to see with your argument the attorney should be advised we have read the briefs so you might get to your most important are you good you keep your voice he was released after serving out his sentence in two thousand and eight since that time he has been working full time at a barber shop and hopes one day get a license and own his own shop the only thing standing in the way of his remit this conviction ke absolutely innocent of this crime there wasn't any physical evidence linking him to the shooting it was based soley on former detective michael mcdermott's fabricated testimony about his confession and jean colors perjured testimony that keith was in the your honor we believe that we've presented significant new evidence to undercut mcdermott's testimony at the motion to suppress and the trial that mr mitchell voluntarily orally confessed to this murder  now as we set forth in our petition those allegations include an admission by mcdermott himself that john burgess recent federal prosecution that he has lied about his police misconduct it also includes a complaint made to the office of the of professional standards then office of professional standards that was in fact sustained by the office by joseph carroll another fifteen year old whose grandfather was present at the police station and kept out of the interrogation room it also includes a finding by the special process here in two thousand and six that mcdermott should be should have been prosecuted for obstruction of justice and perjury for abusing the suspects and lying out it that certain misconduct that was done by the the detective in this case and he just sort of i know you read the brief but just to get to tie in why i think mcdermott's testimony is relevant to this case and why i think it proves that his course of conduct in this type of case was in fact to keep guardians of parents out of the interrogation room and then lie about it at a hearing it's because it in this case the evidence keith's confession was very circus that was it was very for lack of a better word it raises a lot of questions first of all his mother he went to the police station with his mother his mother was kept out of room and so this is a lie i'll call the police station said i'm coming down don't talk to my client she spoke to the police and then when she got there the fully in fact we're interrogating ke this well cording to the tax if he testify that he wanted to confess but he didn't want his mother in the interrogation room now keith said that he never in fact said that and taking it back to your earlier question why is this evidence of  misconduct relevant does it mean that he's always a liar what it means is in august of one thousand nine hundred two we have a fifteen year old boy the proud criminal history unsophisticated about the law his mother is removed from the interrogation room  understanding she's walking her she wants out she says i'm going to go call i'm going to call a lawyer she gets a page from her brother saying you know all the lawyer she cut she tries to get back into the interrogation room and her testimony is that the officer tells her she's she's  speak that's that's correct i mean certainly the officers can't be in two different places at once but we're we're arguing that they've they're acting together together in tandem and this is i would argue that the new there was allegedly a youth officer president if you look at the time of you know  that the youth officer came after he was already being interrogated by the state's attorney and by the detectives and therefore i would argue that well you've officer may have been present at some point during his that the that's correct your honor and these officer himself made no reports no notes and therefore there's no way to there's no documentation of his presence other than we know that according to the rest report is called at three fifteen am detective mcdermott did testified at that time with an air but if you look at the surrounding documentation regarding the confession it's highly suspect i mean you have allegedly according to the state a fifteen year old boy confessing to murder and aggravated battery of multiple people now they just had to broken take some notes of this purported confession he never shows them to keith he never has them sign them but the state's attorney who is in the interrogation room with mr mitchell who allegedly also witnesses this oral confession she takes no notes she makes no contemporaneous report and in fact when she testifies that the motion to surprise and that the subsequent trials she testifies from a report that somebody else made that he wasn't even in the interrogation room so there isn't any real contemporaneous documentation of this alleged or a confession it's never shows up on the arrest report even though it others in addition to that did you have a dense that we have regarding this alleged confession which obviously formed the basis for mr mitchell's conviction there's also a new witness that we've discovered his name is joseph to bat and this is perhaps the most compelling evidence of peace in a sense now at the time of the shooting trip that was a forty three year old former grocery clerk he is an unbiased witness he has no horse in the race and in fact his reports and pretrial discovery from a jail so he only received the report in two thousand and one year before that time he was entitled to rely on his attorney to do his job and certainly if you have a client you saying i didn't do it and you have the name of somebody in the police report was saying i saw the shooting