kennedy the jury ultimately convicted him of the a lesser offense of robbery and acquitted on the aggravated battery of john kennedy while convicting on the aggravated battery of christe the search i'm so this is the stereotypical close case involving eyewitness man who had punched both of them and continued hitting credits but both men admitted that they've been drinking and smoking for hours before making this identification and that showed in their testimony and other aspects for example sean couldn't remember whether was punched once i want to say i had been punched more than lineup he said the only pretrial identifications were show ups done at the scene indeed when chris identified mr martinez mr martinez was handcuffed on the curb sitting next to chris a stolen phone and chris apparently thought it was the phone was next to him had been taken from mr martinez when in fact the police have found him on the grounds indeed this case was so close the jury found neither witness entirely credible so the problem is twofold the prosecutor and there's the old firm conviction in a close case reframe the jury's role not as an analyzing the strength of the identification testimony but instead as rejecting a ridiculous defense conspiracy and in trying to keep the predator off the streets and the nd issue is the trial court limited cross examination of topics which went directly to the credibility of one of two witnesses with credibility issues in such a close case it's impossible to say of the prosecutor's actions and the limitations to not have some of the fact on the ultimate in using the word is using it in a response to the fact that arnie been trying to his and his client i don't think it's the word predator in isolation and it's predator combined with saying chris testified that he was afraid he was going to be killed  i think also importantly characterizing the defense theory as these two friends having a great caper where they're punching each other in the face it all sort of works together to create to confuse the issue that was before the defense theory required finding that they had concocted some conspiracy where they hit each other in the face to pin it on some neighbor and that was never the defense theory defense theory wasn't that they were lying about everything the defense theory was that they're  bears the burden and the trial court took confuses the issue if you make it sound like the issue before the jury is is that it is the defense for crying to find these two guys are liars and conspiracy says or is the issue how reliable concocting the state also your attention to the fact that mr to martinez did not himself take the stand or present evidence when in fact the defense theory rested on a relatively successful cross examination of the state's two star witnesses and then you have the cost here injecting herself and her integrity into the factual issues during the cross examination of john kennedy there when the defense attorney with concerts and i think mr kennedy they were exploring whether or not any real or imagined hope or pressure was influencing his desire to testify and mr kennedy answered when asked if there were any explicit promises no there were no promise says so there is simply no reason in greeter act to say isn't it true that i had a conversation with you today and yesterday and told you no leniency the style of questioning is inappropriate and distracts the jury from the actual credibility issue and what the defense was actually trying to score explore and it makes about the prosecutor and their role outside of the jury was aware of that that was out there but the defense is also allowed to explore whether there's real or imagined hope or promise says and that's what was being explored so the fact that the prosecutor herself had these conversations doesn't go directly to rebutting that but it does confuse the issue that the fence was trying to explore about the dui separately because it's not just the prosecutor and how they were using the evidence and how they're arguing it's also the fact the trial court limited cross examination on two areas that went directly to the credibility of sean kennedy so turning to the like that i'm aware of the reaction that you're correct that we don't have a case directly on point for that but the rationale of the cases are that you're worried about the real or imagined pressure on the witness testifying when the bare name of the charges enough and the fact that you might potentially spend time in jail will change the calculus and the case that we do have was the inverse where they knew the person was facing jail time but didn't know what the charge was so i think the rationale should apply the same that simply saying to you why doesn't tell you the severity of the charges and the severity is relevant to the pressure of the witness might be feeling the court also limited the subsequently and that was enough it was non secular to have to ask well do you have an addiction issue and the scream the supreme court has found that addiction is relevant and ability of a unique way it's not just the person's ability to perceive when they're under the influence but also just their credibility overall and here it doesn't just go to his overall credibility but you also had him on the stand tonight that he was affected by the hours of training and smoking that had happened before so it also went directly to the strength of this testimony and identifying mr mike sheahan as in claiming that he wasn't as in the brit ed as it might appear so in this case i think there's two fold reasons for letting the defense go further than just asking did you do it that night one night before and that the dui i think that was enough for it to be non secular if for the defense to explore what addiction issues there were from mr kind of i think it's important in looking at how these things happened mr recognize how they happened together and that the prosecutor is not a defense attorney and defense attorneys we don't get special authority in speaking for the people to sit at illinois but the prosecutors have that and juries feel it which is why are the there are those cases in urging prosecutors to be very careful and not stepping over the line past their argument even though there is wide latitude in crime and cross examination and in closing argument it's vital specially in a close case entirely based on eyewitness says that there is no crossing of that line and in this case i think starting by character sort of compromise conviction and even christmas full testimony was not entirely believed because he testified that the same person that hit him had hits on hannity but the jury rejected that rejecting the charge against mr kennedy entirely so we don't know because the evidence was so close so i think in that case this is a reason