is appealing from the denial of his petition for post conviction relief your honors i know you're familiar with the record in this case i'm not going to launch into a detailed recitation of all the facts of this case but what i would like to say at the outset is based on a review of the evidence in this case the trial evidence and the post conviction evidence it's plain as day that allen beeman is an innocent man that he did not commit the murder that's the subject of this case and in fact he was in rockford at the time of the crime and all that week doing the activities that he normally did at that time in his life i'm not here to argue the sufficiency of the evidence of course but i do note that the legal principles that are the subject of this case and the legal rules that have been announced by the supreme court in strickland and brady and nape you all designed to guard against conviction of at is you're as you know reversed and remanded for a new trial that's true your honor however the direct appeal of course only took into account the trial evidence and not the new evidence that was offered  post conviction hearing but yes we're not here asking for an outright before so it is critical though to look at this case in the context of the weakness of the state's case and the strong evidence of innocence because in a case such as that any trial error in any deficiencies of counsel are much more likely to undermine confidence in the jury's verdict alan beeman was convicted of this murder because his trial attorney failed to do what any reasonable attorney would have done under the circumstances to bring forward critical evidence regarding the timelines of allonby man and his mother carol beeman and those timelines in turn could have demonstrated not just a reasonable doubt of guilt but his actual innocence before the jury and there are at least five instances of deficient performance that i'd like to discuss this morning but before i go there i just want to mention in case i run out of time this morning that there are additional reasons that alan beeman was convicted in this case one of which was that the trial prosecutor allowed his witness to mislead the jury on a critical question of fact and in addition the jury was deprived of the opportunity to hear about another suspect in the case a suspect who did not have an alibi for the case for the time of the murder and whom an experienced detective of the normal police department to this day feels is still a viable suspect and i didn't want to not mention those issues a case had the defense persuaded the jury that allen beeman and not his mother carole beeman had made two phone calls from the beeman home on the morning of the murder the calls were placed at ten thirty seven and ten thirty nine am and nobody can seriously contend that if allen beamin made those calls he could not have been normal at noon and committed the murder  the only other person that morning he testify that he spoke to the mother in the afternoon and that was the three o'clock phone call from olsen to the beam and house in the morning there are actually three phone calls in the morning there was a phone call from the church to the beam and home at ten twenty two and from all the evidence at trial it's clear that that was mitch also i'm calling the beeman home to remind allen beeman about a rehearsal they had that evening and then at ten thirty seven there was a call from the beam and home to the church which is where allan being worked and after that at ten thirty nine there there was another call from the beam and home to mitchell since home so clearly whoever was somebody was trying to return mitchell's homes call and try to first the church and parent he wasn't there nobody remembers talking to anybody that morning and then they try to at home so there was not any testimony from except for that one that's correct and it's it's everybody's assumption that mitch olsen didn't reach anybody at ten twenty two us a message and somebody from the beeman home we contend of course it was alan tried to get  back he wasn't at the church and that's why the follow up phone call to the bema i mean choosing to them to olsen home would have been made if that was a one minute call so clearly there was no conversation then and further mitchelson testified that then was the home had an answering machine there's no no no be collected the message is certainly likely that whoever return the message and we say it was alan just erase the message upon returning it but yes the beeman home had an answering machine the church had a receptionist this was back in the days when people actually took messages on pieces of paper and i don't think there's anything in the record about what whether or not mitchel answering machine at his home this leads into one of the respects in which councils performance was clearly deficient and that is that mitchelson was a witness at trial  testified as a prosecution witness and also as a defense reputation witness but defense counsel did not a listen from him some critical facts that would have been quite persuasive on the question of who made the calls alan or carolyn again there's no dispute it was one of the other of them nobody else what mitchelson said at the post conviction hearing that's extremely relevant here is that he explained why he as to caribbean and he said he had no relationship to her other than that she was the parent of one of his students alan had been you know his student in high school he said carroll beeman had never ever called him and further he said that it was extremely unusual for any parent of a kid in the church the column in his home he said the parents respected the same to t of his home and the only reason a parent would call him at home was if there if someone was in trouble and he only remembered a couple times if that had ever happened in his employment at the church where a parent called him at home so this evidence would have been critical in persuading the jury that of course it was alan who were turned the halls and it would have prevented the prosecutor from arguing as he did that will gee this is the kind of call a mom would have made the