good morning your honour's may it please the court your honor is that this court should order a new trial in this case because the trial court committed several serious errors that severely compromised the verdict first the court refused to w dear a juror who brought internet research into the jury room second the court committed evidentiary errors including allowing the jury to hear unsubstantiated allegations and baseless expert testimony that one of the officers had fabricated confessions before and further the court allowed punitive damages awards against the officers despite the officers tort immunity from punitive this morning intend to focus my remarks on those three issues with respect to the remaining issues we would rest on our briefs and last the court has questions turning first to the juror issue in the course of the trial the trial court learned that juror freeman had performed internet research found an article on memory lapses which was the subject that testimony would have been heard on the case brought it into the jury room and more than one juror saw her with it despite this and despite the fact that she did not admit to having done so when questioned by the court deputy the trial court refused to ask her any questions whatsoever on the subject it would be unprecedented for this court there is no other case to approve a trial court's complete failure to ask a single question when there is known extrinsic evidence in the jury room well to court the court one notified of the situation did in fact read or re read an admonition that was given earlier during for deer and the record reflects that access to vice is a connection with your duties violates the rules of evidence your prove it or try using them you should not do any independent investigation or research on any subject  relating to the case that you may have seen or heard out of the court room is not evidence any press radio television programs are also including the information available on the internet  already know what that instruction wants reading it a second time blindly without knowing the facts it's possible that that might have cured the situation if the court had found out what the facts were but there was so much that was unknown that the court didn't know that it's it cannot be said with certainty that back here it anything possible prejudiced the court that that had occurred from there being an article on a subject in the case in the jury room that more than one juror had access had seen do more but the this court didn't even get onto that scale this question even take the first step this court just buried its head in the sand and hope the problem would go away now if the court had done asked a trick question that might have turned out to were in might have turned out that that juror was so prejudice that she should have been removed but at that time there was still an alternate sitting there hearing the case and that alternate could have taken that jurist place without compromising the whole to trial prejudice accrued to the defendants from that evidence and he cannot satisfy that burden in a case such as this when we don't know a single fact about what happened so at the very least for the extrinsic evidence not intrinsic ok and is there a distinction between those two in the case there is your honor with respect to extrinsic evidence it's evidence that is outside what's going on with the jury itself there are cases that speak evidence is that it's one of our you know the fundamental principles of our judicial system that when that both sides gets hear all the evidence and get to confront the other side evidence so when there is extreme it is prejudicial for that very reason because the other side isn't going to have a chance to confront whatever it is that that's going to influence the juror potentially form impressions and that juror's mind that defendants could have perhaps confronted if we had known about it but did have a chance to do that that's not fair so because of that there's a presumption that evidence is prejudicial and as long as it relates to something at issue in the case which it did then then the burden shifts to the party the vital issue in this case is that a reversal is demanded well your honor we did it wasn't that important issue in the case there had been testimony from several witnesses about it and mr mcgee's ability to recall information is tied up with his credibility and that's the issue that's at the heart of the case it's tied up with it for example if the jury had found an article on memory lapses that said being hit by the head on the head by a bottle could potentially eliminate your ability to recall testified that he told them a number of very detailed things so if it were impossible for someone with memory lapses to recall information like that it could have called into question the officers account and the point is that it's unknown and mcgee's therefore it's mr mcgee's burden to show it's obvious the prejudice it just has to could have influenced the verdict doesn't have to have influenced the verdict and we don't have to show that it's mr magee's a burden to show it obviously did not influence the burdick he can't do that when we don't know the subject matter if she had brought in the article and showed the court it could have been innocuous but we just don't know so what about your points argument this wasn't a crucial issue in the case this was maybe an issue but crucial as well a like i mean some of the cases do use the word crucial but we hope from several cases including the fourteen case that says the information just has to relate directly to something at issue in the case that the losing party did not have the opportunity to refute and that may have influenced the verdict this was something at it that happened in the case there was testimony from mr mcgee from his sister from from his defense attorney he was sent out during his criminal trial for a mental health assessment because according to the defense attorney something about black he was complaining about something about black outs so the jury heard all this and obviously that prompted  if you know my memory lapses were back out so with that article on that subject that there was testimony on that could potentially could have influenced the verdict because it went to mr mcgee's ability to recall in his ability to you know testify or to give information that's the issue at the heart of the case