mr brown may please the court thank you your honor counsel ladies and gentlemen your honors nearly fifty years ago my mother and father graduated from this university this place has always been special to me and has a special place in my heart i'm very grateful for the opportunity and i thank the court and the university for allowing me to participate today  remarks in that i prepared remarks on some of the points raised in the palace brief this is truly a twenty first century case it involves concepts of microprocessor driven communication and also involves most basic in court constitutional rights form the basis of individual liberties in our republic so the dichotomy that is present is the issues of new technology and how does the law keep up with the emerging evidentiary issues underpinned by constitutional rights and society's mandate to preserve them duality will continue to present itself time and again in our courts therefore clear direction is needed from courts of review in illinois for litigants and lower courts to efficiently handle the seven insurance issues so will history judge our time as the information revolution in the last forty years there's been an explosion of information technology we've experienced a sea change in the way that we communicate with each other carbon paper has gone the way of the buggy whip we now have new email instant message text twitter skype words that didn't exist twenty years ago to become relevant in our case today the town square has been replaced by my space and the barn dance can be found on facebook the instant gratification means of communicating however presents very important social problems first off one cannot fully express himself or herself with electronic communication one is limited tone intonation punctuation spelling can send the wrong message this becomes relevant in our case and while the information technology we today and that we enjoy today brings much needed transparency to many areas of society and government function it also allows for the dissemination of iranians some from ation either intentionally or unintentionally so there exists a double edge aspect to this explosion of technology and it's in that context that we have to consider the case and conviction of stephen john your honour's i've raised eight points on appeal as you know i know that this court and other courts in illinois thoroughly read the briefs the case was tried for four days i have fifteen minutes i'm not going to try to retry this case  first issue that i raised in the brief and extensively briefed is our contention that the defendant was not proven guilty beyond a reasonable doubt rather than embarking on what would necessarily be a very lengthy discussion on the intricate fact pattern of what occurred i will leave that argument to the brief unless the court has questions on it and turn to the issues that we raise with regard to the constitutional violations that we've alleged the defendant alleges that his six amendment right to confront and cross examine witnesses was violated the standard of review for this issue is do no evil i know that the state disagrees that the standard view is to know and they've urged that the standard of review is abuse of discretion  when there is a constitutional violation that has occurred the review is to no avail and i will i've explained that in the brief and in the case law that supports it and as i go through this argument i'll flesh that out a little bit more as we all know a criminal defendant has the right to confront to confront cross examine witnesses who testify against him this is found in the sixth amendment the united states constitution that some posts and state courts by the fourteenth amendment it's also found in the illinois constitution that article two section eight how did this issue come up this was a teacher and student alleged sex assault and abuse case as the court knows from the record the sole alleges the act of sexual penetration abuse alleges the act of something less call it fondling the defendant was acquitted of the assault charge by the jury and he was convicted of the abuse charge so while he was acquitted of an act of sexual penetration he was convicted of something less if you will during the examination of the victim on the stand counsel for the people who is present in this room and is very capable and able attorney has my respect asked this minor the question of whether or not she had had sex before the allegations that she raises of having had sexual penetrat conduct with the defendant now there's a problem with that and the problem is obvious to anybody that has a working knowledge of the law and lawyers and judges alike and that problem is that illinois has a statute at seven twenty five five slash one fifteen to seven i've said it out in detail in the brief the title of the statute is prior sexual activity or reputation as evidence it's commonly referred to in this state and in many states as the rape shield statute it is a shield it is designed to protect victims corroborating witnesses of sexual offenses from inquiry unfair inquiry by guys who stand on my side of the aisle about their prior sexual activity that it protects these victims and crab rating witnesses from trying to muddy up the reputation in the mind of the jury in order to gain an acqui the statute does allow for some of this evidence to be brought in under very narrow and limited circumstances the most classic of which is where a defense is raised that the sexual activity was consented to by the victim not present in our case because as we all know what child cannot consent to have sex with an adult the only other time that prior sexual activity can be inquired into is if it's constitutionally required in order to get over or into either of those areas there must first by statute be a there there there has to be hearing that's held in the presence of the truck where before the trial starts to determine the admissibility of this type of evidence a motion has to be filed by the proponent of the evidence the judge has to make a ruling on the admissibility of it and give a defined ruling as to the contours of what that evidence will be and what the cross examination will be it's a very detailed statute no motion was filed by the people no motion was filed by the defense the question came in and it came in intentionally and what i mean by intentionally is not that the prosecutor and we have no evidence that he knowingly violated