mom would have wanted to impress with he wasn't really a youth pastor but would have wanted to impress mr olson that was a supposition by the prosecutor but the actual evidence had been presented would have been persuasive that of course and when the man made these  the state's position at trial was that allen beeman was not in a position to make the calls because at ten eleven that morning he was videotaped leaving the bank in rockford where he had made a transaction no there's no dispute about that and it was the prosecution's position that he did not have time to get home from the bank at ten eleven to make the calls at ten thirty seven twenty six minutes later twenty six minutes and in support of that proposition the prosecution offered the testimony of normal police detective timothy freeze myre who said he had timed the dry he timed it at the speed limit he time to drive to see if it was possible for alan beeman to make it home to make the calls and detect a freeze mark told the jury that the drive took thirty one minutes so that if allan beeman had left the bank at ten eleven he would have arrived home at ten forty two obviously that would have been too late to make the calls from bloomington normal but he said he chose that route because it was the most direct route in terms of miles exactly he hit also when nobody put that in the record your honor that was detected freeze my art in the granger proceedings told the grand jury that he had tested what he knew to be the quicker route which was we call the bypass route more miles but discovery it's not clear to me that he remembered it at the time of trial but it was it was offered in discovery he had it so he had in front of him detective freeze meyer the same officer who was up there saying takes thirty one minutes he had reason why are having timed it bank to be in house in twenty five minutes and he said to the grand jury well then if you left at ten eleven he would have gotten home at ten thirty six which of course it would have been made perfect sense that the first thing he did when he got home before he went to sleep after working all night was return the phone call and then go to sleep he at he did not and he only evidence other than detective freeze myers thirty one minute time trial that was before the jury was testimony from allen beeman and he was asked well how long does it take you to get home from the bank and he said well it takes roughly a half an hour it's i mean it just seems almost too obvious to argue that of course a defense attorney having evidence of a time trial by the police detective who's on the other side of the case from him would use that rather than asking his client who's been vilified by the prosecutor throughout the trial and obviously is on trial for his liberty well about how long does it take will it takes about a half an hour or a related deficiency in counsel's performance is that he didn't want some time trials now the times were critical of this case and five minutes here and five minutes there could make or break a timeline for either side so of course any competent attorney is go run their own time trials and compare him to what the other side has done and in this case it was especially imperative that the defense do that because detective free smart in this instance did his time trials a posted speed limit now as two other time trials such as between rockford and normal he did them both at the posted speed limit and above the speed limit is in those situations it was to the interest of the prosecution to show that alan could have gotten there faster as fast as possible with seventy every seventy miles every seventy five miles per hour average and those were the times that were the basis for the prosecution's alan beam and timeline which by the way left absolutely no wiggle room it is dependent on high speed trip both ways no stops no bathroom breaks no filling up the gas tank but  yes it was the same officer did all the time trials  well it was it was important to have a realistic view of how long it would take to get from one place to another and i'm actually not sure why he timed all these drives at the posted speed limit maybe he wanted to be conservative the purpose of driving at a faster rate of speed at the flow of traffic is to get an idea of how long really takes someone to get from one point to another but he didn't do that with the bank to beam in drive time so it's like one to com prosecutors theory and remains as far as i understand the theory of the state in this appeal and the prosecution took the view that the state of the crime scene suggested that this is what they told the jury suggested that the victim jennifer la miller had come in thrown down her bags and turned on her favorite soap opera which started at noon and everyone knew she liked that soap opera and they argue that it didn't seem like anything else much would happen in the apartment other than that they had what they argued to the jury i think it's evident that that was in part a theory of convenience because they needed to get out in order for al possibly be guilty of this case they need to get him out of the apartment by twelve fifteen in order for him to travel back at seventy five miles per hour and get home before his mom got home at two fifteen there was evidence though and this is very compelling he lived in the second floor apartment across the hall from jennifer lock miller and he testified at trial that he came home from his class at approximately one forty five that afternoon and then when he came in the door at street level he heard jennifer lock miller's door open and close he didn't see anybody he went upstairs to his apartment across the hall he went inside and closed the door he was changing to get ready to go to the pool and he testified that while he was in there he again heard the door open and close and then you heard somebody go downstairs and leave the building and that's sometime between one forty five and two pm and so the defense argued at trial that the morrow or whenever the murderer got there and all except that the state's theory that the murder got there at noon but the murder was still there at