good morning you may please the court counsel allan human spent thirteen years in prison for a murder he manifestly did not that this court should reverse the circuit court because mr be deserves the opportunity to go to trial against the detectives who further his wrongful conviction and prosecution through their misconduct a reasonable juror could find that these men doctored time trials going fast when that hurt allen going slow when that hurt out that they concealed exculpatory time trial from the jury and in a police report that they lied to the grand jury about critical evidence about the time of the murder that made it impossible for alan beeman to get in there and that they suppressed the polygraph report that includes pated john murray the steroids crazed drug dealer  about his alibi lied about his sexual relationship with the victim beat women and was told drug money by the victim herself to take it the federal terminations point is relatively straightforward since mr beeman received both a certificate of innocence and a gubernatorial pardon specifically on the basis of innocence i won't spend a lot of time on that unless there are specific questions because it's clear enough and i'll address the other problems starting with probable cause now there are a lot of facts and a lot of disputed facts in inferences to weigh your honour's but it boils down to four points that are sufficient for reversal on the probable cause point first then the supreme court not only threw out the conviction but described the evidence in four words this evidence is tenuous repeated that characterization of the evidence tenuous three times in the opinion in describing the evidence but where in that's a totally different standard using the word tenuous to reverse is a lot different than using that word to describe the probable cause if that were a specific issue i think that of course these are different standards probable cause and reasonable doubt but tenuous is a characterization we assert that means tenuous it was an accident that they used it and dictionary definitions of that term include thin weak and unsubstantial and even one of the defendant mid after the case had been sent to the state for prosecution the case was quote not ready to be sent to a state that's is clear as one gets in a case like this from or the death of this involved someone different why doesn't that support the notion that and we understand about immunity that it was the  if you know the police are sitting and and as i understand it correct me if i'm wrong all those things that you were asserting any of the things that you would assert are known you can write first of all that that's not correct suit did not receive the murray polygraph report and that report the illinois supreme court unanimously any help that that piece of evidence that there was a genuine issue of material fact as to whether that piece of evidence was material under great material of course meaning that it could have changed the outcome of trial and so not all of the evidence was know to the to the prosecutors but more but an additional point in response to this question is that police can turn away from the probable cause point for a moment because i think your question just particularly where the evidence of misconduct is so strong in fact one area where the parties seem to agree is that there are disputed issues of fact as to the intentional misconduct question defendants didn't even respond to our argument the freespire intentionally omitted exculpatory time trial from his report that he withheld that information from the jury that he lied to the grand jury about the time of that evidence and they doctored time trials defendants just say on page thirty two of their grief that they dispute any misconduct ok so they dispute it so that means friess meyer can go to the jury and you can say that it was an intentional or accidental  influence the prosecutor's decision to indict so given that statement of what appear that the court must walk not only have the actions of the officers but the effect of those actions had on the prosecutor's decision to indict the court went on for a while officer willing ams allegedly all statement constitutes supposed to arrest action there is no evidence that it implements the prosecutor's decision officer's actions had either on the decision to indict or reliance by the the prosecutor in his decision if they are the is the state of the law that he did and the court also looked at the fabiano case where a number of prosecutors submitted affidavits say we conducted an independent analysis of the ad as we were not influenced by a position to fairly analyze the evidence i mean is there any doubt bed if the defendants here had gone to the prosecutor and said look there's a stronger suspect here we've got the wrong guy it's john  if they had said book that alibi is impossible here there's no way he could have done it he's clearly home at two fifteen and he's clearly home at ten thirty seven and ten thirty nine on top of that he knew that david seaman had told the police that he heard someone going down the stairs at two o'clock even as long as apartments a very small building for apartments she's right across you can hear what's going hears door open and close at two o'clock and hear someone go down the stairs is there really any doubt that if the detectives had gone to the prosecutors to point this is impossible there's no way this person could have done it or whether it was the evidence whether well or whether it was the alibi evidence whether it was the stronger evidence against john kerry instead of doing that at point after point the defendant's trans modified the evidence of innocence into evidence of guilt there is a mysterious disappearance of the murray polygraph and that howard vs city of chicago decision the northern district tell that altering expel the tory information or suppressing expel the jury information in an investigative he was intentionally avoiding the task there's also on top of that there is the doctoring of the time trials going fast when back her talent and going slow went back to the jury no no officer so that's good that he went ten miles over