authority or jurisdiction to consider an appeal of an acquittal order mr martin is what was acquitted and there is no dispute the generally the state has no authority to appeal from an acquit the only exception to that rule was recognized in one thousand nine hundred eighty supreme court case of beans and in that case this court basically held that if the trial was a sham which was defined by this court as an artifice employed by the trial court to achieve a dismissal with prejudice in that case then there is was no true acquittal and the state essentially can appeal the acquittal because it's not really an acquittal but it's really an appealable dismissal order but when you look at what happened here the trial absolutely was not a sham and i think briefly take you through the procedure what happened this case it been was about four years old by the time it was was finally went to trial on may seventeenth two thousand and ten and the state appeared in their two witnesses the two of their twelve witnesses i should say were not there they were the victims and apparently they are important witnesses all over the state did not come in before trial and move for a continuance instead they pick but they appeared and asked for a continuance quote just for a few moments to see if their witnesses had arrived they hadn't and at that point the defendant also had not arrived so the situation was that two of the state's important witnesses in the defendant weren't there so essentially the judge wanted to get the case moving and made a suggestion that he would instead of picking panels of four and sworn each panel that he would pick the entire jury but before he swore the panel when he would allow the state time to see if the witness was there are two witnesses and if not they could either move to dismiss the case nalley it before jeopardy attached presumably or proceed to trial and so the state said is defined and in gleams is whether it's a sham trial and so i believe what you do is you look at whether the procedure that was employed was an artifice designed by the judge talk with the defendant and as definitely not what happened here in fact when you look at what happened here this went over defense counsel's objection he objected and asked for a continuance and again the state did not join in with the continuance motion so y situation here where the defendant defense counsel actually asked for a continuance in the state did not so the state and the fence participate in trial by picking the jury they they pick the jury and  in then after the jury's picked while what happens the defendant shows up with the state's witnesses aren't here so apparently it didn't look as favorable to the state to go to trial now the defendants there and for the first time they counsel i would disagree with that assessment he was at risk he was at risk the trial begins when the jury selection commenced jeopardy attaches when the jury swanton but the trial began when the jury selection commenced the state participated in the trial of a very easily could have elected to a gone forward in fact even after they declared that they weren't going to call witnesses nothing prevented them from doing so they could have easily changed their mind said well they are witnesses or just him they could have been bent began calling the witnesses on at risk is defined by one defendant's place in jeopardy he's placed in jeopardy when the jury no no because they'd already participated in trial and it's not a sham the one exception that was recognized in diem's basically what happened here is the jury was sworn in jeopardy attached there is no exception to that rule other than was recognized in diem's and in dean's the exception was whether it's a sham trial and here it was not a sham trial and in fact the procedure was implemented over the defense objection  called he probably was because i think it was a relatively short period i think that it was around eight thirty ish when the state asked for brief continuance and i think the jury was picked by ten thirty so and  his client being their counsel did the state the prosecutor announce before the jury was or that they were not going to dissipate as fact or not before the jury was sworn yes i'm sorry yes and what we re there any other options the judge offered yes yes yes the judge yes the judge offer to kick the case to one thirty to allow them to continue looking for their witnesses he also suggested i believe that the state could have called their witnesses out of order which would have continued to the next day because they had i believe ten witnesses there and ready to go and i also want to point out that even when they moved for their continuance there was no there was nothing in the motion saying when they're going to continue it to this the judge in this could go on forever and i think what you have to look here to is this really in if you file the decision of the appellate court and you affirm it really ties the hands of trial judges that a state could come in pick a jury and say gee we don't like this jury your honour's we've decided we've declared we're not participating in your trial and then so jeopardy wouldn't attach even if a court can then you'd call that essentially gives the state authority to overrule a judge's denial of of a motion to continue and i don't think that's that's a good public policy and when you look at all the other cases that have followed teams they were all shot sham trials they were all cases where the state either did not participate i think all every single one of those cases the judge had the subjective intent to get the defendant acquitted and here there was no subjective intent by the child judge to quit that if the defendant in fact he was trying to be accommodating to the state and began do a pick the jury over the objection of defense counsel and denied defense counsel's motion for continu a trial is a sham you have to look at the intent of the trial judge and is the trial judge just basically making a mockery of the judicial system and forcing the state to go to trial knowing that the defendant's going to be acquitted so i think yeah i think it plays into that also like to point out the defendant does have a right to be tried before the jury that he selects and this procedure interferes with that and when you look at the  discussion of jeopardy they discussed jeopardy saying that the defendant was not at risk while our position is the defendant's at risk once that once the jury sworn those terms and there is one case in the country that that uses that standard of inculpatory evidence and that is this case this is the only case that that is said that jeopardy attaches only once inculpatory evidence is presented is simply stated chepe attaches one to the jury sworn the jury was sworn unless the trial is a sham and the child was not a sham if there are no other questions your