and final case on the call for today tuesday september eleventh two thousand and twelve was agenda number five his number one one two four six seven people versus rivera counsel for the  your honor may please the court peter fisherman system state attorney on behalf of the people we're here today your honors because the appellate court found that the admission into evidence of several statements made by the defendant two in particular by lee did rule for zero two and even though the defendant did not object to trial even though it's not part of the post from motion that this admission and evidence was playing air under the second prong of the plane or rule this case beers striking resemblance to both thompson and glass where this court decided in the last several years deleting what is necessary for a second prong  that case it was the violation of what's called as their rule which is on pretrial questioning of all of our dear that rule at least there is ten general relationship to a constitutional issue which would be the selection of a fair trial the rule at issue in this case does not even bear that relationship the real issue in this case is generally a policy driven rule therefore the rationale and judgment and holding in the two cases of glass fred thompson should apply even more strongly in this case than it did in those cases and effectively forecloses the option of second prong player in this case even more fundamentally though there was error in this case rule four zero two is the rule by its very language and very purpose which should relate only to post charging situations the rule voluntary determining a factual basis for the plea every one of those sections and every subsection within that section relates purely to things happening in court in front of a judge in a form proceeding after the defendant has been charged it is only when we get to section d well no actually it's actually it's x section f because the d n a you're also the transcript section of the plea discussion section are also completely related to court so when we get to section f which is entitle plead to scotland's plea agreements pleas of guilty inadmissible under certain circumstances the language reads if a plea discussion does not result in a plea of guilty or if a plea of guilty is not accepted it was withdrawn or of judgment a play is guilty reversed blah  blah blah that evidence shall not be admissible against the defendant in a criminal proceeding under the normal rules of statutory construction and that's how we look at rules as well the term plea discussion has to be taken in context with everything else has preceded it everything else in this rule deals with things that happened in court not with things that happened in a police station so there's no reason to look at the term plead discussion absent a courtroom setting so there was no error here for them or that the purpose of the world of the extensible purpose of the rule is to promote please don't go she says plea discussions from out the free flow of guilty pleas and plea discussions are the way a lot of a large percentage of the cases in our system are disposed but nothing that happens in the police station is a nothing that can happen in the police station is a plea negotiation no matter what happens no matter what the sides think they're agreeing to in the police station you still have to go to court and you still have to follow all the rules of forro to everything that happened the police station can be thrown if the defendant agrees to a specific amount of years if the defendant agrees to plead guilty that doesn't matter because you still have to go to court and handle the case according to rule four zero two and the fact is as a practical matter the defendants aren't interested in pleading in court in the police station and the police and state's attorney certainly are interested in getting a plea they both know the police know the state's attorneys know that there's nothing that they can do in the station that will ensure a guilty pl a maybe get able to get a confession from the defendant get admission from the defendant but that's not a guilty plea certainly half the parties in this negotiation are not considering this as a police situation the what was happening in this particular case in this case what happened was the defendant had been in custody and after the custody had continued for several hours he had made several statements exculpatory statements had made no admissions and he turns to the police officer and in of his own volition and his own without prompting or anything by police officer he turns and says if i get some guarantees that i won't go to jail i first wants a glass of water but i also want some guarantees that i won't go to jail  you know what can you do for me and the police officer says nothing nothing we're not talking about that now at that particular point the defendant's attorney happens to show up in the station and those discussions are stopped the defen attorney asserts the defendant's rights the senate reason also searches rights remain silent there's a later re initiation and at that re initiation the state's attorney is there and the defendant again says if they can guarantee me something along the lines of probation or that i won't go to jail i'd like to tell you what i did i'd like to confess i think it is i don't know that it should be but i think it is under the under friedman case there's a two step analysis as to whether or not he had the subjective belief that he was in plea negotiations and whether those objects of the reason why i'm arguing that in a sense the treatment was wrongly decided in so far as it would apply to pre indictment are pretty charging situations friedman itself dealt with the post charging situation but i'm saying that the rationale should never have been extended into the police station so it is relevant along those lines under your freedmen decision i'm saying it shouldn't be relevant because what was going on was not a fully discussion and these situations do not lead to guilty pleas there that wall that comes down once you go to court you get an attorney and you have a judge there and you get all sorts of more discussions and what happens in the police station i've never seen a case where it translates into a guilty plea the only the only way this might become relevant is if you have some sort of a reliance situation in which the defendant makes a statement based on a promise or an implied promise by the police that will give you x if you do  right in fact they stop talking there's no there's no further statements other than those two things the statements that were used to trial were i'll confess if you give me probation or i'll confess i'll tell you what i did if you give me something less than jail time so that the follow up that happened in some of your other cases hill in those other cases that never happened here we stopped at that point it was what there was the one case where a former judge or so was in the police station and there's a discussion about making a making a deal he was the state's  y of course at the time and then he says well you know we can talk a