and i can identify at least one of the offenders and you know it's not key and you would expect your attorney to have done his due diligence and gone in this point he's incarcerated and he did his very level bast to try to locate my search for bad as soon as he located him in two thousand and six he took his affidavit and we began representing him we took a subsequent  affidavit largely stating the same things but just updating it further so it was closer in time to the date that we found the amended petition and presented that evidence to the court and i think you know that the state obviously argues to the contrary but i think that this is cases just like people vs washington he only learned about this exonerating information regarding for a bat in two thousand one when he got a copy of police police reports and he was as diligent as you can possibly be when you're incarcerated and i've represented and trying to locate mr chairman i'll say it's difficult enough for us with i think diversity of chicago to try to track down these witnesses with the tools that we have and th student assistance that we get it's one hundred times more difficult for somebody who's incarcerated so just like the defendant and people versus washington he only learned of the exonerating information at a certain once t fact gave him his affidavit and then he presented it immediately to the court so i believe that this evidence that target has provided is ill considered new evidence it's obviously extremely material to this case this likewise recanted and so if to present a witness who can say i saw the shooting actually my brother in law got shot during the shooting but i'm still at it so i i don't have any like i said no forced in the race and i can tell you the offenders are and i know it's not keith because i know what he looks like so i know him from the neighborhood i think that would have been sufficient evidence to overturn i think mr mitchell would surely have received a different result retrial or he able to present that evidence to the court or to the jury and the state i'd takes issue with mr betts affidavit and they nitpick about there's not sufficient detail or it somehow inconsistent with the police reports but those are issues that can be resolved as an evidentiary hearing i mean there's nothing at this stage that would require this court not to accept the well played out the allegations in his affidavit mr betts affidavit he saw the shooting and identify the offenders and one hundred percent knows that it's not heath mitchell in addition to joseph for bat we've presented that as i was saying earlier the affidavit of jean color now presented in his direct appeals by all the reason why being we believe that this court of the lower courts can revisit that issue is because of the new evidence we first entered of police misconduct that wasn't available at that time and that we believe people versus canon allows us to bring to court because at the end of the day this was really a question of credibility it was just the court believe he's his mother and his attorney for during a lie all or does the court believe detective wel prosecutor's report that report singled out detective mcdermott among a handful of detectives to say this gentleman had the statute of limitations not expired should have been prosecuted for battery there would be maybe other evidence corroborating his allegations and in fact there was and the courts have said that that's sufficient and people view various this court said it was it he doesn't have to go and interview every person in the area to  find out who else was coerced but there's evidence even though it predated his arrest and his trial is still new evidence because it's not objective really reasonable to expect his attorney to have gone out and and essentially interviewed everyone who filed a motion to suppress to see if they were making the same kinds of allegations and i just wanted to quote from the special prosecutor's report and this is that sub c seven sixty nine  lawyer present we not is one of the specific allegations that mr mitchell is making and the same is true for with regard to the allegation that mitchell's peace mother was kept out of the interrogation pro number of complaints but this was one of them and certainly had either the trial judge or the jury heard about joseph carroll that would have undercut detective mcdermott's credibility it would have gone to his course of talks about the fact that you only need one relevant case that can be enough for one one other similar allegation can be sufficient to warrant revisiting this issue and it can be enough to show fact that mcdermott himself has admitted under oath in a federal trial that he has lied about his police misconduct and he said you know what i did it so i didn't want to get a murder off i did it because i thought the ends justify the means so position i don't think that there's any dispute at this point given how weak the evidence of the confession was to begin with and then we add in these additional allegations that corroborate mr mitchell so he's no longer standing as a lone w he has proof to show when i spoke out in one nine hundred ninety two i wasn't making this up i have to be this is the course of conduct and people versus canon talks about the ways in which this type of evidence can be used to impeach credibility to show a course of conduct of these officers and that's exactly what we've argued here and i believe would happen at it at a evidentiary hearing with the states if true either to the state the state's attorney arrest report