ask a lot of questions and we give you more leeway so when you're  and whether the integrity of the judicial process was tarnished if you go to to people who are sustained some people versus guard know that the two main cases that the illinois supreme court has decided aside from by jefferson and both of those cases the court review those cases as plain air and in both of those cases the defendant was partly responsible for responsible for bringing out this polygraph evidence into the case and baynes there was a stipulation by the  the defendant she did not think well your honor we i mean i think the mere mention of a polygraph with nothing more i think i'd agree that that doesn't entitle a defendant to a new trial but it went well beyond that  here and just taking a step back and looking at what mysterious testified to defense counsel asked esther a question there's no indication in the record that defense counsel knew that miss us was going to offer this information she said and i they offered me a lie detector exam and i said i will take one if i have my lawyer and then she added i've got nothing to hide here because in the open the doors judge is indeed it opens the door for them to rebut that evidence but it doesn't give them carte blanche  to introduce inadmissible evidence that's prejudicial to gruesome evidence that the only supreme court has repeatedly and that we said that it could not could not give and that is when the the state specifically equated her refusal to take a lie detector exam with her guilt now again getting back to what she testified to i don't you that at best her statement is ambiguous she says i didn't take lie detector exam because i didn't have my lawyer i had nothing to hide now at that we're i would have been happy we excited to give you a polygraph exam under certain circumstances because i have nothing to hide now do they have to sit silently when the defendant has said i have nothing to hide would have taken a polygraph exam or are they entitled to respond and challenge her proffered motivation for declining  the graph exam your honor absolutely they're entitled to to rebut that evidence but at in the case and in this case they could have done that with with proper admissible evidence and again i'm going to get back to what what is the jury take away if all they had heard was i refused to take lie detector exam while i don't have anything to hide i wouldn't take it and even with your enthusiasm i would have took it but i wanted my lawyer effort didn't take it with nothing more than what is the jury take away from that well she must not have taken a lie detector exam because she's on trial here in the state presumably wouldn't bring a case of murder case against someone who passed a lie detector exam so then the next logical step as well if she didn't take lie detector exam or maybe she took it and she failed it's or maybe she does have something to hide so i think at best how to get us how how that evidence even benefits miss europe's how about the other interpretation which is is least that that is the only reason that stopped her from taking a lie detector test which she says in essence through her statement that she had nothing to hide that she would have otherwise passed then the then recall sergeant that the sergeant in the detectives who are interrogating her to then bring out some more specifics about the interrogation did she ask for a lawyer if so when did she do it what raise by the defender it seems to be your theory that the only thing that the state could do is ignore that letter continue to hang out there she didn't take the polygraph but she would have had she had a lawyer the prosecutor should have objected there should about i mean what the judge ideally and then that testimony should have been stricken the jury should have been instructed that polygraph evidence is a lie it's now we're here and this isn't a the responsibility i'm the party that had no part whatsoever in bringing this issue before the jury they didn't ask the question the evidence they think that brought that fact into evidence nor did they prepare the witness because they couldn't speak to the witness in preparation for the trial and and go through a dry run to say ok what would you say to this question i mean they were completely caught by surprise and could not have not been caught by surprise because they have no way of knowing what the witness is going to say the defense going to say well your honor i'm not arguing that they that they were not caught by surprise but then and i'm not also putting all the responsibility on the prosecutor the judge also has some responsibility not agreed that the defense counsel although again there's no evidence that he knew that his client was going to say this but he should have should well ideally but you know if that's as  your justice fitzgerald smith said this now this isn't a perfect world but then again let's let's look at it at what at what the jury take took away from the statement you're you keep coming back to that well we don't know when that and that it's th unknown that was unfair to the state and i agree that the state could never anticipated that but then once they did you can this could have been rebutted with admissible evidence like i said that they could have called back these two to the two detect and got more specifics regarding the interrogation they could have got more specifics about whether she asked for a lawyer when and then what they did in response once the jury had that information that eliminates any credibility that europe's had where she would have taken this right detector exam if only she had her lawyer presumably at some point she got a lawyer because she was represented at trial she did represent herself and then again regarding just you know if she opened the door to this it or somehow invited this affair invited there only applies when there's no admissible evidence that can be that can be brought out by the state's rebuttal here the state didn't do that it seized upon this this evidence of noted the defense counsel didn't ask any follow up questions regarding this refusal to take a lie detector test and nothing more in closing argument the defense counsel did not argue and she said she would take that lie detector test and she was happy to do it the defense