may please the court good afternoon your honor is in kelli i'm carrying daniel i represent christopher coleman who is seeking a new trial based on newly discovered evidence of his actual innocence mr coleman was convicted of offenses arising out of a nine hundred ninety four peoria home invasion that was committed myself when there was no confession there was no physical evidence linking him to the crime he was testimony of four men who testified that they actually committed the crime that there were four of the men who actually committed the crime and they christopher coleman was not one of the men who committed the crime four offenders had never before been questioned by the police they had not been charged in this case they were coming forward for the first time in these proceeds we presented other evidence at that hearing but that's the critical evidence under illinois due process under the illinois due process clause evidence of innocence warrants a new trial when it is one newly discovered two material and non punitive and three and this is most important when it is of such conclusory character as would probably change the result on retrial now as to these four i called in the un charged defenders the foreman who came forward the first time there is no dispute that their testimony was newly discovered so in my time today i'd like to focus on the phone two points first that the trial court erred in finding that their testimony was cumulative to the evidence presented at trial statute of limitations has passed they were admitting that they committed classics offenses it was not against penal interest that's why they were compelled to testify in these proceedings it was inculpatory in the english usual sense of the term in that they were admitting guilt and that is something that folks don't normally do if they're not guilty even if the statute of limitations has passed but i take your honest point just beginning with whether this evidence was cumulative it is true that at trial one of the co defendants of mr coleman in this rubber nixon testified at that time he'd been charged he pleaded guilty gotten a good deal i need to testify as to who was there and he said mr coleman was not there the trial court found that because of that testimony our new evidence was cu many cases if the evidence is not listed and it goes to the ultimate issue of fact which by the way that's another way that the test has been stated or does it go to the ultimate question of who was there and who wasn't charged was that the police came up with some guesses as to who the men might have been they showed photos to the victims the one victim to cleveland miller identified the charges were placed against mr coleman  as soon as the two men who were on the scene pleaded guilty soon as they got their deals one got twelve years one got fifteen years in comparison to mr coleman got sixty they immediately came to court for mr coleman and said no it wasn't  these other guys it was it was these four men and they needed them and they had it so one aspect of how this would create questions is that they had a cow has been consistent now over fifteen years and then came forward that so that's that's one is the is the temporal nature of this second it's the fact that all of these people it needed their own guilt yes i realize this is past the statute of limitations but let it let's not forget that these men did not still did not willingly come to court they practically had to be draped in court one was arrested another one had a warrant placed against him another one threatened to take the fifth another one refused to sign an affidavit before trial they were not leaping at the opportunity to come in and exculpate chris coleman but when they got to court they all did and they did so very consistently  about it i am a little mystified why at such a a large aspect of the the court below this decision it doesn't indicate that they are not credible because they weren't asked about it they didn't lie about it they were asked who was there and and it's there's no question that they i don't think there is a real question that they were there because while they didn't discuss those facts they all discussed details of as to the presence in the participation of the great coleman christopher coleman's half brother he was the new kid on the block he had not lived in peoria all his life like the others and he testified that he didn't know a crime was going to go down and he merely stood outside during the crime and so consequently one of the offenders didn't remember him being there are the others remember him going to the house one thought he didn't go in the house one thought he did go in the house and the final line didn't say one way or the other so that's now is the one area of confusion really everything else was was pretty consistent in that they all said they went to the back door to get into the house that james called was was lifted through the window when they got inside the cover their faces they put the victims on the floor they herded the victims up to the second floor when the police arrived rob said he's the one who had a gun in the up stairs bedroom which a fact that came out at trial and when the police arrived offender started jumping out the window and we now know from this testimony they all knew about that and we know who was womanly ron hopes jumped out the window and got away and ja jumped out the window and hurt his ankle and that's why he was arrested so other then really that one point i guess the only other point that you you could even really talk about is that when james coats first testified  they they did testify to that effect and they also testified that they knew christopher coleman in there that he committed the crime our testimony didn't and doesn't have to a race this is a twelve year old he's the only reason he was charged was because he kind of messed after a detective interrogated him by himself in a police station and refused to believe his denials of guilt soon as he got out of the police station he came back with a relative and said i didn't do it but by the time he went to trial he was kind of in an in between state because he was on juvenile probation and was required to tell the truth and so he kind of gave an in between  statement he said well i didn't tell the police christopher coleman nobody really wasn't and i was there and some other people were there but now he's a grown up the case is behind him he's got no reason to lie now and he like everyone else said he wasn't there  again we don't you're not required to race all of the evidence of guilt if you look at them all stat case in their case the supreme court said and that was a very similar came in and said he wasn't there and the supreme court said we don't question the good phase of the eyewitness but gee this really creates new questions this gives us pause in th case the co defendants didn't even testify in the post proper seasons when you have the new trial was granted completely on the affidavits of these witnesses