one forty five and two and i think that was a very compelling theory based on the testimony of this very impressive witness he was a marine by the time he testified at trial and he had given to the defense i mean the overall defense was that alan bean was in rock for and there were a couple of ways that the defense endeavored to establish this one was that there had not been enough of a change in the odometer reading on allen's car to account for a round trip to normal that week the odometer had been looked at two separate times about a week apart so that was one aspect of the defense not enough of a change on the odometer reading and the defense knew that the state had had an expert that was going to come in and say well maybe the odometer was tampered with and that also the state was going to take issue with the defense calculations of how many miles allen beeman had driven and rochefort that w but a different aspect of the case that the defense was trying to establish was that at that precise time of the murder allen beeman was in rockford and that's what this timeline evidence goes to and  as i said besides not using the drive to detect a freeze myre had given it or had testified to in the grand jury defense attorney didn't do his own drive time when we did them at the flow of traffic we got twenty two minute drive times from the bank to the beeman home using the fast route the bypass route we had two time trials going through downtown and i and but those again those time trials were at the flow of traffic with the flow of traffic and one of those came out of twenty six minutes so had the defense attorney had his investigator who was driving around rockford anyway doing all these routes and checking mileage he just had is investigator time these wrote he could have presented the jury with evidence that clearly if allen took the bypass route which was the sensible route he would have gotten home in time but it was also possible for him to get home in time to make the calls even if he wasn't working and the second time they changed it was shortly before the car was sold to a dealership who then sold the car to the beam and there's also evidence though that the odometer had been continuing to work that the odometer  and i don't have the numbers in front of me but it was maybe sixty five or six thousand miles at the time the car was sold to the beam ins it was maybe seventy seven thousand miles at the time this case  between a strategic choice to not pursue one line in favor of another as against person presenting evidence bill two lines of defense and just doing a bad job on one of them defense counsel was trying to show that alan beeman could have made the calls and did make the calls and he was trying to show that kobe a man could not have and did not make the calls he just did an incompetent job at doing that he didn't use the evidence he had before him he didn't do carol beeman drive times he didn't develop that side of it that carol beamin really had too much to do between ten forty am and eleven ten am when she checked out of wal mart in terms of driving all the way back to the wal mart and doing all the shopping that she did in a huge wal mart in several different departments he didn't do enough to develop that part of his defense he didn't make a strategic decision not to pursue it  in this case the post convention evidentiary hearing defense counsel testified that his primary trial strategy was to demonstrate petitioners lack of opportunity to commit the murder by focusing on the odometer evidence in this case defense counsel noted that he had independently noted documentary evidence of addition errors mileage readings in this case there was a receipt from the sears where taken his car to have new tires placed on the car and that indicated one mileage reading on august twenty fourth one thousand nine hundred three and then a week later defense counsel's other piece of evidence was a photograph taken by petitioners mother indicating that in the intervening period the car had only been driven three hundred twenty two miles  defense counsel noted that was not if if the if the jury had accepted the mileage readings that was part of the petitioners the fans the jury would have been able to conclude that petitioner cannot have driven both to normal and back and conduct argue to the jury that based on carroll benin's timeline that it was that she was less that she was less likely than petitioner to made the phone calls he highlighted her shopping receipts he argued that based on the location between the had testified on redirect examination by defense counsel that in his opinion reliable comparisons can be made between two independently conducted dry times so with that information defense counsel could reasonably view the timeline evidence as less reliable and less significant than the odometer evidence that he made the most important feature of his defense and i'm just going to have been more your honor  the best skater pickett testified that such comparisons weren't meaningful given the number of variables that arise between two independently conducted time trials for example the route taken the time of day the weather the speed at which the route he did question detective reason meyer regarding what in essence why the state had selected the downtown route as the basis for demonstrating that petitioners alibi that is that he was home at the time or that he was home to that route given that it goes through the heart of downtown rockford the city suggestion being that the heart of downtown rocker's congested area there's many there's many stoplights and that petitioner who is a lifelong resident of rockford would be less likely to take  than the bypass ro the same thing as to say well we're certain i'm certain that she never called me he also testified that al and petitioners tells us out of page ten of their opening brief that allen usually return the calls so that's not a appellate court below petitioner had argued that the forfeiture rule should be relaxed because of a fundamental fairness citing this court's decision people versus only here which was also a case involving a nap you claim but that