all of them are important and there the course attention i'll be focusing my argument today on mr peterson's claim that each truck or errors by denying his motion to suppress eavesdropping recordings i'm going to be discussing two specific reasons why the court erred st the state attorney who gave authorization to law enforcement to pursue the over here was the alleged victim in this case and consequently he was incapable of exercising sound judgment the sound judgment impartial because he participated in a law enforcement investigation in this case before he received the shopping application why do you participate judges typically don't participate our antonio smith who was the state's primary witness at trial and he was a person who wore the eavesdropping device he went to state the prison and personally interviewed him for thirty to forty five minutes he went there the judge passively overhearing information about an ongoing investigation and this wasn't a scenario of the judge asking law enforcement to provide additional information in support of an also the f b i agent agent clark the gate of report said that the judge wanted to determine witnesses credibility but again we don't know if that's what the judge was actually thinking that's just those people's opinion that sounds like that that was his reason for doing that does that change the perspective that you have in terms of the law enforcement or is that the judge doing something that he's permitted to do you know it does it does not your honor at his role at the judicial officer with supervision and control over the eavesdropping process is not triggered by statute until he receives an application and in every other context in criminal law if a judge actively participate in an investigation he's no longer impartial have any information that as a result actually in the room that's that's my understanding on from her record i mean he that's my understanding from records that he was there with several what will county prosecutors credibility that's what the report sounds and so one could almost infer that the judge had been told something by law enforcement that he needed to get this credibility determination whether was going to be a search warrant and over here or whatever do we know anything more from the record that you're aware of because i really couldn't find it we don't all we know from the record is that you're not and this was before he eavesdrop and before charges were brought and i i'd also add that the investigation was to occur in randolph county and the randolph county state's attorney did not become involved in any point during the eavesdropping process the attorney general's office was notified as to what was going on until november late november of two thousand and fourteen when the majority of  eavesdropping was already done which is dreaming to the next point and that's that the legislature intended assist the states or in not just any prosecutor in any state attorney's office the state's attorney to have control and supervision over eavesdropping within his or her county  if you look at the federal case off the flee united states of resist you're done through the supreme court and they're interpreting the purpose plans of federal is dot is dropping statute and what they say is the role of the prosecutor is to exercise sound judgment when determining whether to authorize law enforcement to pursue an over here order a state's attorney who has a personal interest in the case who stands to benefit personally by giving in its briefs that and i know this was a position of law enforcement at trial and the prosecution during the suppression hearing that this was done because they wanted to keep everything a secret because you peterson is a high profile defendant and they didn't why is being a lead but let's keep in mind who knew of the eavesdropping you had several prosecutors in what kind of his attorney's office and investigator you had multiple f b i agents multiple people at the idea of c and you also had antonio smith sell me even he knew and yet the state position is that test does not ask whether there's reasonable cause or sufficient legal cause to issue an order here in the supreme court and you're done no i did not ask that the nd point i would but i would like to make is that in the th amendment context which both parties fight to is analogous to forty when the judge issues a warrant and that judge is not neutral and attached suppression is required even if there's and the last one i would make is and this has to do more so with the state's attorney oversight safeguard it's important to remember that there's two individuals independent people with responsibility state requirement and drive to see my time is up i just have one question mr peterson was ultimately charged with the murder for hire and solicitation of murder he was charged by  it was by by information no but by which state's attorney by randolph county ok so what is your position as far as joe joe i'm a butcher his name but judge jones that is he become a witness in the case for purposes of the suppression hearing absolutely and yet i but of course i welcome questions on any issue at any time now with regard to the suppression issue i want to begin by knowledge and that because there is one party consent here the th amendment analysis simply does not apply the case law implementing and evaluating suppression under the statute has clarified that two things need to be present before suppression is appropriate st there needs to be some statutory requirement that was not satisfied and nd that failure has to quote directly and substantially implement the legislative intent to limit the use of eavesdropping devices so what that means essentially is there needs to be again part of the statute was not satisfied number one and number two there has to be privacy concerns raised under those circumstances now with regard to both of these allegations about state's attorney and i want to discuss them together because the analysis is similar that or the authorization under which the device was used was improperly granted do you think a judge having a per se conflict of interest would be an improper grant no in the reason is because under section one hundred and eight a dash for the statute specifies what needs to be present for and over here to be authorized and that that number one that there has to be one party consent and number two it sets forth this reasonable cause standard about number one suspecting that a felony has been committed is being committed or is about to be met it and number two that there is reasonable cause to believe that these overhears will capture relevant conversations so when the statute is governing when the east wrapping order should be granted that itself shows how the standard for when an order is or is not improperly granted it has nothing about the judge it has nothing about the state's  attorney having looked at doing this task of authorizing the application or whether to sign this order authorizing the over here would it different objective