our next case on the call the diet is agenda number seven case number one one three six eight eight people versus albert the maleo council for the appellant please proceed and more importantly he did not discover the fact that there was in fact gross medical negligence during the treatment of this patient mr going to go to his alleged his attorney's ineffectiveness in a post conviction petition the petition is supported w affidavit confirming that he did out in fact investigate gross medical negligence as a defense and that this was not something that was born out of trial strategy the petition is also supported by an affidavit from a prominent physician who specializes in swallowing disorders testing that the dot the treating physicians in this case did act with gross negligence when they decided to insert a feeding tube in a dementia patient without determining whether it was in that collar and that any trauma that had caused the inability to swallow or dysphasia excepting these fully supported allegations is true and viewing them in the light most favorable to mr duke don't like alice is required at the second stage there's little question that this petition makes at least the stamps a substantial showing of counsel's ineffectiveness the state's second stage a motion to dismiss alleges only credibility in fact questions when when a petition is based on matters outside of the record these these are these questions cannot be more than a substantial showing the council's performance fell outside an objective standard of reasonableness counsel admits in his affidavit i cannot be there for a minute sure go for me we don't need to adopt the federal standard which you bring up with respect t going to buy your argument of course not your honor i think we prevail under although i do think the federal standard is more consistent with what this court has implicitly acknowledged regarding what a substantial showing means even if you adopt the state's i think overly strict standard the petition which is that excepting the factual allegations is true that that claim will prevail then i think if you accept that mr  absent a intervening or superseding cause and that's that that's the defense here that is avail is available now in the petition that was not presented below the trial court so even if the ex contributed to do the death which in this case a contributory cause of death but the question here is whether gross medical negligence which is a recognized superseding event in illinois law was available to counsel and was in fact what occurred here but it is something short of intent also i believe it's it's considered abnormal and therefore not foreseeable and that's why it's something that breaks the chain of events in approximate causation case but the fact of the matter means we have an affidavit from an expert  swelling disorders in fact it's hard to imagine an expert who could speak to these issues with any more authority than doctor called a rally this is someone who is treated thousands of patients for swelling disorders over thirty years and chairs the department of fact remains that we do have an opinion here that that standard had been met by someone who can speak with authority on these matters and what that does is it sets up a credibility contest that the appellate court found that this that this that this new this new piece of testimony which contradicts those in those opinions at trial and the fact that they contradict each other is not as the appellate court says grounds for dismissal in fact it's the opposite it's grounds for an evidentiary hearing because it's essentially a battle of the experts which is as we know from medical medical malpractise cases something that will determine what proximately caused the death and whether that proximate causation was in fact gross defendant there are no set of facts under which the defendant can prevail clearly if the jury chose to believe dr call the rallies testimony over the treating physicians and that's not the case in fact there is this there's a substantial showing that the outcome of the case would have been different and in all crossed my good medical negligence cases and all intervening event cases you're going to have the chain of events that starts with the defendant's acts and ends with the death of the the  question is whether something in between happens that supersedes those events and yes whatever name it's mean might not have occurred for you know mr cooper's presence in that hospital but that doesn't change the fact that it does supersede it does supersede the original event set in motion by the defendant because it is abnormal and is not reasonably foreseeable the question of proximate cause is simply want to foresee ability and our law the common law has been clear for several years almost a century that that the gross michael not going it's not something that's foreseeable so it doesn't matter that it occurred as are bu is this is something that's in an affidavit that must be taken as true at this stage so the only question is whether that feel or going best to get was an reasonable we know from strickland that counsels the duty to conduct reasonable investigations or to come to a reasonable decision that further investigation is not necessary and in this case counsel says his decision not to investigate was not strategic so essentially there was no decision not to investigate so what a reasonable attorney have felt the need to  negligence and answer that question is what just needs to look at the facts of this case council was confronted with a gross that with approximate causation case that the x set in motion a chain of events battery fifteen days later the to se a feeding tube into the patient based on the lack of a based on a swallow study that did not clarify whether that was the was trauma or the neck collar that was causing the swelling problems was newborn baby the doctors their trial said all we wouldn't have even if we knew that that symptom existed we wouldn't have changed our treating evaluations we wouldn't change anything about how we treated this here he's saying it's gross negligence to have a committed to