through intentional wrongdoing and a jury of illinois citizens deserves the chance to make it right the defendant's intentional misconduct caused the wrongful conviction which destroyed allen's life dishonored the victim's memory and left a dangerous killer on the streets the court should hold that causation is prez where investigators play a significant role in the commencement or continuance of a prosecution which they cause through intentional wrongful conduct that is our standard a significant role in the commencement or continuance of the prosecution which the investigators cause through intentional wrongful conduct causation is an issue for trial under this standard any indeed under any standard because allen could not have been indicted without an investigation and a police file intentionally manipulated and curated to pin the crime on him at minimum a reasonable juror could fin looking at this lengthy disputed record that the defendants were brought for cause because over many months they built a deliberately slanted file by disregarding and failing to investigate more plausible suspects polygraph was withheld from the prosecution and judgment day found that a jury could find that defendant warner intentionally withheld that polygraph he went on to say in footnote eight of his opinion that if that if that polygraph had been disclosed to the prosecutor perhaps he would have viewed murray as an alternative suspect and of course that polygraph was described by this court as indicating intentional evasion by john murray and was one of the key pieces of evidence that led this court to up and allen's conviction only basis that the federal court had for dismissing the much in our claim of brady claim was the technical federal doctrine of qualified immunity doctrine that has absolutely no a the state law claim of malicious prosecution and so i think it is entirely appropriate for this court to look at judgment day just finding one that there is a jury question as to intentional suppression of the murray polygraph and to his finding footnote eight that that could have changed the prosecutor's mind as to whether memory was a viable suspect so i want to be clear that we when even under all released we're entitled to a jury trial even under the defendant's pressure influence  misstatement tast and the influence of course doesn't end there the prosecutor testified that he considered the entire file the entire investigation when he made his decision to it's impossible to conclude that as a matter of law in fact in the prosecutor's own words this case could not have been won without him freespire so we do win under the defendant's test but the problem is  erred as to the tast because it failed to apply the ordinary rules of legal causation and cause in fact to the defendant's intentional misconduct instead inventing a specialized causation rule to apply only in malicious prosecution cases and no other category of tort and the defendant's under that standard police wrongful conduct so long as they did not pressure influence or lie to the prosecutor the problem with that stand is that pressure influence or misstatement is one way that police investigators can cause malicious prosecutions but it is not the only way under the defendant's test if police torture a confession out of someone or plant evidence were as in this case hide evidence from the prosecution and manipulate an investigation in order to nail a particular individual none of that is actionable so long as the prosecutor knew about it that is a standard that would weaken protections for police accountability protections against wrongful convictions in the state no prosecutor could have indicted alan if the police at conducted a fair and honest investigation you'd only in terms of the evidence that's been developed in this record is we know that there was a meeting in this district with the prosecutors in which the nine the result of the nine month investigation was presented and a statement from one of the deputies i believe saying we've heard enough we're going to move forward this case something like that right is there any holes in the record of any other interaction between the state's attorney and the officers the state's attorneys were participating and were aware of what was happening in the investigation they were aware of yes most much of what was happening in the investigation that is true the mere fact that the state's attorneys were aware of what was going on for the most part in the investigation with the exception of things like intentionally withheld mary polygraph should not immunize the independent intentional wrongful conduct of the police in this case because if it does then prosecute it then as long as the prosecutor is a relink malefactor who knows about it then the police will state liability for their independent wrongful conduct without which the indictment would not have been possible this is a case where if the investigators had conducted a fair and honest investigation if they did not manipulated time trials if they had doesn't is that we ought to look at this from the standpoint of causation in the entire effect of the entire investigation in causing the entire and our position is that the indictment would not have been possible regardless of what happened in that last meeting without the intentional wrongful conduct of the investigators in this case and in fact souk testified that if he had known about the murray polygraph he would have considered it important and asked more it is true that that is the only piece of evidence that the state's attorneys were not aware of but focusing only on what the state's attorneys knew immunize is intentional wrongful conduct so long as they knew about it and the intentional wrongful conduct in this case is truly shocking and extraordinary just one more question on the public referendum that the are we going to hear differently from the state or is there a question  upon for misconduct at half the time the misconduct is not limited to the