counsel didn't didn't go there he's just he stayed away from it and then the prosecution gets up and says you know what ladies and gentlemen jet juris told you i'm not witness stand she didn't want to take a lie detector test she wanted to lawyer what does an innocent person want to do and what does a guilty person want to do specifically with you know a supreme court said that you cannot do for me the issue is less about a lie detector and wanting a lawyer she's a right to a lawyer she said she wanted a lawyer  for the prosecution to make a point out of her wanting a lawyer that's where the rub is for me not a lie detector i agree that there are they i mean these these errors go hand in hand in there and they i think they compliment each other  but i think why why the polygraph evidence is so important and why the only supreme court says that it is is because that the fear is that the jury seizes upon this type of evidence instead of evaluating the the in the case instead of deciding the truth or deceptiveness of the actual witnesses they instead seize upon this failure to take a lie detector test given the larger problem by the fact that if  only supreme court is talking about you know regardless of whether it's specific evidence that the person failed the exam or whether they did not take the exam because there was a fear they would fail it's that that what this one the supreme  equating that refusal to take the exam with the person skills in a case like this where there was no admittedly there's a lot of evidence that the state put on there were multiple witnesses but they all told the police one thing they all testif trial to a completely different thing so it comes down to who does the jury believe as credible as it makes your suit but testified that she was not involved in this plan that she was you know that the she loved to walk away and everything else were to be believed the law enforcement witnesses who said that well the witnesses were lying on the stands they were telling the truth when they gave us these these statements while they were in custody so then it comes down to a credibility contest and it's precisely this type of case that the almost report has warned that it would be very easy for the jury to instead of evaluating all this confused admittedly confused evidence regarding multiple counsel brought out the most damning evidence regarding polygraph evidence and the court said well the defendant didn't object that included in a in a post trial motion we're going to review this is plain air even though the evidence was overwhelming there even though the defendant brought up the most damning polygraph evidence we're still going to order a new trial because of the the integrity of the just judicial process our case is much stronger than guard here we have  sponte testimony from the from the defendants and then you have the prosecutor not once but twice specifically equating her refusal to take this exam with her guilt you have the defense counsel objecting and you have the judge overruling the the objections at that point it's like a green light to the jury to consider this very evident substantively and then moving on to the issue to me not only did the jury hear this evidence about her refusal to take a polygraph exam they also heard twice that her codefendant son confessed to this offense and in accountability case like this where the state's theory is that the defendant how does that vitiate undermine any way the theory that was actually presented by the well if this was an accountability case that i agree that i agree with your honor that but this this is an accountability case but just because you're a mother doesn't mean you are accountable for the actions of your adult child your adult child codefendant in the murder case where the state's theory of this she was involved in this plan she was not involved in the plan whoever was involved in the plan but still again this comes back to how is this harmful i mean it's the state's burden to prove that this error was not was harmless beyond a reasonable doubt as a person or bear and again this comes back to that credibility issue again you have the defendant saying that her testifying that she was not involved in this plan and then you have the state's law enforcement witnesses testifying that all these witnesses testified at trial they're like they're lying right now and we want you to believe their prior statements that they gave to us so again in that circumstance as a juror you know is it easier to evaluate that this volume of evidence and decide who's lying when or is it or to seize upon that's what the jury did and the on the supreme court in these prior cases bain's and guard ordered new trials with a lot less with a lot less and without hearing the confessions of a confidence i mean this case is so much more stronger than bans and guard i don't know what else to say  you will look at that evidence in the context of this case where the jury has heard this polygraph evidence they've heard that the confessions of a codefendant and then the state is piling on prior inconsistent statement after prying prior inconsistent i'm having fun right now but again i can't stress that this case is much stronger than pains and guard and those cases are still good law so i think that that is a decision that if you're going to shoot decision that says that the defense opened the door and the not once but twice and then what the court do with it that try to cure the air no overruled the objections it gave no jury instructions to the jury about the unreliability of polygraph evidence but it's that it should be stricken and perhaps defense counsel should have asked for those instructions as well but it's also been the judge's job to make sure that the jury is properly instructed that because maybe in this case you would ask them to defend you don't have to worry about taking that old lie detector test do you hear what their theory is the why that's a good question to ask or maybe she wanted the lawyer what does an innocent person who want to do what does it give the person who want to do with you agreed with me that light would be better regardless of whether or not this was brought out by the defense attorneys question if the state's attorney had a little self control and didn't say those things well i