was, it's been distinguished on multiple grounds. One of the more significant was the facts surrounding that the defendant wasn't actually at the scene of the shooting when two people were murdered. He wasn't physically present. That case has been distinguished multiple times because facts in house are pretty much unlike any of the other decisions that followed it. We heard that aren't you? That that was a 19 year old. He was a month past being 18. He wasn't actually present for the actual murders that occurred
. Until recently we used to argue fines and fees cases and occasion you'd see one of these five dollar fines go away on ineffective assistance. What do you support your position with? That here that you've shown that he could get one day less? What is it? This is the importance of the counsel's failure to investigate the science and that's clearly a shame. What a authority or support do you actually have that suggests that some other judge would have given one day less? Your Honor, I would say I believe there's three or four US Supreme Court decisions in there, including for example, CSB up to which the capital case that are reversed death sentence on a failure to investigate substance abuse. I'm just asking you, what reasoning do you have? What support do you have in your brief? Or the cases that says another judge would have given him one day less? Well, it's an objective judge, Your Honor. An objective judge. I mean, this judge never looked at because that would be the obligations under Illinois Sensing Statute and the Congressional Panelist's clause. What would you say would make that objective judge give him one day less? Because had the science been presented and links in all to all these traditional factors and mitigation. This is detailed in the briefs, such as the diminishing of impulse control, such as the susceptibility to peer pressure. And there's a long history going back to Robinson V. California and this is all detailed in the briefs. What are the six year old adult offenders? Any 26 year old adult defendant who can show my clients particular history. What cases are you suggesting we review for a 26 year old adult? In terms of ineffective assistance, most of the, almost all of those cases are going to involve adult defendants, often much older than my client, because they're capital cases that are being adjudicated by the Illinois Supreme Court and the US Supreme Court. So you can look at King, you can look at Rampal, Avibair, you can look at Strickland itself, you can look at Syros V. Optin. In terms of a house like argument, well, the Illinois Supreme Court says we just have to show that in circumstances are like that of a juvenile. So this court house was, it's been distinguished on multiple grounds. One of the more significant was the facts surrounding that the defendant wasn't actually at the scene of the shooting when two people were murdered. He wasn't physically present. That case has been distinguished multiple times because facts in house are pretty much unlike any of the other decisions that followed it. We heard that aren't you? That that was a 19 year old. He was a month past being 18. He wasn't actually present for the actual murders that occurred. The Supreme Court in house could have said we're going to draw a line at 19 and half for accountability. Instead, they said we're not going to draw lines at all. We're going to give each defendant the opportunity to show why his circumstances are like that of a juvenile. And we present science at the state. Your name is Thompson and remind me of the other cases. It's also as far as I've been asked to do in those decisions that any adult person could raise the same kind of bill or claim. They indicate that line drawing is arbitrary. If they, you know, those are decisions that came with people under control. Give us the language. Give us the language in here. You're on the house talks about how the voting science of juvenile, juvenile, the brain development applies to a young adult deferred. A zoom out which followed Harris talks about whether something would exhibit the characteristics of a juvenile. Now, in all these cases, they could have said and there's a decision that I do this. Every word that I'm going to draw the line. Don't they show you? Not to juveniles in young adults. Yes, and my client is 26 as a young adult. There's no line. There's been lots of opportunities for Illinois's three court to say where we are going to go back to. Illinois, left Swinger, who, which has been developing the case law, after house, that they've suggested that 25 year olds are young adults, or have they actually told us what they think that a young adult is someone under 21. And here this is going to get to a rather subtle point, which is there's parallel legislation that talks about 21. There's cases like a savage, which was a confluence of youth and substance abuse of 22 and there's Clark at 24. That is, if you've got any categorical approach and we're looking at what the evolving standards of decency, something eighth amendment like for the proportion penalty clause, then we really be relying on the consequences of what the legislature said
