today is agenda number ten case number one zero seven two two four two people in the state of illinois versus tony  them it was in the process of being severed at the same time as the snooty motion was filed it was in the process the cases were being looked at of officially at some point in time server it wasn't officially but it's clearly in the record that it was understood that the cases were being submerged and the lower courts knew that the throw its had been sober yes if you look at the trial court transcript of you can even see the judge where the judge says something to the effect of i know that last time we talked about the motion as to sever has that been filed yet and one of the attorney says night yet but we were doing that and as a matter of fact the proceedings were delayed somewhat because it came by the time the state filed a motion  consequence for failing to abide by it i heard the mandatory directory mandatory permissive rules discussed twice this morning so i won't i won't belabor what the difference is that the court's been reminded but you know in the mandatory directory rule asks what are the consequences of the failure to follow a statute doesn't invalidate that statute for example in the robinson case where the mandery mandatory directory will be said issue the question was  urt failed to alert the defendant within ten days that his post conviction petition had been dismissed did that invalidate the court's ruling a mandatory permissive analysis was just what the appellate court should have used questions the defendant technically or with of course empathetically if it came to that point if that's what had occurred you might well have a root problem but in this case the cases are being suffered and this case is a perfect illustration of why courts don't have the discretion because the lower court ruled on the basis improvement and the public court mentioned as well what if the what if the defendants are tried together then we can issue the order but the fact of the matter is they were never going to be tried look at whether a witness's testimony is admissible for example in percy was a federal case where the question was the defendants were granted immunity and they wanted it vance ruling whether questions that they would be asked at a federal grand jury hearing are relevant or not and the court on appeal said no the court doesn't have any discretion under the federal statute which by the way reads the same this is a state statute and it's not until you get to trial or get to grand jury theory you answer refused to answer that it determination should be made whether that testimony admissible same thing happened in re to cell which i think addresses the court's question where need this witnesses testimony in the grand jury and the new jersey supreme court reversed utah court say no the the attorney general in that case decides when to grant went to grant use immunity as long as you  your motion to the trial court proper procedural form it should be granted it's not until matters come to a head until the case goes to trial until the grand jury hearing it just decided whether that testimony is appropriate or not and really the statute makes may have been premature until the until the defendants co defendants cases they're actually severed i mean you've already indicated it's certainly problematic if it was never severed  adequacy of the state's motion should not be conducting any sort of substantive review because again the court doesn't know and can't know exactly what the position of the pastor of the case will be by that time it comes to trial so  file a made late gnosis notice of appeal with regard to his conviction there's always a possibility that there's the federal government i'm hypothesizing but the federal government might have addressing some of the defendants specific our arguments briefly defendants are you in their brief that they filed a motion eliminate in response to our motion for use in unity and therefore we should have made an offer proof first of all it was not a motion in limine a it was simply a response to the people's motion for use immunity second of all even if even if there were a requirement which there isn't if the state make an offer of proof if it has had jackson's videotape and they know what he was likely to  say the same subject the defendants argue that the state did not vouch for jackson's ferocity the short answer is that we don't have to vouch for witnesses recipe at the point that we're asking for a motion asking for a grant of use munity if the defendants  the defendants have charged and i believe the court will soon hear that we're trying to back door of the videos the videotape statement that he's not going to testify and cross examination when i say he i mean jackson  restrictions ricin is in question time for the defendants to prove that is on cross examination it's not only found a motion from you snooty defendants argue that jackson was a codefendant and not a material witness within the meaning of the beauty statue evidence if the witnesses refuse or is likely to refuse to produce the evidence on the basis of his or her privilege against self incrimination to the extent that the immunity statutes have been interpreted  may please honorable supreme court mr chief justice justices jason daniel in on behalf of tony owsley what i'd like to do is respond to some a counsel's arguments and i'd like to discuss the issue of what constitutes a witness versus the defendant placing this immunity issue in its proper context and mr coffey will address the equally important issue as to whether or not granting a witness immunity precludes an evidentiary hearing precludes  determination as to the relevance of prejudicial nature of any witness who testifies whether that witness be immunised or not the operative word in the statute is not shall the operative word in the statute is witness all of the cases that deal with this immunity issue deal with witnesses all of the cases the counsel sites deal with witnesses either repurchasing who has not been charged or a person who has pled guilty and then testified none of the cases that counsel cites and none of the case law deals with a immunize person as being one who has a pending case not a pending codefendant and i will address each and every one of the cases which actually establish this this is a clear distinction between one is a witness and one is a defendant justice thomas raised the issue as to whether or not there was indeed a severance in this case mr graef and i with the attorneys the trial attorneys of record clearly tyreese jackson's case was to be severed from ours because