court's consideration of the issue presented here the events leading to this case began on june twenty eighth of one nine hundred ninety two when this petitioner and some fellow gang members went to a public park on the north side of chicago and attack a young man named francisco ramos simply because they believed him to be a member of a rival gang during the course of the beating petitioner pulled a gun and shot ramos an act that was witnessed by two different individual both of whom testified at defendant's trial petitioner was found guilty of first degree murder after a bench trial in one thousand nine hundred four where he presented an alibi witness who testified that petitioner was with him on the other side of the park during the shooting petitioner appealed this conviction claiming among other things that the people failed to prove his guilt beyond a reasonable doubt his conviction his conviction was affirmed on appeal based on issues of credibility three years later in one nine hundred ninety seven petitioner presented his first post conviction in it he claimed that he received ineffective assistance from his counsel along with actual innocence based on newly discovered evidence specifically petitioner presented three more alibi witnesses who stated they were in the park during the shooting and saw petitioner and that he was not involved this petition was dismissed by the trial court and that was affirmed on appeal by the appellate court three years later in two thousand petitioner filed his second post conviction again claiming ineffective ineffective assistance and actual innocence this time petitioner included affidavits from two witnesses a woman who stated she was also in the park during the shooting who did not identify petitioner in the lineup and a witness named victor ocasio who stated he was in the park as well and named two individuals and his cousin as the shooters this petition was also dismissed and that dismissal was up held on appeal four years later twelve years after the shooting and ten years after the original trial petitioner filed his third conviction and his third petitioner in the park petition was granted a third stage evidentiary hearing and at that hearing presented testimony only from hernandez after the hearing the court denied petitioner post conviction relief and he brought an appeal on appeal the first district first division of the appellate court reversed with the majority finding that hernandez's testimony constituted newly discovered evidence the majority also rejected the people's argument that petitioner was required to meet the threshold unprejudiced test prior to filing his success of conviction petition the type of piecemeal litigation that is represented by this procedural history is the result of a misinterpretation of both the post conviction hearing act and this court's holding in people vs pits in barker this misinterpretation ignores the well established cause and prejudice requirements and allows the petitioner with the claim of actual innocence a free pass to file a successive post conviction petition and proceed straight to first stage consideration the result of this misinterpretation is a situation like the one before this court where every few years this petitioner manages to locate and bring forth new know our position is that a valid claim of actual in the senate should meet the cause unprejudiced sas however the way that it's being applied now where a petitioner brings a successive claim of actual innocence he's not being required to meet the threshold causing prejudice test which every other successive petitioner in the state of illinois is required to meet however though in bringing this kind of situation doesn't require the defendant show evidence it was newly discovered it was and the way that it's being interpreted and many of the cases that are discussed in the briefs that were filed as long as a petitioner brings a claim of actual innocence it's sufficient for him to get this free pass where he's not required to meet any sort of tests and what it is also having to bring all kinds of information before the court to make a determination i don't think it's a free pass to you well he's not to have to bring real a lot of information before the court that it's newly discovered evidence so those are the things that he needs to show in order to succeed on his claim of actual innocence but he's not required to do anything more than present his claim along like in the form of an  affidavit with his conviction petition in order for his petition to be advanced the courts and the appellate court majority majorities interpretation isn't looking at the quality of the evidence in determining whether it should proceed first stage her first certainly isn't that like setting up some kind of barrier i mean when there's an actual innocence claim shouldn't you get to the actual and this is where you and see whether it goes up or down what the defense present well certainly the the our position is not to try to block these claims of actual innocence from proceeding our position is based on the fact that they're based on the plain language of the post conviction hearing act which was a failure to raise a quene and to where to prevent a fundamental miscarriage of justice however our position is that once an  at that point there would be no failure to raise a claim as discussed in the language the petitioner will have already raised his claim of actual innocence which was allowed and heard and in getting back to the question that was asked if there are do you think so no i do not in this case i the defendant failed to show adequate cause for his failure