evaluate the patient with his neck collar on and b then decide to insert a feeding tube based on that flawed evaluation now he would not have called this gross negligence if he didn't believe that it's somehow this patient so that so the state is saying essentially under our one version of facts we believe that the outcome would not have been different but in a ultimately believe that dr krop calderon is correct and perhaps dr color only might say consistent with what his opinion is you could have removed the college if you don't feed him if you knew that was what the cause of the swelling problems was you could have  investigate this was a battery is kind clearly didn't intend to commit to cause serious harm there was no serious harm at the time this to the trial these charges were originally leveled against his client  and it was clearly an overreaction by someone who is placed in a very stressful situation of being a twenty four seven living caretaker this was clearly a client who was remorseful even before the patient died he he said this was the worst thing you've ever done  his life but that but once that those that once the patient died in this became not a battery case but a murder case it became essential for trial counsel to investigate whether something broke the chain of events in between his client is the defense under illinois law and mr dr called it really is someone who can speak with authority on these matters and therefore i think the outcome of the case would would be different had he testified had he had heavy testify for the defense now as i said the defendant was left with no defense at trial so just by virtue of having a defense this kid that color always testimony would have turned this entire trial on its head this was a completely one sided trial th defendant defense counsel did cross examine witnesses and did present arguments but to what end as the trial court found those arguments and even if excepted were not sufficient to create a defense under illinois law so  existence of a violent but viable defense here would alter the entire complection of the trial and undermines confidence in the verdict but this was not just any defense this was a gross medical negligence fent negligence defense that rested on a prominent the idea that this does not undermine confidence in the outcome i don't think it can be something that's work on the side of the second stage and finally the broader question with regard to the standard this court will impose clearly as i said i think we prevail under any standard this court which is to adopt but it's important to remember that a substantial showing requires only a substantial showing not a not something that not a showing that the defendant will prevail as the states as an under federal pavia slaw the appellate court the federal courts have already defined substantial showing for us and deciding whether to grant a certificate of appeal ability the the the with what this court has held in the past in cases such as coleman and steidl where this court has held not that the defendant will prevail as the state once wants this court to measure the claim by but whether the defendant could prevail if if the factual allegations are taken as true viewing it in the light most favorable to the fan and remember we're still at a pleading stage where the only issue is an issue of law and that the not allow for the word substantially writes the word substantial out of the standard and therefore the scorcher rejected it adopt the federal standard and in any event decide that mr doma gala by supporting is after supporting his petition with an affidavit from trial counsel of erring that he did not investigate what was perhaps the best and only defines his client had and by not discovering an expert the morning your honour's i am assistance the tourney her reno may ghani wakely representing people of the state of illinois the appellate court in this case properly dismissed defendant's petition at second stage because it failed to make a substantial showing of a constitutional violation since the post conviction that in one nine hundred forty nine this court has consistently held that a substantial showing is made when the well played allegations taken is true establish a bully like claim of a constitutional violation in titling defendant to really such a requirement of a fully fledged claim of constitutional violation is perfectly aligned with this court's standard set for the other two stages in the post conviction for example at first stage this court has recognized due to the nature of the defendant being pro se it has set a low threshold requiring the defendant to only mak arguable basis of law or fact to proceed to the next stage at second stage counsel is it is more than reasonable to expect counsel to make a fully legally pled claim where the allegations taken as true actually establish a constitutional violation again and again that is inconsistent with third stage which at third stage there is no legal sufficiency finding it's a credibility factual determination a hearing where the allegations are no longer taken as true in defendant's favor but tested and at that point under a adversarial setting he does have to show a high the preponderance of the evidence that he is still entitled to a constitutional for a constitutional violation occurred and that he's entitled to a defendant's invitation to this court to adopt the federal definition should be declined where while this court has looked to federal cases and in for guidance in interpreting service standards in the post conviction act it has done so cautiously and only in situations where the standard look in the federal system aligns itself perfectly procedurally with our post conviction act and when one looks at the federal system there is no second stage relevant stage under the federal but more importantly the federal definition that's being presented to this court the substantial showing term was used in an entirely procedural as backdrop from what is at second stage currently i mean in the federal definition it was used as a perceived role standard for federal defendants to be able that