deal and then the defendant make some statements after the statement we can talk a deal well that would be an analogy if in this case after the defendant said i wanted to  you know i'd like to or the idea of not going to jail if then some statements were introduced but you don't need rule four zero two to get there you can either and now analyze this and then straight you know fourth and fifth amendment terms of whether or not this was  a voluntary statement or whether a statement had been induced or you get the contract principles which some cases eventually got into which it says if you give up something and we make for specific performance on the state which raises other issues about whether you you know if he's about how you could even force that you know it's important also really at the time they were talking to him they had no idea what they were eventually going to charge him with this man ended up charged with forty five different things over the course because it because of the abuse of the two young girls that took place over a long time and none of those charges had been settled on at all it at this point so i don't know what he would be thinking he would be pleading guilty to so in the context of this case if you are still to hold that this rule applies in the pretty charging situation i would say that even under the freedom analysis that his his belief was not reasonable in the circumstances of what he was facing and he knew that that they were investigating a series of serious crimes and that his job his belief was not objectionably reasonable that he was actually negotiating a plea at that time and the police obviously didn't think that they were negotiating plea and they and as i said the defendant himself bought all this on himself so our bottom line is essentially that this is not playing error because plain error under the second prong cannot apply to a situation that is even less egregious than the glass for thompson situation and even if it did apply here this isn't even error because this rule should not be applied in this context in a pretty charging situation and for the reasons i've go back to the appellate court for resolution of those issues this case it i'm sorry they state your name for the record i'm sorry for the record donna foley on behalf of the defendant your honor so in this case a jury was selected they come back into the  court room and the state opens with the amazing information that defendant at the police station try to broker at the and if that's not enough then the state proceeds told them there he would confess to if he were given probation he wanted guarantees and it's not just one sentence but they they go on at some length in the colloquy is in the is in the briefs about how the defining kept asking for guarantees and then if this isn't enough the state's attorney in opening closing perseids to comment on how the defendant wanted here and tease to confess and then again in make that involuntary it's a perfectly voluntary statement but as friedman and and other cases that point out that doesn't make any difference does it make any difference at all and the appellate couper in this case the lower court but i want some guarantees i want probation and the court noted it if defendant had just said he would confess or defendant had not sad let's put it this way had not was the prosecutor who was in charge of the case they actually wanted to circumvent in fact the proceedings ok let's send it but i want probation and i'll tell you what the defendants saw a prosecutor in front of he knows at least he's not an attorney but a prosecutor is somebody who is going to be prosecuting it's and in fact there are cases which say that it doesn't even have to be a prosecutor it can just be a an officer but in this case we have even more we have him speaking to a prosecutor it's  unreasonable to impose an additional burden on of the friend that he would have he would know that in fact if i start cleaning goshi a chanst here that that doesn't really have any impact for a post charging situation the circumstances are that the defendant has not been charged right and apparently no one was exhibiting any interest in the go shooting any sort of deal with wright are those the circumstances were aren't circumstances it is according to friedman and a host of other cases absolutely that is reasonable under the totality of circumstances for the defendant and the point if i may the point is with the intent behind the for o to have protections it's not it isn't fair to have to assess and say guarding a barrier because the prejudicial impact it's so devastating to a fair trial that the failure to carry is not one which prevents this issue from being brought  and the fact is that since since the issue since the point of the devastating impact is so fundamental here it's so important that it isn't reasonable to say somehow that a plea discussion that starts at the police station is any less devastating and it sent back then one that which happens further in the in the persecuting it's this  safeguard the right to a fair trial isn't is also one which it's intending to safeguard and the state's argument their class for in time since  somehow is a stronger are the man who are a supreme court ruled and then the case you have before the court doesn't really hold true because the is devastating evidence that comes in that no jury can and ignore and there being the case i mean it's like the horse is already out of a burn so it doesn't matter questioning doesn't necessarily mean that you will end up with a biased jury where as a violation of federal to have you as all the cases say you will have a devastatingly  prejudicial impact on the jury  see the other thing i would ask the court to consider is that under rule six fifteen which protects the defendants where there's been a there has not been an defendant has a right to appear before a jury and be judged based on reasonable appropriate evidence and not evidence that was presented here and finally or honors there was a cross appeal and the issue i raised was the court had this miss the attorney of attempted multiple times to have the attorney readmitted for trial this was counsel of choice that was retained counsel and the court denied those attempts and in  that it wasn't up to there there was always a possibility of some scenario out there they had would support in an argument that there was actual or a serious potential of like and in this case the defendant had only argued at the evidentiary hearing that he had asserted his rights in fact if a court looks at the testimony that occurred during the trial there really was no significant difference at all as terms of what everybody testified to and the defendant's attorney l automatically excluded is is simply not clear they're reviewing court can look at the record and there really is no reasonable point that the defense counsel  say that well he would might have seen something at the police station that would make it unfair for the state that would mean that any time defense counsel goes to a police station even if he doesn't end up testifying and in a  would not give leave for