to bring the claim earlier and he also failed to show that he was prejudiced by the fact that this he would be that he would be prejudiced by not bringing this forth frankly because the evidence the testimony of six fredo hernandez was not of the quality that it would have changed the outcome of the original proceedings but in returning to the the question of whether these claims of actual instance will be blocked they won't there are other more appropriate then  avenues for these petitioners to take their two fourteen zero one petitions they can apply for federal hay vs relief and there's the remedy which in herrera vs the united states the united states supreme court said it's traditionally the appropriate successive requests for executive clemency if newly discovered evidence were to come forward he could certainly apply again for executive clemency so there certainly are other avenues more appropriate avenues that are not  that would be consistent with the intent of the post conviction hearing act in the language of the post conviction hearing at it's also it's interesting to note for this court that in the amicus brief was filed in this case it was a number of individuals at the towards the end of the briefs and four out of the five individuals who were listed in the amicus brief received had their convictions overturned or received relief and all of them received it in forms that were not successive post conviction so it's clear that these other avenues for relief and vindication are available and that they are successful i'm as evidenced by the information that's contained in the brief that was filed by northwestern in this case i would just also note for this court that as i said the post conviction carrying act was amended in two thousand and four which is after this court's legislature was aware of the language in pits and margaret for the so called actual innocence exception and they chose problems with their analysis and i like your dress first isn't it just as likely that the statutory amendment you're then after two years after person berger it's a murder was probably meant to codify the holding of the case and that to do away with the separate exception for restraining claims of actual innocence that's what our number one of the question per number two is there any rate the cases that hold the actual innocence does not require the cause and prejudiced do so as a requirement of constitutional due process so even if we agree with your proposition as to the post conviction here in eric not mentioning there a simple statutory amendment would not be enough to overcome those cases that  right to bring forth a claim of actual innocence as a matter of due process but nothing in washington indicated that it was meant to allow a petitioner to bring forth unlimited claims of actual innocence without any sort of it here in studio requirements that are set forth for every other petitioner bringing forth a successive post conviction claim if you look at a for instance of petitioner who has a valid claim that he was tried before a bias judge for whatever reason that petitioner fails to bring that forth in his first post conviction petition he would be that's an error that this court has deemed a structural error that he's entitled to a new trial but even that defendant would have to meet the cause and prejudice requirement before he's allowed to bring a successive post conviction petition the polls convictions in response to your other question i'm sorry that a claim of actual innocence may be brought but again even in there's no language that suggests that there's it was meant to be an unlimited unfettered claim to bring such actual innocence petitions in washington this court said that procedur ell i would what i would say is this certainly if you look at the amendments that were made to the post conviction hearing act such as subsection c in subsection c the legislature amended the post conviction hearing as to exempt claims of actual innocence from the time limitations which are set forth on all of their post conviction positions so certainly that that indicates that the legislature was very aware of the language and amendments to include an exemption to the time limit requirement but chose not to do so for the cause and the cause and prejudice section so certainly they were aware and willing to be responsive but chose not to  in terms of this section of the poles commission hearing act were the first two  motion to dismiss filed by the people the court into the trial the post conviction court indicated that it was leaning towards granting the people's motion to dismiss but after further argument the court advanced the case to a third stage eviden prejudice but it almost seems like as though well our request would be twofold first to find that the petition was not properly filed with the court because the petitioner failed to meet the threshold causing prejudice tests which is required of every successive petition and secondly that the root of the overall ruling by the appellate court reversing a finding of the trial yes in getting back to the question that was asked originally by justice burke in terms of whether this defendant met the cause unprejudiced asked leads into people's second argument which is that the trial court court also committed manifest error in that it found that the ruling of the post conviction quote was incorrect and also in the fact that it failed to give due deference to the credibility findings which remained by the post conviction court in making its ruling the the post conviction court found that the testimony of hernandez when weighed against the testimony that