honor we'd ask that this court dismiss the appeal thank you thank you counsel for the good morning honors counsel and may please the court i'm assistant attorney general karl travel representing the people of illinois there was no adversarial trial in this case defendant was not at risk of a conviction in this case therefore there was no acquittal but then the true meaning of the word under the old boy constitution that's clear under this court's opinion in deems and under the appellate court's opinion in time that we've heard that argument made before this court of course it was made and rejected in the appellate court and i thought that that issue had been conceded it was not briefed and therefore is forfeited  properly decided that the trial court should have granted the state's continuance the state has a statutory right to continuance under section one fourteen as four of the criminal code in order to deny that continu the trial court would have to conduct a hearing find that the people had not proceeded in a reasonable manner and trying to obtain their witnesses or whatever it was they were using to justify continuance and even then grant the state an extra fourteen to thirty days continuance in the trial and again that was not an issue that was raised before this court and has been forfeited therefore this court should assume for the purposes of its opinion that the trial court should have granted that continuance given that the trial court should have granted the continuance and did not the people were rather hamstrung it was first thing in the morning in a busy trial court setting and the witnesses were not present so the prosecutor did ask in this is pretty clear on one of the first sentences of the trial court record in this case the true prosecutor did ask for a continuance in the tr tonight and then the defendant asked for a continuance in the trial court denied that as well because the defendant was not present after those requests were denied the trial court stated what procedure it was going to employ and the prosecutor said thank you your honor but thank you your honor it was not an agreement to some sort of procedure designed to limit the defendant's rights it was merely an ascension to the authoritative statement of the trial judge in this case both parties have agreed and i think it's pretty clear now that jeopardy attaches at the time that the jury is sworn not at the time that water begins not at the time of preliminary hearing or an indictment on their information and started those are al proceedings that take place but jeopardy attaches when the jury is sworn prior to the jury being sworn in this case the prosecutor told the trial court that it was not participating in these proceedings because it's material witnesses were not present therefore there was no adversarial process in this case there was no trial and that is the definition of when jeopardy attaches according to this court's opinion in to that is that there's no indication in this record that that was the intent of this prosecutor and if a court ever faces those types of circumstances both the trial court and appellate courts would be fully fully justified in taking harsh actions against such an unethical prosecutor but that sort of super peremptory right the ability to get rid of a whole entire jury panel is not a concern in this case with the prosecutor up front said in the first few sentences of the proceedings that morning your honor our witnesses are not president we need a continuance so there's no indication that the prosecutor was trying to game the system in this case she was doing everything she could to help the trial court get to the point where you could try that case these  showed up in the past they were known to the court system unfortunately for them i guess and they have been in court within the proceeding past week or two in another case so the prosecutor knew that there was a decent possibility they were going to show up that morning and therefore assented to the trial court suggested procedure but with the caveat that she was not going to participate in the proceedings past the point of swearing in the jury because she knew that jeopardy attached at that point there were other witnesses that were provided on the witness list the record is not clear on what exactly their testimony might have been but a prosecutor's ethically barred from proceeding in a case where she cannot present evidence of guilt beyond a reasonable doubt if she had a concern that these two witnesses would not show up and would not meet the remaining witnesses could not meet that evidentiary burning and it would have been inappropriate for her to proceed with just calling a few witnesses in a prosecution where the two key witnesses the victims of a battery case were unavailable to testify did she make any kind of record as to due diligence kind of thing and then there's nothing  there's there's some information about attempts that were being made but it's not very detail john and that's our point the point is that if there was a concern about diligence the trial court under section one fourteen dash one i believe it's he should have called for a diligence hearing and put into the record what it was that the state had effectuated to obtain the testimony of these two witnesses and even then if the trial court determined that the state had not requests information from this state in terms of diligence that's not the burden of the move on a motion for a continuance correct your honor when you're asking for a continuance of course the state has to demonstrate why it's asking for a continuance and it has to be one of the approved reasons here the state said we're asking for a continuance for because our material witnesses are not present which is a justifiable reason in order to follow the proper procedures at that point the trial court is burdened with the duty of having a diligence hearing it as i did grant the motion for its continuance or conduct a hearing on diligence and then even if it finds that the state acted without diligence it still must grant a fourteen to thirty day continuance after that continues to explain after that that in order to exercise its discretion it has to conduct a diligence hearing and then and even then a continuance is me indeed id it's just that it's limited to fourteen to thirty days has no control over the dock it's not that it has no control over the docket it said it has a fall the proper procedures and the only way the state could effect to wait its rights under that statute in this case was to stop participating in the trial and then file a stiff given impairment and then proceed with an appeal so everything else about what could have happened in this case the prosecutor could have done this or that the trial judge could have done this or that is really a smokescreen for the underlying issue presented to