so good at meeting your honor rachel cowan from d l a piper on behalf of the appellant time a whole wide we have twenty minutes how long we take really depends on how many questions you have you had no questions i wouldn't take more than ten fifteen minute attorney on behalf of the people i expect to take about the full twenty minutes for a good discount why don't you proceed with your or yes i hope i have that right i've been representing him for four years you know by now five years these are the court you are here today on appeal from a denial of this is his fourth petition yes this petition was filed this with an actual innocence petition and because i'm prejudiced titian in which we brought forth pieces of evidence each independently establishing new no she prior to that they just seem to she may have been in this country illegally and susceptible to question from the police department over immigration status while you're gone from suggesting that she may have been in the country illegally too in your reply brief i think you say it's certain that she was in the country illegally i don't i don't see where that follows i believe that there is very strong evidence that would suggest she was in this person doesn't exist and so tony tell me from there you draw on it you argue that some all the state's attorney should have known establish could they have a duty to investigate in here this wasn't a very difficult investigation and you talk about criminal background well it's not the immigration status is there any is there any case that talks about  prosecutor having a duty to investigate the immigration status of a witness i believe that you have to read the cases together ya know rodney if you look at us we're brothers in the ninth circuit brady gabriel was violated with a prosecutor failed to disclose immigration related information and the prosecutor there would be didn't have the information only the da did because it was a confidential informant and the ninth circuit said this responsibility goes to the entire government does require to be disclosed is pretty simple so again i'm trying to find the prosecutor's duty the prosecutor's duty is to run a background check on every witness yes there is some basic information i'm not suggesting that this was something that required thousands of hours or significant resources the most basic piece of information here do you mean exist that should have triggered something some basic investigation and we don't know what the chicago police department did what we know is that we did the basic search once this became available to the general public it came back immediately upon a one page inquiry with your position we set up a duty to conduct yes my position is that the police have a duty to conduct a basic search and here is the basic inquiry into their criminal record would have revealed the immigration status or some question about it and narrative triggered a duty to disclose but again really one of five pieces of evidence and one of which we believe is new evidence that authorizes us to file this petition one in addition mr so that his statement to mr morris that he was threatened with deportation is an statement against his interest because it's effectively an admission you know he's here illegally he's not now makes clear under section b three that the rules of evidence to not apply to post conviction proceedings which this court recognized in people of the jones this summer two thousand and sixteen the last first run two three three seven one and so hearsay and that's enough to get you third stayed no i would prefer a bed also to people who are affidavits from witnesses who say they heard the real shooter confess to the crime rate miscible in the post conviction petition because they are statements against interest  to confirm what mr maher said and mr salt at all said i won't cooperate with you but yes i will here's my affidavit i'm going to tell you exactly why i testified the way i did because that's not our responsibility at stage one  seeking leave that is an appropriate inquiry into whether the statement is credible at stage three and this calls for answering no and montanus actually cautioned proper ted is about weighing the evidence and making his credibility determinations i hear what you're saying apply and even if i didn't buy there is an exception to the hearsay rule for a statement against interest in admission by mr sound out they need to be deported it's not surprising that he didn't want to run around telling people he's not here ten yes your honor the statements made by mr morales and my man this are consistent with other evidence that was submitted previously including the fact that mr facts demonstrates that in fact is the injury heard these facts that the outcome would probably be different again here the standard will be that this thing about what we have presented that gives someone palace for concern that mr wyden might be innocent is there anything cool about those five factors independently but also when read together against the back but you can see that this isn't at a pro stage first post conviction analysis it's a successive and indeed third successive post conviction petition so it's still a very light standard at the early stage or it would just simply leave to file in here the court is supposed to accept the facts as planted there isn't to be any weighing of credibility and that's we believe happened here in appropriately that jeff sachs really the evidence dismissed some of these new allegations because he believed that they were incredible