disqualification no not a trial because there was nothing that he could testify to a trial there there was nothing and to simply say well there might be something out there where it's not up to us to try to figure out all the he had an obligation to have another attorney come in at the motion to suppress but that is where that obligation ended he had no obligation and defend it states that in it actual or serious potential of a complex but i did not find one specifically on the point of if there's nothing else thank you i'll start where you were counsel left off that rule three point seven which was in effect at the time of trial in two thousand and eight starts out a lawyer shall not accept or continue employment or in contemplated or pending litigation if the lawyer knows or reasonably should know that the lawyer may be called as a witness on behalf of the client that's directly affable here it always was applicable from the beginning of this case the state's attorney was fully aware that clancy was at the station and would be filing motion to suppress kept telling the judge and telling the counsel there's a conflict here finally turning clancy did file a motion to suppress he's listed in every substantive paragraph of that motion suppress it's obvious he was going to be the witness and in fact he was the witness so instead of withdrawing as he should have done the court was forced to disqualify him on the people's motion the  appellant the defendant in this case did not object in the appellate court in fact agreed that that wasn't a reasonable and proper thing for the trial court to disqualify counsel so now we have a situation where we're properly disqualified counsel who wants back on the case and in answer to justice freeman's question i have found no cases either where this particular scenario is arisen there's nothing in the rule contemplating getting back onto a case the record indicates that mr gaga stood up and said i've been on this case for quite a while i thought i'd filed an appearance already and he filed one that day but he indicated that he worked in the same building or office clancy and then he had been on this case for quite a while i don't know what quite a while means but it indicated that he was familiar with the case and he jumped right in any handled the motion to suppress perfectly adequately which indicates that he in fact had been on the case for a while just finished  happened the truck so we have to take that out of our mind what actually happened at trial and not put in scenarios so under us versus we have to give the trial judge a lot of deference as to what might take place now we know in fact that the attorney was present when the defendant was in police custody did speak with his client and in fact we know think if the defendant had taken the stand and said that he was beaten or something along those lines mr clancy might be a witness if the defendant had the defendant tells clancy at the station that i've made no statements to the police he tells them well that wasn't true he had made statements to the police he had made a confession to the police but he had made statements simply made extensive statements to police some of which came up later on when he you know he testified trial so there are things that clancy conceivably could have talked about and we have to give discretion to the trial judge again us as we've had a lot of really good language about the fact that we have to look at this prospectively as the judge looked at it he already had an attorney who had just testified in front of about the circumstances of the statement in the police station and it was it was it was there are serious potential that that could arise again a trial sure there was now it didn't so so any lawyer who goes to the police station and the police station is in a conflict and cannot represent a client from you receive as a potential you risk that in fact that's one of the reasons when you know states attorneys go to go to the police station and talk to defendants and things like that that they don't try the cases later turning back to the to the for the first issue the statements here were admissions and counsel argues that they have done a devastating impact these these admissions well you know confessions always have a devastating impact admissions very often have devastating impact we don't determine whether something is missable or not as to whether it's has a devastating impact of course this could have a devastating impact but it's only relevant if it violated some rule or constitutional prohibition and again this particular rule is a policy based rule it's not a constitutionally based rule and therefore it deserves less protection then at least then arguably the rule involved in class for and thompson had and this court was very clear that those cases did not involve structural error and therefore the that there was no second problem plainer you can't argue six fifteen and get in through the back door what time thompson and last for a full or close for the front door it's the same it's the same argument you can't you can't get there that way  interesting thing is that it comes also argues that the defend it was dealing with a prosecutor and should have known and or had reason to know that there was a pleading of yours in the first time there was no prosecutor was just the police in the room so even if the second one had been improper which we argued wasn't it would be cumulative of a properly introduced first statement if that was the determining factor the presence or non presence of a prosecuting attorney and i decided in their reply brief a federal district court case that points out the history the federal rules in this area the federal rules changed in this area after illinois adopted the rule because the federals were coming into situations like this and were not comfortable the federal courts were not comfortable plying this rule to station house situations and in fact remove those station house situations of levy and pointed out that cases in which defendants offer two to confess in exchange for something or are looking for some sort of a deal that is an admission that is an important thing this court's already recognize that these types of statements are admissible as admissions and because they reflect consciousness of guilt because innocent people just don't all of a sudden offered to confess for no reason and or and you know they don't offer to confess as part of the deal it's just not one innocent people normally do and this court has already accepted that rationale so for the reasons stated in our brief and in arguments here today once again we've asked this court reversed the judgment of the appellate court and remain the case back to the appellate court for resolution of those remaining issues thank you thank you counsel his number one one two four six seven people versus jose rivera we take another visors agenda number five concludes our call of the oral argument docket for today september eleventh two thousand and twelve mr marshall only supreme court stands adjourned until tomorrow morning september twelfth two thousand and twelve nine thirty a