polygraph i want to be very clear about freespire committed perjury before the grand jury he was asked a direct question has the investigation located anyone other than allen demon with any conceivable motive to kill jennifer voc miller he answered that question no he concealed john murray the very concealment before the grand jury that led this court to up end the he doctor the time trials driving fast when that would hurt allen and driving slow when that would hurt allen and he concealed in his report a detailed fifty six page single spaced report that mention every other single time trial that was performed he omitted the one time trial that excell pated allen beeman he was dad told a grand jury about on a direct question but then here made it again from his jury testimony he failed to talk to some of the people that jennifer locke miller encountered just in the days before her death men who were flirting with her at bars and who she gave her number to and kept calling her the police didn't even attempt to find these individuals that's why our law enforcement neatly in this case are so concerned about how this sort of misconduct can cause wrongful indictments and prosecutions that's why our expert a senior f b i investigator with thirty years of experience was horrified at what he called the utter disregard for the truth in this investigation this is about causation without an investigation manipulated and curated in the way that the defendants did it would not have been possible to indict leave that spot for causation and legal causation is a question of for c ability of course it is for seal that when police conduct a dishonest dishonorable investigation in order to nail an individual a guy who by the way is in rockford when the murder occurs in normal of course it is forseeable that a prosecutor will issue a wrongful indictment in fact this court said just last year in people versus ring  prosecutor ordinarily relies on police and other agencies for investigation of criminal acts in short without a trial how can we conclude under any standard that ease  that's the causation requirement and the commencement or continuation requirement which in some ways are different sides of the same coin that element under our task of intentional misconduct causing the indictment is critical we simply recognize appellate court that misconduct intentional misconduct that can cause a wrongful conviction is not limited to the narrow category of pressure or influence or misstatement to the prosecutor because that allegation of pressure or influence exerted by the police officers or normal statements made by the officer through the prosecutor if we agree with that you know you should not agree with that test for the reasons that i stated but you know entitled to a jury trial under that standard which is essentially the pressure influence from statement test the withholding intentional holding of the murray polygraph is essentially misstatement withholding of part a key part of the investigation part of what led this court to append the conviction and how can we say without a trial that not only that but all of the conduct that media indictment possible did not influence the outcome of this summary judgment so we're we're really trying  that when the police officer said the same word i said i don't remember what happened i didn't you know i didn't intentionally withhold the polygraph i really i gave it to someone else and i don't know trail goes cold that's understood and two there was a protocol in place for what he was supposed to do with that polygraph the defendant say yes testify to he was supposed to give it to all of the investigators he was supposed to give it to say yes you're only the commencement or continuation wrong but to reach all of the bases for the circuit court's decision and to remand this case for trial i touch briefly at least on probable cause without a trial how can we say as a matter of law that there was probable cause when the police did not have a shred of evidence shred about placing allen in normal there is no evidence in this case that he was in the right town he was in iraq for the defendants knew that based on the bank video and his whereabouts later in the day different town it is absolutely extraordinary for the police to arrest someone for murder when there is no evidence placing him within one hundred thirty miles of the crime  in rockford crime in normal position where we can only looked at the time yes what we know now you can look to the evidence that the police had at the time correct the evidence that the police had at the time they didn't have a shred of evidence placing him in normal and they knew that he was in rockford based on the bank video based on his whereabouts later in the day the idea at first at the very best the idea that  could have made it to normal is a mere theoretical possibility a mere theoretical possibility is not probable cause the defendant say on page thirty eight of their brief that there that we there's a disputed issue as to please the court counsel my name is thomas dietz jani and i represent the defendants in this case i would like to turn down the heat a little bit because i think mr shapiro has tried to press buttons that  emotional as opposed to the legal issues before the score i would say that every single court that has look at this has studied a huge record has said the same thing they've denied disagreed that there was intentional misconduct  by any of the defendants with a plate of circ trying to present in this case and convince this court to accept is a brilliant new cause of action that this court for one hundred fifty years has never recognized if they conducted an investigation that was they say shoddy or they say they did something that the prosecutors knew about for one hundred fifty years this court has said prosecutors prosecute and the extent to which a non prosecutor is going to be held liable or be able to be made a defendant in a malicious prosecution case depends on their to