case distinguishable because the the test of the evidence tending to show that the witness's testimony was false in that case was not part of the record on direct appeal the prosecutor questioned detective freeze meyer regarding a one time trial he had made from the bell federal bank to petition excuse me to petitioners residence to excuse me to the bell federal bank from petitioner's residence direct detective  mark testified that the route that he traveled route at the speed limit and that the route he took went through downtown rockford and based on those two qualifying components of his testimony it was clear that detective reason i was not reporting to give a categor statement that was impossible under any circumstances for the petitioner to make it home in time to make the phone calls i think the petitioners consensually can see that point at page four of the reply brief where the petitioner acknowledges that the type of the phrase mars testimony pertains favorable testimony for the defense or to undercut the prosecution's own testimony is only if the witness testifies falsely on the subject that triggers the state's obligation to introduce or to correct the false testimony but you you can see that it was yes that was favorable to the defense but defense counsel again in his primary trial strategy decided that i'm going to focus on the odometer evidence but also i'm not going to neglect the fact that this other route exists and there during the course of the trial defense counsel elicited from petitioner from other witnesses that this bypass route existed and that it was high speed for example during petitioners during testimony on direct he stated that he took the bypass route not the  and not the downtown route on his and also on his direct he indicated that the downtown route was longer and that i can save up to ten minutes if i take the bypass route so the jury certainly had information to find that  they had a basis for finding that petitioner took the bypass route home and was in a position to make the phone calls and to like to turn to prejudice for a minute the prosecutor's theory of trial was that the murder occurred shortly after noon but the in response were requests from defense counsel during discovery proceedings prosecutor filed a bill of indictment stating that the murder occurred between twelve and two pm and that's important because in this case finder could have found that petitioner made the phone calls and was still able to commit the murder in normal in that case petition would leave his record residence at approximately ten forty am and making the trip to rome to normal in about approximately two hours on returning back to rockford in two hours and that the jury would have been allowed to make that finding because during her during the closing argument of the prosecutor he stressed that it was unclear when carol beeman had returned home from her shopping trip he stressed that during her initial comments with police that she had returned home at approximately three pm for during subsequent investigation the time was narrowed down to two thirty pm and then finally to approximately two thirteen or two fifteen pm so if the jury found the jury was in a position to find that carol beeman either had been incorrect or had lied regarding in relief on this claim because none of the job undisclosed jonjo evidence was favorable to the defense  who john doe doesn't have the very same motives to kill the victim that you describe about the defendant now you are i don't believe that's correct azhar date the victim again his daughter with her who boyfriend but i think it's important to know that in those interviews with police and this is a value made of the record and i had the exact page but he denied that he was interested resuming a relationship with jennifer locke miller but at some point the defense wanted to question and i think the state made a motion to bar the testimony of doe because he was not and assured the court that he was not a suspect and the court  a i believe it was in the middle of february which is approximately one month before trial asking the trial court to preclude alternative suspect evidence and the absence of a showing by defense counsel that  wide certainly your honor pish petitioners brady claimed just focuses on three three or four pieces of evidence regarding john doe that was not disclosed and it's the people's position that that evidence does not closely cannot go with this murder and anyway the undisclosed evidence was that doe use steroids and i caused them to behave erratically but there's no indication that joe use steroids in the presence of jennifer locke miller steroids in the people's position in the people's view have not and don't tie joe to the murder in any way so therefore cannot be favorable evidence and there can be no bottle cup so when you say the people you're referring to the prosecutor who is trying case it was have at the post conviction evidentiary hearing or your honor the original trial prosecutor testified that alan bean was his primary suspect and remained so i threw out the truck throughout the course of proceedings but the argument is that the fact that this person didn't believe the don't was a viable suspect was sufficient not to reveal the name to the to the defense no i don't think that's correct why that why the evidence was those interview transcripts of interviews with police in which go stated that he didn't have an alibi for part of the relevant time frame of again alibi after one o'clock he indicated that he had a prior sexual relationship with jennifer locke miller  and similar types of evidence establishing a relationship between them but defense counsel conceded that that was not enough to introduce evidence that joe was shirtsleeve me that evidence should be admitted tending to show  that i was the killer what about when you look at what you knew about doing so in the context of how this case was being presented by the state the state viewed at least it was a suspect at one time  in that he had in the assault charge against him of some sort and that he he had no alibi in fact lied about having you know so when you look