got be in a portion of that but let me back up i i was one of those trial systems too i've tried several hundred of those murder cases myself i've done things i've been in the heat of battle and i know the kinds of things that go on and i have talked to the prosecutors in this particular case as i do in in all my cases and hopefully because i've been around a while they they listen and frankly when i picked this case up and i looked at what the prosecutor it said i said so yes you can't say that then i actually read the record into put into context and did he go a little bit further than that he may have gone possibly but the point is here these cases all have the cases defense sites that there's a purpose behind them and that's so that you don't hold something the defense constitutional rights against him and in this particular case this this this defendant is claiming bed she asked for a lawyer and that she refused the polygraph and it was all part of her defense was to show how terrible the police work and that she never made any statements at all and of course the  that's really what this is all about the underpinnings of it boil as well you take the defendant silence and you argue that innocent people don't remain silent in the real world and it's a way of hiding behind your rights and so when you imply that she's guilty because she remained silent well i story in this case was that she didn't remain silent i three was that we want you to consider her guilty because as she made the states and when she gets up there and says i have nothing to hide them for the substance to live the actor has for remaining silent in doing well isn't that exactly what the attorney is suggesting when he says you don't have to worry about making we all lie detector test do you isn't that the same as you don't have to worry about talking to us sure but if you're innocent but show what he was doing there is saying that her statement that she asked for a lawyer and that she refused to lie detector test was a lie in itself into a well you're taking the silence and you're saying let's presume guilt from the silence in this case we're saying don't believe her claim that she was silent because she wasn't silent she made a statement and we want you to believe the statement we don't want you to believe what she said on the stand we don't think that's her we want you to believe what she said in the statement we're not asking you to infer guilt from silence we're asking you to give to him for guilt from the statement that we've properly introduced and the interesting thing is when she is on the stand and testify her whole purpose is to say the police are terrible the  all these terrible things to me well but this is a woman who claims she never made statements she says he damien spoke to watch it all so what's the point of all this to just say the police are terrible because if the police are do all these terrible things and you don't make a statement who cares what difference does it make the police than inducer statement she's not claiming the police coerce me into making this statement she's saying i didn't make a statement at all i had nothing to hide and she's making denials or out solo it's the opposite of a doyle violation and the notion that that we had to object somehow when she brought up this polygraph evidence which again it's not really polygraph evidence it's a claim that i refused to take a lie detector test something that was never mentioned before i remember this woman had a motion to suppress that she lost she had a motion to quash that she lost she lots of opportunities to legally bring these things up if there was something to it all of a sudden she just blurts this out and i don't think the defense attorney knew she was going to say this but i don't think it's incumbent on the state's attorney to object because what she said is i refused to take a polygraph test well i don't know whether she did or didn't i don't know whether she was ever offered a polygraph test i don't think it matters because the results don't come in or the lack of results come come in and i think we would be in more trouble had we stood up there and started time but let's say she was offered a polygraph and we're supposed to now bring out evidence about asking about the polygraph and with this disease in the world i don't know if she's using her rights as a sword here she's not it's not a shield that that's being employed here and when she starts swinging the sword i think we're entitled to defend ourselves against that and this whole process i said was one big the police are horrible don't believe anything the police are doing and it's part and parcel i think we're entitled to respond to that to say no you never said any of these things the purpose of the state's attorney saying i mean she said when she finishes i got nothing to hide she's using it as a sword and i think we're entitled to respond to say well if you've got nothing to hide then why don't you say something because the whole point was to say that her claims of innocence her protestations of having asked for a lawyer and having refused the polygraph were a lie don't believe them they are inconsistent out she said it she wanted to benefit from it she shouldn't be allowed to benefit from it in terms of the closing argument that's not in there post trial motion and it is it is way there were fifty five other things that were in there post from ocean this wasn't one of them it was a very detailed  in their brief it's called a crawford violation or the implication that there's a bruton violation now what we have here is a detective or a sergeant at it who's on the stand in a two different points one during the conversation with linds sustained the judge says stricken so it should be cured but given what was actually happening in port those instances other than the fact of the statement that your son or your brother admitted his part in this we don't know what you meant it there's certainly no statement that he admitted his part and said you did it also that janet uro's also you your involvement as of the briton situation isn't present  applies to it by its very nature it says it doesn't apply to things that are not offered for the truth of the matter certain this statement and i don't even think the judge necessarily should have sustain