more your honor when you please the court my name is christopher carmichael i represent your college wing tiles and this morning i will be addressing two of the issues one michael council addressed the third i'll address the jury instructions and the evidentiary issues and she will address the sensing issue the jury instructions in this case did not fully fairly and comprehensive lee instruct the jury as to the relevant legal principles there was a corporate liability instruction that misled the jury a corporate instruction should not have been given instruction doesn't apply here the committee notes give two examples in which the instruction applies and applies when an individual is joining charged with a corporation that was not true here the corporation was dropped from the third amended edition so the corporation is not a party that was not like all the other up possibilities where the individual is charged with conduct committed on the have a corporate employer that again was not true here the individuals here were charged with personally knowingly and willfully violating the order on their own but we're really not acting on behalf of were they were it that evidence in the arguments were that they were acting on their own  half and if they violate the order knowing they were acting on your own behalf because they were the owners of the corporation but the corporation was the owner business that's correct  ownership interests of the two defendants that it was clear that somebody could interpret their acts as being beneficial to the corporation or don corporation and so that instruction would then be pertinent their behavior under those circumstances it wouldn't be pertinent in this particular instance your honor because they  weren't actually charged with with that nature of committing acts on behalf of the corporation that then landed themselves so personal liability that the difference here is they were they were charged in alleged to have although they did commit acts and the corporation issue did come up it was the charge was them personally in the absence of that would move create the possibility of some mischievous argumentative what are you talking about here this was the corporation th you're right from from the instruction that was given to point your honor one is that the parties addressed that exact issue during the jury instruction conference so the issue came up about and that the basis for the instruction was not that it apply but the basis for the instruction was that there was going to be some mischief because someone was going to argue that the corporation somehow committed acme had no idea that the party said one number one we're not going to argue that so it's not an issue and number two if you think we're going to argue that order is not to but couldn't the jury come up with that say you terminations with out you know a fifth of an argument and  doesn't the instruction properly be that out of consideration it's our your honor that the instruction if the argument wasn't made that somehow they weren't liable because there was a corporate act and not their act that the instruction in the absence of that confuse the jury and how explain to me that the nature of the use of the of the earth in your mind well that the nature of the confusion submit evidence that corporate actors may have acted without the knowledge of or agreement of their science so a corporate act or an agent over here committed some act that would violated the order so there was an attempt to make that then attributable to the respondents as opposed to an act that the respondents were took themselves or were aware of some and there's the confusion that arises because we're trying to get  reasonable basis for say that some other corporate actor was that this is a very good result well that wasn't what they were saying that they the point that was made in that testimony think you're referring to is that the actors took action themselves to make sure that the order was followed as to their understanding of the order so they took action to bar people from the mezzanine second floor as they understood the order to prohibit but at the actually warning and the issue became is whether or not and any agent may have done something that they shouldn't have done and that's where this the instruction becomes problematic is because if an agent did something they didn't did something they should not have done and then that conduct is then in tribute of will to them as if they're responsible for the agent through the corporation the jury gets very confused there the second instruction that should have there was a second instruction in the instruction that should have been given was willfulness instruction it is the key element of this crime there's only two elements to intent the first is that there's an order that states what probative conduct and the second is that the person they submitted a definition of well from this from blacks so choosing to not use the definition of willfulness that has been approved by the supreme court of the i p r instruction raising that somehow having resisted that the court area did not give the court said that no instruction should be given with something approaching in and of course the instruction this been approved in the state of illinois defines willfulness in a way in a manner that is much closer to knowing and so giving the instruction that illinois has approved could be perceived by a jury reasonably as lowering the burden of the prosecuting authority wouldn't you agree i would agree your honor that they resisted part of the instruction because it did mention knowingly and that was inflexible here the issue was well  they did offer the alternative blacks which did not frankly state the law but even in the absence of them offering the correct instruction this court has the power to review that instruction and find there the court has an independent duty to see that the jury is properly instructed the trial court here did not think any instruction was necessary and after that the jury asked a specific question about what this will  and when a question is asked and deliberations it should be at least given the same consideration as the original