r mr fischer would you like to start yes thank you your honor good morning your honor this may please the court and representing the defendant in this case smart she's caustic marquees was convicted in a jury trial of felony murder predicated on mob action two counts of mob action an aggravated battery with a firearm he was sentenced to consecutive terms of thirty four years imprisonment for felony murder and seventeen years for aggravated battery with the phone or on his convictions and sentences were firm to by this court on direct appeal this is more cheese subsequently filed  conviction petition alleging numerous claims of constitutional violations that petition was summarily dismissed at the st stage by judge gilfillan who had not presided over the trial adequately plus it and were sufficient to withstand st stage post conviction review as a result marquees respectfully asked the scored to reverse the summary dismissal order and to remand cause for additional post conviction proceedings including the appointment of counsel to the state's theory of trial was that more peace and his brother michael were involved in a street fight with several other young men and that at some point either during or after their street fight either michael or mark east retrieved or pulled a gun and fired shots into the crowd tragically killing one person and wounding another so the key questions for the jury to decide in this case were whether marquees was the shooter and whether or not he was the shooter whether he was involved in the street fighting the mob action now the jury heard somewhat limited in conflicting evidence concerning these two questions kimberly brock was a prosecution witness she testified she saw the events she identified marquees as the shooter apparently she didn't know mark east but she identified his photograph at the police station later on twyla williams who lived in the neighborhood and apparently knew the caustic brothers testified that she saw the events and that michael was the shooter jared ha jailhouse snitch testifying for the prosecution that he met up with mark he's in the county jail at some point after the incident and the mark hughes told him that he and his brother michael were involved in the street fighting and then michael dunn pulled a gun and fired shots twyla way holmes a gun the witness who had previously said that michael was the shooter she also testified she did not see marquees in the vicinity so again the issue was that the evidence of more accuses involvement was somewhat limited and was conflicting well among other claims raised in the post conviction position more accused disclosed several new witnesses who did not testify at trial and he allege that all of these witnesses would have contradicted the state's case exculpated him because they would have said either that michael was the shooter and or are there more keys was not involved in the street fighting and certainly these witnesses could have made a difference had they testified at trial the testimony of these witnesses is discussed in issues twelve and three in the briefs and those are the issues i would like to discuss the smor appended to mark he says petition was an affidavit from his brother michael confessing that he acted alone michael said that that day he was attacked by several young men in the street at some talked him out of doing what he did but nobody else was there now the defense actually attempted to call michael as a witness at trial the difficulty for the defense is that  outside the presence of the jury but he invoked his th amendment right against self incrimination and the judge honored that invocation so mark he says claim here supported by the cell today that was that this was newly available evidence of actual innocence another witness mentioned in the petition was allegedly would have corroborated michael's testimony her name was cynthia singleton she  discussed in issue three appended to the petition was a transcript of her testimony at michael's trial in which she said she lived in the neighborhood she was outside in close proximity to where the events took place she said she saw a group of people attack michael saw michael break away returned to the scene with a gun and fired shots and she also said she did not see marty's in the vicinity of where this all took place now the record here shows that cynthia singleton and another witness discussed in issue three were actually subpoenaed by the defense prior to trial the allegation here by marquees and his petition is that trial counsel was ineffective because counsel talked marquees into proceeding to trial without these two subpoenaed witnesses when they did not show up at the courthouse on the st day of trial additional witnesses are discussed in issue involved in the street fighting one of those individuals was his girlfriend at the time alexis thems and he appended to his petition have a david or i'm sorry a police report and the police report does not actually alleged that the police report was that is summarized in the interview with this individual and according to the police report she told the police that she was with markets outside in the neighborhood in close proximity to where these events took place and that they were standing together during the street fighting so that more peace was not i in that they were then driving in her car when they heard gunshots so he was not involved in the shooting other witnesses would have testified they were at the scene that they did not see more keys one of those was alan fit the st stage more keys so minutes that these witnesses testimony could well have made a difference in their for these witnesses testimony at the very least warranted additional post conviction proceedings now in his written order dismissing the petition judge set forth numerous reasons none of those reasons applied sheer as kind of also the claim involved an issue for i don't know how an objective jurist could see that these claims were frivolous and patently without merit there were serious claims new witnesses who could well have made a difference where the evidence of trial was somewhat limited and conflicting the judge also said for example that the new witnesses would not have made a difference in the outcome because this court on direct appeal in its decision stated that the evidence was not closely balanced well st of all that com was closely balanced but it any event their decision by this court of course was made not knowing anything about these new witnesses and again these new witnesses certainly could have made a difference beyond that even had this case proceeded to a rd stage of it and sheree hearing were defendant makes a claim of actual innocence or even in effect of assistance of counsel for failing to call witnesses even at the rd stage evidentiary hearing he does not have the obligation of a stablish knowing that the outcome in dispute of belief would have been different that he would have been acquitted all it has to show is that the new witness testimony should new and important light on what happened that the new witness's testimony