the speed limit order to make one of the time trial work they may have don't that but what they did not know and this is a critical point is that  from the home at ten thirty seven and thirty nine question is can you make it in home from the bank in time to make those all and he does not tell the jury about the fact that he conducted a time trial using a route that showed mr beeman had plenty of time to make it all and to make those calls that is also what he omits from is police report one treated the information that carol the men provide carol and the significance of that was that carole even was showing that she could it have made it home to make those ten thirty seven in ten thirty nine all why because she had a log from her mother's nursing home showing that she was first there and then that she was at the wal mart across the street which she documented with receipts showing her check out the wal mart was rude literally across the allen's youth pastor then through ten miles back all the way across to go to the wal mart that was directly across the street from where she was before that it's not this sort of investigation of the sort of theory that one advances if one is playing it straight and from all of that evidence of jaundice and misconduct a juror who readily infer both malice as well as conduct that contributed to the o'neill where the court wrote liability stands to all persons who played a significant role in causing the prosecution of the plaintiff provided all of the elements of the other elements of the toward our our t is it a no there is no evidence that say yes attempted to do anything to stop you there is evidence that daniels expressed reservation  investigators he can do not a substantial freeze mark but still substantial i think that's an accurate characterization yes turning back to beat a probable cause point a council before you leave that some evidence of the effect that that had on the prosecutor's decision or reliance on the part of the prosecutor on that investigative misconduct i believe that the answer that question case that said that is the standard i think we need it for all of the reasons that i sat in the back to defeat investigators played it straight not give the murray polygraph not and gone into the prosecutor and said look this isn't possible here all the reasons it's impossible here is a much stronger suspect i think we wouldn't be here today i don't think mr spent thirteen years in prison let me touch very briefly on the problem we are entitled to all inferences to be drawn in our favor that's regardless of whether one calls it or makes questions or a question of fact there is a bit of disputed facts in inferences on probable cause to consider and to weigh and the supreme court almost all of the evidence is based upon mr bemis supreme court looked at all of that evidence and it said on page three of the decision the titian are considered the relationship to be over as of july twenty fifth one thousand nine hundred sure there was this stale vote of evidence before that point july twenty fifth said for example swain he calmed down and was over it that it's a record seven for nine when he was no longer angry about anything that's a record eight seven four zero the evidence was so much stronger of cause as a matter of law i contrast that with this case where there is not a shred of probative physical evidence where there is not a shred of i with testimony there is evidence that is more than sufficient to go through a grand to go  is pursuing here is a brand new malicious prosecution type of cause of action and we i think we've heard it right from counsel's lips here in court they are pursuing a cause of action and the police have to go to the prosecutor after the prosecutors made an independent terminations and tell them this is impossible you shouldn't be prosecuting this yes now if they abstained some evidence that made that clear that's has to be presented to the prosecutors well if the prosecutor wants their opinion they have to they should give that as well but in this case the prosecutor had all the information all the evidence a prosecutor was involved in the investigation from the beginning the prosecutor deposition i've seen the papabile graph since then to me it's meaningless and it could be construed as meaningless and it's not my memory was a secret to them to suit and the prosecutors they knew all about john they were prosecuting his cases involving the domestic violence and drug delivery charges they they had him on their witness list they knew all about john murray they interviewed john murray in preparation for the trial and decided not to call him because he was a material witness he was one of the witnesses who was in the in the home of jennifer locke miller when demon knocked down one of the doors knocked on the door one time so the prosecution all about john marie they did a living could i ask you then of question that i asked mr shapiro in order to survive summary judgment in this case must play at the head of presented evidence of the prosecutors bearing on his decision prosecutors have right that's correct ok mr suit ahead prosecutorial immunity is that right that's correct where is the incentive on of mr suit's part to indicate that he would have made a different decision had he known of the investigative misconduct if he's any knives well i think that we can we can have some faith watts of cases in which prosecutors have come forward and said and i had this particular piece of evidence i would have looked at this whole thing differently despite their their immunity one of the things that that  see every explain in any detail why he thought that one was a better suspect in the other he did he went into it in great detail office he felt murray had no motive at all and i don't know the extent to which the court would be would would want to put itself in a situation where it's going to second guess these dollars there was no history of any violence or contentiousness between them they were friends does a prosecutor half the belief that a twenty dollars debt between two people who are friends and have a sexual relationship is sufficient motive to murder somebody as opposed