not just you know how does the trial process work or what is the jurors rule it's about something yes so there is no case literally from this court where either the court didn't ask any questions in this court approved it we were where there was just security of instruction that was read usually this comes up in the context of after the trial so it doesn't usually come out during the trial but in the few cases where that does come up during the trial what the courts did in those cases is actually meeting corey of the juror they didn't just blindly read the same instruction that the jury had already ignored if the court had you know investigated the problem might have been cured with an instruction or even with removing the juror but that didn't happen so turning now to the next issue which is the unsubstantiated allegations and expert testimony on this closely five fabricated prior confessions of course  because the jury could draw a propensity inference from those bad acts that someone had done something bad before and therefore did it again here mr mcgee was allowed to tell the jury that officer bartek had fabricated confessions before but there was this allowed the jury to find for mr mcgee potentially on a propensity assumption that he had done it before and therefore he did it again this wasn't admissible within any it session exception to  not modus operandi because that is evidence first of all there needs to be proof that someone has done something before sac and there has to be proof that what the person did before was so unique and similar to what's going on in the current case that there is an permissible inference that because the person did it before in a unique way it also was done again that's not relevant here because there is evidence no one and two nothing that mr officer bartek did before supposed to be unique confessions or were active too confrontational during a pretest but the expert could not choose between those two possibilities each was equally likely and it was only based on the number alone of the confessions so yes the term fabricated was used a lot and that was based on the number so yes obtaining confessions there was evidence about the number that officer bartek to obtain and the conclusion that mr mcgee's counsel and and also their expert true was that because of the sheer number they must have either been fabricated or ups or biotech was too confrontational but if the expert can't choose between two equally likely possibilities then it was inappropriate for that expert to go before the jury because the jury we say cases where if there are two equally permissible inferences from the same evidence then the jury shouldn't be allowed to speculate which wine in this case even the expert couldn't speculate which one was cracked and as a result that was impermissible expert testimony seemed kind of a science and it was a sex for coffee i believe he was qualified in x as an expert in the manner of conducting polygraphs but not in terms of what it takes for somebody to fabricate a confession or not you know i don't know if there is an expert on that subject he was an expert as to how you know the polygraph process is supposed to work but it is agreed by both sides there was no polygraph here so that was irrelevant there was no pretest interview according to boles sides officer budget just stood up and you know that was the end of it there was never you know polygrapher a pretest given so this is there was severe prejudice from  immunity and we are of the court to decide based on the plain language of the statute it's a he's a first impression for this court the federal courts have decided and recognize the immunity for police officers executing their police duties more of the cases find the immunity and don't find the immunity and we explain in our brief why those cases are more persuasive but the plain language this fits within and the recent case which is the seminal case on the matter defines a public official as someone who exercises discretion performing uniquely governmental functions and that fits police officers even mr mcgee's cases define it that way and second police official capacity and individual capacity that's not in the in the statute at all and in addition the statute looks only to the capacity in which the public official is serving not what capacity they are potentially su so again we urge the court to follow the plain language and as soon as your points increase was wrongly decided that is my understanding that they disagree with a site that the case is too old it was sixteen years old and i but they don't explain why that was incorrectly decided that cases followed by a number of other federal courts and the ones that don't follow it don't really distinguish it they just for other reasons that we explain in our brief and that can't be lost on the court in this instance and i want to cover the ground that counsel covered in her opening address to the court but i also want to talk about why this case was not close but first  detective farley tests what the defendant's version was that initially dunny he said that he may have committed the murder but blacked out and didn't remember it but then the officer said then done with he went on to  it was he was having memory lapses and just couldn't have made such a detailed confession dyna keep took the stand for two days in this case never suffered from any memory lapses and that in the case of the jurors able to see this testimony and the defendant's that statement so that was a disputed issue but we're looking at why he was arrested why is jack the negative it at trial defendants agreed and stipulated in each of their testimony that absen is true whatsoever including the portion where the defendants are claiming that he initially said he may have done it just the issue of blackouts i mean his own attorney testified that he said something about lack of it in the world knew what sam sr he was the attorney who handled the case when he testified to was that at the point that he sent dying need to be examined was when the state indicated that it was going to seek the death penalty against him and because he saw in th confession a statement that they about the blackouts he then sent down to me key to be evaluated which is something that he did with any client who is facing the death penalty so as to make sure that our bases were covered and it on every issue you have run the risk of highlighting