the statute i don't think maybe that was in his mind that's what the record seems to suggest when you look at his response because the court halted the proceeding sent the jury out of the room and said why did you ask that question and the answer was basically to the effect i had asked that question why did you have to ask that question because the victim said and there's two incidents at an apartment the victim said she didn't know whether she had sexual intercourse on the first night or not and he said she doesn't recall if they had sex or not i think a normal person would wonder then especially a person that young who would be a virgin perhaps there would be some other sign or evidence that they had in fact had sex the ball the point behind that was to establish so i could argue later no there wouldn't be any indication so the testimony leading up to this was we have this allegation of an incident in woodford county in a high school equipment shed we have a allegation of an overnight visit to the defendant's apartment with drinking sexual activity but trial testimony that the victim didn't remember if she had sexual intercourse or not woke up the next morning in his bed with him and then testimony from the victim of yet another night a second night at the apartment where indeed at that time she remembered sexual intercourse occurred so this really begs a gigantic question and itself in the room and that is how do you not know if you've had sex or not you can't ask a follow up question of you've had sex before don't you know what it's like to have b post well i can't ask that as a defense lawyer because of the rape shield statute i can't follow up on that i can't argue that to the jury i can't say this is not believable this is not credible that someone would say she went over to an apartment drank sexual activity began i have a loss of memory i woke up naked that i went to a road race and ran three miles in twenty four minutes and but the second i know for sure i had sex so we have we have very real credibility issues here and anytime as a defense lawyer when you prepare for a case like this you're dealing with a child you know it's not my job to make this person feel bad it's not my job to make her look bad it's not my job to inquire of the sixteen year old about her prior sexual activity but she answered the question after it was intentionally offered with a plan by the prosecution the court stopped the proceeding and says brown the door is not open the statute is crystal clear what are you going to gain by asking this question that's the big question what are you going to gain that's what opposing counsel protect the victim's reputation how do you balance those interests with a mistrial a move for a mistrial i mean the bottom line is we should be protecting this minor all of the competitiveness of lawyer aside we should be protecting this minor and a mistrial would have cured the error would have left it hanging because this is corroboration and bolstering testimony from the victim elicited by the people which is what is the real prejudice your client question wh and i can't say ladies and gentlemen of the jury i mean isn't isn't this a lot like riding a bike i mean once you've done it you never forget how i mean is that this real i mean how can you honestly say you don't remember if you had sex or not and under underpinning that your honor is the fact that she testified to grand jury under oath that she did have sex that first night there were two instances of sex that was sworn testimony from or and then she comes into trial and says well i don't remember if i had sex we had very significant credibility issues here so to be able to even follow up on it with one question one question would be how in the world it's almost it's almost a rhetorical question to the victim they get that gets the jury gets the point to the jury and that is how in the world the and not know and i couldn't ask that one question now when you look at the records of what a pretty clear the active and so i don't know i'm just i can't i'm struggling with any prejudice here client from that question well i don't want to point out that the victim is sexually active because the victim's a child and i never would so the prosecution didn't do me any favors by asking the question however when opposing counsel says well this is abuse of discretion we look at all these cases the talk about limiting the scope of cross examination none of the cases cited by the people talk about a complete shutdown by the court sue a spontaneity of an issue not one question was allowed to the prosecutor do my job for me there no but he created yet another wrinkle that was left unanswered because this was bolstering the issue of intoxication just a schmidt was talked about by the victim on both nights she claimed memory loss as to both nights she claimed extreme intoxication as to both nights we did have evidence of after the first night where she didn't recall if she had sex or not and the trial testimony that she ran in the race for the cure and finished fifty six out of over four hundred people so how did the question that we're a question we're talking about and the answer thank you i asked the victim on cross examination if there was any evidence if you don't remember was there any evidence that you had sex i'm no medical doctor but i believe i am a father there is evidence when people had sex it bolstered it by saying there wouldn't be and that's exactly the statement that the prosecutor opposing counsel acknowledges that and i think it's pretty clear that juries frequently when faced with a difficult decision recall they asked the question of the trial judge during their five hours of deliberation can you give us a definition of reasonable doubt i think the guilty on the lesser charge of the not guilty on the greater charge is a compromised verdict that was swayed by improperly admitted evidence and the other evidence that i have briefed at length and how can we can't get into the mind of the jury that doesn't allow the law doesn't allow us to ask them questions and follow affidavits whether that affects them or not i think when you look at it as a whole first off from a public policy standpoint you just can't allow that type of question and answer to come in and secondly to completely shut down the defendant what it does come in voluntarily by the people and by the victim we should be allowed at least a minimal inquiry an argument thank your honour's  