the better that so justice robert gordon is the third panel member he's not available today but he will fully participate in the case and he has and will obviously have an opportunity to listen to the oral arguments and obviously the briefs and the record that was filed in this case with that if both attorneys that are going to present argument step up and identify yourself for the record the personal destruction expert discharge in cases like this as in peoples yes that is correct you can't be found guilty and what was is there any difference though because i understand your situation peoples's control was there not challenging up with question is certainly different i'm yet to say i mean i know you're arguing they're exactly the same they are the question the jury got in people's versus you know the question here everybody agreed it was unclear but no one all right well he wasn't scared just with intentional was he yes and i thought you said that it was the because yeah everybody knew he was charged with causing we only have one murder in illinois right in this circumstance where the state well chooses to prosecute him only as a principle and not as an accomplice the only act this is what people said that the jury should consider is whether or not he truly discharged  he says that allows a person to be charged with a crime which was directly committed by someone else if the charge person asked for the crime to be committed in the commission of a crime or was a conspiracy of a person could directly committed a crime in other words  there is absolutely no requirement that a person charged with murder the and we only have one murder in illinois that the jury determined you're saying that anytime someone is charged with murder ok that the that they also have to be charged with personally discharging the car and that's not the one that's simply not so but moving on and we're familiar with people's case but i mean people versus the right but in this case was there were there differing views about her testimony that some of the witnesses said that this defendant fired the gun and then there were witnesses who said he was there and got out of the car wasn't there a little bit of  of those witnesses and with the instruction that was given that he caused the death and that's what they were told couldn't the jury have concluded that based on the instructions that the court yes but the problem here is they asked for that it's either you know either caused the death or he was accountable and here the state didn't charge accountability so therefore this whole discussion about the notes was totally improper  mean they can't they can't a peep that's a fact what people says or the people spoke people says the answer should be no and then they ask for clarification and it's actually pretty sophisticated what they're asking they're asking can we separate separate out these position would require us to read something into that i pad that is not fair no my position is the jury exhibited confusion and that they showed that they were considering convicting him based o know if they could have come up with that word on the right but it's possible they were all you know operating under this idea that maybe we can do something less than murder if we say this i don't i don't know that we can't speculate and this exact point was addressed in people where it is possible that they were you know this was very likely but you're certainly careful at the very high probability that they actually convicted him based on a theory of credibility nobody can really rule out that people's yes people's is significantly different than this case why why because in people's the jury asked an explicit question we don't have an explicit question in this case overreach or what the question was of people's hands someone be guilty of first degree murder and not pull the trigger were struggling with the concept of appeal to you or they but not having enough evidence that shows struggling with the concept of a guilty verdict but not having enough evidence that shows or proves that defendant was the shooter ok what without so much more explicit question then when we have in this case can we find guilty of first degree but not guilty of discharging and pervaded the defendant was charged with first degree murder with personally discharging and then egger of a discharge of a firearm the trial court said i don't know if they mean personally discharging or aggravated discharge a firearm are you clear defense counsel responded i'm not clear your honor and then all the parties preserved any claim that he had were guarding the inappropriateness of the trial court's decision regarding the giving of the failure to give the not i p i instruction and i and i submit that of an instance in which a defense has been able to provide a non i p i to prevent a jury from considering a theory this is again shooting we have two people i am afraid you have multiple different accounts of what  oh ok so well when you say about the shooting there's there's there's eight people who are at the house who are talking about how they want to retaliate against the land king's for them decide that they're going to go and get into the minivan and go shoot some kings four of them remain so the four people that were there the only how it really of the actual shooting we get from dan would the lead the act act are wide open i think it's a it's a theory of how we want to prosecute the case our our our case was built on him being the shooter to daniel identify the defendant as and the sure clearly rejected bacteria no the jury did not clearly reject that theory the jury found the defendant guilty of first degree murder which did not require the to find that the defendant was the shooter he did during the structure's defendant perform the act which caused the victim's death and that we are saying it was a shooting but whether or not how they interpret it i don't know we don't know how they interpret it and per the fact that this fungus not guilty of personal discharge means nothing in this case because inconsistent verdicts can be attacked and more they used to be able to now they can't be attacked we can't what was the question again with you ok so there's actually three so the first point can we find guilty of first degree but not guilty of discharging an aggravated ok the parties were in agreement that they're not concerned whether or not  the universal answer to that yes or no or either i think there the the answer to that should be please clarify i think but they answered one question again can we find fusion about this issue where the person perhaps was maybe powerful instead of the principle that the fury should be told should answer it explicitly yes in an instance like people and which they ask an explicit question and my i submit that this was not an explicit question because they when they went back to clarify they said please define what is intended as an act in first degree murder and again the judge response said that's even more confusing because what are they talking about the definition of an act because there is a definition of an act but do we provide