that our allegation that we could we your client said didn't they didn't do an independent investigation they said oh that sounds terrible we might do we should we think the state's attorney should investigate i will but they did do a comprehensive investigation they interviewed mr awad they reviewed all the evidence that may be innocent of the crime and they referred it to the state's attorney for investigation and that non binding report that they are permitted and compelled to issue under seven seventy five i also yes forty forty five is new evidence under rice and  evidence that is reliable credible that his corolla ration is new with evidence but jeff sachs and the state's attorney took issue with the fact that mr herad did not actually confess what made their in it is very damaging in the sentencing and it still imaging in the sense that if you lie to the police about the fact that you were in jail when you want and she'll that doesn't help you i did an alibi telling the police rice the point being that any statement that is used against somebody made during an interrogation by which torture occurs is unacceptable that it cannot be admitted and it is not subject to a harmless error standard but to your point you're thinking about it from a different perspective which is here the gist of the state's argument and what jeff sachs found very damaging was the chronology that mr rudd allegedly provided regarding his detention and the alibi think about how reliable your statements would be about really you had been and what you were doing if you have been beaten and slashed from multiple hours and then somebody put your feet onto a paper grade and cut the toecaps of his shoes off nothing said during that detention is reliable or admissible and independent corroboration that allegation and that is the new evidence that entitle sus to come forward the state's attorney who's saying i was structured in police custody would not then say and by the way they threaten to cut my toes off with a paper with the paper because he was waiting for his lawyer to ask those questions he's eighteen and his lawyer shuts down the investigation and the examination he's eighteen he's relying on his lawyers advice and we can ask is there he's told this and with it he didn't raise it because he believed that it was not appropriate at that point we don't exactly unfortunately his counsel did not ask in my name who was just eighteen at the time did not question his attorney's judgment he did raise the issue after he finally begun bringing these flames on his own in this first pro se post conviction petition and he also raised ineffective assistance of counsel throughout the trial and the first appeal process and he was to doesn't have to know one three three two six four two thousand and fifteen mr weathers of us who have come forward to this court on the success of petition were gathered there to david's but never get them executed never submitted them and this quarter recognized that it was simply lack of diligence on the part of his counsel when he came back on the second petition those affidavits were executed almost a decade later and this court said it would be fundamentally unfair to the night defendant an opportunity to present this evidence to bart because it is not technically newly discovered in any real sense the evidence of these  witnesses testimony was not available to a defendant whose lawyer would not submit them the ultimate underpinning of the actual innocence of a fundamental miscarriage of justice exception is that no person convicted of a crime should be deprived of life or liberty given the compelling setting in which mr hernandez is compelled to tell the truth and shame for a plea agreement this is a memorialization of notes that happened before a proper session to the u s attorney the f b i and the cook county state's attorney this evidence plus was in two thousand and one that was in two thousand and one we did not know about it until two thousand and thirteen when my partner john king who was a former us attorney that tried several of the media platen disciple cases called mr shop what transpired it's not a guess that would be appropriate for a stage three hearing here what we have planned and what the court must accept at this stage is that this became available to us in two thousand and thirteen if there's any doubt as to why there was a twelve year lag we certainly can't bring forward evidence at the stage three hearing but clearly we spread and i am confident that it is true for an accurate that my office discovered this in two thousand and thirteen and obtain the letter and that's my credibility as a lawyer standing before we let it was not available before them and it does have an independent to show everyone the ability because of the setting in which it was given incrimination claim first to find may of course this claim has utterly been waived defended never explains in a motion to suppress statement that he was tortured by having his shoes cut the shoes were never raised until many gore ben raves that of course the square disbanded by the doctrine of waste to the count up this is the identical claim and the identical evidence that the defendant weighs in his second post conviction so and in fact the defendant shoes were mentioned in the motion to suppress statement assistant state's attorney karen hatch testified that when she was interviewing the defendant at the police station the defendant's our mother came into the police station and brought him a pair of shoes i don't know ronnie i don't know what the circumstances