in addressing the issues in this case i think we first have to do and i think so smith kind of kind of said what set the tone for my argument is the fact that we have to look at what was charged in this case originally criminal sexual salt based on sexual penetration and criminal sexual abuse based on sexual contact the criminal sexual salt was also an element in that case was also the fact that the resulting intercourse occurred as a result of the position of trust held by the defendant now i take issue with council on the fact that in his brief  argues throughout with respect to the various errors that are raised during the course of the trial he argues that the jury acquitted the defendant because they didn't believe the victim because they didn't believe that they had intercourse and i would submit that this error the jury could very well have determined based on the evidence that intercourse did slash mentor that as a result of that position of trust that he somehow used that position to force her into having a course they could very well have found based on this record that that element was not pro yet they could at the same time consistently find him guilty on the aggravated or season of the sexual kind of sexual abuse count because that was based on the fact that of the sexual conduct which would be the touching it was based on her age being i believe at least over at least fourteen under seventeen and he was at least five years old so what we have is it's  similar to the to the old statutory rape federal statute where we're protecting the young from there are unfortunate decisions that they make and it's all based on the there's nothing inconsistent about what the jury did and what they determine what they found based on the other you disagree with counsel and this was a compromise from oh definitely definitely secret there's no way it was a compromise for space strictly on the element strictly on the issues instructions that are presented to the jury so when we look at the issues we look at for example open the door about the victim's prior sexual activity when we look at the other the evidence about what happened in the shed be we argue about three point one four we have to can ask ourselves in all of this is the defendant was acquitted of the sexual assault case which a lot of this evidence was directed he was convicted of the sexual abuse which is based on conduct of touching which is based on age of the victim and the age of the defendant so we ask ourselves case after the victim had testified that she could not recall whether or not she had actually had intercourse after the drinking and the intoxication the prosecutor asked a question quote i hate to private before that night and you ever had sex before in your life close quote the victim then responded without objection quote unquote yes the question then we it was only after well there was some additional questioning and the prosecutor asked the victim if she had ever had any contact of any kind of sexual nature with the defendant before and she said no at that point that is when the trial judge interrupted the proceedings and had a sidebar and he went into the whole idea because he thought the prosecutor was going to go into an area about prior activity and he wanted to foreclose at that point it was then that the trial judge brought up the prior question it was only then that the defendant voiced any kind of an objection to the question at all not going to let it get out of hand he was not going to let it go where it really should have gone before if in fact the defendant was indeed as concerned about not going into the prior sexual activity of the victim at all he would have objected the question begin however seeing the fact that the door was starting to be open and seeing a sliver of like he decided to let the prosecutor just open it and just to go with the flow because it was going to give him the opportunity to do that which he otherwise could have done and so under the circumstances in this case when we judge this question when we judge what the defendant was not allowed to do against the the charge of which he was convicted there is no prejudice this question this whole line of questioning was indeed inappropriate it was irrelevant had absolutely nothing to do with the charge which he was convicted and saw in this particular situation we do look we do look at what the defendant was allowed to do in his cross examination the fact that the defendant does not have the opportunity to ask this the fact that he was not allowed to question the victim on this single point does not mean he was the nine right effect across the nation even though i know that it appears as  trying to take and answer the question the defense counsel said which is if you've had intercourse obviously know if you've had intercourse or not and basically by asking this kind of question in effect that's what the prosecution was trying to answer and under the circumstances in this particular case the defendant basically got the ultimate benefit from this question because he was he was acquitted of the other sexual assault charge now was it because of this question or not i have no idea but i think if you look at the evidence and if you take a look at the elements of the crime as i said earlier chances are likely he was convicted because of the lack of evidence showing that was because of his position of trust and the same thing kind of runs through with respect to the other issues that are presented there simply is no prejudice to the defendant in this particular situation based on this open door same thing with respect to the comment with respect to to the issue that's been raised by the defendant concerning his ability to testify when the prosecutor let of the hearsay objection he made an additional statement that the trial judge number two i don't think that this has been properly preserved simply because the fact the defendant testified if defendant truly felt as though his right to testify in court his constitutional right to remain silent i should say was impinged because of that comment in the in the finish not to testify he should have asserted that right and whatever happened before the jury whatever the verdict would have been he would be able to raise that issue and i think that in that particular situation on the law i think that the state would have a much more difficult time trying to take an suggest trying to can say in what fashion the defendant