either honor he was present he is the only one who has any documentation whatsoever of this alleged confession or contemporaneous documentation let me put it that way he he takes notes of this confession those notes are never shown to keith he never signed off on it and the jury really grapple with what to do with this confession we know that the jury sent two notes in the first trial asking for detective wilkens notes and they called it defendant alleged confession alleged was the jury's word and they also asked for sharon jefferson who was the state's attorney's writings in whatever form regarding this confession there was a chair and the state's attorney had died no memorialization whatsoever and in fact the only report review report was written by someone else and that came out through the motion just to suppress and at the trial mr mitchell did testify that a youth officer came at some point after he was being interrogated by the state's attorney and decide we don't dispute that he used officer was there at some point at that night just not what at the critical juncture and certainly did not provide meaningful assistance there's an individual who could identify at least one of the offenders and you don't do anything to speak to that individual you don't try to present that evidence at trial that is ineffective assistance of the most extraordinary kind of and this was an extremely close investigate at all whether mr chavez has exonerating information which we now know he has possibly the most compelling evidence you but that somebody else committed the crime and so we believe that the trial now defendant doesn't like the procedural rules but they were created by the legislature in illinois supreme court for recent cases just like this one where we're now on defendants third post conviction petition there were multiple other petitions and twenty years after the fact we're reevaluating whether the defendant made a voluntary confession even though that question was addressed at a suppression hearing at trial i direct appeal and then the  dispute that your honor his confession quest confession is the highest form of evidence when this voluntary as it was here and it happened to be corroborated by other witnesses he had to know the details of what kind but there's never been any evidence that it was involuntary look at defendant's testimony if you doubt that we've heard a lot this morning about what other happened in happen in other cases but we really didn't hear much about what happened in this case and i had didn't hear his mother didn't testify that was abuse of any sort miss lyall didn't testify there was abuse of any sort so let's take the focus on what happened with carolyn picks and all the others and look at the facts of this case and i believe it's been properly found in the past that there was no evidence no evidence of coercion whatsoever this man was listed in pretrial discovery there's no doubt about it he was interviewed at the scene his interview was documented it was available to defense counsel for all we know defense counsel read the report now the court pointed out that were if they are right and they're at page two ninety four and they're at page two hundred forty five and both of the police want reports say the same thing he was walking with a seventy eight hundred block of ls and he heard gunshots so he turned to being made his way back to the shooting scene he didn't he didn't say back then that he saw the shooter all he told police was he saw a male subject in an order found check it running from the location he would be able to identify the subject but there is no evidence that this man was one of the shooters and if any can change i mean mr beck and change a story all these years later but on the day when this happened that's what he told police he didn't see the suit he was an eye witness he was walking away from that he saw somebody running from the scene but that's off he saw so of course neither party called him because he didn't have anything valuable to offer and now defend mentioned the washington case which involved a defendant who heard learned while he was in jail the somebody had exculpatory evidence this case is different because in this case the defendant had researched no truth that was out there he had every reason to know there and he might say well my differ my to my attorney didn't contact him but the record is silent and what defense counsel did there is no indication of what kind of investigation defense counsel defense counsel didn't contact him but that doesn't mean the defense counsel didn't do an investigation he could have seen either one of these police reports he could have talked to the police obviously under strickland it's a matter of strategy he made a strategic choice and defend of the fact that it was a gang member the state presented witnesses on to back to testify to that defendant denied it on cross examination and then the state introduced this rebuttal evidence without it you still have defendant's confession it recantation is evidence of actual innocence only where the defendant did not have any other evidence that the time of trial to rebut certainly that certainly defendant must have had someone else who could have said who could have denied that he was a gang member so innocence i just wanted to point out two things about in the nature of defendant's confession which we talked about a little bit earlier in the course of these proceedings over these past years the following has been  no your honor i don't you testified to trial he was cross examined the defendant