ty reece jackson had given a videotaped statement and so had the keys remain together and we had a joint trial then in that joint trial the state would have introduced jackson statement which trier of fact be that judge or jury could have incorrectly used against our clients but the problem is this the purpose for having a severance motion is to protect the defendant but if you accept house's argument is true it actually creates a disincentive for co defendants to sever another words if we would know that the state was going to seek immunity for tyra's jackson then why would we sever the case because according to counsel it's the severance which gives them the green light which gives them the conduit in order to call out i was jackson as a witness in other words of the trial isn't severed and they can't give you some unity which is in that appears to be her defendants this is a case where the defendant himself had both a pending case and a probation hearing and he himself sought immunity for himself as a witness claiming that he should have immunity so that if you testified as violation of probation hearing that testimony couldn't be used against him in a substantive case the court rejected that and in rejecting that created a class of immunize persons the class distinction that the court created was that of being witnesses rather than  g the other cases in which the deal with this issue of immunity is one of particular the adams case where the court the the state gave immunity to a witness the state then chose not to call that witness the defense attorney wanted that witness in a use of courts while the lower court indicated that it had immunize the witness however the appellate court conceded that the trial court had granted the would use immunity and once witness immunity is granted to the witness it cannot be withdrawn but in that case the problem with the trial attorney was that he failed to call that person as a witness in other words even though the state was going to call the immunize witness the defense attorney had the opportunity to call that previously certainly not so the distinction is this a witness is a witness and a defendant is a defendant now use immunity is a powerful tool the prosecutors can you tell someone what it is your statement that you couldn't call a defendant the belief that the defendant would exercise that right one of the reasons why we couldn't see it primarily yes yes and so then what would be the purpose for us calling that witness and we could flip that around if we intended to call a codefendant as a witness could the state then file a motion in limine a demand and offer a proof vest to us as to what it is that you believe this witness is going to testify to or do we just simply call the defendant the codefendant i don't believe we not codefendant and then it's on the table they testify as a witness we've been given a deal they can treat that person simply as a witness because they simply are the witness but then you get into that middle ground when you're dealing with someone who you intend to use as a witness but clearly has fifth amendment protection and so what do you do in order to have that person testify as a witness you call them to the grand jury and i parent that equally the two cases the counsel cited those were witnesses they weren't defendants they were people who were given immunity on the front in and testified in the grand jury so you give that person you bring that person to the grand jury what does that person do that person can either waive the fifth amendment right and then they become a witness or they can invoke the fifth amendment right so the prosecutor now in good faith has to decide one of two things do i trample on this person's fifth amendment right and coerce them of course not what do you do well i want to prosecute the kids do i abandon this person as a witness you know i grant that witness use immunity and that's how it works it works on the front end not on the back end you don't give somebody use immunity and then prosecute them later on that was the down fall in the case involving the attorney general where there was some ambiguity as to whether or not use immunity or transactional immunity was conferred upon the person who they ultimately charge when would you have to charge a person with a crime after giving them immunity and that's the the dynamic of all this the fear is this if you allow the state to call defendants as witnesses and give defendants immunity you creating an entire class of of a hybrid between a witness and in effect in another words you could charge five people a person who's accountable marginally accountable clearly accountable a primary participant in the crime the shooter or the getaway driver that sort of thing then instead of treating some of them as witnesses some of them as potential flip defendants some of them is the person after or against whom you're clearly seeking to prosecute and good for if you just sort of treat them all as some kind of and so you blur this entire distinction we can never collar defendant we can't call the fairness to testify in our case or in the pending case we can't do that because they're defendants they're not witnesses and more accurate you can't call them because you don't have the right to that's true we don't have the right to it's clear that the defendant does not have the right to grant immunity but the twist on that is that once of witnesses give immunity according to the appellate court that immunity that immunity cannot be withdrawn and so in the case of a true witness if the state had given a true witness immunity and then chose not to call that true witness i could still call that witness i could subpoena that witness to testify i could get them on the stand and call them is my witness since i cannot do that with the defendant it logically follows there if there is that distinction between one is a witness and one is a defendant the spirit of the statute the word witness means witness you can morph that distinction between witness and the defendant the state can do it on the front end in other words that's one good charging decisions take place when you decide who you can to treat as a witness and who are you going to treat just the defendant but you can't treat everybody as a witness and a defendant at the same time and enjoy trial it just doesn't when the state be prohibited from charging all these individual separately and doing the same  is made on the right was exactly what if i'm what i'm asking you is is the result you're talking about the same if the person is a defendant in a separate case no the result isn't the same we're still