needs to be met before they will be entitled to even appeal the dismissal of the writ of ha illinois defendants are entitled automatically to appeal their dismissals i mean the again the federal system does not have a three stage process and if there's any analogy to be drawn by this federal definition it is a threshold requirement at the federal level and it's similar if any analogy has to be drawn similar to our first stage dismissal were eve when one looks at the language utilized for the standard the debatable federal language is virtually identical to the arguable language that this court has advanced at first stage turning to the facts of this case defendant failed to make a well pled fully supported substantial showing of in effect of assistance of counsel were under strickland his well played allegations taken as true needed to establish both prejudice and  t performance and he could do neither with his allegations first attorney's performance met the strickland standard a trial where he made a strategic decision to present a causation defense and he did this by challenging the state's ability to prove causation that defendant's actions in the link of change the lead to death actually was the ultimate cause of death which was something the state had to prove and defense put chains and kept changing away or hammering away at the state's ability and he did this first by investigating prior to trial he did speak to an expert he spoke to an expert on the issue of causation specifically was there anything that separated defendants x from the ultimate death and he spoke he asked the court for leave to file a petition fees to pay th and the court granted this and under strict when the presumption is and deference is given to that he in fact utilize these he said he was given spoke to the expert and by the fact that the record shows that the expert was this one needs to look at what exactly is that when this happened and when one looks at the affidavit that was filed in this case the attorney i'm sorry i apologise when one looks at the affidavit that was filed in this case counsel greenberg said in his affidavit i didn't investigate a particular defense medical gross negligence he didn't say i didn't present to investigate defen or that i didn't do anything at trial which is analogous to the situation that occurred inside dell where an affidavit similar to something similar to what was filed here was was found to be sufficient for deficient performance because in that case the the attorney specifically said i didn't investigate any mitigation evidence support for that the death penalty hearing because i didn't think he was going to get the death penalty and that affidavit i didn't do anything was sufficient to show deficiency here counsel greenberg's affidavit simply says ok i didn't explore gross medical negligence and that this wasn't a strategic decision but strickland focuses on let's look at what attorney did do and again he presented a defense he his defense was to stop the state from proving their case and he did this again by doing his investigation reasonable to pursue a direct causation influence and which we already went through with mr routines argument that even if you contributed to would have been no in fact that's what you would have been arguing if even if you did call the trial counsel would have been arguing even if he did call it expert on the direct causation that it was absolutely of viable defense because if the state couldn't prove every link in the chain that from defendant's actions to the ultimate death and that's exactly what trial counsel went after below where i mean he from the first state witness the first witness to the last state witness he went after could anything else of cause that could i mean in fact at one point that the most state asked him did defendant's actions cause the dysphasia that was the question objection your honor and that objection was sustained preventing the state from putting in such pressure prejudicial as well  disavowed the defense of gross negligence saying we're not saying there was gross medical negligence here but well and which is why while gross medical negligence could have been one viable strategy that counsel could explored and which he says he didn't it doesn't mean that he didn't do something in the alternative which is what strickland says to look at ok so if you are you saying that if you could prove that he didn't cause of his facia that would be a super all all that would have to be shown that and that whether we caused it or not that he set the events in motion by what he did in the room that with the victim and i guess the question becomes is it  it a viable trial strategy say that i'm going to pursue this but i'm not going to pursue this for example the super city intervening superseding cause we're just thinking about if this set of facts and i know that we were dealing with a mental right which is a step above a medical malpractise insurance what if it but if this particular doctor testified on behalf of the plaintiff in a medical malpractise case consistent with his affidavit you don't think he would get past any directed  throat and that it's gross medical negligence if the p is inserted soley based on the swallow test because then the use of the collar was the sole proximate cause of death here we have outside of the swallow test he performed an independent examination of the throat and his independent examination without the collar showed pooling in the folds and that this  was indicative of trouble swallowing and doctor but judge testified that it was after this independent evaluation that he concurred with the other experts in the case that not inserted solely based on the use of the collar and that there was no gross medical negligence and so in response to your question your honor no a directed verdict it would not have one based on what dr king said and what is currently before the record  performance nor was there a showing of prejudice such that even if dr kildare really had testified that that there was a reasonable probability that the outcome would have changed clearly the people's position is that