pleased good morning justices bring before you this morning what i would submit is a wonderfully twisted intellectual exercise initiated by the court room prosecutor who of not guilty he reinstated the class two felony for purposes of facilitating a plea bargain and it is our submission that it is that particular aspect of what happened that day that brings that out of what i might say is a fairly major league unusual into what really i think works for this particular case and it is submitted to the court we probably won't ever see another case like this one again but we do have to words that he accepted the plea of guilty is your honor snow jeopardy attaches in three instances in the law jeopardy attaches when the first witness is sworn in a bench trial when the first panel is sworn in in a jury trial and when the plea i want to plea of guilty is accepted by the court and and i believe that what makes this particularly interesting in this case is the fact that that was done as a bargain for the benefit of the pardon of the defendant are our  points that we've raised in our brief are first that jeopardy attached and he should not have been tried on the count one he definitely remains subject to sutton's in on that count two that you played guilty to and i'm going to talk a little bit about remedies like rot we also submit to the reinstating a class i x and this individual had already done some some time in prison on this particular case so that's a second aspect of it regardless of whether there was a double jeopardy violation in this case or not the second very serious question is the lack of admonishments in that regards if you do your honors know the record we made a motion for a bystander's report to try to figure out what was going on on that second day a good case that that particular motion was denied i think the court attempted to rectify the issue by making a record during my motion to dismiss but i'll leave it to your judgment whether they had occurred or not one of our other allegations is the acceptance of a plea and this is usually something that you hear the state arguing over and over again and that's something else i submit running all through this case you've got the defense making arguments that you ordinarily would have to stay patient and the state making arguments that you have t defense made and that's possibly something to consider but the acceptance of police weighs all nine jurisdictional errors there works for the state and it should work equally for the defense the other interesting issue in this case and we decided to raise it is the fact of a public policy argument and that is should an individual who had been previously found not guilty to an offense and this is a as a as a broad brush should an individual later on if he decides to do sell be able to go back before court and given that there's no mental issue involved that there's full of management's involved there's a factual basis maybe even a higher standard than a factual basis maybe a court needs to make a determination beyond a reasonable doubt that the evidence could convict individual but there is i think i would submit and an issue to be decided whether a person who could come back in front of a court and say you know my trial didn't go the way i thought it should go and i want to take responsibility for what happened sounds kind of crazy to be making this argument but for one bit of a lot of the honor you're under snow quite a bit and it is that we all know trials are not and we all know that we don't always get the perfect result with what happens in trials state then says ok judgment of convictions under your sentence to six years well your honor we want to proceed now on the class acts the court would clearly have said at that point in time no you can't this was the benefit of the party but now we prosecute her now that the part most all of the cases that address jeopardy your honor the jeopardy issue kind of sneaks up on what makes this case so unique is that jeopardy was verified in the beginning to the end it was it was out there it was never something that a lawyer later on in an office at the sit back and noodle it and say all right there's a double jeopardy issue that involves this play that kind of snuck up on the pardons it didn't in this case everybody knew exactly what was happening in this in this particular instance the importance of the words we are in court and in this particular case when the acceptance of the plea occurred the judgment of conviction and through the knowledge process was granted on the classics felony it's doesn't happen all the time but in this better double jeopardy attached or not we're trying to make this a very different situation than it really i submit to the court is it's because double jeopardy is a personal right and next i know what we're really ability or inability to waive his double jeopardy does this they have the right to come against him again on something th the question is could they be charged with a charge him or try him for that last two that he was acquitted or not because he could use it as a bar he could also use that right to be waived if in his mind there was a benefit to his way here which we waive all of our we should all rights in plea bargains of all the time and in this particular instance the defendant held those cards if the state made an offer to allow him to play to the class t to it's it's in his benefit to do so but the issue of the whole jeopardy goes to the integrity of the judicial so i don't know i personally would question whether a look at all of the rights we can wait we there are individuals they can waive the right to challenge being sentenced to death you can waive your right to an attorney you can waive your right to a speedy trial you can waive almost all of the rights the protections that we we will get from our constitution by that waiver your honor i submit has to be an s to be knowing it has to be understanding and if it's in your benefit to do so why i suggested or why would a waiver and then we took a step back from there and why not why what is the harm to society if a well informed defendant decides to do this i'm talking about in general terms although your honor in this particular case as i said before all of the other cases that we're addressing here it's not the double jeopardy issue kind of snuck up on everybody that's not the case in this particular instance it was out there from the very beginning all the way through the admonishments were complete he knew what he was doing he was waiving the right because admonished that that was what he wanted to do because that there would seem to be the lesson from it's getting to see where i'm coming from york your honor we might not even be here today if that second day hadn't gone down the way it did if  fanciness had been admonished you know you understand what we're doing today even if even if he just said i understand what's happening maybe not that if he was if he agreed with it or not you agreed with that we're done but if he says you're someone on how clear it has to be it's just reinstate that's what mcgrath stands for and that's kind of your honor the second level of scrutiny i'm asking the court to take in this particular case thank you number one is to examine the double jeopardy issue and whether an individual can properly waive it maybe in a general context but maybe there's a much more pinpointed way to look at this case and that involves the lack of the admonishments on the day the plea was reinstated maybe a remedy in this case is to send it back down for an inquiry of the defendant to see whether he whether that was it is something he wanted to do on that particular day i think he would obviously have to give us some directions or we wouldn't come back up again if you decided to say no or yes for that matter but that's another aspect of this case judge which i submit need scrutiny and that is why was there no it management on that second day the state seems to say well he didn't need it he didn't need to do it that's not what mcgrath says and again your honour's that's not kind of the way we do things if