good morning your honor is may it please the court your honors the trial court in this case a used discretion by granting the plaintiff a new trial based on a brief reference during the opening statement to evidence that was never  this before right before this case went to verdict the trial court believed that the jury would not treat the opening statement as evidence and yet immediately after the verdict reached the opposite conclusion when the only thing that had changed was that the very could come in for defendants a change of mind without any reason for it is the very definition of an arbitrary ruling this morning all first explain while the trial court abused  enter judgment on the jury's verdict turning first to the issue concerning the new trial order it is well settled that there should be a significant reason for the court to set aside a jury it's not enough just to have an error it's not enough that the jury might have heard something the jury should not have heard throwing out a verdict granting a new trial should only be done when there has been an error that so because of such substantial prejudice that it's impossible to say it did not influence the verdict that's where prejudice could not possibly have occurred here from a brief from our beginning of a two week jury trial that neither the court nor da thought warranted a new trial right before the verdict and this is especially the case because the core instructed the jury not once but twice that opening statements are not evidence and that they should humans character that they didn't or do and that causes me to change my mind about this evidence when they refer to well that was regarding the admission of the underlying evidence and as this court just pointed out the court didn't change its mind about admitting the evidence and that is why opening statement comment was sort of left hanging because initially when the comment was made defense counsel thought that underlying evidence was going to come in so during the trial after the court heard the plaintiff's case the court change its mind about that and we're not complaining that the court changed its mind about the underlying ruling and i believe that the court's concern was that initially the judge thought the plaintiff was going to present the case in a way that showed mr hamilton to have a very flattering character and they did not actually highlight much about his character at all so the the judge was initially going to admit the evidence because that would counter the correct and that's why we still maintain that it would not have been an abuse of the courts discretion to actually admit the evidence and because this the trial court could have admitted that evidence without any concern that a new trial would be necessary because the evidence would be so substantially prejudicial then surely the court then a brief reference to an admitted evidence could not have been so substantially prejudicial that warranted throwing out the verdict and again when the court first made its ruling about whether the jury was going to treat the opening statement as evidence it had already instructed the jury wants opening statements are not evidence and that's why the work thought the jury would listen when the right before the case went to verdict the court instructed the jury a second time attorney statements that are not supported by evidence should be disregarded so after the verdict the judge should have had last reason to change its mind about its original assessment instead of more present and again the standard for throwing out a jury verdict you know it's not enough just because the judge changed his mind there have to be substantial prejudice from whatever the error is and in this case there is even good reason to think that this jury knew exactly how to follow instructions to disregard evidence because the court and if the jury initially heard a he statement from paragould paramedic beauregard that was prejudicial to the city's case and the judge ruled that inadmissible and instructed the jury in order to cure the prejudice from that to disregard the statement plainly that jury followed the instructions to disregard the statement because it came out for defense so there is in fact good reason to think this jury knows exactly how to follow the instructions to disregard statements that are not supported by evidence again this statement was brief came at the beginning of the trial and there's just no way to say that that is what the jury based its decision on instead of eight days of trial testimony that recounted the facts now in addition to the flip flopping without a reason for it the court based its change of heart on what is an incorrect assessment about what the facts were when it was talking about the counsel the court thought davis had not waived her argument on this point because the court got it wrong what her comments referred to miss davis counsel at the time that this opening statement was discussed didn't thought it recognized there could be prejudice from the statement but said we can live with that it is what it is we think opening statements are not evidence and we want to go to the verdict so when the court afterwards was looking at those statements the court got it wrong and thought those statements we're talking about frustrated acceptance with the court's decision to grant the mistrial that's exactly wrong miss davis is counsel d mistrial they resisted the mistrial those statements were about opening statement and it's prejudicial effect on her and she could live with it only after the verdict did misstate is change your mind and finally the other reason why this reflects an abuse of the court's discretion is because as i mentioned there this is a ruling that there's a close question about the underlying evidentiary