trial turn into the game motive evidence your honour's the state turn what was otherwise an identification case enter a referendum and gangs argue to the jury that mike was quote as hero and the robe of the two six aga the judge made so cool limited living instructions about the use of the name testimony yes your honor i believe is referring to the limited use of the game common affiliation between two of the state testifying against which would that they could fear retaliation all to explain to the jury right these witnesses might be tough to find in trial the way they are in comparison to what they said in the police station so we're challenging all the instructed on that with regard to the where we draw the line in the degree i think you know obviously it's a case by case determination but what makes this case a clear violation is that the game no evidence was pervasive and that but since otherwise competent evidence conviction without it as i was saying there's no motive so really it's not simply that the gang evidence so to dirty up the defendant and leave the jurors to believe that you know he's a bad person who may have had a propensity to commit this crime but in this particular case the state had no physical that's the jury's determination ours you're absolutely right they have three purported eyewitnesses testimonies two of which are counted so that's all we have here no confession no murder weapon nothing out that's the believability of through these three witnesses and let's make the jury was tasked with determining whether these three witnesses were credible enough to support a conviction and so to that end that's why we can see that for that the purpose of impeaching the recant two witnesses that was an appropriate use of the gang of  but the notion that that there is again activity involved in this crime essentially imputed a motive here that didn't exist in the illinois supreme court in people versus smith they said that the harm that comes from gang evidence is that it some of the questioning of joe that he was he was bringing out some gang references and he was not the easiest witness i think you would agree for either i would agree ok yes i would agree offering things that nobody wanted to offer and some of the things for distracted the jury is focused on two things that were relevant that that rise into this overall and beyond the ruling so although we don't have the closing argument piece courts are making the distinction between evidence that is usable for one purpose and with regard to the admonishment the arguments are in evidence and i understand you're saying the jury can't be deemed to appreciate one of the instructions and not the other but those arguments those are based on evidence that came into trial and when that evidence came in there was no instruction whatsoever i mean generally the proper use of the gang of it is for impeachment but not when the rest of the substance was coming out so in a way the judge threw a distinction that even aggravated the prejudice because when the jury was hearing the proper getting out as for impeachment it was told how to consider it it was not told how to consider any of the other evidence and that came out he wasn't told how to consider the fact that all of the witnesses referred to this defendant throughout his trial by his game name despite the state's concession that this is not a game case the question is really the reasonable ability after being instructed in a and i see you know that instruction also includes passion and prejudice should not sway you their ability to really delineate between what they heard and what they were first to do and what their what their duty is when they get back into that deliberation room and i think you know it's oftentimes the case when when an error is not objected to it when the judge does not personally intervene that this court reverses because it cares about the defendant's right to a fair trial and those are think it i think it has an effect on the jury's deliberation of this case because the jury sent out a no because it seemed to see her prior statement so i believe that that indicates the jury's concerned about you know i think they're when the state references something in closing arguments its effect on the jury but when the jury asks for the note i sees me answer the statement in a jury no i think you have evidence that confirm what we believe the witnesses are going to do in that because they knew what the witnesses are going to do they just had another trial as a defense house pointed out this that they just had this whole trial it was a mistrial so they knew what the what evidence was which which makes their failure object even more egregious because they knew full well what all the edges here will just keep going a little bit for a little bit further and we just try to you know in this rate the judge's ruling which the three most are former problems or does nothing makes you more angry than someone trying to misread the ruling and you wouldn't sneaking away and th and even at trial was related to their connection to this particular getting it's exactly like the tower of her case in which every witness recanted where the door the dixon case as well this happens again and again and again and you cannot extricate the gang element out of this case it is goes to everything that the other witnesses said clear about it and so you can bring that in to show that these people might as might have an interest right now and so so there's a difference between the difference between saying this is a gang case and the killing was gang motivated i don't know why this young man was killed and no one does we don't know why but we never argued that he was killed because of the gang we did argue that these witnesses flipped because of the gang we did argue that jillian smith said things different because she hung out with gang members and lived in this area and she felt safe in this area and there was a gang connection to all their testimony that doesn't mean th a gang motive case there is there is a difference there the fact that we call in the execution doesn't make it a game case either people are executed for various reasons legally and illegally and that doesn't make it per se a game case we never said it ball games over the flag goes down and we're off the field and i guess the question we're having is isn't that perhaps what opposing counsel sent you know the time has come to move that line back and said you know it's time well someone but the other thing you have to realize is that the defense bar is well aware of cases like blue and things like that and they're trying to shoehorn every time a gangster mentioned into one of these cases thereby building in