person have made the same car so yes that's why it dovetails with this reasonable even attempted to argue that there is no reasonable cause here and certainly the panel came up directly at the application so it's found in defendant's exhibit d and e in the record and it provides extensive detail about the information that myth provided to the investigators about the relationships about their conversations and there is corroboration from both documentation and from phone calls that were contemporaneous to the events that smith was providing so  it would be quite bold for this court in the absence of any case law or any guidance in the statute itself to suddenly newly recognize an automatic per se kind of reversal rule when what we do have from case law is an indication that suppression should be tied to privacy concerns now if we do want to look at th amendment cases we should consider the fact that th amendment case law talks about different situations or it looks when we're talking about potential bias at the role where we had in the proceedings if the proceedings are ongoing and the question is whether to substitute out the official and get a different state's attorney to do that function to get a different judge to look at the case maybe there is more room in that situation to be overcautious and to you know err on the side of caution and go ahead and allow the substitution but here what we're talking about the suppression of reliable evidence we're talking about a conviction based on that reliable evidence and to overturn that conviction should be a much narrower situation where the bias is manifest now my opponent keeps talking about how state's attorney glasgow benefited from this and sort of a conflict of interest cont but when the sport the moment case law is talking about this bias what's it what it's concerned about instead is when the bias has colored the decision by the official and that again turns on whether a different person objective lee without a legit bias would have made the same cop and if that over here is justified there are simply no privacy concerns that need to be protected by suppressing and reversing the conviction  so are you saying that the fact that the randolph county state's attorney issued the information there was an independent evaluation that would have removed all taint from this this process well i mean in one sense no because at that point the state's attorney wasn't evaluating whether to authorize the application but certainly that shows the randolph county state's attorney that there were grounds to pursue the charges based on that over s i do think it's an independent question but i guess the point is sort of a harmless error type of point if we're talking about looking at whether we're just assuming for the sake of argument that there is a conflict that state's attorney and i asked  different person standing in their shoes without that bias or without conflict would have made exactly the same car to authorize the application or to sign the order and there is nothing to be gained from the suppression there's nothing it's not kind to the privacy concern contest of course the people acknowledge the fact that state's attorney glasgow was the target was the victim in this case but we do contest the notion that this judge was not impartial for the reasons outlined in our brief we set forth the fact that what the judge did here is exactly what the statute has the judge to potentially when they receive the application of course that one of the key questions is what is the credibility of this person who is consenting to be over here the fact that it occurred before that formal filing was in his hands doesn't show bias in the various sense that the judge somehow stepped out of the judicial role exactly what he did was entirely in line with what his task would and could have been exactly under the terms of the statute do you remember how long it was between the time of his interview and the issuance of the you know or the application for the understand why and from will county and will county prosecutors were come down to randolph county and not let randolph county people know i don't get well i one point one minor point about the record i care if brief regard the other issues and unless there are further questions we would ask that the judgment of the randolph county circuit court  been alone in the room together or if they had been in a courtroom and that actually makes the state's point that the judge never stepped outside the judicial role instead of this seems to it than just trying to preserve resources while the inmate was you know  other law enforcement agents in the room during mister i would give the exact answer that my opponent gave as far as the record indicates it seems that there was i think one or two assistant will county assistant state's attorneys there was well county state attorney investigator so it's an f b i agent clarke in the room with the judges far as we can tell from the record which is a bit ambiguous but i would i think that's exactly what my own insight is well so i would  he been given an application st let's keep in mind that this didn't occur in a courtroom it didn't occur in the judge's chambers there wasn't a court reporter present nothing was taken on the record and this wasn't a scenario of a state of the state attorney bringing in a witness and questioning him in listening to testimony to present to the judge this was the judge doing the questioning in a prison that's outside of the usual function with your son now you know i mean had there been an application i mean in search warrants for example aunts naaman common for officers as far as i see so let me ask you this if the judge we agree would have absolutely no business in that prison what harm ultimately was caused by that like is this a no how i think that's were just the sort i want you to address this is a no harm no foul saying sure i mean really so what somebody else charged him based upon the information they found it reasonable i think shopping to us you've removed that completely so all you have is a state's attorney giving their opinion put aside the fact that state's attorney glasgow is biased and then it goes in and it goes forward to another prosecutor to charge and as misspending admitted reynolds high seas attorney is not doing the same thing that the judge should be doing is the problem i'm having with with your argument on this issue if we if we can all agree that you know it's one thing in a criminal case for the police to bring in  before the court and the court assesses their credibility before issuing you know an order is the only difference here the location of the  f the interview no it's not the location of the interview it's that he went into evaluating the application with a preconceived court and ask questions of what does what does this scenario how does this scenario different the judge went in ask questions and glean some information about the credibility of smith my hypothetical the judge asked questions of an informant that's brought him