what extent they influenced and engineer a prosecutor to do something at the prosecutor wouldn't have done absent the conduct that they had that they were engaged that so if you tell the prosecutor if you exert influence on the prosecutor that convinces the prosecutor to go forward with they have prosecution that is actionable if you do think if you hide evidence from the prosecutor or you  fabricated evidence and give it to the prosecutor and that makes the prosecutor go forward with a prosecution that they would not if going forward with that is actionable that's been the kick the law in this state for one hundred fifty years they are tryin us this court to create a brand new cause of action that eliminates the prosecutor's involvement in the case that regardless of what the prosecutor knew about many of the questions that have come from the court were  properly focused based on illinois law did the prosecutor know that the prosecutor were they aware of that were they involved in the investigation yes absolutely they know about everything and i'll talk about the polygraph and in a second because that's the one thing i didn't know but it doesn't matter in this case they told that this is a perk if you were a horror story of of the torture of a person and torturing a confession out of them and if the prosecutor knew about it that's not actually police get off that's so absolutely wrong because it might not constitute malicious prosecution under illinois law but that's malicious prosecution under illinois law it's not the only cause of action that could be raised against the police officer who gauges that kind of caught that conduct there is a whole panoply of federal civil rights law that would reach that situation there are criminal consequences and we've seen in chicago recently criminal cases case brought cases brought against police officers who who who engage in that type of conduct there are sanctions of all types that reach that type of conduct malicious prosecution has never been a cause of action that this state has recognized to reach that type of prosecutor to bring a prosecution that the prosecutor would not ordinarily have brought had they not been influenced in the improper way has always been the standard now some cases discuss it in different ways some cases talk about a significant role but where but where the cases that have talked about significant role they have not equally needed significant role with causation what have said was when a police officer or even a non police officer plays a significant role there's a category of people who could potentially be held liable for malicious prosecution however all  other elements of a cause of action have to be have to be met including the commencement initiation course of action so significant role has never been a standard that says what the plaintiffs want you to say it is if you conducted the investigation if you were a lead investigator if you were the head of the the investigation unit like frank zionists was if you  tested an alibi if you took statements from witness x but you didn't take the same kind of statement from witness why you are now playing a significant role and that makes you susceptible to malicious prosecution under the  first element of it that's never been the law here this court has and all the courts in illinois have never extended it that far and they shouldn't and the reason your honour's i would say is that it's terrible public policy what they want you to do is to look at the end they want you to create a cause of action in which the plaintiff or court can look at the investigation and we use this case as an example the police in this case and not just the police the state attorney was there at right at the beginning just his face asked the question how involved with the state's attorney the state's attorney met at least five times with all the investigators during the course of this investigation including the one where the decision was made to go forward state's turn it was there when the body was first found of his locked miller there was a decision made by all of them considering that this is not a burglary this is not a forced entry all the evidence that they looked that indicated that it wasn't that that it was somebody who knew her and it was a crime of passion those are the decisions they made they want they want you to create a cause of action where you can somebody can sue the police because the police came conclusion like that is that what we want subject police to in a criminal investigations that's what they're looking at that's what they're asking you to do that that you will not find a case i submit to you in which a prosecutor was more aware of the facts more aware of the evidence more involved in the investigation and was unaffected or or  are nationwide compilation of the law of militias prosecution so this is been a very limited prosecution limited cause of action in illinois and the way they want to extend it it would be massive it would be radical and it would be something that i submit to you would put police officers in jeopardy of lawsuits over and over again the horror story that they're telling you about is a red herring that is actionable under federal law and the grand jury well the seventh circuit said this about that allegation he did not lie that was after a study of the record that was prepared in the case he did not lie and the the fourth district in its decision in this case studied that and agreed he ted not lie he and they say he manipulated time trials he tested the alibi the plaintiff gave one time frame prior to the in tight minutes prior to the arrest when after the arrest his mother came forward to say no i came home and found him in bed saw him in bed asleep an hour and twenty minutes prior to what the plaintiff had told the police when he got home or when he was home  so the the window of opportunity that the that these prosecutor was working with at the time that he made the decision to prosecute shortened as a result