the morning here on this or my name is lester finkel and here behalf of howard morgan and this case basically concerns mr morgan's conviction for attempt first degree murder of four police officers as well as aggravated battery against one of the officers officers wriggly officer prickly mr morgan as i'm sure your audience aware when this incident was all over back in the february twenty first of two thousand and five the run up getting shot twenty eight times just to provide a little bit of a timeline the first trial occurred in two thousand and seven and that that first trial and by the way it was in front of the same judge it was a fun just playing frank and that that first trial the jury found mr morgan not guilty go and make reference to that in the process and that was feel number zero seven three three seven three in the process this court wrote and if i may quote this court wrote that the issue sought to be precluded in the later trial was whether it was the during the incident and in the course of reviewing that this court held that those charges for which he was found not guilty were not directly related to the four temper charges and the one remaining  again it was a case involving a murder charge where the defendant in that case took shots fired a weapon at three different buildings earlier in the day yet the supreme court case of wart the defendant was found not guilty of the aggravated criminal sexual assault for which the state of presented evidence of that crime at the trial on a separate a aggravated battery and aggravated discharge counts as being separate entities separate contacts that were in no way probative of whether or not attempt murder occurred and gotten this court basically saying that the decision of whether or not there was with all could have been based on all sorts of things and we couldn't speculate as to why the jury reached that decision i'm certain house but could not reach a decision on the attempt actually had some sort of a wound rack well there were three officers who had ones that yes the one described the three different wounds of the three different officers i don't you recall that force or one of the officers had the grades to officer i believe it was officer white there was a grace to him slack that that was also through and through the bullets that both of actually hit the officers legibly hit the officers those boys were never recovered the only these are and i realize what you're on is i saying that that when you have evidence of other crimes or other separate incidents that's a different situation but the rationale of war i would submit best not make that distinction and if i may with his first permission i would like to point out exactly what were seven two thousand and eleven and were talked about how to assess the credibility of witnesses weigh the evidence presented and resolve conflicts on the evidence and drug reasonable inferences from the evidence that the perform this function properly the jury is a logical must have access to as much relevant admissible evidence as possible because without that evidence the y to prevent state from using evidence that related to these other firings he asked he's been asked about that but so you think that he asked for the ability to present a quibble evidence in order to with involved shooting in a building that was totally unrelated to the the burger charge that happened later in the day respectfully i would say that wasn't totally unwilling but he was charged separately and there was no connection ever established between him the defendant i ring it buildings three different buildings earlier in the day there was never any connection between that evidence and the burger that occurred subsequent on that same day but the state introduced that evidence in order to show what the o and what happened after this whole idea of allowing propensity evidence is only allowed in one area of the law that that we have right now in illinois in essence sexual assault case before that there was never you you weren't allowed to a sexual assault because he committed it on and on another day wouldn't you agree i would agree with that as far as sexual propensity of things but i would also point out that in people versus over time you have an officer who is going i look i'm going to the saying there is a radio the jury and the jury needs to have that total assessment the credibility the information before to know what to do will i victim in the other crime that there was a trial that he was charged or some criminal proceeding in the jury was left with the impression that he might have been ou situation where he is still charged with aggravated battery to a police officer and the jury is under the impression that he there basically this issue had never been resolved before the trial court prevented anyone from mentioning the word previous trial they could only talk about previous regimes and word went further and pointed out that under the federal evidentially goals federal course have a different way of crimes and the rationale of war is not restricted from one to another the rationale of war simply goes forward and says that when you have evidence of innocence it has to go and be presented  constitution know the question that was s year was ago the somebodies view rice which officers well i would have to speak of whether or not that question was asked because we never got to we never and ask about police misconduct because this entire case is basically pervasive with police misconduct you have to remember you're out of this is for police officers twelve thirty at night with a an african american police he they admit it i'm a police officer i'm a police officer i'm a cop and then from that point forward the two stories essentially started to divert the officers said the four chicago police officers said that he had become immensely widger and but not put his hands up on the plan that screaming they kept telling him to make your hands visible he would make his hands this fall and instead they had a struggle with them they fell to the ground and after falling to the ground they the four chicago police there was two ways the testimony was that the offices the testimony was that the officers were dropping off a curfew violator and that while dropping off the curfew violator they heard a noise they looked over and they saw a fan going the wrong way down  contention your honor i mean i stance of leave the officer started by saying that well they saw him doing a traffic violation by going the wrong way down him one but at the time they stopped him there was no traffic violation by the time they stopped him he was approximately one block from where he live and by the time they stopped him they