had every opportunity to test his credibility and that was not impeached so no your honor no more than any other witness who's called on behalf of the state or on behalf of the defendant a conflict they have different stories that's all they have different accounts but no there was no conflict  it was further stablish than either defendant norris mother told the detectives that he was getting an attorney and defendant admitted at trial that he never told the youth officer the state's attorney and his mother was getting attorney finally a spender stablish over the course of these proceedings defendant never said he didn't want to talk to the police beats implied that he's the one who committed the murder and there is no evidence that is so defendant has said in his opening brief and in his reply brief or imply at least that he lied that he took a polygraph it wasn't true polygraph the same court goes on to say he was reinterviewed it was time he said he knew who killed the victim at this meeting he learned there was going to be a mission the seventy ninth and alice both kiki and that's the defendant and ty stuff agreed to go jermaine stated they needed a three eighty auto and a nine millimeter tack finally jermaine stated that he later learned the following meeting that kiki and of in fact sheet the victim so that's the rest of the story of th report and some are your honour's the defendant relies on a lot of reports that were available back in one thousand nine hundred eight when defendant filed his first folks conviction petition he needs to show a nexus a definite nexus a specific nexus between those report and this case in order to prove his point that they have any merit the only supreme court said in patterson in orange that generalized allegations of coercion do not here because there was no air arguing lack of practice but nonetheless i think the court should know that the court illinois supreme court has drawn the distinction between claims that involve physical coercion and claims that involve that don't involve physical coercion this is such a claim and that claims that involve physical question are considered structural error so in this case you have a claim that even if it was error and we don't say that it was it wouldn't even be structural so i just wanted to let the court know what the illinois supreme court's latest ruling on that issue was you do we can sue your argument that we need to take into consideration with this young man fifteen years old he was almost sixteen your honor oh fifty six he's a young man he was a young man and the new song says in that he wanted to confess with the more record that you have his mother pr conviction that's not a problem obviously in this case if a court were to find that mr mitchell's confession were coerced or that it needed to be revisited or that it shouldn't be introduced at a trial certainly there would be no evidence whatsoever of his guilt i don't even think there would be sufficient evidence to indict him on this case so the humblest error analysis is a red herring this case what race does it say and i think what's wrong it for purposes of this case is that a defendant is entitled to say i didn't confess and at the same time to say my confession was coerced and the allegations of other defendants who are alleging that they were coerced into confessing are still relevant and can still be brought up and introduced at a motion to suppress or at trial but just because a defendant is saying ultimately at the end of the day i never said any of these things that the detectives are saying i said doesn't foreclose him from raising allegations that other individuals have alleged that they were coerced the state takes the position that there was no that's correct your honor and mr mitchell has never allege that there was physical coercion in this case he was a fifteen year old boy with no criminal unsophisticated lack of criminal experience i don't think the cops thought that they needed to use physical coercion but just because there isn't physical coercion doesn't mean that the allegations that he's raised are somehow generalized these aren't generalized allegations what he's alleges this mother was kept out of the interrogation room just i would agree i don't think that the issue is just because he's standing there i mean we have a legend who doesn't come in time anyways but just because he's standing there doesn't mean that his presence somehow makes his assistance meaningful and in his testimony at trial he actually concedes that he never asked whether he wanted his mother present everybody knew that she was still at the police station and i think the people versus make danielle is the home ok's in looking at this i mean it's incredulous to believe that a fifteen year would somehow say i want to confess to you but i don't want my mother present she's at the end she's in the she's still in the police station she's calling an attorney but somehow she doesn't want to get back into the interrogation room i find that face those are suspects and i will grant that the appellate court has accepted that this confession was voluntarily given but the current court didn't have the benefit that we have now of new allegations of misconduct by these officers and you know i focused a lot counsel sort of is a bit flippant about them but when you're a fifteen year old boy and you're getting accused of murder i think that police officers telling you you better taaffe popping their knuckles may confess i think that those are pretty dramatic  and courses of techniques to use and i don't think