why i mean you had chris also testifying that he lifted the shirt in a way that was meant to make it seem as though he had a weapon but he wasn't found guilty of aggravated robbery so that's why i can only say you have some sort of a compromise verdict here when there are some acquittals and some convictions and you have the fact that both witnesses were in peace with the fact that they were in the brig the fact that it was dark the fact that it was clear you have friends who is the better way they're saying his saying well the defense theory is just that you have to believe these two guys came up with a great keeper to pin it on their need their neighbor when that was never the issue before the jury because she was always going to be what's the strength of the identification test money where the prosecutor stands with such authority in front of a jury i think it's important that those lines aren't cost particularly in a close a again there's no compassion there is no physical evidence on the phone showing that mr martinez had it there was no evidence he had no evidence that he had recently been in a fight or bruising on his knuckles yet you have a court limiting cross examination on two separate topics directly relevant to one of the with this is kind ability and then you have the prosecutor ridiculing the defense arguments each of the people's comments was proper and they knew not becoming improper when considered to me until we look at the fact that on redirect or sean hannity the people properly question shawn and redirect exchange for your testimony on the dui in this case isn't that correct shawn actually answered that no i wanted mine so that left the jury with the unfair and french race on cross that china actually the court noted in making that taylor decision that defense attorney declined to make an offer kirk so the court me that decision based on the evidence presented on the motion the court did not rule all or nothing the court said you can get into what is the rest of what the pending charges are for and whether there was an offer from the people of leniency at the trial court properly limited the cross of the examination here  the question the important questions were found it was whether or not there was an offer of leniency in exchange for the testimony the scientists can go down to the heart of the whether or not there was any promise of leniency and the fact that defense counsel actually got asked shawn whether or not he certainly wouldn't mind if the state's attorney offered him a break in exchange for testimony and shawn actually asked her back to answer that question no i want my and that's why  people need proper for clarification on redirect of xan in that instance the other thing about the limitation of the cross is even if you lived up to he knew the territory and they were walking to their car after drinking and smoking and so this based on the evidence that the sun was taking advantage of them and was not used to describe  as this is the st time that the predator prey is come up with a case on appeal right absolutely not and one would think that maybe the prosecutors might lay off that argument you could but the fact is the question is whether or not it w kennedy's mindset in testifying for the state so for the state to say that the defense was able to get all this out but then at the same time there were a projection sustained so the only things that actually got before the jury were that there were charges in that there were no actual offers of leniency but the cases recognize that it's not just actual offers of leniency it's what the witness might think or hope or fiar will happen even without the prosecutor saying so one w other and again this was the issue that the fence was trying to explore in going beyond were you given any promises which is why the prosecutor inserting herself and saying i didn't give you this yesterday or today is not responsive and is not the correct way to ask that question oh the state also mentioned that chris shawn's answers may have helped the funds because he might have answered that he smokes and drinks all the time but again this is something that the defense was blocked from getting out the defense was trying to ask if he had a habit of drinking and smoking a lot because he was downplaying how immediate it was and the fans was blocked from being able to answer and that's the issue of whether how much that offense was allowed to explore his addiction and how it goes to his overall credibility as well as how it goes to the strain that he was giving to his own identification and denying that he was in  i also wanted to point out i know that predator versus prey only came up once but this is not something where it came up once and there were a bottle or it came up in the midst of going over things this was the opening of the opening argument so this was the theme statements i think it's important where it was and it's very important how close the evidence in this case was they also want to point out that in people the people's the supreme court noted that they have repeatedly disapproved of using terms like and in that case it was hum defendant in such a way it's just not going to be actual evidence so people disapprove of the use of the term human predators for the simple fact that it can refer to a human doesn't mean that it's appropriate to open your argument furring for different as a predator  and finally the state says that i just i want to point one other thing i see it's not just that the prosecutor said he didn't want to get hurt he didn't want to get killed the prosecutor and here i think using the word told in the way it was does tend to put the light on what the defendant himself didn't put on which is the burden of proof on the state and the last thing is this idea that the evidence was not close on the same points the fact that officer occur so you have one person and shawn we have the credibility issues when you don't have anything found on the person that they stopped and the fact that branca didn't think that shawn and chris were impaired that really wasn't the issue before and  the case kid has the case that says i witness id cases are close cases one where you had police officers identify someone after hand to hand and the supreme court still recognize when you're relying on eyewitness id and it's a credibility contest that is our stereotypical close case so i think this remains a close case and the question has to become was it all right to limit the testimony on addiction and whether or not john kennedy was facing jail time it  was feeling that pressure as he testified and whether the prosecutor overstepped by characterizing the defense theory not as these are two guys who were in the brig and didn't know what they saw nor just trying to over exaggerate now they're here in court but