instruction if not possibly more as the jury's now evidencing some question so at that point with appropriate  here the willfully portion of that instruction should have been given the knowingly portion it's not the issue is not knowingly here it's willfulness is the element of the crime the certain instructions are essential and they go to the elements of the crime in waiver is not in force against such and such in central instructions in addition that the waiver doctrine here for the purpose of it would not be properly for phil because the court said it would have corrected the error didn't think that any instruction was necessary in the court had the instruction in front of it as well and instruction was requested although it was the not the correct statement of law the court again indicated it did not think that anything any further information weaver was needed so there was the jury was confused majora should have received some clarification of what we raise and here coupled with the instruction that was we believe was improperly given and the corporate liability it confuse the jury into convicting the defendants or acts other than their own personal acts these were this was not harmless error these instructions affected the outcome there was conflicting evidence not overwhelming evidence as to what the order meant there was evidence of attempts to comply and here are the instructions made that they will course the supreme court court indicated that the confusion as to what the order meant is relevant to the if of respondents intent that was there was key evidence on that point which is our other point of error that i was going to speak about was excluded there was a judge's half sheet a letter from the attorney and the judge's testimony now the judge's half sheet and the letter are contemporaneous evidence they're extremely powerful evidence because they're black and white writings at the time nobody can say later that they meant something different the jury can read them for themselves and put themselves in the place and understand why the respondents acted the way they did they are inherently trustworthy and they should not have been excluded they the information and spoke with the the actual attorney who asked the other attorney to be substituted in for a temporary time period i don't think was was there any evidence that mr holmes either saw the weather or the were communicated with the attorneys were aisles about and i believe your honor there was some evidence of him communicating with mr ailes on that point i don't know if you saw the the letter or the half she personally the evidence was excluded based on the theory that it was hearsay although idly it was testimony was allowed about the evidence the evidence was not hearsay because it was offered for mental state to have she does court records  independently admissible and the other reason it was excluded is possible confusion but there was actually an instruction i believe given i on to the jury to explain to them what the difference between the half sheet and the order is and if there was some further instruction that was new that could have been given but confusion wasn't a basis to completely exclude the savants it's very strong evidence you could see the judge's handwriting right there as to the judge's understanding and understand why the jury are understand why the response then would act the way they would act and the difference is material here because the documents themselves are worth far more than the words about them much like any other picture might be and the n all you're really talking about is the jury's ability to see that after he mr royce testified that well that it's in the harmless because that mean half sheet in a letter are like a picture of an accident or any other demonstrative evidence that shows you actually what happened as opposed to someone describing it they can actually see the judge judge's handwriting on there saying second floor the ip in mezzanine it's very important for to understand why the belief was reasonable and help syria to understand why that's reasonable you have the lawyers testify as to that and you have the double barreled issue first of all these who shouldn't be judged under the abuse of discretion standard and then even if it's found to lawyer testimony of an interesting witness it long after the fact is certainly not as powerful as the actual document that was created will have any time challenge to the fact that he well it's correct that he testified to those things but obviously his testimony is strongly bolstered and importantly bolstered in this case by the actual documents opposed to him saying something exists just like  in this state the court order was to close the second floor because of trust and the skybox might not be say the trial was for in direct contempt for violating an order to not close that second floor two thousand and three this court has already found that the element of proximate cause is lacking because the roof trust was not the problem was not the cause of the individuals leading the club the failure to close the second floor was not the proximate cause of the deaths and injuries the introduction and considerations of the deaths as a factor of it's in this ng was improper since the death were not related to the problem it was not a proper sensing factor under the statutory guidelines in case law and the two year prison sentence was excessive what are guidelines for the general statutory guidelines that talk about what's aggravation and i my our preference is that you modify the sentence to an appropriate find as has been in all building court cases in illinois where there has been no injury that has resulted violation that would be our purpose that fine is appropriate here in this court has that the word to do that if there is no other issues or problems issues that need to be addressed at the what level the state charges the cullen's with involuntary manslaughter in two thousand and three the state at trial wanted to introduce evidence regarding the building order and on safer trucks the trial court in this court that in two thousand and eight said no not arguing with the ultimate conclusion that for me