was offered at the original trial was cumulative  however although he used the language cumulative it's clear that what the post conviction court was relying on was the fact that the testimony of hernandez was not credible enough to outweigh the testimony that was presented by the people's witnesses in the trial court this this ruling should have been given deference by the appellate court and instead the appellate court substituted its own credibility determinations and reweigh the evidence itself  the testimony that was presented by the petitioner at the the post conviction third stage evidentiary hearing was of a witness who waited twelve years to come forward a fellow gang member of the petitioners who could have been discovered earlier certainly there were a number of people who were in the park that night all of whom were brought forward earlier by petitioner this witness could have been found with the exercise of due diligence the testimony that he brought forth was not of such a credible set forth that hernandez was only located recently that he had only come forth recently he left if the country he left the state and he went to wisconsin to become a roofer somewhere between three to six months after the shooting well certainly and in a number of cases a claim of fact a valid claim of actual innocence would be sufficient to satisfy the causing prejudice test in this particular case because of the quality of evidence and because petitioner cannot meet  cause pronk of the cause and prejudice tests the people's position would be that he did not satisfy the cause and prejudice test i see that my time is up for  the third stage evidentiary hearing that that the testimony that was presented was sufficient to demonstrate petitioners claim of actual innocence and i don't necessarily think that the language that you're referring to in the opinion went to a consideration of whether there was a valid showing of actual innocence and the way that the case that it's being applied in the lower courts and the interpretation that i took from the majority's opinion is that any claim of actual innocence as long as there is a free standing claim of actual innocence included in a post conviction petition because i'm prejudiced does not have to be m and prejudice here or tease me both two does the testimony of mr hernandez constitute newly discovered evidence within the meaning of that standard first let's look at claim is at the stage where the judge determines whether or not a preliminary showing has been made once he makes that determination then the case proceeds the evidence you're hearing the showing then occurs because i think it does there are others and there may be other cases where it's important whether or not the constitution transcends  frankly has not before you here today mr ortiz meets both the actual innocence claim and causing prejudice as noted by justice mcbride in her concurrence the policy underlying washington is that innocent people should not be in jail mentioned in her oral argument i can't imagine a situation where showing of actual innocence is showing not a claim not a free pass but an actual showing of actual innocence and let me digress for one moment the state as mentioned the collier case justice to mn in the collier case we went to great lengths to point out that actual innocence doesn't involve a heightening of doubts it involves a claim of total exoneration of vindication of innocence and that's what we're talking about here that's the quality of the testimony of mr hernandez in the evidence you're hearing in pittsburgh or the court said that if you can't meet causing prejudice you can still proceed only on actual innocence i frankly have struggled to try to come up an example where actual innocence was shown and it didn't let's first deal though with the actual innocence issues simply put after put some barber and after the statute is amended does pittston barger still apply i think the comment from the bench that this is constitutional and not statutory is precisely the right analysis the legislature even if they intended to cut off claims of actual innocence have no power to do so but i don't think that the legislature meant to do so as also pointed out in the prior argument by the bench it's just as likely they intended to codified current practice in fact that's what the legislative history says was an intent to codified current practice interestingly in the state's reply brief on page one in the second paragraph on page one of their reply brief the state now says yes actual innocen applies but only for one claim of actual in i struggle to understand how eighty incarcerated innocent person who one fortuitously can't develop the information it shows is actually to since at the time of his first post conviction petition or his second or his fifth i cannot understand why the constitution applies any less to that individual because the basic policy as stated in washington in pittsburgh is that state in claiming that puts enlarger in washington only entitle you to one actual innocence claim fails to give any basis for how they reach that result mention as i mentioned before while the issue of whether actual innocence or cause and prejudice is the appropriate standard and if one obvious the other is a very important point and i suppose could be critical in a future case here frankly doesn't matter mr ortiz means causing prejudice just as mcbride hit the nail on the head in our concurrence the cause is that mr hernandez feared for his life and they then turned left proceeded up the street and gunned down the victim as mr hernandez testified if you testify against the gang which