the fact that they weren't physical somehow takes them out of the line of case law that talks about other allegations of misconduct when you can because we have to take each each defendant as they come in their allegations as they come and certainly we have created a sufficient nexus in our briefs and hopefully an argument today to tie in each of those allegations to either new evidence of police misconduct by these detectives that we presented now i want to take moving along to jose that he didn't tell the police that he saw anything and that now that is somehow for some reason changing his story twenty twenty years later joseph bad has nothing to gain right by coming forward like i said his brother in law was one of the shooting victims he's now in his sixty's he's he's not somebody on the streets that keith really knew he just happens to be a grocery clerk in the neighborhood so he recognized he from coming into the store and those there are several police reports and in those police reports you know that this court can look at them and read them but those police reports they weren't there and they're police summaries of what mr  said they're not actually anything that sure bet has ever signed on to and what he has said unequivocally in these post conviction proceedings is that he saw the he saw the shooting and he can identify the offenders now if at an evidentiary hearing counsel wants to bring up the police reports when we call mr back to the stand and impeach him she certainly has every right to do that and it will be up to the trial court to determine mr betts credibility in light of alleged previous statements that he has made to the police but at this stage of the proceedings and remember we're still at the second stage of proceedings all well pled allegations are to be taken as true that aren't contradicted by the trial record now mr never testified at trial we can all agree on he returned to the corner because his brother in law was on the corner and he had learned that his brother in law had been shot when asked about possible offenders mr chavez related that when he heard the shots and turned he observed a male black running south running from the scene and described the subject as wearing an orange brown jacket and related that he was sure he could identify the subject to see it again that's what's in the supplemental police report that sets up c two forty five d about what he said he says that he told them he could identify if anders at the very least i think there's no dispute that he could die but i don't think you can be impeached and you could at the very least identify one of the offenders even putting the two together and crediting this police report now going to the ineffective assistance of counsel claim i mean obviously counsel the state wants to try to have it both ways it's not new but it off the campy ineffective assistance of counsel because it was a strategic decision made by defense counsel not to present evidence of this witness because this witness had nothing to add now the state can't create an argument or strategy for an attorney and it's true that we don't have an affidavit from  trial attorney that's not required and will always cited people versus ramirez from that we do have mr true back who said i lived at the same place as address the that was reported in the police reports nobody came to talk to me and we know that  is other than knowing him from the neighborhood he's an older gentleman now who was a former grocery clerk like i said and so i think his credibility would have been very strong in a trial particularly with evidence as we as in this case difference between the true trials was in fact hell are we can get picked away at this witness testified and this was assessed by it but in terms of inculpatory evidence that was actually presented at these two trials jean color is the difference and there's a that's materially different particularly when it's corroborated by other evidence now counsels talks about i think she's reading a quote from people versus barnes later but it can't be new evidence because he knew at the time that exactly the case here he knew that color was perjuring himself he tried to do what he could to rebut that at trial by testifying that he was not in the vice lords and obviously the jury believed jean keller and and found him guilty and the last thing that i will say is even if color on his own standing on his own isn't enough isn't sufficient on its own to be supported actual innocence claim in people versus ortiz the court explains that when you're an valuating actual innocence right you have new material non cumulative and would probably change the result of a retrial that last factor probably would change the result of retrial requires a court to look at all of the evidence that is now before the court that's both inculpatory evidence at trial and new evidence that has been presented whether that new evidence forms the basis of the actual innocence claim or it's simply new evidence that's been presented in the petition as a whole that dispute it's your main bates was a this is significant and i like the alternative offender he had a motive for the shooting his mom had been robbed at gunpoint the night before by the shooting victim he admitted to handling the murder weapons he admitted he's the reason why the cops go and find look for key he's the one that says oh yeah it was keith who did it and he says in his affidavit that i only said that because they were saying they were going to charge me with a murder i'm trying to get them off my back so i throw the