that issue if you bring jurors have to ask them about memory lapse you run the risk of making memory lapse an issue in the case where it was not an issue to begin with counsel could you address why you believe the courts second and the nation was sufficient to cure the problem in this trial there's two reasons one we assume we presume that jurors will follow instructions by the people again but the other thing why we know what the current obstruction was sufficient is because as in runs we have a in a jury that is not afraid to speak out to the courtroom deputy if there is something going on that they think should not jurors indicated that it was juror freeman who is and the other jurors were indeed were communicating to the deputy if anything happened after the curative instruction was given until the end of the trial the fact that no juror mentioning think of the courtroom deputy is evidence the record that run just said we can we can use to make an inference that there is no further misconduct committed in the case and in addition at trial at the conclusion of the evidence the jury's instructed on what is and what is not discretion and the trial court and so this court have to say that no reasonable person would ever think that giving occurred of instruction and then speaking to your form of freeman on the wednesday following observing from the meter observing the kind of person that agreed to the curative instruction that once you're booking once you take the wednesday you can't look at just wednesday i read the defense would have a stronger argument if the facts if we had the facts on the wednesday without friday having ever occurred well because the they had the opportunity if they wanted to do additional forty year on the friday they could have done and essentially your honor my strongest argument is that the when you're looking at it on wednesday you can't ignore what happened friday i think that's what the defendants like to do and that's what they're arguing in the brief that you can you're pretending that the no curative instruction was given that nothing was done to address the issue something was done and it was done with the defendant's agreement and then we come wednesday you've got the background where the issue has already been addressed and now should be delve into it more when it's not a crucial issue in the case or even an issue at all and the record is and i believe it stated on the record that the attorney said w theory i don't see how you can apply the plain language of the statute in any way the statute isn't is ambiguous you need to look in the context of which the statute is raised and i urge the court to look at the stat  all of the subsections the state you look at help part one where section two dash one or two arises is in the section of the statute talking about local public a public entity immunity section part two of the statute talks about public employee immunities the definition that defendants are urging isn't the definition that would cover every employee every employee would be covered because the kids thought they cite and at the resort sites talks about how every act of discretion that every government to actor uses discretion in virtually every thing that they do and so what the fencer trying to urge is that public official become public employee and that's not with the status not the language the statute used this the legislature knows how to make a statute clear it did it in two d a pining about what he thinks and reese went wrong in several to in several calls what restarts how is trying to distinguish between two dash to one and one and two dash one zero to the two statutes that's not what to dash to one says it's only employing public employees who are you who are making decisions of policy that exercise discretion so is a much more limited scope and that sent the court in greece into a into a wrong direction because then the court tried to look to the common law of what a public official should or what a public official needed but that common law public official nudity has been incorporated into the tort union and has been put into the term in the act by using the word public employee not public official then recent i defined public official to be basically a public employee who is exercising discretion i e a public i e every public employee who's acting in the scope of the board and in the scope of their employment those terms of our public employee use of discretion and scope of employers are all terms that are found in the torah muni act the legislature expressly chose not to use those terms of art in there in the scope of their discretion if police officer could beat a man to death and the survival action would have no up to for punitive damages under dispute under the interpretation urged by the defendants a social social worker could take a six year old girl from her home and in her discretion bring that girl to a child unknown child molester's home leave that girl with the child molester and not piece any kind of liability for punitive damages that is not what section one or two dash one or two is saying and get the legislature wanted to have such broad immunity given to every public employee it would have used the language that it used in the other context to grant broad immunity to public employees particularly for compensatory damages i want to talk briefly i know my time is running short but i want to talk about two quick topics one is that in regard to the polygraph operator just to be clear the indian socratic method that we're talking about is that in pretest interviews you're supposed to be non confrontational use force make the person feel comfortable secure so that the results of the test are not messed up by the person being overly nervous or or concerned and so when you get one hundred eleven confessions in this period of three years when you're sports the non confrontational then our expert who is the president of the american polygraphs association who was hired by the united states government to train polygraph operators in afghanistan and in iraq who is taught over the all over the country who trained with the city of chicago hired to train  says it's impossible in my career i've done between two and five confessions and during the pretest and if you it just doesn't happen so i don't know how he's doing it all i can tell you is that it's either he's being confrontational during his i information that's provided from