but i mean theoretically the violation of the court order could have resulted in the thousand people that if the roof trusts were the as the city felt unsafe in the in the they're concerned about the entire floor collapsing were well founded one thousand people were on the floor that that the court ordered not the occupant that's correct but that's not what happened no that's i don't i don't dispute that there's no proximate cause between the injury in this case and the violation of the court order but it may be overstating it to say that there is but there was potentially i mean potentially the harm for violating the court order would have been far more severe than the traged yes your honor but again we have built in court orders for unsafe condition and property all the time and a sentence of two years in prison has never been imposed when again that violation does not cause any harm me follow up on my colleague there because reading the briefs before us that the one argument that i think the city makes directly on this point is on page forty three where the city says respond this contempt of the order is most certainly caused the deaths and injuries have responded snap disobeyed them no one would have been on the building second floor and no one would have died or suffered injury how do you respond open there's the post war was still open you could have still had incident where people would a stampede for the door and you would have the same problem because the stampede in the interest cain at the first floor level when you were trying to get out the door you could have a situation where and that that actually may be true but you can still have a number of factors and circumstances where you could have the same scenario and the cloak even if the club was closed and legal but we know it's not true the involuntary but involuntary manslaughter if the building court orders and the root trust situation was not related or relevant at the may involuntary manslaughter trial then it could not be relevant at the sentencing harry  factors that the court should look at when you're imposing on a contempt sentence and that case of course it was a contempt for a murder case and this case is a building code violation but the fourth fact is when you look at him and apply clear they also made it clear that the ambiguity is in this case regarding the hand she then structures they were given from their lawyer and the conversations even in and housing court excuse me for  interruption but as to the sentence you're saying that the success of because it was based upon information that should not have been considered by the judge in terms of the deaths that occurred because there's no causation relationship correct when the code violations and the tragedy were all these people lost their lives correct that is our position of if if there were a proper consideration are you making the argument that two years would be excessive for all of the you know if the judge was the proximate cause of the tragic deaths and he says if this of the sentence is to be judged it regard to the violation of the order roof just never failed and hurt anyone no one was injured because of the roof trust that they're still standing we're talking about a period of time of only seven months in which they were in court and they were going back and forth constantly going to court at all times every  appearance their lawyer was there and they were working to try to clear up the violation so when you take all of those in consideration for the good the court order and for the contempt and put it would geiger you have a situation where a two year sprint these were these issues were not briefed by the supreme court the supreme court considered simply whether the evidence supported the convictions but no briefing was had regarding these evidentiary questions or the instructions so the court becomes clear that the issues that are being pressed here are would not have affected the outcome and therefore at the very least no new trial is warranted for it because there is no question this from any of these issues now course we make arguments on the merits as well of each of those but that's our position in addition it in light of another supreme court case the geiger case we contend that the sentencing court here considers the correct factors and it was well within the range of its neither one was an abuse of the trial court's discretion to exclude neither one changed any thing that was are to not add anything to the defense that was not already before the jury and with respect to the prendergast letter was hearsay and therefore not an abuse of discretion to keep out and with respect to the half sheet there is a potential for arguing it confuse making a confusing argument that that was the order that control as opposed to the court import of the original order and whether he tried to clarify that or it didn't try to clarify that he communicated that feeling of after checking that mr mr willis went to check the half sheet and then after checking the half she raised told cannold he wanted was different from the letter and the letter in the hat she said this were consistent with each other and said the same thing in other words the supreme court is considering exactly what those that letter said and exactly that the letter said the same thing as the half sheet but goes on to conclude those did not mean that did not make the language of the order unclear  about whether the order was clear and it went on to hold in addition that the evidence amply supported that respondents knew and what we're suggesting is that what that letter said and what that hath she said do not overcome what the supreme court has already found sufficient to uphold that respondents will new viewers truths go and willfully violated them moreover the supreme court don't forget additionally held that the convictions were supportable if only on the basis that the orders definitely close the v i p rooms yet respondents knew that and was willfully violated that command of the building court and neither the  prendergast letter would have absolutely any impact on overcoming the battle ing of the supreme court there's evidence that sufficient here to convict