before the court in assesses the credibility before the issues a writ and that i'm seeing no difference and i'll try to not interrupt you as you try to tell me the difference this i'm sure the difference is that he's not he's not passively sitting in a courtroom listening to an attorney ask questions of antonio smith he is getting information himself that investigators and law enforcement can use in their case how do we know that he went further than credibility because to determine someone's credibility you have to get into as many issues as possible you have to hear the person's full story and the point i'm trying to make is he got information that law enforcement could use as opposed to law enforcement giving him information for him to make a determination but we don't know for sure report you have to report of the officer right correct and i had and i i don't expect an answer this question time just posing it as something that we should be interested available to transcribe the conversation correct i mean i i personally can't even understand a judge doing th i really don't but i still can't get past the issue ok he did it even if it's improper we had a different state's attorney issue the information the information even if he even if he believed it from the witness it wasn't the kind of information that wouldn't have been found out this you know how does that accumulate in the air or is my concern well and you're saying with zero down or case and gave me that answer i believe so and i think the  improperly granted right not sit that's meant is there any other sets its own explanation for that that's what i was asking must spend it she seems to think there is if i could ask you just to kind of there if a question cetera so i agree it says you can suppress it if the recording was improperly granted where is the definition of where she thinks it's in section candidness i'm not i'm asking the court to necessarily imply two things into the statute that a judge must be impartial a state's attorney must be impartial so that he can act he or she can exercise sound judgment because our position is without those things those two safeguards of state's attorney oversight and control judicial oversight and control would be rendered meaningless why would they be there in a for not followed and there's not a remedy for that you remove all incentive for judges and state attorneys to follow them and then the only thing that matters is whether there's reasonable cause and then every governor contacts whatever for from them in context and in federal court with respect to the federal eavesdropping statu they don't look to whether there are sufficient legal cause for alternately issuing board they ask was that safeguard met and it's not does it substantially and directly implement the legislatures and we already have an very much for your answers on arguments ben thank you both very much your honor yes i'm sorry to interrupt i i never got to answer just a stone's question about human hair if the court  that we need to recognize is we read the supreme court's decision a blue people versus blue about humans they are one point that's it or at the size was it doesn't matter what the strength of the evidence is we focus on th already understands their principles to improper evidence in the eavesdropping recordings about mr peterson working with the drug none of that is relevant and that only serves to dirty him up we have a mini trial about whether he murdered stacy peterson now when the but that trial it turns into we need to prove that he actually murder stacy peterson and what that does is it makes him out to be a serial killer and when you of course a jury is going to say well if you kill two wives certainly he means to kill anyone who means some harm so of course yeah we believe that he tried to have the state's attorney killed i don't recall specifically if it was i wouldn't be surprised if it was but it was the two murder two prior murder trial and then the investigation for specter stacey that was a major focus a trial on the meter focus of the prosecution they introduced evidence that in the in the kathleen savio trial the trial judge found by a preponderance of the evidence that you peterson prejudicial what do you have to say that well st i would say that it is a question of admission of evidence which is subject to the deferential abuse of discretion standard of review it certainly was relevant in my opponent concedes in his brief it's relevant to motives one of the reasons that drew peterson was apparently it's hard hitting and fixated on state's attorney glasgow was his fear that some day you would be charged with murder of his th wife stacy peterson and so that was relevant for that purpose and so the only question is whether the prejudicial value substantially outweighed its program value and that itself is subject to the  discretion standard and as i note in my brief defendant is kind of not forthright in characterizing some of the record with regard to this issue because on one hand there is the perfectly relevant evidence of why he feared being charged for stacey's murder and then there's the separate issue of whether defendant you know commented now and then about whether he killed her or not the fact that those were only occasional  shows why there was not an abuse of discretion and wasn't heightened you know substantially more prejudicial than probative that we have to clear for this type of issue and there are other references involved were were squarely relevant to motive for why defendant was targeting state's attorney glasgow because he feared being eventually charged with stacy's murder and after all that needed to be explained to the jury why would he have that fear well this is why he he might be charged but he had not yet been charged but in glasgow charge was involved with the actual one he was convicted of that's correct why why couldn't that be limited to the actual conviction as opposed to bringing in something that he had been charged with was that in the over here i mean i was proud of the song record ye right well it's relevant to his motive i mean there is actually several motives in play here but one of the reasons that it least and it in his sort of skewed way of using the world was targeting state's attorney glasgow was because he feared that he might be charged with s 's murder no he had not been charged yet but he feared back happening that was one reason he thought by killing state's attorney glasgow that he would no longer potentially be charged with murder but know that the deceased know you said  would wait until an election season and that would be the timing of the charge that it would be part of state's attorney glasgow's sort of election strategy is to bring out this charge with stacy's murder so it was linked specifically to glasgow and so that i'm sorry that was let me over here yes yes yes i'm going to make sure that ok that answers my question thank you but i make one bare east brief concluding sentence about the cumulative error since i haven't had a chance it's very