a substantial showing was not made in this case and the only way that defending can prove prevail in this before this court is if this court finds that his allegations of ineffective assistance of coun taken as true presents a fully pledged claim meaning that he establishes both promise of strickland prejudice as well as deficiency performance for these reasons as well as those stated in our is with regard to the standard we don't disagree with the claim used to be fully plowed or that needs to be taken as true the difference is the state wants a substantial showing to me in the establishment of a claim when in fact a substantial showing whether you look at the federal courts or this court's precedent has always been just described as something less that the state essentially reads the word substantial out of the standard and with regard to the adoption of the federal standard regardless of the context in which it arises this court should strive for continuity between it through the standards that are phrase in the exact same way it should be a substantial showing it means one thing and federal court i mean is another thing in this court with regard to  omission it's true he was not a medical malpractise attorney and perhaps that's why he didn't recognize the need for a gross medical negligence investigation in this case but that doesn't excuse the fact that a reasonable attorney knowing that it's approximate causation case would feel the need to investigate whether something broke that chain of events because as you said this that was the only viable defense now the state wants to say that by attacking various links in the chain defense counsel sets this defense counsel performs reasonably that's not that's not what going on a law says regardless of whether there was a but for causation shown in each step of the way by the way there was only a few links in this chain there was he's taken to the hospital where there's a neck brace put on there's the evaluation that he can't swallow and then there's this decision to insert a feeding tube so attacking any one of those doesn't change the fact that the chain of events was set in motion x the only viable defense was to find something that broke that chain of events and as for the objection as to what the state extols counsel's ability or his decision to dysphasia but that's not the relevant part of dr paul really testimony because that's not a viable defense whether or not he caused injury he set in motion a chain of events so that's the importance of dr called the realities opinion here now with regard to the state's answer on a directed verdict question here your honor was asking the only way to stay can answer no to that question is by reading  and the most narrow fashion possible that's not how you're supposed to read an affidavit in this case you're supposed to read in the light most favorable to mr don't think and in the light most favorable that to mr don't like it the testimony that it was gross medical negligence to conduct a swallow study while the patient was wearing a neck brace and there thereby not understanding the cause of the dysphasia and basing your decision to insert what these doctors candidly admitted  was a feeding tube that had a reasonable probability of cause it was reasonably foreseeable at least that a feeding tube could cause the death of a patient with mencia because of the propensity to pull these feeding tubes out the only way to read that affidavit in this case and the like most people mr don't like allah is that the treating decision would have been different the outcome would have been different the patient wouldn't have died and that the decision was that's why the decision was grossly negligent otherwise he'd have no reason to call it grossly the neck collar in place out of the state point the other half of not only that to answer that question about the the directive verdict no the state does not only has to answer or evaluate the petition in the light most favorable to them but they also have to read the record in a way that is most liberal to them as well because when it when she cites dr john just testimony about the pooling that was seen without the collar he did not say you evaluate the patient for swallowing problems absent the collar he said he took the collar off and you know some cooling he didn't say that there was that this weather this was cooling was a result of the collar having just been on he did not conduct the swallow's study which obviously the doctors f karl really felt feels is the gold standard by which you measure it the ability to swallow and is the only way that you can that you can diagnose dysphasia so the fact that he found some pooling in the brief seconds that he took the collar off is irrelevant what is relevant about that testimony is that he felt he could take this collar off one of the things that gets overlooked here is that these doctors originally diagnosed and this could only go on with a neck fracture that diagnosis turned out to be wrong and that's that's why they put the neck collar on him so after that after further examination showed it was just the next spring dr but josh clearly felt he could take the collar off which is what he did at that point but not because they didn't know that the neck collar itself was calling his facial they did not consider the fact that a feeding tube might not have been necessary in this case and that's the important doctor called the rose testimony had the doctors known  it that they would have done something different otherwise there's no reason to call their their behavior gross many grossly negligent and i think that the only way to resolve this question is that out of it and in that entry hearing and however this court wants to define substantial showing it's clear that this affidavit which has supported both they not only allegations but support for both of the strickland problems is in fact fully pled fully supported and raises only questions of credibility and evidentiary hearing is absolutely necessary thank you thank you case number one one three six eight eight people versus albert is taken under advisement agenda number seven