to mr beeman who was passionately in love with with jennifer at all as all the evidence show had been violent in her direction by knocking down her door twice and there was a lot of different evidence from some of the people who knew both of them about jennifer's fear of him about threats that he may now it's coming in through jennifer comments to a friend to them but this is all information that's relevant to a determination as to whether you want to go forward with the prosecution did mr soup indicate it is a deposition when he expressed misconduct yes the only one which he did not know about which i addressed was the polygraph ok but at the time of his deposition he knew about that you know  that in mind he expressed of the of the thought that it would not have swayed his decision yes and you know let's look at the items of alleged misconduct they say that  live the grand jury question will put a very smart was there anybody in the building provides you with any information that you found to be relevant to the time of death both soup and freeze meyer and other detectives looked at comments his statements and they thought that he wasn't sure about that day they had interviewed other people and they had been did a lot of investigation as to when the time of death would have occurred and they narrowed it down between twelve and two based on her school schedule and based on other people who were coming to see her that day and singly said i may have heard something after two o'clock but he wasn't sure that it was the correct day and so know about that singley also made some statements about hearing the air conditioner going off and on over the days after she was dead but before her or her body was found they entered investigated that and they found that it had some type of mechanism in it that would go to go on and off from plaintiff's mother and mother came up with that with narrowed the window that that they were working with the bridge and they were working with the oh a window of ten o'clock in the morning or about ten o'clock in the morning to three thirty which is which were based on statements only after he was indicted plaintiff's mother came up with evidence that she came home at two o'clock and he was and that so supes sent freespire out test that let's see if that's if it's does that destroy the alibi or i mean does that confirm the alibi or there's that is are still a hole in the alibi based on that freespire went out and tested it now he testified at the grand jury about the time trial him at trial based on the grand jury testimony based on his report based on everything else they know they could have questioned him about the bypass right it wasn't didn't from soup now they're saying freeze my relied on the witness stand because he didn't bring up affirmatively bring up the bypass route of my experience and trials witnesses answer the questions that they're asked soup didn't ask him about the bike and neither did siemens attorney on cross examination ask him about the bypass route so are they trying to impose some duty on a police officer to stand up in the middle of a trial and say wait a minute wait a minute nobody asked me about this other bypass route that i also tested i don't know that it they certainly meant because they talked about the concept of a conspiracy and that was their whole theory ins in federal court was that there was this conspiracy between the prosecutors and the police and the seventh circuit said there's case that relate to the reversal were the prosecutions states they didn't turn over the brady material they add it they didn't turn it over soup explained that his deposition i didn't turn over because i didn't think it was brady material i didn't think it was material to the lawsuit i head murray was to me murray's only involvement in this case of any interest was that he was a witness to be even having broken down the door once i didn't see him as a viable suspect so i didn't turn over his materials now that doesn't apply to the polygraph i have a serious question about whether the supreme court would have reversed this case if it was just the polygraph issue but we can only speculate cases is there any helpful law relating to the amounts or continued wrong relative to the prosecutor's knowledge of the coercive interrogation and whether or not  the prosecutor explicitly relied on the results of those interrogations in order of for plaintiff to succeed in the malicious prosecution klein yes there are a number of cases and we've dealt with them in our brief where detectives and investigators have been named as defendants in malicious prosecution case every single one of those cases involve an allegation of the creation of evidence that wouldn't have existed if it had not we know clearly none of the case case here in those cases some courts have said that prosecutors have no prosecutor is going to say yeah i would have i would have prosecuted him anyway even if i knew that his confession was false and querulous so it's a given in those cases that that the the actions of the police have had a proximate cause on the prosecutor decision that is the element that is missing here that is different from every other case that they cite and yes there have been wrongful conviction cases that were police in fall we're all familiar with chicago in the torture cases horrible things none of that's here none of that but this is a classic murder investigation the police conduct the one month investigation they have if they narrow it down to a suspect that they think is  and they present that to the prosecutor and the prosecutor says ok we've got enough we're going to go forward i don't believe any case has ever put a duty on an investigator like they want to impose on sayas to say wait a minute and if you read his deposition it's it's his memories is really poor however he never says there was no problem because he seemed to believe based on his memory that the prosecution decision hadn't been made yet by the time he retired but it happened it was made in may of one nine hundred ninety four he retired in november of one thousand nine hundred four and in fact there's a photograph of the press conference in which