that what are they actually seeking you don't have the murder instructions yeah you know what he what the jury was told that in order to commit murder  with he sent it the offense attorney and this case was actually rather crafty what he did was he submitted this nine i p r instruction the judge said no when i'm not going to give this to the bed then what happened was defense counsel and i apologize because in my in my brief i put down that neither party mentioned accountability theory in their closing arguments actually went back and looked he did argue accountability didn't use the word he who defense counsel to defense introducing the theory that it wasn't the defendant who was the shooter it was proven maldonado who was the other person who got out of the car along with the defendant he didn't he didn't say accountability but he introduced that theory to the challenged but there are coconspirators statements that were that he's not challenging that were made that were made prior to the shooting he's only challenging the ones that he says were not made in furtherance and those are the ones that were after the shooting so there's things that that that incorporate the defendant in there as they show that he was went there he he wanted to be the shooter they were laughing about it they were trying to decide who was going to be the should generally speaking would car came back and reported back and the what they you know i laid out in my brief what the objective of the conspiracy was and that the that the conspiracy had not stacked that this one shooting because they were there the object of this conspiracy was to shootings is there any it is there anything wrong with the i p i structures or when they say that the fury that the state have to prove that the defendant was the acts to heave performed an act that caused the death and he did so and you know i also cited to a case of people versus alexander in our brief in which you know this court i'm has found that the prosecution is not required murder then they're charging him having this personally discharge they get a greater penalty and then you know they're not going to submit you know they're not going to charge accountability in this problem but if you leave happen that we're facing here prosecutors this case the way probably this right arm i don't think that the problem in this case is what the way that the state decided to charge this i think what happened in this case was defense counsel was rather crafty and what he decided to do and he decided to interject a concept of accountability we did not argue accountability we said that the defendant was the shooter defense counsel was the one  accountability in addition to the first degree murder personally just yes i think this yes but will it continue yes it will continue but i don't see it to be a problem statements well actually what he's not he is his his argument has to do with the jury questions he did not challenge the appropriateness of the  so that is something that you're concerned about but that is not what he raised in this case so what we have in this case is what may be some people may argue to be an inconsistent verdict i don't think it's an inconsistent verdict because oh you don't we can't look into the minds of the defense of the jurors in this case and grasp what they were thinking when they decided to find him guilty of first degree and not get see a person personal just charge they could have said we're going to cut him a break we're just going to we feel sorry for arm or whatever we're going to just find him guilty of the first degree murder so when you start trying to  actually was very effective in this case because he planted that seed perhaps that's what they followed i don't know what the end the end result was a defendant had twenty five less years that was the verdict and i that was the sentence in this case we couldn't get him for the additional twenty five years we just got him for the first degree so for looking this in terms of in effect of us as a council this council gave this defendant a big gift well i think  we look at whether or not the trial courts response to this case was appropriate and i just want to clarify one thing you're asking what the standard view is there's actually a dual stand there view in this case the determination as to whether the trial  but i think there's also a danger in these cases when you look at the jury notes and the appropriate response is that when you rely upon what the verdict was you have to look at what the parties and trial court knew at the time that mallock we are here today because of how the state chose to proceed in this case justice burke just as you asked why would they instruct on accountability it's because they wanted to perceive that all or nothing they wanted to give you at are they want to get forty five year minimum correct that so is this this whatever happened you might describe it as a mess and i understand your position and you have this people's case that you think supports what you are  but at the end of the day mr mallock is it subject to harm us here in other words with this jury have returned the same perfect guidelines no there is a very high probability that this jury convicted him based based on a theory of accountability yeah and if they had been properly instructed if they had told him told no you have to find that he was the shooter in order to find him guilty of murder that's what people i have a problem with the whole though this sort of universal question about murder that you have to it you know in this case under these facts you're saying the jury have to be told the answer is if they want to find him guilty of murder they have to find that he was the one that was the shooter because that was the theory that was below and this is not just about the theory of the case but the state it but as constructed by the court the prejudiced years with no instructions and no answer to their questions deters were free to make up their own theory of accountability what about the people's case now when opposing counsel stepped up she read another portion of the question that you never pointed out yeah i don't think it makes any difference though i go i think we can look at this one question in a vacuum we have to read all three of these questions together in light of the circumstances of this case in light of the fact that defense  because that he knew that if he could prove that he wasn't a shooter he didn't get an acquittal on the murder that's why he wanted to offer the instruction that he did don't consider any other acts other than whether or not a dentist actually discharged or fired but you know that's not they have a problem with the fact that it's going to be inconsistent for them to find him guilty of murder but also find him not guilty of just charge of fire and that's why the accident the definition of acts in the i p i is that he is that restricted my point exactly the people's and people's addressed this fact that yes you can find someone guilty of murder without finding them you haven't personally discharged but that's what you what really big issue is here is clarification