of evidence that was presented by mr beeman and his defense team so what did they do it they tested the alibi does that make opportunity impossible even dealy now they don't have the belief the alibi they don't have to believe his mother story which is inconsistent with his about when he got home that doesn't destroy their ability to go for work they're alibi witnesses who are biased and not believed in many alibi cases they don't have to believe that but nevertheless they didn't leave it on answer so they wanted to know even given the mothers out of alibi and her version of what the window of opportunity was let's see how that works so  distances from a to b to b to c to c how long to take what is the quickest way you can do it and what's what are different ways you can routes you can do it in and he brought that to the prosecutor and then the prosecutor based on that decision had to make a calculation well the step is that eliminate are our case this death destroy our case or do we continue to go forward and the prosecutor said we continue to go forward for a number of reasons now prosecutor now what type of logical analysis as a prosecutor have to make well so you see if you want seventy miles an hour he could have done an x amount of time that tells me if that's a normal reasonable amount of time that tells me if he if you only did it in sixty at sixty then i would have to think that's going to take longer but it's there are some huge misconduct here this is a police officer testing an alibi and are are you comfortable creating a cause of action that would say that up because a police officer tested an alibi in a case that later run turned out to fall apart we're going to that police officer liable because of what they discovered in testing the alibi they talk about hiding the alternate time bypass route and this was to test the time it would take mr beeman to get from the bank to his home on the day of the murder and freeze meyer testified that there were two ways to do it at the grand jury he testified the direct route which he believed didn't remarry leave out that the the bypass route did not make it into his police report that is correct but it wasn't it right well i would say he'll matter did i say he didn't it didn't make it in there i don't think i there's no evidence that he purposely hid it because he had a very limited role in this investigation he interviewed a few witnesses early on but he was the evidence person at the normal police department he got this polygraph report because he's the evidence person who got it so if you were to adopt their significant role theory werner would fail just by that because he didn't play a significant role in this he was he was involved early on and had a very limited participation so he says he says when i got it i would have given it to tony daniels was not a defendant in the case he's and one of the other investigators i would have given it to tony daniel because that's what i a clerk that used to do or copy and then that that misplaced there or it just fell through the cracks somewhere and tony daniels also said i have no reason to believe there is no evidence no reason to believe that david warner would have intentionally hidden this report from anyone now it doesn't matter if they want to say this is a fact or should we have a whole full blown jury trial about this this polygraph or poor the p had to do with john murray and it wasn't even inconclusive it wasn't it was on complete it that's all it said it was uncompleted souk knew everything there was to know about why didn't  that yeah yeah well the case was thirteen when when the when this court overturned the conviction sent it back to the prosecution that's the term a nation was made this is what we think there was no evidence that we it would be a plan of salvation to prove it under your slick decision as to why it wasn't we prosecuted however said that from his experience in prosecutions trying to put that case back together thirteen years later would be next to impossible all these witnesses most of these witnesses were students at that time was facing charges of drug delivery he was facing charges of domestic battery and a order of protection from his girlfriend was out of a judge so the prosecutor knew all of that so he was convince he said that you know i think that that strange she called it strange reports of the poly but the polygraph and this of course after the fact  i wouldn't have known what to make and yet it might have asked the question about what i want to have known what to make of that that didn't tell me anything that was suspicious about marie and in fact souk knew that money had been scheduled for a second polygraph up a polygraph and didn't show up so if there was something to be suspicious about and that that might have affected his determination as to whether as to whether he was a viable suspect then that would have done it right there something or everything there was to know about marie and didn't consider him a suspect so it is a red herring to say that this polygraph that never made its way to the state's attorney's file and we don't know why and even the person who would have been responsible for it doesn't think that there was some misconduct involved but it was to cover on this do you see anyone suka over and specifically whether or not if he had this polygraph information he would have pursued it against him was there a specific question yes it was after the affair at the post conviction proceeding he yes to what would you have made of this he said it's a strange thing i might have asked a question about it but it was strange at the case that during the case at his deposition he was asked several questions about and he said i didn't believe murray had a motive and this wasn't going to change my mind i never thought murray was a suspect in the polygraph was not going to make him a suspect in his mind super where we think there was to know about john marie inclosing i see my time is up in closing i would ask