the indictment is where the arrest has believed that they had gotten to the prosecution point by the time that he retired they actually had but he did offer and u k doubt as to the long haul well he said it was more work to do more work yeah of all these investigators from all over the country a list of follow up investigation that should be done so when they had this meeting in may which freespire was present zionists police chief tony daniels and sue can and they talked about the evidence they laid out the evidence daniel said wait a minute i've got this list of things that i came back from florida with i think we should follow this up before we make a decision souk said this comes from daniel snow who is not a party and has been a proponent of the men's innocence for a while daniel says no suit turned to me and said i don't think we need to do that we've got enough we've got our guy we're going for that's as classic a piece of evidence as you can get or as convincing piece of evidence as you can get that the prosecutors made the decision this is this is a case what they're arguing for is a new cause of action that i think would be well into the court would be of a leap from the current state of the law the supreme court has said many times that malicious prosecution is a disfavor cause of action and that has to mean something that has to mean that the courts should be careful about doing anything that  inaction if there's going to be any significant expansion which is what they're asking for actually they're asking for a radical expansion of what malicious prosecution the supreme court has to it or the legislature has it but but the supreme court has been effect and this all goes back to what's been recognized as a problem of wrongful convictions that is not the purpose of our malicious prosecution because of the action there is a whole body of federal constitutional law that that covers police misconduct and the impact that it has on society in general and the impact it has on arrestees that's where that litigation takes place and really interesting really just recently the united states supreme court in manual versus city of joliet expanded the fourth amendments reach to even past indictment decisions so  if there's going to be an expansion in or or any alteration in the law based on principles that could be deterrents that has to come from other sources not from from  court i would i by i'm getting to the end i would clarify that what we've been saying the law is on commencement is is accurate this is a classic case where the prosecutor made the decision the prosecutor has the immunity and the police don't so the prosecution makes the decisions about what takes place a grand jury prosecution makes a decision about whether this case should come forward or not and to hold the police responsible for that when the prosecutor knew rogers there is absolutely no federal recourse available to mr beeman for malicious prosecution that's another tragedy of this case vission to the fact that mr bemis spent thirteen years in prison fission to the fact that the sho investigation that resulted in the perpetrators still wandering the streets today the reason there is no federal recourse for mr emmett is that he fell into an unfortunate gap in  the law where when we brought the case in federal court there was no malicious prosecution or that could be raised as a constitutional claim because of by the seventh circuit law recently i believe it was last month in the manual  city of jolly at pace that mr d c i you mentioned the supreme court threw out the seven circuit rule and says now there is a fourth amendment claim for malicious prosecution in federal court that's great for people who are victims of malicious prosecution going forward it does not it's good for future hypothetical mr bean and it does not do any good bringing any accountability to this situation or any recourse to the real an actual mr beeman as for the argument about you know is there over firemen of of influence on the prosecutor or overbearing influence the answer is no in the fabiano case the police took the statement police report of the statements of the children to the prosecutors many of the prosecutors affirmatively claimed in davis the idea that there was any influence over them or that they didn't do anything other than conduct their full and independent receiving the information about a potential drug dealer in parchman complex he relays that information to someone he's trying to special agent special agent presents to the grand jury there's no suggestion of some kind of undue influence over the of the tort are met and the defendants want to minimize the impact of the john murray polygraph report and suggest that it would not have had an influence on the prosecution look at what the illinois supreme court sat the supreme court unanimously said that that piece of evidence showed that murray was intentionally avoiding the task and look at what judge mcdade said that that that a jury could find that that piece of evidence was tiriel meaning that we could have freespire police report it's a remarkably detailed report with information like what he did with the cats in the victim's apartment while they were processing the scene but it does not contain the time trial that showed allen pieman had an ironclad alibi yes i think you're contradicting him after making a determination i understood what was in counsel to say that he did testify about the time trial that is not referenced in the or that he did testify about that you were the grand jury before the grand jury yes before the jury no and this isn't and it was in response to a direct question about the whether he that is omitted from the police report and that's going to addition to the fact that freespire testifies before the grand jury has spoken to david saying that i don't know where mr d c on he's getting this idea that mr simply wasn't sure about hearing footsteps going down the apartment at two o'clock the police asked him about that once they came back they asked him back again said the exact same thing both times sure of it her door open and close footsteps going down at two o'clock making it impossible for mr be