casts doubt on the factual correctness of the jury's verdict that there is a least a possibility that the new witness's testimony might make a difference and at the st stage which is where this petition was dismissed of course the petitioners bar is much lower claim that he was there by prejudiced in addition the judge said that the claims of ineffective assistance did not merit further proceedings because these were just disagreements with counsel's trial strategy no trial strategy again is a question to be resolved at the conclusion of the rd stage where the judge can hear from counsel can hear from the defendant can hear from the witnesses based on a failure to even talk to the defendant's witnesses then it's not valid illinois case law clearly states the counsel can be ineffective if he fails to present exculpator the judge said well i'm certain his affidavit he couldn't identify the shooter so his affidavit doesn't do much well again there were two important questions for the jury even to file and could not identify the shooter it was every bit as important as whether or not mark he's was involved in the street fight because if he was not involved in the street fighting he's not guilty of mob action if he's not guilty  action he's not guilty of felony murder predicated on mob action which was the only murder charge or trial and in addition if he's not guilty if he's not involved in the street fighting yes no reason to ask a question now no more mr fisher no i'm ok and i'm sorry your honor i didn't i did not have a question oh ok i apologize very quickly last thing the judge t michael and from fitzpatrick because they crossed paths in the department of corrections he did not have similar personal contact with these other witnesses while he was in prison he was indigent he had no way of tracking them down so i think many of the reasons such forth by the judge were simply short sighted in all honesty i think the judge gave short shrift here and for all of these reasons marquees respectfully ask your honour's to reverse the summary dismissal order interim of this cause for additional post conviction proceedings and even ask your honour's to direct them to a different four of the five well actually there's there is there's in the nd issue there's five individuals that are pointed to in the rd issue there are two one who testified at the washington case the court went out to the to basically hole that imprisonment by itself cannot excuse in defense failure to attach supporting material to a post in which the petition to hold otherwise would this case counsels in effect we don't know whether to be as far as singleton it's uncertain again if you look at the record sinton did testify yes i saw michael shoot there was another individual there who i did not recognize it could not really see of course they were involved in the scuffles and their attention is going to be what their intentions are going to be who picking names of who all was in it so again inconclusive again not sufficient to take and say that basically  if these witnesses had been call that somehow the result might very well have been different because no one here has been able to take and saying that mark he wasn't there same way with his girlfriend she basically basically saying that brother's case testified that it's it's patrick and not unconscious so he wasn't conscious the entire time so he can't take and say whether mark he was or was not involved in the fight again what does the because in that case the codefendant when he made his statement he made his affidavit after the co defendants sentencing and what the court basically said is at this sort of went into whether or not something is really not we discover in this case the defendant's brother's affidavit chain true years after sentencing and saw based on they're talking about is they were talking about the fact that that this evidence is even though the defendant was uncooperative was not new he discovered the evidence was still there and the fact  detracts that underlie that confession ok the facts that underlie that are what has to be judged we just can't take and say that well because he confessed that that's new this particular juncture but is still nonetheless a fact and taken consider and looking at the overall sufficiently allegations again does not dictate that the contents of that affidavit is such a conclusi advance to the nd stage as i mentioned previously there are many claims such forth in the petition i do not discuss all of those on the briefs even if your honour's agree with mr can hit a vic that some of these witnesses might not merit further proceedings again if your honor is believe that one or more do then the entire petition should be advanced and the summary dismissal orders should be overturned again there were the very ed a transcript or something that singletons testimony from michael's trial so that would be just as good as in half a day that he appended police reports concerning  interviews with some of his witnesses terrelle and shawn joyner and alexis evans so we are he could he did present evidence in support of his claims certainly this case  his claims were clearly well supported and that should have cause the judge to advance the entire petition to nd stage counsel talks about the jones case newly discovered and of course the that that's  general principle but only case law is very clear the air actual innocence can also be based on newly available evidence where the defendant knew about the witness prior to trial but simply could not when the defense a time to do column is a witness there are several illinois cases involving very similar factual scenarios people versus moles which is one of the someone'll actual innocence defendants came forward and after his trial because by their point they themselves had been tried whereas at the time of all states trial they were facing charge they would not testify in his own behalf people versus corpsman one of the cases of sudden the brief very similar circumstance also important to point out that malls the courts and the new witnesses don't said bean codefendant these are important new witnesses who will make a difference in therefore would justify a new trial of course here more of it simply asking for additional post conviction proceedings it's important to note response to an argument made by counsel here that if it's true that michael had been convicted when he submitted the affidavit but his direct appeal at that time was still pending before this court one of the arguments he made on direct appeal was a new trial issue asking for a new trial so submitting they have a day that they are point still placed him into jeopardy and only did he say his brother was of the shooter he said his brother wasn't involved in the fight it was just him also a crucial crucial point at trial so for all of these reasons more keys respect asks your honour's to reverse the summary dismissal order and remand those cause for additional proceedings at that point to allow witnesses to come forward and the judge can make a decision to appoint whether they are credible and