because respondents admit they knew the orders were supposed to dresses absolutely absolutely your honor and with respect to the sentencing to guide your opinion makes clear that among the factors at sentencing court can consider are that the consequences of the contempt the extent  contempt and the deterrence of fact that the sentence will have for future cases let me ask you if you you were used the word there are consequences which comes from the geiger case isn't that equivalent to saying  that the consequence here of the code violation was the death of all these people is that we're trying to say well your honor i think we does if you are this and i want the supreme court said terms of proximate cause the legal standard well we are you're what i position your honor of argument you're making here i'm sorry but what i mean this you're just you're saying part of it it's that you know if you don't have all sides of the proximate cause issue covered here by the facts of this case that's already been determined by the supreme court that's taken out of our hands so if they have stick a yes that how can we say that the deaths of these people which was considered by the judge and sentencing was a consequence of the code violations if you because the respondents were violating the court order people died and that's the question for the court now whether that was the proximate cause in the criminal case where of course there's a different standard is beyond a reasonable doubt whether that was the proximate cause and whether they could be liable for the death in a manslaughter case is completely a separate question from whether a sentencing court can consider that bought for the fact that respon was that they had willfully violated the order to not occupy the second floor and nobody had ever been born nothing would have happened either but there's a difference between cause and fact while proxima shareholders were term focus on the legal aspect here and the argument that the city makes in this regard which allowed the judge to take serious nature of the contempt which could be taken to mean the fact that people died it could be taken to mean that in building court orders are entered for the purpose of protecting the public from the risk of death and injury that from dangerous and hazardous conditions respondents ignored the court orders therefore running the risk knowingly knowingly running the risk people could die or be injured it's a serious matter to ignore that and y people are brought before courts down the street for violating building code orders take a case it's never before it happened that someone got a particular sentence that that is the max a mom that can be found in as in this case i mean the supreme court and god does not limit it to the range of the court and the extent of the contempt they say well it was only seven months seven months day and day out that's what the sentencing a court said that's a flagrant disregard of the court's authority that's an important instance of it vindicate and we submit it can't be said that it's outside the range of appropriate discretion for the court to say this needs to be taken seriously as a deterrent in future cases where we're entering orders and building court it's quite simply to protect the public if the deaths are to be cause before the consequences are appropriate to consider in fact a guy could sell the fear that the person who was it who was killed held in contempt didn't come to pass it he would didn't testify and the fear from not testifying is that the person will be convicted and that the defendant was still convicted even without his testimony the supreme court doesn't say well you can't sense any jail time because there what we fear didn't come to pass no it was the importance of respecting the court's worry about what could have happened and in this case responded their mindset was no less culpable they ran the risk people would be killed or injured in fact people were killed and injured maybe it's not for the reason that they extent the extended contempt and that the important that court orders must be obeyed so those factors are there and so we urged not an abuse of discretion however if this court were to disagree we would urge the court to rema court has questions about pose briefly regarding the willful instruction there is simply nothing that there's no possibility the outcome would have been different if the jury it only been told that willful means knowing and there's plenty of waverley language here that's been quoted correctly right or ok and regarding the corporate liability instruction that is read a person is legally responsible for con part of it gives up the possibility that if there is a suggestion or a thought that it was not on behalf of a corporation that doesn't excuse the conduct correct correct or unless there are further questions on the supreme court i think it is your honors recognize it did not address these issues at all it was focused on a narrow issue whether or not the order was sufficiently clear as to permit conviction these issues weren't touched on the instruction evidentiary issues present the issue of how to show how the trial failed to consider the proper issues and whether the outcome would have been different those are issues the court obviously did not consider and didn't touch on the evidence that was presented we don't believe is cumulative in the sense that this court and i'm sorry trial courts all the time allow in both documents and testimony on the documents the documents themselves are quite important independently and that clear that the risk of injury was addressed in welsh and suzuki which is the two cases we noted are our most similar and also the length of the violations was also an issue there and neither of them came out that the same way this case came out that the deaths were the basis of the sentence and that but the deaths aren't actually also the offense to the court that the deaths were not the direct result of the collapse of the rope or the second floor which is the danger that was associated had that occurred they might have a point here but that didn't occur so if the meteor hit the building when it was occupied according t