want to go and basically check out the same there was an undercurrent also that's in the record that in that neighborhood at that time there had been a series of robberies by someone who if you're on a recall and then and then and there was that there was that undercurrent that was asked and brought up to the officers that basically there had been other individuals there had been series of robberies and that someone had been claiming to with the chicago police department and you have to remember you have the four police officers and although this is not an issue it's just it sets the background over here this is interactive one of the issues that was raised in the brief but you had the four police officers two of whom had been and what trial counsel was trying to ascertain was that the jurors have any preconceived ideas or attitudes about police contacted they believe that police can sometimes overreact but was there enough questions asked to bring that on the judge the past you know  or anything else about policeman that we should know about whether you like them whether they're in your family whether we've had incidents with them isn't enough to find out what the jury's potential belief is about which softly i would have to disagree of the questions that resonates enough i'm going to that going to the next part about racial bias for example at one time professor stone asked a question about do you believe the people may have racial bias the trial court allowed that question the follow up question was do you believe th and that goes to the entire question of open versus close questions i believe all of you have been trial attorneys trial attorneys around a trial judges and there is a fundamental difference and a front there's a universe of difference between saying you know would you treat someone's testimony differently versus whether your attitudes about police misconduct one simply generates a yes or no question the other generates a true statement of attitude and i would related to the three categor stack which talks about insanity and just taking just taking insanity as the example if there's a question saying do you believe that if someone adequately grazes an insanity defense would you hold that against them that is fundamentally different and fundamentally insufficient as opposed to same when the reality is about someone who raises the defense of insanity and the same thing with gangs which is what strain recognize it is a fundamentally different question to go and say would you hold if you hear that he's a gang member versus well your opinions about gangs in the city of chicago one elucidates information from jersey about their opinions the other is simply a yes no question that goes absolutely nowhere and with respect to that asking questions about policemen and asking questions about police racial bias not just racial bias in general or can you trust a police officer or but we've a police officer is much closer to supreme court said we will not follow federal jurisprudence we had that right not to go there and not to adopt that as far as an evidentiary rule in illinois concerned and they did refuse to attack the all of the cases that distance itself from stevens and in the main body of the brief and the reply brief were effectively overturns stevens that stevens has no more force and effect and then in that case your honor in stevens illinois supreme court taking off from justice in the bronx questions stevens involve an individual who is accused of murder of one police officer and attempted murder of another police officer and for reasons that you know ninety three n went to the second trial the proposition in stevens however said that's simply proof that you were found not guilty of a murder that's not itself a fact don't establish that you did not commit an attempt murder of the second police officer that's not what we're saying that's not what bragging we're not arguing that the fact that there was a finding of not guilty on these other counts proves that mr morgan did or didn't do anything we're simply saying that a jury without the information is a blind jury who which doesn't understand what the true verdict should be so we understand what you're saying and we've read the briefs here time is long gone to the longest time for but  charges that involve most but not all of the same exact facts and that it was this second juries duty to decide that would be an unprecedented increases infringement on the province of this jury to decide the facts of the case before them for itself and it's in no way comparable to ward where the world jury only have to consider clearly unrelated cases wholly unrelated in a crime that happen different time a different place involving a different victim but most significantly the word jury was not charged with having to decide the fate of defendants on the case that it was because it was told about the other jur then this jury would have to be told that another jury had convicted an counts that involved many of the same facts it was now their duty to decide so no this court should not be in any way persuaded by defendant argument that distinguish it and people versus hair on the the back court found that the previous acquittal didn't necessarily find facts that were true that prevented the prosecution from even bringing evidence of the acquittal much less evidence that he was acquitted but evidence at all and so therefore the question of whether the acquittal lived and should be admitted was was never even gotten to because it didn't make it that far so it was distinguish but it was not in any way overturn certainly ward did not overturn it because it takes place in a completely different context the context of other crimes which is very far removed from what we're talking about here where this jury considering the same exact incidents within or twenty facts and it would be an absolutely unprecedented infringement in the province of this jury to make the decision on those facts i mean essentially the bottom line here is that defendant was acquitted on other charges and he was shielded by double jeopardy by the principles of double jeopardy from being retried on those charges but now what he's trying to do is to use the double double jeopardy principles and use those verdicts that did not in any way necessarily establish his innocence as a sword to bear friends and other jury from finding him guilty on charges that are separate and distinct allowing him to do so would be unprecedented and as justice mcbride has pointed out there's a there's a lot of other very distinguishing facts between board and facts of our case that the ward court was very very totally recognized that the unusual all those instances and that