the expert to make the understand why defendant but takes innocent construction and look at the cases talking about when it when a person for example sexual offender says  my contact with the victim was innocent nothing nothing went wrong in my contact with them is then relevant that that same person had three other contacts with similar victims and in those contacts something did go very wrong and so when somebody puts at issue when they're saying there's an innocent construction to what happened here it is then relevant that this is not your innocent construction of your contact with the person that you were interviewing it wasn't innocent and we have the evidence to show that the last point that i want to talk about is that this was not a close place and this comes in several manners one we've got a evidence the ball in this case was left off the hook placed on top of a move for brad we know the victim died between ten thirty one o'clock on that saturday morning because she called her hairdresser ten thirty and then f m one o'clock on her phone was busy until she was found three days later that bone wrist was left off the hook there's a reddish brown blood stain on the handle they had to d n a profiles one was consistent with the victim's d n a of with the victim's dini we've got the pathologist and the pathologist said that the victim had to be incapacitated before she was killed before she was stabbed because the three stab wounds all came in this your natural involuntary movements would move your neck to protect it because so vital to your survival there is also indication that there is evidence of strangulation the victim had hemorrhaging the back of her tongue which is consistent with somebody when someone is being strangled they push their tongue is good for as they can in their mouth so it's a trying to breathe and see good hemorrhaging in the back of the tongue the pathologist saw that and saw the signs incapacitation did not include that in his report because it was not how the victim died the victim died from this stab wounds but this was information not known to the dependents when they concocted the the confession and it was contradicted by the confession we got the phone records d over what he did that day the i would have gone over what he did that day to try and concoct some kind of false alibi for my client he never told me he confessed there is no or none of our conversation had anything to do with that  stomach and that the victim had confronted him with the knife when he gunning to steal money but of those facts reader come up in the confession and there are not probable facts that's not my point my point is that they pre you have five minutes i can be free again thank you adam first regarding the jury issue council incorrectly stated that we don't start with the presumption of prejudice the presumption of prejudice comes evidence in the jury room then we start with that presumption because there is no ability for the other side to refute it once there is the presumption then you look to whether it relates directly to something at issue in the case where even to the credibility of witnesses which is the collins case that we say in our reply in our briefs this quote would be the first to hold that when there was an article on a subject that there was testimony about in  case that is not enough to require the trial court to make inquiry beyond just simply giving a curative instruction counsel went through a lot of what if it was this what it was that could have been resolved at the time the curative didn't work because the one that was read is the prophylactic instruction that comes at the beginning of trial once there's a problem that crops up the presumption that jurors follow their instructions falls away this in this case that presumption was when there was allegations that a juror had ignored that instruction so and then finally with respect to whether we waived the issue as this court mentioned we at the trial court actually did decide this it decided at the time of trial based on briefs and decided based on our post trial motion that it disagreed that a new trial was warranted so therefore as appellant were entitled to assert that here on appeal it's turning then to the propensity evidence in the prior confessions the pretest was not you know it is true pretest interview is supposed to not be confrontational but there is no evidence whatsoever that bartek was confrontational in any other prior case so accordingly it wasn't relevant to what happened in this case and so therefore it should not have been admitted mr mr magee is basically arguing that and his expert that because of the number alone it must have been either fabrication and confession and counsel claimed that because officer biotech deny there was confrontation that it must have been fabrication but that gets the cart before the horse because first you have to have a factual basis for your expert to testify it must be fabrication or confession only once your expert has the foundation to be admitted then the expert can be heard and that's what i mean this is especially prejudicial there was no evidence that confrontation and therefore the jury improperly could have concluded that it was fabrication that's propensity turning the immunity issue on punitive you know that there is that it would be terrible if certain factual situations weren't and allows have punitive that is a choice that the general assembly gets to me if the claim language of the immunity applies to this situation which we urge that it public employee we're urging only the officers executing their official police duties are public officials within the communities plain language and we have the court to look carefully at reese and a number of other cases that it's cited because that has persuasive analysis in it we also explain in our briefs why federal civil rights cases where the distinction between individual and official capacity is relevant or different from what's at issue here which is a state  claims there is not the distinction between the capacity in which the suit is brought the language of the statutes just about whether the official is serving in the official capacity and that's what's relevant  finally the d n a evidence was briefly mentioned at the end we argue in our brief why that was inadmissible mr mcgee never claimed that he touched the telephone so it's irrelevant whether you know he could have or not and the