he would do if he testified in favor of mr  rest of the facts would come out he would be killed he was afraid then he was afraid at the post conviction hearing cause was met shortly after the shooting he not only made sure he laid low in here from the police he left the state and stayed there mr ortiz was in the back of the park behind the field house the field house on which on the front steps mr hernandez stood there was no way he could see mr hernandez with mr hernandez land low there was no way he could discover whether or not mr hernandez had seen the incident and to go to one of the questions posed earlier even if you could find mr hernandez getting him to testify when he was afraid of being killed was an obvious problem the exercise reasonable due diligence simply didn't allow mr or tease or his defense counsel to find mr hernandez prior to the trial because standard that is an objective external reason present as to prejudice i think the appellate court's careful analysis shows a myriad of reasons why mr hernandez his testimony would likely change the outcome a trial  on the cumulative issue this case is just like most that this is a situation where as in most add there was an alibi witness in more stat i believe it was the parents of the defendant in this case it was arthur dunn arthur dunn one i'd like to spend a minute on arthur was in the back of the park sitting on a bench drinking a beer at the time  dunham is a vietnam war veteran honorably discharged from the armed forces no criminal record no gang association has held at the time of trial a steady job for it straight years and every day with his testimony he would go to work at a local home furnishing store he would work in the warehouse and on his way home he'd stop at a local liquor store buy a six pack of beer and sit in the back of the park and drink a beer he would then go home and repeat the next day the trial court in a whirl finding said that he did not find mr dunn credible that's it there's no statement about why no suggestion as to why the demeanor was wrong no suggestion of anything the victim at the end of the beating took place in front into the left of the field house and go park both victims prior statements said basically that at the end of the beating mr or back told everyone to step back in a scene out of the western pulled a gun and shot the victim the victim then turned and stumbled up the street away from the park that was the prior statements of both individuals ransacked it and found what they said were drugs at his home the objective record in the case shows that they kept mr miller remey in the police station for forty eight hours mr bill  ini said that he was chained to the wall of the interview room he said that they told him they would take away his children if he did not talk to the wind and tell the state story mr bill r did what many of us would probably do in that situation and he told the state what they want to hear he told the state that mr were teasers they instructed him had pulled the trigger at the end of that bt he told the state in the green jury testimony that that happen well when he got to trial right out of the box he looked at the judge and jury and said judge it's all lies it's all lies and he explained his position the second witness it's more ambiguous frankly mr starr via purported to be sitting on a car across the street across yet another row of cars and then the beating mr stogies testimony was similar in his prior statement it was that at the end of the beating mr stepped back pulled a gun shot the victim the victim then left the park where later bicyclists came out and got him down in the street mr stanley is testimony when he gets to trial seems to be going well for the prosecution up to the point where he gets to the bt at trial he says that he gets to the beating and he sees sour cheese there and then he says he leaves that's it the state then frankly without either establishing that he's misremembering or that he's completely contradicting his prior testimony proceeds to impeach him with his private states prior statement being mr ortiz that stepped back from the it was purely by the prior statements now the trial judge in this case in fairness to the trial judge he acquitted one of the defendants who had the bench from mr gomes and he convicted mr ortiz in his role findings he found that he and that balance we're not claiming that a trial the judge shouldn't have ruled that he was convicted based on the evidence to the contrary what we're saying is that in light of the testimony of from mr flynn mr honey and is that he saw the whole thing from twenty five feet away not much farther than i am from you and that it all involved people that he knew that in light of that testimony one would have to re evaluate the relative credibility of the evidence a trial would change and as a result of that framework the appellate court came to the conclusion that it would likely change the result on trial now the trial judge judge john bach at the post conviction hearing the issue you have to grapple with is whether he meant what he said or whether he meant what the state would like him to have said he did not make any credibility findings as to mr hernandez he said it was cute with the state will tell you that well he really meant credible and that you should give deference to what he really meant not what he really said what i can tell you is that prior to say the family would somehow come up with more witnesses were willing to swear under oath that salvatore cheese was innocent and he had to keep dealing with post conviction petition after post conviction petition judge dernbach