was not prejudiced but in this case the defendant chose to in which when you wish to a sort of right thing when you wished was sort of right or when you claim that that a constitutional right to somehow being infringed or you're being tonight something if in fact you don't assert that right if in fact you waive that right then what happens is you lose your ability to take an object to it in this particular case the defendant had the rights remain silent he didn't have to prove anything but when you consider the fact of what the state's evidence was and we also consider the fact about the text messages that were were in minute evidence the defendant had to do some explaining and the only way to do that was to testify defendant chose to testify and in doing that the comment that was made the trial judge sustain the objection he gave a curative instruction the jury was properly instructed thereafter he silent no he testified and the fact that the prosecutor made the statement that is she would be something that would be raised for this court here on appeal that would then be decided whether or not he was precious as a result know there were two other issues that i wondered if you would address that were raised by the defendant sure one was the question of the evidence regarding the shannon incident an ongoing course it wasn't a prior crime i don't think we can necessarily call it well i hate to use the word prior bad acts because technically speaking it was a prior bad act but not in the sense crime so part of the ongoing criminal conduct by this particular defendant so i don't really think that a three point one for instruction really applies here that talks about it's admitted for a limited p operandi identification intent exceptionally well this brings me full circle back to my opening comments which is we take a look at the offense of which he was convicted of basically at least as far  as the sexual abuse case is concerned there's no question about identity there's no question i'm with operandi and there is no specific element with respect to intent because it's pretty much based on age purpose or or intense with respect to with the intent with respect to what the defendant's motive was what its purpose was i don't think that it fits the three point one four as well as the fact that u that would be true was it on church sexual misconduct i think was just an charge kind of i think when you say did did he attempt to take in touch or yes did he know and so if you want to say if it's an if it's an attempt criminal sexual abuse if you if you want to get to to to you know to that extent that but it's as  if a person goes out for example before they commit a robbery they go out and buy a gun steal a car that's all prior conduct but it's not necessarily evidence of the crimes it's all part of exactly what it is that the individual doing to achieve the ultimate objective that they're whatever whatever that might be and so in this case i don't view this as evidence of the crime so the evidence of any kind of other charges convict i don't think three point one four really  as well as the fact that when you take a look if it was going to be look if it was going to be admitted for a limited purpose the only one that defendant can offer but they offered a brief was one of intent but intent is not an issue yes your honor thank you this execution of assault from abuse is rather curious i can't really imagine a scenario where a defendant can assault of a victim and not have an abuse leading up to it penetrative back to be used as the touching and fondling how do you get from point a to point c without going through point b so to say this this conduct or that conduct or this evidence or that evidence doesn't touch on the count of conviction is it's very specious and it's a legal fallacy to say that because he was acquitted of assault evidence of sexual activity regarding her statements when there was intercourse doesn't apply to th kind of conviction because she describes a whole series of events leading up to that intercourse moment which would be abuse and the jury could easily convicted him on any of the quanta of evidence that's before it if you think like a jury and not a judge or a lawyer they have information that some form of them that they're going to use for any reason and without limitation so i think that's a red herring i think it's an attractive legal argument but that's just not reality and that's not the way people think you can't get to an assault without moving your way through an abuse first the prior activity issue the council says the judge will intervene when the questioning went to prior activity with the defend it makes no sense whatsoever because prior activity with the defendant would be relevant under the statute or under the charge and why did we not object abject shock for one perhaps nothing really shown in the record but we're under no duty to object and the point is i asked for a mistrial we didn't think oh boy we've got a free bite at the apple here we have a real problem of a bill that's been wrong and nothing can be done to address it the woodford county shed incident that the victim describes in my rough mathematical quantification and i apologize if that was tortured constituted a majority of the state's evidence in this case the defendant was indicted by a purely county grand jury for acts occurring in peoria county and the majority of the evidence presented by the people were acts of other wrongs committed in another county  indeed in their own brief the people describe it as an attempt sexual abuse indeed it is uncharged prior conduct that came into the jury they could have convicted him on the abuse count for that alone and that's outside the scope of the indictment and that's a violation of due process and that alone is sufficient any one of these a sufficient to order a new trial the statement about the defendant can take the stand and testify if you wants he wait that by there after testifying would work a perversion on the fifth amendment and require this court to make new law the prosecution cannot trample on the fifth amendment of a defendant challenge him and taunt him to take the stand and then only be called to task if the defend doesn't testify that places the ownership of that right in the hands of the state not the individuals were properly belongs so the fact that he thereafter testified is irrelevant to the determination as to whether or not it was error it was clear