at it in the context of the case the state seems to be presenting almost exclusively on motive an opportunity of the defendant to commit the crime when you look at it in that context you don't think it would be important for the defense to know about do i know your honor this is not material  evidence just to go back to your your honor noted that adel had lied about his alibi but in this case the circuit court after holding evidentiary hearing on this claim found that there was clearly speculate or excuse me that it was equally plausible inference  joe that those had not lied intentionally and that he in fact corrected himself at the second interview with which with respect to the battery charge it's important to know that that battery the domestic battery was with a woman other than jennifer locke miller and that goes to that tends to show that that doesn't connect o with this crime violent that's true that's true your honor but the important in this case what the petitioner needed to show to introduce evidence of an alternative suspect opposition  of my answer of the process the petitioner needed to show that to establish a close connection between doe in the commission of this murder and an unrelated bat or a battery with an unrelated victim your honor the state's now conceded that the phrase my r twenty five minute drive time was favorable to the defense plans counsel hannett he didn't present it by definition i think that's ineffective assistance of  reliable that's a kind of thing you say when you don't have good evidence to present all the defense had to show was that it was possible to drive from the bank to the beam and home within the timeframe not that every time anyone ever drove that route that they got there within that time frame but that it was it was possible that's all they had to show and clearly it would have been much more persuasive to do that with a time to trial by the detective in the case and a defen investigator then just to ask alan be a man well about how long do you think it takes you a quick question to do was the audience relative to the mother and where she was in the morning and where she stopped proceedings that well was available at the time of trial just didn't come out at trial well two things one more time trials that we did which were more realistic than let detective freeze in my or did he just drove curb to curb in front of the beam and house in front of the role model we actually had our investigators start either inside to be a man home or in the driveway get in the car drive to the wal mart and park and that ended up closer to twenty minutes than freeze mars fifteen minutes and the other part of that that was developed during the post conviction proceedings which was what she did in the store were she went to buy these items how she shocked how she looked for allan beam and jeans that she was buying and some was developed after the trial  may actually before i leave that i just want to point out your honor that the prosecutor souk at the post conviction hearing testified that in response to a question that we asked him in order for the jury to find allenby man guilty of this murder the jury had to find that carroll beeman made the phone calls and allenby him and did not make the phone calls so that was a dispositive issue in this case according to the foster of the time should he should have and could have to validate their theory to show that it was even more illogical than the jury thought it was in also that she literally did not have time to leave her house and get back and go through the wal mart shopping in the time that was available to her and that was evidence that he did not bring forward quickly going to the john doe evidence it's just ironic that the state now says well this evidence about john doe doesn't make him a suspect he was questioned as a suspect by the police he was polygraphed as a suspect as i mentioned lieutenant daniels still thinks he's a suspect he gave inconsistent statements regarding his whereabouts at the time of the crime and this isn't a case where half of the prosecutor's closing argument was talking about how allen made little inconsistent statements here or there and that that was evidence of consciousness of guilt well how about john doe who first says i was out of town at the time of the crime and then later after the police talked to his girlfriend he has to come back and admit that in fact he was in town he also made inconsistent statements about when he last saw the victim in his first interview he said he saw the victim within a day or two of her murder she had stopped by his apartment with michael swain her then boyfriend in a car but but john doe said in the first interview he went to her apartment after that within a day or two of the murder but at the second interview he said oh no i i didn't do that or or if i did she wasn't home i mean those kind of inconsistency is much smaller evidence of any other suspects because that's part of the equation it's not just the information that wasn't turned over although that's very critical particularly the evidence of violence because there are factor that was not present in alan demon's background of physical violence against another person there was no evidence of that but this channel man had been violent against it was a batterer it was a repeat batter of his girlfriend and that was very critical also prosecutor soup poo pooed the fact that john doe want to mention is that he in fact did have plans to see jennifer a lot mellower once he got back to town which i believe was going to be at the beginning of september so very shortly thereafter they definitely had plans to see each other again they had a prior sexual relationship and they were going to see each other again he was a suspect that evidence would have been admissible and it would have the primary focus of the prosecution in this case which was his homily is from a row which was that you identify all the possible suspects and you wipe them off the list well john doe wasn't wiped off the list and that completely aside from an independently of the ineffective assistance of counsel in this case could have changed the