this perception that it keeps going on there you know lewis followed up by another case which was actually the same case you know it was actually the codefendant on the same case so you know so the notion that there was this continuing pattern is kind of a introduce irrelevant evidence i would hope i wouldn't do that when i'm trying cases i tried not to but but the point is just because they say it doesn't mean it's truth or something else or to you know we didn't just fall off a turnip truck what happens is every him by his game as a little lazy and that's how she knew him this that you know joe melanau obviously knew him from being as brother which is another source of motive than bias but the ne also knew him through the gang and it's very clear what that case the police were making fun of him because that case the other witness couldn't remember whether he went to high school or not on direct examination i mean these people were there specifically to pervert this case just as they didn't oliver just as they did in dixon this is a common problem this is why we have the one to fifteen ten rule this is a playbook now the fact that we talked about the game play both this is what they do we know that they do that they do this  counsel knows that and the way to combat it is a specific illinois law designed specifically for this instance so it it is part of the gang playbook whether or not the killing itself was we will never know but what these witnesses did in court it was intimately tied to their status as gang members and there was no way to sanitize that out of the trial it should have been sanitized out of the trial and i would assert that the things said in closing argument were proper comments on the evidence this was related to the that the motive to testify falsely the other thing i remember this case is not only did they not object at trial and again they already seen this show before so they knew what was going to happen they didn't object at trial they didn't object in their post trial motion and in fact the fennec hired hired another lawyer and that other lawyer came in and specifically head transcript give us a chance first of all in the trial court to explain why it's not air which is where it's supposed to be done so we don't even have to get here and then tell us what's wrong you know here on appeal but i'm saying that the fact the fact that we talked about the witness the the defendant as a little lazy that's not a are that's how jillian smith million that was his name i mean she she didn't know his name she cheated you know she recognized that the weird haircut that he had but she didn't know his name so that can't be heir either so you look at each of these things you know you can throw these things out but when you put them in context they weren't error moving to the second issue the present system statements and again this is another one that it is waved up and down the avenue it is and in the post trial motion there was no objection to trial and it wasn't even mentioned by the substitute council so we would argue that even if you were to get to the ineffective assistance that would apply there but the so called prior consistent statements are not the run of the mill thing that's happening so often where all we have a witness and witnesses on the stand and she says i she gives her her testimony like julian smith did here and then we say and then he asked her about did you tell this to the police know that you tell the police next day to know if you tell the police next week you know did you eventually go and talk to the place yes did you talk to the state's attorney yes did you talk to the grand jury yes but we don't get into th backs that the actual substance the prior consistent statement and and i say cases here in the brief word or course of talk about fact it's different where witnesses are saying and she doesn't even say i said the same things before she just says i talked to the police so it's not even implied prior consistent statement so the whole rationale the room brick of fire consistent statements doesn't really apply in this in this in this context and of course as with the other things in the explanation about my crime might not have been a shiro in the role of the two sticks skating for shooting with victims that statement does not go to explain my joe angels testimony with regard to their course and it's unbelievable essentially has been closing arguments the way if they say anything differently that would have been proper there's no reason why mike would be a show in the game if this victim was shot i must again had an interest in this victim stuff that absolutely indirectly implied that this is again motive here objection to the court the court said we think this all came in for impeachment purposes so the court you didn't have an opportunity to assess whether or not this evidence was in violation of his ruling or not and didn't i think it's also significant that when the judge is making the pretrial ruling sort of perversely the judge says i want a name for this limited purpose because quite frankly i don't think anyone's going to be taken by surprise there may be gang activity here there's no other allegation as to why this happened so that the jury would would substitute again motive and i believe that that observation on the judge's part with regard to the likelihood that the jury would without any competent evidence assume again motive where there was no evidence and it should have made him more secondly that they weren't actually prior consistent statements because the facts were never it gives the recent the recency of the recent fabrication exception is important here because the allegation is that the church the witnesses trial testimony is be fabricated in this case jury and implicated mike in the offense on july eleventh two thousand and four years before she got to trial so telling the jury that after she implicated mike she continued to implicate mike over and over and over again does not address rehabilitate an allegation of fabrication so the exception doesn't apply here and with regard to the opposing counsel comment about how there's only there's not even an implied prior remark in this case it's actually even worse than that because although julian said that she testified to the events and circumstances with these five authorities after having initially implicated might understand in closing arguments providing the content a look at the boy that he scrambled that his he has a distinct physical appearance so this is actually even worse and of chilling was able to testify to the contents of the statements during the direct testimony because one of the state's make an argument that isn't even based on evidence