ruling the parties debated it at great either way would not be an abuse of the court's discretion so if it would be permissible to actually hear the evidence itself then merely hearing a reference to evidence that never came in and the jury was told to disregard that trial ones there is no evidence in the record there is the jury no that says seven to five but it doesn't say which way the split favor mistake that the split favor her i don't have any basis from the records to say one way or the other whether that's true or not however i point about that is if in the last trial the judge the jury actually heard the evidence not just a reference to the evidence so if it could be actual evidence and supposedly still favored missta then surely just hearing the reference to the evidence this time could not have so substantially ruined her case that she couldn't have gotten a fair trial court does not need to actually decide who has the burden of proof on this jury instructions issue because in this case even if the defendant should have the burden of proof we satisfied our burden to this jury bodily harm when he shot shot mr hamilton and that special interactive story asked exactly that when officer garza shot hamilton did officer garza reasonably believe that hamilton's actions placed him officer garza in imminent threat of death or serious bodily harm the jury answered yes it could not have reached that conclusion unless it believed defense defendants case over the pla and miss davis now claims that that special erotic stories somehow was tainted by the burden of proof but that can't be the case when you look at the instructions in their entirety because that instruction and it's plain language is not phrased in terms of did miss davis prove that officer garza did not reasonably fear that no it asked did officer garza reasonably feared that the burden of proof was relevant to the jury for purposes of deciding the general verdict and the court instructed the jury along the lines of here are the elements the plaintiff must prove if the plaintiff doesn't prove any of these elements your verdict should be for defense and then you should fill out verdict form a if you find for the plaintiff and verdict form be if you find for the defendant you must also answer to special or did not reasonably feared that and therefore i'm going to have to go for defendants because the burden of the tie goes to the defendants the jury could not have said yes to a question that asked did officer guys are reasonably believe that hamilton the burden of proof into that special iraq toric the jury would actually have had to invert the words so instead of just answering the simple question you know did officer garza believe that he was an imminent threat of death the jury would have had to say well so we submit that that resolves whatever whether or not there was error in the instructions that resolves it for this case because if the defendants had the burden we would have satisfied it unless there are further questions on the get money again you're honest and may please the court the defendant's argument in this appeal is that judge washington granted a new trial because he did not like the jury's verdict that accusation is completely falls and it should be rejected in its entirety this court should affirm the decision below because judge washington's reasons for granting a new trial were entirely rational they would not as defendants suggest merely a pretext for overriding the defense because the burden of proof was improperly inferred it davis was entitle to a new trial and the second court's order granting one should stand attending to the first issue it was well within judge washington sound discretion grant a new trial after defense counsel revealed hamilton's prior arrest and pending criminal charge to the jury as to court because it was proper it was proper in opening statement for defense it's enough that the trial was rendered unfair and the court's conclusion here that the trial was rendered unfair by this on challenge statement which as counsel said was left hanging out there that hamilton was jus in court the very next jury's follow their instructions that presumption is not absolute in this court's cases showed that as the classic cases from this court concerning cry have baghdad been on its way even when the trial judge gives a limiting instruction telling the jury they can use it only for a purpose and not for a propensity purpose they can still require reversal even though the jury is presumed generally to follow it we recognize that particularly in the context of  that juries don't always follow those instructions if we're going to is so many what about the city's point after being instructed to ignore the hearsay statement from the paramedic well that instruction was and they had they been disregarding instructions they would have favored the blink bets one possible interpretation and we could speculate that they the theory was picking and choosing which objection the question or first few is whether judge washington clearly abused his discretion and that necessarily turns on whether as we submit judge washington's reasons for granting a new trial entirely rational or whether is a defendant suggest he assumption did not pan out his honor properly reconsidered his in women he rowing and excluded the on the wang out of atoms at that point with two days to go in a two week trial defendant's move for mistrial defense counsel claimed the jury would remember the statement against the city and we don't think after hearing things of that once the jury is even going to remember that statement that he that's the position that your clients know that it's true you're on it but nothing nothing davis coun determine after reflecting on the proceedings as a whole that