the question the ultimate question and the reason why an actual innocence claim is contemplated by our due process clause is are we this is the can justice be satisfied with the verdict without the jury having heard these new witnesses or does justice demand that christopher coleman not be convicted and tell a jury has had the opportunity to weigh all of the evidence the men who said they were there the men who were a used like christopher coleman and said they weren't there mr brooks who says he's not there is it just to make christopher coleman sit in prison for sixty years without the jury having the killer please the court counsel many of the questions that you're honest have raised during the standard arguments were points that the people had made in their brief and for people would of course continue to rely on those points made in the brief been injured immediately after this accident or incident he knew by nine hundred ninety nine that his brother had been convicted for this crime he also theoretically knew that he was there and his brother was and he did nothing he did not come forward until he was contacted by the attorneys for mr coleman so i don't believe this is a situation where any of these witnesses came forward on their own as pointed out all of the statue of limitations has run and the and other people could their recounting of what had happened mentioned anything about the sexual assault and anything about the violence inflicted on the on the people in the home the beatings all of which was testified to record and yet the unemotional and involved and so as people pointed out the grave it's not the people burden it's not the court's burden to ask them whether anything else went on to ask about the sexual assault but anybody who had been there would have known what had happened most interest me of course the person who had committed the sexual assault who was identified immediately at the same by the victim and from the physical evidence to link him to the sexual assault he said nothing about it and  in fact didn't even plead to it he has no conviction for that the judge was the judge was stating which is beyond what most religions do is actually stating in his written order the reasons that he had these credibility concerns with regard to these on charged accomplices and he did not believe that they were credible are contrary to the point made in the defendant's reply grief that the that the credibility determination cannot be made by the postcondition hearing judge in fact it is his job to make a credibility germination about these witnesses before determining whether a new trial should be granted leave in the replied we've counsel without citations the records and that should be left to a new jury in fact the reason for the evidence rehearing is to allow the chara fact to regarding mr coleman's half brother who was taken out of town after the offense he was shot three days after the offense after telling the other guys he was going to testify in this recall behalf that's why he wasn't at the trial  dispute that this is newly discovered evidence they didn't come forward on their own criminals but once in court they told what had happened regarding that again the failure to mention the sexual assault  prosecutor could have asked him about it they didn't and it is not an absence that they had would make it all reasonable for a jury in this case to create their testimony as to who was present at the crime and who wasn't it's not disputed there was a rape it's not disputed that james coats was the rapist the question is who else was there and that's the only question that should be should been for the court below it should be before th court and go into what the credibility determinations should be if you look at the other cases if you look at poor he said if you look at most if you look at washington which is the seminal case on actual in claims the one that determined that actual innocence is a component of due process in illinois in one of those cases that the courts of review or even the circuit courts say they believed the new evidence they believed these witnesses the determinations that are made are is this significant how significant is the evidence how conclusive is the evidence and based on that i submit that the judge's role is not to decide if mr coleman is innocent or guilty that's the keeping function is to keep out evidence that no reasonable person could believe and if you look at what this judge said about the witnesses if you read their testimony to show you well you can't conclude that no reasonable person could believe that the fact that they had criminal backgrounds that happens witnesses to the fact that there were some inconsistency is that doesn't mean that no reasonable person could believe them a gnat's what the gatekeeping function should be because ultimately the case is going to  church and the jury can decide to believe them or not and course from the defendant all the defendant has to do is raise a reasonable doubt of guilt so but it's of it's a very important question is what is the key information and more than th we have new evidence we have to show it wasn't available at trial everybody's agreed as to these witnesses that we've done that we have or we have to show that the nature of their testimony is conclusive and that's what's really critical and next that's an easy question in this case sometimes the evidence comes forward might be something that's more circumstantial or something that just gets cast doubt on a prosecution witness test and yes the judge has to keep out crazy stuff absolutely unbelievable stuff but this evidence did not fall into that category there were issues the judge had issues but it would not be unreasonable for a jury to credit these witnesses in fact particularly given their consistency the fact that we have a close circle of offenders all of whom say they were there and in each other was there that they've been summer was that he named the other offenders he did not name brooks slash mark he named himself and the other five that have come forward and all of them said that there was no young boy there needs and might have said that a tryout i wish i could go check right now but i can't but certainly uniformly at the post picturing they said there was no twelve year old boy there  everything by anybody else that was there variance that was the strongest well it was contradict of course the the state's case but also he was throwing out names some of the names were incomplete he gave dre he gave not all these names were complete and these people that he was talking about were not mentioned by anybody else at trial for all the jury knew he was making them up other than james cole statement about james coats the rapist the other four people you mentioned didn't think that they existed it's qualitatively different when the people themselves come in first they show that they are real people they exist and second they say and he's right we were there we did it i did this i jumped out the window i