the objection but  he did this statement was offered to show the effect on the listener business  what is it then and where is where is the harm i mean if it's offered for the to show the effect on the listener or to show why we're in the context in these two cases that the surgeon is on the stand if he was explaining confession or something he should decide we have a statement by richard and in the purpose was to show that lindsay then changed her mind and then she gave a statement in the same thing for the defending herself the defendant herself then asked why i want to see these statements and then they hand some papers and she looks at them and then she starts to cry and she makes things so this is it's properly admissible something is at least properly admissible to show the effect on the listener and show why she changed her her story for both lindsey and for the defendant cured this was not a close case yes there were a lot of prior inconsistent statements but the extent to which the people on the stand flipped it was i was  astounding i mean some of the things that these people were claiming the carry me she had she was in the room for two days she was on drugs she was sick she had diarrhea she was vomiting she left it on herself she could use the bathroom she had nothing to eat or drink she an overly down kind of evidence that these these flippers try to pull on the jury and we were entitled and under the case law to to rebut that with their prior inconsistent statements and of course we are entitled to do that as you know in in more than one fashioned especially because what happens as happened in this case is ok i said that to the police but that's because the police were doing all those horrible things to me but then when you went to the grand jury said something said well then there's a different excuse there so you have a series accuses and you have the one man i al who eventually says that everything was a lie to the police and to the state's attorneys and and then he goes to build them both his office and he gives yet another briefs in here today that you affirm the defendant's convictions that mr fisher makes that really in the context of this case you they're not using the failure to take a polygraph exam although you know certainly view that as as indicative of feel they're really trying to challenge the the statement that the defendant made that she no confession whatsoever and they're saying oh yes you did and the reason we know you one of the reasons we know you did on top of the fact that we have people who are testifying as to the statement is that your proffered reason for art saying that you didn't make a statement is inconsistent with the way people behave well i the easiest answer to question your honor is that the prosecutor himself argued that she her refusal to take the lie detector exam was because she was guilty there's i mean we can't dance around that fact he did it twice yes to record rhetorical question  on cross examination and then i'm done closing argument he specifically said what does an innocent person do and what does a guilty person do so how the jury is supposed to just ignore that especially when that the defense counsel's objections were overruled this is just beyond me and second that if the state's there if that what the state was really trying to do was just explain that she really did make a statement than that i mean they did that they they put on  and they could put on whatever other detective or police officer was in that interrogation room and testify that she made the statement and that's what that's what they did that rebuts the defendant's argument that i didn't make an occult or statement just that you can't use prove it doesn't it doesn't give them free reign to bring in that type of evidence even if it if the evidence might have some other purpose and then leslie i'm sorry in addition i'm not just saying that the state should have just stayed silent and does nothing they could've brought out more evidence from and and the other officer who was in the room but again went to whether the defendant asked for a lawyer when did she ask with a lawyer what did you do when taken that polygraph exam because she's being tried for this murder if she didn't take the polygraph exam will she must the failed it because they're prosecuting him either way her credibility is lessened by it by that evidence finally the state what they seem to be doing is just expanding  people versus jefferson the illinois supreme court case there was a very limited exception that the court allowed polygraph evidence to come in and that was to rebut the defendant's claim that she made an incompetent or a statement for the sole reason because the police told her that if she made the statement she could go see her child who was hours away from dying so that's what she testified to at trial and that limited circumstance the court said well it's ok to for the state to bring out the fact that right before she  jefferson does not apply there and that would just be unnecessarily expanding jefferson wrote quickly on the second issue you can't i'm saying and also i'm sorry rogers waiver the first part regarding the improper cross examination rhetorical question that is preserved it was objected to it was included in the motion for a new trial the closing argument was objected to but that specific argument was not included in the motion arguments and this was a crawford violation hearing that your co defendants in an accountability case confessed to his role in the murder the jury is going to is going to take that information they've been instructed on accountability what that means  is testimony testimonial implication that he allegedly cooperated or countable part was also well i don't see how the jury looking at that evidence could could conclude otherwise so if you have as a juror that in that jury room you hear that you're the coach that the defendant's codefendant son who you've heard all this evidence was involved in this plan to murder henry robel the defendant's uncle has admitted his role in this well i'm sure  polygraph evidence done that does not come in both from the defendant and from and from the state and that here in confessions of a bit of a codefendant not come in that's that's what we're arguing and again bain's and guard