accountability theory following a jury trial there are four issues in this case but today i will be talking about the first year there were two instances where the court committed reversible error wine where it conducted improper ex parte communications with the jury during deliberations and to one end allow the jury to improperly review audio and video evidence during deliberations in the presence of third parties the third issue in the case is a critical issue to which the state has confessed to air and the fourth issue of the excesses and as you i am prepared to take questions on any of the issues mr henderson respectfully request that this the jury had a question about an instruction and then at some point after that the jury requested to review the nine one one call in the video from the eleventh street mini mart in this case their jury was brought into the courtroom and the parties were not notified the court instead told the jury that ms bernard a representative from the state's attorney's office would assist them in reviewing the evidence and the court told them not to discuss the queues in front of mr barnard the judge said so you can watch whatever you guys want to watch and if you want to watch two or three times i'll keep i'll keep her here as long as you guys want it later the jury again requested to review evidence this time they wanted to view the defendant's police interview the parties were again not notified and the jury was permitted to review the evidence with this instance of ms bernard and but that second time there was no instruction the judges conduct year led to two major errors the first one being that it had the improper x party communications with the jury and it's a primary and the court deprived defense counsel oh the opportunity to object to the evidence being reviewed or the manner in which it was reviewed and second the presence of the third parties during the liberations created a chilling effect on the jury not communications between the judge and the jury after the jury has retired to deliberate except when how they're open court and in the presence of defendant and defense counsel deprive the defined then of his fundamental rights you can review it under the first prong plain there because of those me as we are here close the balance or are on that or under the second prong of the structural air and i also make an argument the defense counsel was an effective for failing to move for a mistrial when he was informed of the  ms barnard is from is that office administrator and not an assistant state's attorney however i believe the state had to research that on the internet because it was not made apparent to the jury who mr not was and that she her because there were a number of inconsistencies in this case there was on the witness who was who was present at the crime scene testified she heard one gunshot when really there were four this  was middle of the day they weren't wearing masks they were at their friend's house what kind of robbery occurs in the middle of the day at your friend's house and there was also no that it could have gone the other way in this case that you know that there wasn't certainly when defendants when enhanced in his favor because he was found to not be the shooter was an accountability the and they because the guy they were just going over to the victim's house i think they're going to buy some can a vest but there was no talk of a robbery and then for this third person to just go rogue essentially and shoot and kill defendants good you know feeling for holes or feeling i think he quickly realized that i had that mr jackson wasn't recovering and that they were now at a crime scene and there was in their third now not only is that interrupted by having a third party president but defendant's right to look to be represented by counsel was also affected here and his right to participate because no one told we do not want the jury to have free reign to watch this evidence over and over again for example the nine one one call the state have just played it very in their closing argument so now just a couple hours later the jury wants to review it again and defense counsel in his closing argument call that horrific presumably had he had the opportunity to object beforehand to this being played he would have rather than hear th and all the cases that i have seen on the subject it's it's usually the judge the state the friends counsel all present now we would argue that no one should be present during deliberations that if a piece of evidence be the rule yeah piece of evidence needs to be reviewed and only one person in all of the court can play the video that person should push play and then leave but in these other cases like me can win johnson where they let the jury review the evidence in the presence of other people they all had defense counsel there to presumably be able to notice if body language was impacting the jury if you know any any other defense counsel should be president if the state is present definitely to be able so council was informed of what evidence the jury wished to reveal after the fact and this point it was too late kat was out of the bag and he yes he could have been for a mistrial and he should have moved for a mistrial you know he was an effective for not moving for a mistrial but for sure the better practice here would be to have called the parties then before letting them review evidence and allowing defense counsel the opportunity to object additionally he should have been able or as we discussed he should have been able to to object to the presence of a representative from the state's attorney's office of the state an appeal argues that you know a professional would not let their body language alter the jury's opinions but i we argue that it's that's not unconscious even if these  which is why no one is supposed to be allowed in the courtroom let alone a representative from one party additionally we would argue that the court erred when it conducted ex parte communications with the jury in peace in the deliberations when the jury requested evidence a second time the judge told them that he was going to call them in ten or fifteen minutes anyway because you want by five or five fifteen pm he wanted an answer about whether they would order dinner thank you deliberating or whether they would come back in the market in the morning the critic was then reached i made five fifteen pm so we don't have an exact timeline but it can be inferred that it only took thirty to forty five minutes at the most maybe even as little as fifteen minutes for the jury to then reach their verdict after the judge kind of informed them that he would be speaking with them and i know ross that's that's a sign that they were influenced by the judges he's named i'm deliberations  because they were quick to come back with a verdict the judge again should have consulted with the parties before having any communications with the jury at this point mr henderson and respectfully request that this there's the cers no justification for the fuse in the forfeiture the trial judge had two different expert in communications with the jury during deliberations to arrange for viewing of different videos the good court so that when a jury asked review evidence it is error for a judge not to make a preliminary determination as to what evidence the jury wants and it is also where to fail to exercise discretion in responding to the jury's request contacted counsel ahead of time but i don't disagree with that and it wasn't the best procedure to follow the dench we in this case we did have the bailiff of course in the room that was supervising in the jury course and cases go back and forth in all these situations and this meek in in this one aspect but i do i think we need to keep the focus on was the defendant prejudiced but this we don't look at presidents of the second problem with specifically told this is the only person here who knows how to run the system so this is what they had to head the fact that she was there to run the system she's the only one who knows that run the system you know leave a bailiff here so they don't communicate during the course of this it's a very unique situation and i don't disagree with that but i don't believe it rises to the level of structural structural here or i don't believe in effect in fairness this specially since council had been sitting through this it in working boundaries go on this particular scenarios and mentioned earlier i don't know i have not seen it in case law and i've reviewed it i don't see that having an individual unfortunately she was a mechanically this court even though it didn't find prejudice it said we would caution circuit courts of the procedure utilized by the court in the in sync case could have the potential of becoming problematic and possibly a pre defense counsel is not given a heads up this is a this does make a good case for second prong structural air especially mckinley getting calls one of the fundamental tenets our judicial system is gr a mandate that the deliberations of the jury shall remain private and secret this is a fundamental tenet i'm a great candidate for structural air and you know i i discussed earlier how there's a lot of it's the majority opinion that counts but in a one no there was not nearly as severe you know why no it was alternate jurors sitting and they didn't have a representative of the state's attorney's office sitting in and  counsel being totally unaware so i would argue that this scenario is much more serious than in a lot i know and like i already said is a great candidate for