. The Supreme Court in house could have said we're going to draw a line at 19 and half for accountability. Instead, they said we're not going to draw lines at all. We're going to give each defendant the opportunity to show why his circumstances are like that of a juvenile. And we present science at the state. Your name is Thompson and remind me of the other cases. It's also as far as I've been asked to do in those decisions that any adult person could raise the same kind of bill or claim. They indicate that line drawing is arbitrary. If they, you know, those are decisions that came with people under control. Give us the language. Give us the language in here. You're on the house talks about how the voting science of juvenile, juvenile, the brain development applies to a young adult deferred. A zoom out which followed Harris talks about whether something would exhibit the characteristics of a juvenile. Now, in all these cases, they could have said and there's a decision that I do this. Every word that I'm going to draw the line. Don't they show you? Not to juveniles in young adults. Yes, and my client is 26 as a young adult. There's no line. There's been lots of opportunities for Illinois's three court to say where we are going to go back to. Illinois, left Swinger, who, which has been developing the case law, after house, that they've suggested that 25 year olds are young adults, or have they actually told us what they think that a young adult is someone under 21. And here this is going to get to a rather subtle point, which is there's parallel legislation that talks about 21. There's cases like a savage, which was a confluence of youth and substance abuse of 22 and there's Clark at 24. That is, if you've got any categorical approach and we're looking at what the evolving standards of decency, something eighth amendment like for the proportion penalty clause, then we really be relying on the consequences of what the legislature said. But that's not Illinois Supreme Court has done. It hasn't said we're going to draw the line of 21 or rely on just the sphere of the legislature. Instead, it's looking to whether a defendant has circumstances like those of a juvenile. And that's a fact bound question that isn't so we said by what the defendant's birth status. But those savage, you mean didn't savage also indicate that the defendant here might have been more susceptible to peer pressure. We don't have that here in this case. I would submit that this record, especially when we look at that video, certainly shows an offense that's the consequence of peer pressure. Whether you've known my clients testimony or the video confession talks about how Donald Icemer-Cotto has voted him into the shooting. Now, Mark Otto denies being accountable for a shooting now when he takes the stand for the state. But it's pretty clear that at least that's my clients belief is that he was susceptible to it. And that's very sturdy also talks about how this kind of chronic alcohol use starting as a juvenile makes one susceptible to peer pressure. So there is evidence in the petition that has never been brought out and should have been brought out at the original sentencing as to why my client would be more susceptible to peer pressure. I think for here I've got a couple of questions. Yes, just for me. The first question is, you would like us to write that when a person is under the influence of alcohol and drugs that's a mitigating factor. Is that what you want us to write? I would like you to follow the central opinion side in the media. No, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no The Times, when I get a lack of impulse control, things like that, but I'm more important here is drug use creates the prospect of rehabilitation, you know, my client has advanced since he was this twenty six year old. He recently got a master's degree and He's loved the opportunity to bring in all that rehabilitative evidence to show that he's overcome that drug use that's why it's not like intellectual disability it's not like a permanent feature it has the prospect of rehabilitation, and my client deserves the opportunity to prove that he has But you have no case law in this country really that shows that that's a mitigating factor. It could be an aggravating factor. Sometimes it's mitigating, sometimes it's aggravating. It's up to the council to muster the signs of facts. Okay, so there's no case law that shows that that's a mitigating factor
. But that's not Illinois Supreme Court has done. It hasn't said we're going to draw the line of 21 or rely on just the sphere of the legislature. Instead, it's looking to whether a defendant has circumstances like those of a juvenile. And that's a fact bound question that isn't so we said by what the defendant's birth status. But those savage, you mean didn't savage also indicate that the defendant here might have been more susceptible to peer pressure. We don't have that here in this case. I would submit that this record, especially when we look at that video, certainly shows an offense that's the consequence of peer pressure. Whether you've known my clients testimony or the video confession talks about how Donald Icemer-Cotto has voted him into the shooting. Now, Mark Otto denies being accountable for a shooting now when he takes the stand for the state. But it's pretty clear that at least that's my clients belief is that he was susceptible to it. And that's very sturdy also talks about how this kind of chronic alcohol use starting as a juvenile makes one susceptible to peer pressure. So there is evidence in the petition that has never been brought out and should have been brought out at the original sentencing as to why my client would be more susceptible to peer pressure. I think for here I've got a couple of questions. Yes, just for me. The first question is, you would like us to write that when a person is under the influence of alcohol and drugs that's a mitigating factor. Is that what you want us to write? I would like you to