dealing with a charge pending defendant none of the cases the council sites deal with a charge pending defendant even the case the federal case she said that we have not the federal case jackson's case counsel suggests that they couldn't call jackson how to testify against mr dobbs client in mind they can call his case is no longer pending it's a matter of fact one of the cases the defendant tried to obtain immunity claiming that if you were to testify and his case that where he had been found guilty were to come back on appeal then the state could use that evidence against him in the appellate court so that's pure speculation we don't know what's going to happen on appeal in the case of time reece jackson he pled guilty what is he going to appeal he's not appealing anything he is now a witness but he's no longer a defendant he is a witness now he does not have a pending case and none of the other persons in any of the cases cited by counsel had pending cases they were not for two reasons number one because what's at issue here is the propriety of the trial court's decision making which mr gaap is going to address this issue of on offer proof i don't believe it's moot and secondly because of the state's claim that erred and that that issue needs to be resolved that apparently needs to be resolved as to whether or not the appellate court respectfully erred in his decision making process but with with respect to the possibility that i use jackson could now ever be called as a codefendant immunised witness the defendant forgive me that that factual scenario is moot it's impossible now because he's pled guilty and he's no longer a pending moved the problem is that use immunity being a powerful tool has never been used correctly the problem is when you try to a more few some unity to salvage a case where the real important decisions the charging decisions are used on the front  that's what makes the prosecution stick often i've we hear no accountability game cases the shooter the driver or the the person with knowledge plus the whole that whole scenario there and you have to make important decisions on the front end as to who's a witness and who isn't but if you have somebody who is more than a witness arguably accountable and they raise their fifth amendment right which they legitimately have a right to do what do you do as a prosecutor you somehow try to knock them off that right of course not that's the time when you give that person use immunity because they clearly a witness you have no intention of charging them later on but the you need them and that's the price you pay or you take a defendant and you cut a deal with his attorney if he jackson is a witness well i'm conceding that it's mandatory to the extent that the secret provides application but this is a good moment to bring mr kaufman because it still is subject to the rules of defendant issue and then moved on to the constitutional issues it's clear his ruling and with that if i may turn it over to   and his justice thomas pointed out regardless i believe that specifically it is moot with regard to the specific aspects of tyra's jackson and how it relates to the trial of our clients but b us i guess what i'm encouraging is if you look at immunity and how you some unity is applied you kind of look at it as a spectrum i believe the intent of the statute the original intent of that statute was to take a witness that the state has a den of five prior to any one being charged prior to any indictments and identifying that witness as a key witness to whatever crime there is been committed and you granting use immunity or applying for the grant of use immunity to get that witness's testimony again a key point is here is that that witness is obviously going to raise a fifth amendment issue the state isn't get that immunity now if we go beyond that if we start moving down that spectrum after individuals have been charged indictments have come down now we've got a situation where if the state is asking for a grant this point the antennas are going to go up it should go up on the trial court should go up on the defense attorneys what has changed now what is after all of the discovery process is going along why are we all the sudden asking is the state asking can't say that it's mandatory that shall mean shall and shall means testify because and i think the appellate court was looking at it would could possibly end up in an absurd result the trial court still needs to be that gate keeper of of the fairness the trial court still needs to be assured that any of that testimony anyone who's a witness that when this is going to testify is going to be relevant that it's not going to be prejudicial  and you know another and i guess discovery shoes that would be brady what's what's now coming from this witness that the state hasn't tendered earlier so there's still the core of what goes on in that guess what i'm saying is judges that the the court still needs to play a role in making sure that whatever testimony the state intends to bring before the trial or effect still is is credible well if the evidence is not credible you're going to be able to attack that crime well i think they can sell to an issue is whether or not we would be able to to attack that in i haven't even gotten to the end of the spectrum whe wouldn't exist anymore and i think that's kind of what the pub was going to court was going it was a joint trial if if you're able to grant a charge codefendant who's given a statement these in effect there is no service they're going to they're going to say ok you know what we're going statement as a matter of law his case would be severed from our from the co defendants so a separate trier of fact we're here those issues you'd expect that to happen in any circumstance forget about it he could he has a videotape videotape a witness material witness is a someone who is going to act as a witness to trial who is who is criteria set forth and statute defense counsel so this morning they could distinguish every single case that you cited and that none of them match these circumstances because none of them concern a defendant who's been indicted i would drop of course attention to the graves case i cited in my brief unavailable because he can be granted use nudity so in fact the cases are not distinguishable the fed is also argued this morning that they can't call a codefendant as a witness and that's their concern well the main point policy exception is an important question as one that occurs and again this court has never interpreted that statute and it's important that it does so we have this court reversed the found court decision thank you