are but there was testimony after motion regarding the change of shoes in the two failing to raise this claim most notably because when mr mock trial lawyer testified before the truth committee he testified he knew about the shoes and hand the defendant told him he was tortured he und have included that claim in the motion to suppress statements which explains why it was never about the gated because defendant never made the claim to his attorney we're going to come a sound this cannot be used to steadfastly claimed that he had been physically abused by two specific and identified police officers he reported that abuse to intake that was the basis for his motion to suppress he testified to it of spiral in this post conviction then second post conviction petition for the trip has now made a torture finding they found that there was sufficient evidence of torture to merit judicial review and of course we disagree based on the facts and  defendant in a physical lineup in response to where he was the defendant said again that he was in county jail from the twenty first to the twenty fourth and that he had been arrested around noon taking his younger brother to kindergarten when he was stopped for implicated by the collusion claims the trial for this case never made any credibility determinations that would just happen in the success of petition is that the court can still look at all of the evidence not just presenting to  was standing on the porch when the police came to take so got it to testified at the trial he's always been very ill bred due diligence require is that somebody completed an investigation and nobody has and again defense counsel has to support such a claim i would like to quote you know that in the police reports this contrarious is identified as a god in modern day arsenal and how california driver's license is listed repeatedly on the again based on the record before you that information where they're trying to reassert that mr moore wampus is the real killer of that information was disclosed to defense counsel in two and footsteps trailing into the gallery brightness contrary talks about that some guy mentions it it's not really clear if it's just one person or if it's met the people but the police reports also show that the police are looking for a person named wead in conjunction with this investigation so this wasn't just an investigation where the defendant was arrested in the police didn't do anything to finish up the investigation that's clearly refuted by the rocker further we know that again post struggle and it hired moron the rest to take care of the sudanese and that it wasn't the defendant's job to do the shootings again not in the world discovered where has david ruiz been for fifteen years he has been available there's no indication he was unwilling to testify or that he wasn't able to be found and again this is information disclosed to council in two thousand iran he was known to the defendant he was a deliberate liar to trial defendant at the same right after the shooting and his affidavit contradicts the defendant's own statements to the police that being a false alibi nor assuming this to the shooting again these are not well played facts based on reviewed the facts the nature of the defendant's latest post conviction claims and correctly applied the rod there would be no need for reassignment even if this case went back based on all of these arguments  yes your honor i believe the state's attorney has now spent her entire argument doing precisely what this court said she had to deal in people the jones two thousand and sixteen at first one two three three three seven one and that is recount the trial record outside of a pleadings and argue about why the things were brought forward are not believable are inconsistent with the record well should not be permitted to be but that is not this court's role and that was not judge sachs roll we also vigorously dispute many of the characterizations of the evidence for example that mr ma miss hodge testified to in front of the turk we vehemently disagree with some of the characterizations for example really evidence has been issues my mommy and my niece monson possession for seventeen years they remained with the circuit court but that's precisely the type of thing that this court should not being cagey in which is do we believe  plaid and prejudice to the fact that a constitutional deprivation as occurred was reborn to knowing about why certain things are not new evidence the new states attorney standard virtually nothing would be new evidence because of examples for example the letter from a us attorney person was not dated two thousand and one it's clearly dated two thousand and thirteen there is no evidence in the record about what was made available to mr  attorney and read the u s attorney couldn't possibly speak to what the state's attorney disclosed to mr rudd's counsel and that type of that evidence is precisely what should come forward it is still a good three a proceeding but in fact reid's plan and honestly and accurately sell the that information only became available to us in two thousand and thirteen it was not available to us sooner want to ask for a matter to be remanded to a different judge i am more aware of the extraordinary nature of the relief we seek but this court on three separate occasions has recognized the goal certainly stre circumstances we're really men to the court which by the way is not merely who we're seeing a trial on the merits but is the finder of fact in the station hearing would not be objective and w