a party was deprived if a fair trial this jury could three things about darryl hamilton they heard he was running from the police they heard he had a gun and they could he was  basis that this comment to the scales against davis and deprived her of a fair trial is unchallenged assertion in opening statement about the city's if you're right about the seventy five's previous trial in the  and different trials are different and this court defers to the trial judges assessment of prejudice because the trial judge is in the best position to assess prejudice and defense or challenge that at all they just simply claim that judge washington  kind of bias and throw out the verdict because he did not like it as they put it on page three of their fiber if there's no evidence to support that and when you claim that a judge was i assessed against you you should have some good evidence to support that the only thing the washington realized he made a mistake a motions in limine he probably reconsidered his ruling because the assumption he was operating on was falls but davis would place hamilton's character a dish or and it was in fact defense counsel who created motion was not with the davis was prejudiced it was whether defendants were prejudiced it was not until after the verdict that the court was called upon to assess prejudice davis in the court's conclusion that she was in fact prejudiced by this was not a fanciful or unreasonable even if this court disagrees with judge washington's decision or even if this court would have made a different decision that does not render his honest decision a clear abuse of discretion a clear abuse of discretion exists only where the judge's decision falls so far outside the bounds of reasonable most that no reasonable person could ever agree with it the fact that we can stand here today and have a reasonable discussion about what judge washington should or could have done means that his decision was not a clear of his discretion and while it's unfortunate that defendants resort to claiming that he was biased against them it's understandable that they do so because he is nice too much of the bias and i don't think that's really with the well even if it's not what they believe turns on it's it's incumbent upon them to show that there is a clear abuse of the courts discretion and because of the deference given to trial judges in assessing prejudice this court should defer to judge washington's determination that this reference bad dental hamilton was jus in criminal court the very next day on the legal gunshots that bet but davis case that that unfairly tipped the scales against her and it's not necessary for judge washington to conclude that this was outcome determinative it is enough as we point out in our brief i bet it might tip the scales against davis in a close case as this one was then why did the plaintiff argue against toddy request i was simply pointing out that this came two days before the end of a two week trial and davis it point you spent two weeks with this trial all these witnesses all these experts and you were ready to roll with it it was you were satisfied that it was a fair trial and then you were offered an opportunity for a mistrial based on this same issue and turned it down well the issue was the issue was slightly different it was whether defendants were prejudiced not whether davis was prejudiced but the fact that davis resisted a mistrial at that stage didn't mean that she waived her request to a new trial in fact a counsel expressly stated prefect that he was preserving this and of the court accepted that saying right nobody waved their objections and defense necessarily divorced from the rest of the jury instructions that is not so i bet no human ignores the fact that juries are told to consider the court's instructions as a whole not picking out some and disregarding of those and the court's instructions clearly and it makes perfect sense as this court's cases say in a supreme court cases say the purpose of section true choice to immunity which is the immunity of it's an issue in this case i used to protect local public entities and public employees from conduct police officer in the course of performing his or her duties are they two different things no you're on of them not that this court is obliged to apply the plain text of the statute and the reason the pattern instruction mirrors the statute is because that's  statutory definition a court has no ability to read in exceptions limitations or other provisions into a statutory definition and our position here is simply that the jury should have been instructed the pattern instruction which mirrors defendants completely changed the meaning of willful and wanton conduct that the legislature specifically provided i think after this should be very different if the legislature hadn't said what willful and wanton conduct even means and one could have an academic debate about what it hamilton was running away on when he was shot in the back of the head by defendant gaza defendant goes to testify that hamilton was up pointing a gun back at him and that's the reason that he shot the fact that a single jury member could have concluded that the evidence was closely matched and it couldn't pick a winner under these instructions it was required to render a defendant's verdict in fact under those circumstances the jury would have been compelled to render a plane of spirit and this court directed verdict so not only is it not what the text of the statute says it also would produce all kinds of observers uls and additionally although we can see no ambiguity in the language used in the definition of willful and wanton conduct to the extent this under these instructions she had to prove that gaza did not reasonably believe that deadly force was necessary