unequivocally stated and i believe that was in january of zero five i can give you the record side if you'd like it that this was cumulative that it was just coming up over and over and he didn't think that's what the wall out that was before he heard the testimony he invited us to to raise additional issues a month later which we cumulative and i do not he did not mean credible credible in his prior statements with regard to saying it was cumulative when he said he was denying the evidentiary hearing he said that he had to take the testimony of the witnesses at the original trial that he did not see and he had to assume that they were credible as the trial judge did and that that was fixed and he couldn't change that and that's why any more testimony that fact of the newly discovered evidence and as the appellate court analyzed it when you look at the evidence the trial through the prism of mr hernandez his testimony it changes the outcome it shows that salvator e cheese has been in jail for almost twenty years now as an innocent man we look forward to his new trial and getting him free there's no further questions trial and in looking at that original testimony there are a few other pieces of testimony that were left out from the original trial that this quiet man we want to be aware of and looking at the credibility of those witnesses that were presented by credibility finding that's made not only by the original trial court but also by the appellate court in reviewing defendant's conviction where he claimed that he was not found guilty beyond a reasonable doubt and on issues of credibility t affirmed his conviction but in terms of the other testimony that was offered at the original trial it is correct that both of the people's witnesses recanted at trial but it's also correct that the people offered testimony from another witness a chicago police officer named officer marvin bond statter and what that witness testified to were several discussions that he had with the people's witness about three occurrences prior to trial the first occurrence was a in the winter immediately before the trial this the people's witness told this officer that he was driving down the street in his car when the windows of his car was shot out the second incident that was testified to by officer bond status or had to do with a visit that the witnesses wife received at her place of work where she was threatened if someone was to testify in this case the case that there would be trouble certainly that testimony was considered by the try or fact in determining whether the recantations that were given by the witnesses in this case were credible and there's no indication that that testimony was also not factored into the decision made by the post conviction court in this case it certainly it's it's not a fair reflection of the record to state that the post conviction court did not weigh all of the testimony he explained to the parties prior to his delivering his decision in this case the procedure that he followed which was exactly that he said i have to look at everything the original trial testimony the testimony that was given here and i have to weigh that and look at and look at that before making my determination so certainly in this case the trial the post conviction court file of the proper procedure in reaching its decision which was based on issues of credibility certainly a court can make a determination of credibility without coming out and saying i find these witnesses more credible or i find that this witness is not credible enough to change the outcome of the trial and simply because he used the word cumulative in the context of a sentence where he's clearly talking about credibility issues it doesn't mean that his decision should not be given deference on a in terms of the cause and prejudiced porson counsel was stating that it's hard to imagine a case where a claim of actual innocence would not meet the cause unprejudiced test but certainly this is one of those  defendant simply does not meet either the cause or the prejudice prom it's it's difficult if not impossible to understand how when defendant brings forth six prior witnesses all of whom say that they're in the park at the time of the shooting several of whom mr dunn woman outstanding are gang affiliated that they're not aware of mr hernandez that they couldn't locate mr hernandez there's another witness in the record named carmelita hernandez and it's unclear whether hernandez so certainly it's difficult to believe that this witness could not be located he was in town for at least a number of months before he went back to wisconsin and certainly because of the quality of his testimony twelve years after the incident where he misses a crucial middle part between the beating and the shooting by the chicago and when the people's witnesses say that petitioner did the shooting that that would change the outcome of the trial and certainly that sentiment is echoed by justice cahill and his dissent where he notes that this this witness it fredo hernandez is engaged in a narcotics transaction at the time that the people's witnesses say the shooting took place even the justices themselves in their opinion couldn't agree on the significance of this testimony and whether it would have changed the outcome of the trial so for the reasons presented here your honour's and for those in the people's reef we would ask this court to find that the cause and prejudice test should be required of all petitioners proceeding on a successive post conviction and we would ask you to reverse the finding of the appellate court to reinstate the ruling of the trial court thank you