adhere to what this been the law in this state for ever on what is malicious prosecution to not expand it to what the plaintiffs want it to be  by the officer to the prosecutor and i think you said that the failure to give the polygraph report is in your terms i'm a state in the not doing that what about the knowing per is does that come down to a question of fact i mean we heard mr deuce you know any state either fell through the cracks or that the third tarrier clerk lost it or the you know  forgot the person's name or was in charge but he lost it what about the knowing aspect what i believe we heard from him post opposing counsel was a trip through the mind of defendant warner with regard to his state of mind that is not something that can be resolved as a matter of law and that is why judge mcdade found a jury issue as to intentional suppression by defendant warner of the murray polygraph report and murray's undisputed that warner was the last person to have it it was undisputed that there was a protocol in place for its dissemination that he knew about and did not known about this report it would not have changed my mind in footnote eight of his opinion that if of the federal court who heard the federal case and rejected it ultimately and qualified immunity grounds and was affirmed by the seventh circuit on the same grounds he found a constitutional violation and he found nine he says that the polygraph have been useful for investigative purposes and he would have asked some questions and looked at it more we cannot say as a matter of law without a jury trial that this did not influence the out listening to opposing counsel's presentation i think that it was largely knocking down straw person no one in this case is suggesting liability for shoddy investigation for being a lead investigator or for negligent investing next occasion what we are talking about is liability where defendants in the licious really conduct an investigation where they engage in tensional wrongful conduct that results in an indictment and where there is no probable cause this is not something that normal police officers who are doing their job in the honorable traditions of the profession do this is extraordinary misconduct and mr de opposing counsel downplayed some of it the seventh circuit never meyer did not lie to the grand jury it is clear is day in his testimony he was asked if there was anyone with any conceivable motive other then mr beam in to kill jennifer locked in a he answered that question no that is perjury is said that this polygraph would not that he was in charge of investigating the murray angle and he did not believe that  situation here we're looking at was this intentional was this a lie when the police officer is tracking the same position as the sister who made the decision to charge now why is intentional lie based on all of the clear evidence that murray was a very serious suspect and that the defendants were focusing instead maliciously on human the jury doesn't have to accept self serving statements that he was telling the truth and that's that's that's why we have jury trials to go into a state of mind where there is such a clear we're talking about a guy in rockford a goes to the grand jury and he says about the guy who's in normal who has such a clear motive to commit the crime that the investigation did not uncover anyone with any conceivable motive that was the phrasing of the question any conceivable motive a jury can infer that that is a lie this is extraordinary misconduct no one is talking here about trying to immunize ordinary police misconduct or ordinary negligence or every time an investigation goes wrong there is jury doesn't have to believe his self serving assertions that he was telling the truth it doesn't have to believe i just accidentally omitted it he can say oops but the jury does not have to believe in the face of of  that's exactly the same as what i believe and what evidence is there in this record to show that when the two of them said those things that that was untrue why why must the school would your evidence to counter act in this record that they're clear statement that they did not believe that murray was the suspect i don't i think i've addressed that particular point as best i can but there is other clear out instead of misconduct it's nice not just about memory it's about the omission of the extolled the tory time trial he also told the grand jury that none of the neighbors had any significant evidence for david simply testified that he heard people in the apartment as of two pm which made the rich made it totally impossible if there is a whole record of intentional misconduct or conduct it could be viewed as intentional by the jury that's why there is a jury issue there is also the question of fact the very question of fact the judgment day found as to intentional suppression of the polygraph no court contrary to mr deeds of two opposing counsel's argument has ever said that the pressure influence on this court has never said that the pressure influence or misstatement tast is the test for a commencement or continuance of a prosecution it is never said that the notion that there is some sort of longstanding law that this case would up end is simply false this is a misconduct that results in a malicious prosecution is actionable nor can we simply say oh let's let's hand it over to the federal courts even if police testify even if police coerce a confession out of someone so long as the one hundred and thirty miles away they knew that there was not a single piece of evidence placing him a normal a mere theoretical possibility is not probable cause this case deserves to go to a jury so that it can have the opportunity to right the terrible wrong that the defendants did in this case through intentional misconduct thank you rogers thank you number one two two six five four be human versions freeze maher will be taken under advisement as agenda number thirteen mr shapiro mr d c on it we thank you for your arguments today