we're going to bring an individual into court he should at least know that hey we are reinstating in my mandatory prison offense against you today we're taking away that pleaded on the class two and you know he and what the time i say i apologize for that but in almost all of those cases jeopardy sneaks up and of good lawyers finds it in the transcript in this case and this is what makes a completely different it was on the table from the beginning it was admonished about everybody knew able to court the question to answer your question directly and i sure hope i do and that is that could could this could be defended if stood up and said no i don't want that class to the answer to your question is absolutely absolutely yes just as he would have had the right if a clear bargain was created to bring that class to back and say i have no problem pleading guilty to that understanding that never ever reinstate this charge against me i understand it was found not guilty it's to my benefit i want to do it if he's been acquitted so you're suggesting that not only can he leave his right but he can also waive probation against this then i would submit your honor that the prosecutor and in that particular or i'd like to start out by what happened in january fourth of two thousand and twelve when the state and the defendant agreed to allow the front end to plead guilty to count two which had been that those in management's about if you pursue a motion to withdraw your guilty plea guilty pleas are given at the time of sentencing nobody is trying to say that my arguments were given at the time of the sentencing and at the time of the inval guilty plea there's nothing and that moves into after that i believe the child the stage attorney and a consequence will realize that they simply could not do that as they could not pleading guilty to keeping the same sentencing date in the future i believe that that statement that was made in the motion on the record shows that at that time the state was going to lower class acts to a cla totally clear but i certainly believe that the statements that were made on the rocker indicate that that was what the state was willing to do its not and i believe at one point defense attorney at the time state stated that the defendant wanted to go forward on the class size and i believe that that's basically all the record actually was and i think that the motion saying allow him to plead to the desired class to indicate that that certainly was what the state was intending makes it clear that jeopardy only attaches to the charge that the van and pleads guilty to at that time and i know that they talk about timing of the knowledge crosses is made before jeopardy attaches it's ok and if it's made after jeopardy attaches it's not ok but i think that that those statements are kind of taken out of context i believe that that's more of the situation where say there's a five pound  the jury is impaneled in the middle of the trial of the defendant decides to plead guilty to one of those counts and the state dismisses charges at that time after jeopardy has actually attached then the state cannot reprosecute on is accepted by the court and logic dictates that jeopardy would attach only to the crime pleaded to since there has been no other finding of any sort and i believe that compare also supports the  reinstate that the prosecutor says and then i would be making a motion to now it possibly count one and it was there after that the court actually accepted the plea so if this situation does apply it does not apply to this case is that how you  is that these two exceptions one which was a political here words based on a prior acquittal it can't be done the state cannot remove the funding into court is the state can't bring the defendant into court and cannot have a valid indictment or wants to be able to plead guilty to the class count to which he has been previously acquitted of and i think is making two separate arguments that double jeopardy attached to count one so we couldn't reprosecute on that count and  it if you could if you could waive the double jeopardy claims to count two then he's probably right about count one however this was an invalid guilty plea as to count t although in illinois it doesn't appear that the cases finest jurisdictional some of that it seems to be a exception to the rule all that only no that he for waiver purposes it would the result would be the same jeopardy attack and that plea is entered as a general plea as distinguished from a plea bargain the double jeopardy violation is apparent from the record and there is nothing in the record to indicate a waiver of the double jeopardy violation in this particular instance your honor we have consideration of anything that was not included in the record the the jurisdictional charges interesting though from the state's perspective again we have the sides kind of arguing what ordinarily would be the other way the state's really left arguing well jurisdictionally we could not do what we did that day in court and that's what makes it interesting and then waiver comes into interest whether the state may have waived the ability to make that objection by allowing the context of the court the  plea to go the way that they did in that instance judge i want to to bring one last thing up and that is a something i should have argued last time and that is in both the fundamental rights of things and in how important this double jeopardy right is and i suggest to the court to consider offering i mean there is an offer play where an individual stands before the court and says you know what i i don't want to stand before you and say i did this crime but i'm going to sit did suggest myself to the jurisdiction of the court in the punishments of the court because it's in my favor to do so offered as maybe provides us some guidance in this regards to whether we're getting to the fundamental protection i know your honor hold so dear and his ins thinking about in this particular instance  is the state is in a different position with regard to that is that the defendant if he's pled guilty we allow him to withdraw his  would make it would make a world of difference if you were to find that the right is something other than a personal right of the citizen if it's a personal right that the citizen holds against the state and he would have the right to waive it if he feels this is the in his one of their moment we could have been arguing this a long time ago and i certainly don't want to downplay the importance of admonishment you know but i think the on the question here is still whether the state has the ability to do what you want the state to do and frankly i'm not sure that you want to be opening what looks like a potential indoor as mine we raised the public policy argument and it does tend to be for the especially since it's been raised other i argue didn't you read that before before she mentioned o j simpson o j walks into the to the glass angeles the police department and says you know i know what i did my trial did not result in them in a matter it's been eating away at me and i can't take it anymore and i want to get myself the i want to be punished and accordance with what the law should punish me for what i did it and if a court and i guess why i mentioned earlier judge the standard of maybe a court needs to find the evidence beyond a reasonable doubt for a person to waive double jeopardy but whether it's for a plea bargain benefit or whether it's for a benefit of hearkens all of a defendant that feels that the trial and we know we don't have perfect trials but the benefit of the fact that psychologically to go in and be punished for what he constitutional claims but this is what about a little funny little creature you know state a researcher in this case because the very emotion that we're talking about you know the motion dismissed charge with it was not brought  can be raised at any time but i don't i don't have it handy for you right now but i think we did argue it earlier you know i'm not making a you know a lot of questions about it but it's sort of been another's room unusual twist