particular statute which allowed propensity evidence made that case very limited to those facts and any other cases that it looked at  backs that defendant wanted to offer the evidence of the acquittal that he was acquitted on the charge of the first officer who was murdered and the court found that that that he wanted to do it for the purpose of unbiased and unprejudiced jury and the standard is that the whether the method used in five care creates a reasonable assurance the president that prejudice would be discovered if pressed if pressed and there is no question that in this case that standard was far exceeded by the extensive and exhaustive questioning by the judge who explored exhaustively each individual jerks opinions of police officers and justification for wanting to ask that question was he wanted to know if they would be tours that could accept defendant's theory of defense which is that there was this misconduct in this case you know the law says that questions designed to educate jers as to defend this theory of defense prior to trial as a means of selecting a jury that would be receptive to his fans to his defense are properly disallowed and that's exactly what is stated reason was on the record for wanting to ask that question and that's exactly what his question and i mean there was no this case in his her case wasn't it all about police misconduct only defendants defense was about police misconduct the entire case about is about what happened in this case when furt police officers went to work one day and were brave enough to take on a high risk assignment a traffic stop in the middle of the night in a high crime area character and making them sound corrupt even the crazy because his defense actually suggested that they within a context of thirty to sixty seconds to two sets of officers who had never even met before managed to collaborate to grab the defendant scott on he passed out and sit around shooting each other with a gun into their bodies and well at the same time shooting him so i think that's what the case was about  was not about police misconduct unless it was his defense and i would say that while the defense talked about the very very limited and specific defenses that are allowed to be asked about  wire about does it give the then the right to wire in any way he or she wishes for example you know how do you feel about games or the cases suggest that those stops did they ever experience violence when they're trying to do a traffic stop and of course we would be allowed one thing has anything to do with the other but if you gave us a specific question about a person's experience with police misconduct  i think that would be appropriate i think it's always been appropriate i think it's always been use it that question was not asked here what i don't think it's property to ask questions about what do you think put before the trial court to decide was what i had already read and that question was improper but i will go back to this saying that there is no question in this case that every juror was given beyond ample opportunity to express their views every which way i'm police and even the trial court admonished the entire panel that if they felt hesitant or fairest to answer any of these questions in front of the holy or that he would take them aside privately  stressing the absolute necessity and this how special it is to be truthful and in their answers complete they knew the nature of the case absolutely because defense counsel x so many questions himself actuary it was simply because they chose not to be truthful and no matter how many times they were admonished and how many times they were asked how many catch all questions about could they be fair to defendant in this case there's nothing that anyone can do to prevent  state is willing to ask whether or jury would be willing to believe that an offender stopped in a traffic infraction could shoot a police that is why the law are says that we we cannot indoctrinate our juries us to defend his theory of defen very extreme and controversial defense and it was very specific in nature as to right questions were allowed to be used and that defense because it affected the form of the verdict is what the court found in that case and getting back to your question  anything other than gangs it was that this court has has said that that case is it's very specific to gangs it did not choose and it would not choose to expand it but the most important thing about what people viewed versus train said is that the gang absolutely do not think that when you look response to the defendant's argument and let me just say about defendant's arguments the entire tenor of defendant's closing argument was mocking and ridiculing attorney can open the door that's what you're talking open the door for the state to st dead what the officers did was to protect the jury because there isn't a jury to be kept out of this i mean you're putting the jury in into the place that they don't belong because they're making you know the decision they have the decision making process and you're putting them into the case by that kind of a comment i don't see how you could ever open the door to that comment that's like pushing the envelope a little too far well if i hadn't since i if it went over the line it's one thing but before we get there there were practically six comments objected to two were included in a motion for a new trial and the other six were not correct ok all right so not that i disagree with but you're just  representing the people of the state if they could not respond to these caustic mocking me the entire defense the hired man or of the defense was to vilify the engender hatred for the entire chicago police i believe that the reason that those comments were not objected to i believe that the reason that they were not objecting to a trial and even after they were carefully considered in a post from a motion is because the defense attorneys were there in the courtroom that day they knew the tenor of their argument they ne comments were invited by the tenor of their argument that's why they weren't objecting to i believe this was a knowing forfeiture but let me just point out just some of the other some of the other things that were said by defense attorneys so we can put in cont traditional other crimes evidence that you wish to direct us to either a federal case now state or any illinois decision from our supreme court or any of the districts in this sport that supports what you're arguing she said this entire case is not about police misconduct you have a fifty five year old african american man who is going home from his job at b l s a railroad is followed by two right police officers to either