to prevent imminent bodily harm to himself that should have been on defense to prove not davis the fact that defendants attempt to avoid the merits is understandable because the plain text of the statute does not support them in fact that counsel said during the jury instructions conference that if the jury was given the pattern instruction they would readily conclude that the conduct was  because the burden of proof was inverted because davis was saddled with this entirely new element of proof that should not have been hers and because defense because the bird was removed from defendants a she was entitled to a new trial and it's just briefly your honour's regarding the new trial issue i just want to point out that the jury did not actually hear the evidence in this case so counsel's reference to a reliance on cases in which prior bad act evidence actually was admitted and whether or not that would be harmless or warrants a new trial is not relevant the question counsel also pointed out that the question on for this course  view is whether the judge's ruling was reasonable our position is it is not reasonable nor could counsel explain why it was reasonable to think one way right before the verdict and think the opposite way right after the verdict this court does not actually have to think that the trial judge had an improper reason for changing its mind because changing your mind for no reason at all is arbitrary that's what it means to be arbitrary not having a reason to rule as you did that is an abuse of discretion alone but in this case the judge actually used words that suggested he was holding out hope for a quote and acceptable verdict there's still no explanation from a stat about what that could have meant if it didn't mean that the judge was hoping that the verdict would come in from playing it and changed his mind because it didn't but again the court does not actually have to think that there was any improper reason for changing  mind because not having a good reason is enough to show arbitrary ruling now the final point on this is that the issue so to counsel argue this at the time of considering the mistrial was prejudice to the defendant and not prejudice to miss davis and that's what the court changed its mind about or was assessing our point is that what the court was actually assessing at the time was whether the jury would treat the opening statement as evidence and according to the court's opening statements are not evidence this jury is not going to treat it as evidence this jury has been told to disregard attorneys statements they have to do that all the time in the context of rulings on attorney objections so what the court the sat right before the verdict was was the jury going to think that this is evidence after the verdict that suddenly when the court changed its mind in fact not only did the court the jury treat this as evidence but they treated it as such an important piece of evidence ignoring to instructions now to instructions that that was what their result was and based on or that it's impossible to conclude that that did not influence the verdict that's why we're complaining about the flip flop that's why the judge's ruling in modification planus burden therion just meeting her burden because again just to just to lay it out to show to was our affirmative defense all we have to prove for that affirmative defense is that our officer was executing  enforcing the law if so the legislature grants immunity for causing harm while doing that then it becomes a plaintiff's burden which even concedes not that if the officers burden to show wanton conduct to overcome that now if this were to accept her definition of willful and wanton then simply pulling the trigger in response to a threat to the officers life would be willful and wanton that's an absurd interpretation no illinois court they haven't been able to cite an illinois court that has come out that way and the we point out the federal courts calm out the opposite way the federal courts hold that an officer who is legally justified because he fears for his life is not willful and wanton so her interpretation will actually take away the immunity altogether because not only would we not have  immunity that we are entitled to that we would also be branded as well for and won the jury would be told this officers conduct is willful and wanton if ever there was a case in which the general assembly wanted to protect officers who are executing and enforcing the law it would be the case where the officer causes harm because he fears for his life and they would make that the case least protected instead of the case most was in after close about reaching the general verdict in other words if they said we just can't decide whether officer garza reasonably feared death or not then they could have reached their verdict for the defendants either by concluding concluding that in fact the defendants had proved officer garza was in reasonable fear of death but if they concluded just because they were an actual pows and they weren't really sure whether he reasonably feared that they would not have answered the special in iraq that story that asked did officer garza reasonably fear death they would not been able to answer it yes they would have can't had to answer it we're not sure that's not how they answered the special iraq a tory that interpretation of the words of the special iraq a tory is completely unnatural and therefore that special around tory tested the verdict and show that if we had the burden of proof the jury would have come out the same way but even on the merits we said that the court properly instructed the jury with respect to willful and wanton and who have the burden of proof unless there are further questions we respectfully request that the court reverse th