thousand and six defendant had sexual intercourse with bianca promos by the use of force and knowing that she was unable to give consent the judge sentenced the defendant on the no consent conviction t proceedings but there's also a second issue concerning the public defender's apparent noncompliance with rule six fifty one c in oregon today i'd like to address the first issue well several witness give consent defendant meanwhile testified those own behalf that he and his bonus had consensual sex that night that she knew what she was doing a younger they had had consensual sex on prior occasions effects of pointed it and according to his affidavit based on the amount of like it and she told him based on the ocean total it would not have had full impact and effect until after the sexual incident and unfortunately when the parties argue the state's motion to dismiss the arguments focused on one of the other issues raised in the amended petition and that was a claim of perjury simply that bianca thomas perjured herself to trial and therefore the defendant should receive a new trial now in arguments on the motion to dismiss the state correctly pointed out that a claim of perjury can be raised in the two fourteen  when the judge announced after the parties argued the judge announced that he was granting the motion to dismiss the only issue he really addressed was the perjury and he stated based on prevailing case law because there was no assertion of knowing use of perjury by the prosecution the petition had to be dismissed unfortunately the peers of the judge here got sidetracked by this side of the certainly his ruling was correct that the and that's true but it's not really responsive to the argument the defendant makes of appeals really doesn't undermine the argument the defendant makes on appeal because there's no rule in illinois that recantation if the david lacking or inadequate because according to the state it only discloses isn't going in or his conclusion and on such evidence cannot constitute evidence of newly discovered evidence of actual testimony up of the trier of fact to decide which is more probative certainly there was a very important opinion or conclusion testimony presented at trial by dr joe that i think probably played an important role  funds to be able to hire such an expert if she could find find such an expert the judge agreed that he that he would go on with a while about what was she subsequently asked for a continuance of the trial date because she was still trying to counsel could be called to the stay and to ask well what did you do in terms of trying to find such an expert of the clearly she recognize the importance of that was unable to find anybody now the defendant has found an individual wouldn't factor on the testimony ball certainly could be of that if that were the case but one thing that the defendant has the burden of showing that that other evidence of perjury could have been discovered through due diligence and any didn't lead an army diligence have what's the downside i can't say that there is necessarily a downside of course you can talk about your digital resources but that's pales in comparison to a person's spending years in jail i understand that but what we have this is a recantation that doesn't necessarily prove innocence is just it goes to the weight of the evidence and when we get into people did there was no no feeling whatsoever that the people put on any kind of perjury testimony and there's no no claim well because the in part because we have to date it is inherently suspect because it is a recantation and because we don't have a showing that the people put on in persian testimony i mean and it is as the you know that the legal principle that has been stated that that that perjury is that where the state is not involved in the is not according to macdonald anyway i'm inciting the brown case and in the illinois supreme court that there is no remedy under the due process clause for the individual with the witness where the the prosecution's not involved and so i understand that that going to the through the additional hearing was certainly potentially resolve that conflict but under our legal precedent there will certainly be no requirement to do so and we're not necessarily going to get to proving ash witnesses one way or the other criminal cases certainly get yeah but there her a lot of convictions based on the testimony of the drug addict purchasing from the dealer absolutely you know in the states that was put in the drug dealer that's correct that's correct in the affidavits but if that's that he for him that he's got to get this first of testimony that this is this claim of perjured testimony and you would think that he would have obtained those but it was obtained until later years later in fact well you did have the information from of the victim so obviously he knew that she was going to recant or just when your claiming to recant her testimony so he had communication with her or of someone and so that communication could happen to get state's attorney the prosecution did file or their motion against there was a hearing on it it was considered all the arguments were considered there and so we we didn't just have a blanket ruling by the the trial judge on this on those conditions we actually had a consideration of the separate arguments and such at that time but but you'd agree that one thing we didn't have was in evidence three eps of the can't deny that george is different from the original trial on the last thing obviously in retrospect because it muddies the waters it would have been much better i think it defendant would not have been included the separate perjury charge