follow the central opinion side in the media. No, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no The Times, when I get a lack of impulse control, things like that, but I'm more important here is drug use creates the prospect of rehabilitation, you know, my client has advanced since he was this twenty six year old. He recently got a master's degree and He's loved the opportunity to bring in all that rehabilitative evidence to show that he's overcome that drug use that's why it's not like intellectual disability it's not like a permanent feature it has the prospect of rehabilitation, and my client deserves the opportunity to prove that he has But you have no case law in this country really that shows that that's a mitigating factor. It could be an aggravating factor. Sometimes it's mitigating, sometimes it's aggravating. It's up to the council to muster the signs of facts. Okay, so there's no case law that shows that that's a mitigating factor. Oh, case law that shows that this case would be any different. Here's a guy who maliciously goes and kills somebody. He shoots an unarmed man. He always has drugs and he's an alcohol. And he'll be on drugs in alcohol his whole life. He's not on drugs in alcohol today, you're on it. Maybe he shouldn't have gone up and he showed up because he's in a rehabilitation. And if he could get it, he could. And I would say that's not an accurate characterization of my client today, Justice Court. Okay, well, maybe that may be not. And I don't see any authority where you take somebody who is, you know, over the age of 25 years old and try to create him to be a minor. But you've been out. You're on a, so far the case has gone up to 24. We think we can show that she's like a juvenile. What case has gone up to 24? There's a little stick on one of 12 that's now in the Illinois Supreme Court. The average was 22. What's the case that's the 24 year old in the Illinois Supreme Court? Yeah, I apologize. I believe it's a concurrence or a dissent that took the position. Let me ask you about this question. What were his two prior family convictions? There was a case in Vienna, I believe, of a 10-darm robbery or honor. And she'll note that. So didn't the court take that into account that this person had two previous felonies and can one of them at least when he was past the age of 17, if I'm not mistaken? Yeah, but the one is in the delp, because it came up as a possible robbery and feature
. Oh, case law that shows that this case would be any different. Here's a guy who maliciously goes and kills somebody. He shoots an unarmed man. He always has drugs and he's an alcohol. And he'll be on drugs in alcohol his whole life. He's not on drugs in alcohol today, you're on it. Maybe he shouldn't have gone up and he showed up because he's in a rehabilitation. And if he could get it, he could. And I would say that's not an accurate characterization of my client today, Justice Court. Okay, well, maybe that may be not. And I don't see any authority where you take somebody who is, you know, over the age of 25 years old and try to create him to be a minor. But you've been out. You're on a, so far the case has gone up to 24. We think we can show that she's like a juvenile. What case has gone up to 24? There's a little stick on one of 12 that's now in the Illinois Supreme Court. The average was 22. What's the case that's the 24 year old in the Illinois Supreme Court? Yeah, I apologize. I believe it's a concurrence or a dissent that took the position. Let me ask you about this question. What were his two prior family convictions? There was a case in Vienna, I believe, of a 10-darm robbery or honor. And she'll note that. So didn't the court take that into account that this person had two previous felonies and can one of them at least when he was past the age of 17, if I'm not mistaken? Yeah, but the one is in the delp, because it came up as a possible robbery and feature. The court did take that into consideration. But we're talking about the difference between, you know, a 45-minute mom to a natural life and he has a de facto natural life term. There isn't maybe that the problem here instead of what you're arguing. This is just another life sentence. Yes, it is an effective life sentence. Is there a problem with the fact that life sentences are dulled out rather routinely? Because of the legislature's decision that the minimum and maximum for murder, 20 to 60, if you use a handgun, there's a mandatory add-on of 25. So that's what the legislature has determined. Of course, we follow that. But 45, you know, is 45. Yeah. I mean, a picture of the sentencing is really kind of like a life sentence, no matter how you slice it, isn't it? I mean, if you're 20 years old and you get 45, you know, you're 65. A lot of people, they're health-imprisoned, they're your rights. Of course, a lot of people's health-imprisoned, they're your rights. It's outtime prison, but my point is, it's a baby that the issue here is addressing the legislature's mandatory sentencing. Because even with the minimum, 20 and a handgun, you're doing 45. Yeah, and I acknowledge my client here is asking for a chance to show he should get out at younger than the 101 or 102. That there is a meaningful difference between 65 and 102 year-honor. And even if we only have that opportunity, I would welcome the chance to be able to show that for my client. All right. Thank you for these things. Thank you. Anything further, by an end? Good
. And we thank you for your arguments today. And I think we have to take a recess before we start the next case. So, part of the recess