this court in this appeal which is whether or not there was jurisdiction for the court to decide this case which is based solely on whether or not the defendant was put at risk of a criminal conviction and he was not put at risk of a colonel conviction because there was only a defendant in a trial court judge participating in this trial after the people stopped participating which took place prior to the jury being sworn we disagree with that your honor again deems it's clear that it's not the trial court subjective intent that matters it's whether or not the defendant was put at risk of a criminal conviction if there was no risk of a criminal conviction because there was no prosecutor then there is no true acquittal under the meaning of the term in the constitution and jack it's an objective test of whether or not the defendant was at risk of a conviction and objectively where there's no prosecutor there's no risk of a conviction because of course a judge cannot add as a prosecutor in illinois earlier you were talking about or are questions about whether a prosecutor could simply decide he or she  makeup of the jury and therefore say i'm not participating i take it from your argument that you are not suggesting that to avoid that situation the prosecutor has to have a good reason for a continuance or dizzee he or she not have to have a reason would know there are certainly cases where a prosecutor might ask for a continuance and it would be unjustified there are statutory requirements for continuance it's just that the facts in this case clearly met those requirements as the as the appellate court held and as defendant didn't not argue before this court the failure to sit of two material witnesses to show up is a statutor the trial were old the jury and continue the case with the jury that the trial court could have granted a short continuance it has discretion in the length of that continuance it and it is there's no need for this court to provide guidance on the amount of time that the court should have used in granting its continuance the point is that a continuance should have been granted but at a minimum even if a court trial court finds that the state is not exercising the proper due diligence in producing its evidence and is improperly asking for continu case where it's not exercising diligence and still gets a fourteen to thirty day continuance to get its witnesses together and put on its case against a statue it my question really was in order to avoid improper conduct by the prosecutor could the judge not hold the same jury for the fourteen days and say we'll wait and swear than in fourteen days later it could have yes it could have exercised that kind of authority obviously would be inconvenient to the jurors but it could have done that counsel i may or may not of fracture argument correctly so i want to ask you this keen off when you said the prosecutor said thank you and that doesn't mean  sent are you arguing that the trial judge did or did not offer any options and that's a follow up really to the question i asked mr miller and he said there were options the trial judge of the options i think he was referring to w court came back to him before swearing in the jury said would you like me to grant your continuance to one thirty and but then he followed that up by saying would it make any difference to would your witnesses show up i'm paraphrasing here it's on about page seven or eight of the record and the prosecutor noted that she did not know where these witnesses were so she didn't know if a continuance to one thirty day afternoon would help or not but that she certainly would like it the continuance but at that point the judge said well then this is just a waste of time we're going to proceed and at that point the prosecutor said well then your honor we're not going to participate in the trial so again were the things the trial court could have done or their options available there things that the prosecutor could have done differently perhaps but the narrow issue before this court for the purposes of this decision is not only side issues but it's whether or not there was jurisdiction to hear the appeal were guarding the continuance that is now being conceded and since it's clear that there was no adversarial trial here there was no danger of conviction that there was no true acquittal and the people did have the right to appeal because ana thank you the bottle please yes the state insists that the defendant was not at risk but he was at risk once the jury was sworn and the fact that the state basically held  breath and said oh we're not going to trial but doesn't that that doesn't change anything there is no no law out there that allows the state to do that or that says the defendant is not at risk of being convicted just because after a jury's been picked the state can make some declaration of that they've decided not to participate in trial after their motion to continue which was not filed until after the trial had begun was denied and getting back to i believe pounces said they did everything they could and they asked for continuance well yeah i guess they asked for continuance before trial they asked for continues for a brief moment they didn't ask for a continuance to a different date  you know they had been different situation if that were the case but they they did not ask for a continuance they did not join in the defense counsel's motion for a continuance so that's in cracked statement or at least a misleading statement say that the prosecution asked for continuance before the jury was selected i think the record will show that in going back to the continuance right of the judge continuances section one fourteen besh for f is for mid trial continuances and i believe the appellate court said well that he can apply to both that to continues but when you look at the language it eat that makes absolutely no sense subsection eat talks about when the state does fail to use to diligence and bring the case to trial while the case has already been brought to trial  it was brought to trial once he started trial by picking the jury and if you look further it talks about a requirement of a fourteen to thirty day continuance which again would make absolutely no sense after juries been selected to require a minimum of a fourteen day continuance and that makes zero sense and when you look at section one fourteen f which our position is would be there if that ever so and in the interest of justice the case was old they'd already picked the jury and the judge was perfectly within his discretion to deny that motion so again this issue here is whether or not this is a sham trial under deans it was not jeopardy did attach and i'd ask that the gunners dismiss the state's appeal   mr marshall the only supreme court stands adjourned until tomorrow morning nine am september thirteenth two thousand and twelve