did not receive a fair trial from beginning to end the proceedings were low were marred by serious trial errors and most of those errors were bound together by one common element the fact that my client's trial counsel failed him on repeated occasions hours there's nothing in the record about what happened over those eighteen hours beyond the fact that my client was left alone there's no evidence that he was given food or water no evidence of bathroom break notice he had contact with any other person and perhaps  most important this case he was not given access to a phone which the police had given him just about three hours before he invoked his right to counsel this is prohibited police conduct under the fifth amendment and the illinois constitution the due process clause and in the mccully case miranda is very clear when it says that if you cannot afford an attorney one will be provided to you and give them a lawyer but they do have an obligation to do something only requires that they do something and the simplest thing they could have done here is given the phone they had for it's not in the record that he asked for a phone but he did invoke his right to counsel and although i would argue leaving him alone facing hours is not of that but putting america still didn't do anything to honor his right to counsel and given the fact that they had given him a phone three hours earlier when the police want to consent to search his bedroom but then  not provide an access to a phone at any point during that eighteen hours that's a violation of illinois law i guess the question i would have for you is that it seems under the facts of this case that they scrupulously honored his right to remain silent because it in talk to him once he said he wanted to you know wanted an attorney and he spent the next one eighteen hours or whatever along in the cell three the question is do you have any solid case law that says scrupulous we do rely on the macauley case i'm going to process combined with the shooting and shatter cases on the fifth amendment indicate that the police had had a duty to do something during that eighteen hours  duty they had was belittling the implication of this right you know cease any further questioning right they certainly had a duty to see through the questioning but the question then is what is what is sufficient to honor a defendant invocation of his right to counsel he's stuck in a cell alone he can't contact anyone there's no evidence that there's anyone present with him at all during that eighteen hour period and as the the supreme court makes very clear leaving a suspect alone in a police shooting in fact i think as i was serious facts and yet the court still remained for a new trial in shooting but he was given access to phone the police said here's a phone the nurse actually wasn't even a police officer tonight on the phone a nurs access to a phone and then over the next few days he was given access to dial the phone he was unable to talk to his attorney and during those few days he gave statements machine in court said that even though he was given access to phone it certain points suppressed so based on the interplay of macaulay which says and by the way the codefendant never invoked his right to counsel and the mere fact that attorney was president station asking statement at one pm the following day were voluntary and should have been suppressed counsel received an discovery of the c e o showing the police search of stephen trafford's apartments even try for the scene in that video we know now that that video showed an order of protection that stevens a strange w months before this incident start cheryl he called her repeatedly where she said she felt threatened he cut up her clothes he poured sugar in her gas tank he she didn't we don't know we don't know if he was violent towards her counsel can you tell me it was it your page county border protection was it the emergency or protection or the new york of action i believe of the night record and i just i don't there's no i don't know what stage of the order the video showing this order a complaint for an order that's made two thousand and thirty three and a half years later counsel watches the video that's late two thousand and eight when it comes to doing much of the video nothing a year later september two thousand  nine is cases set to go to trial one week before trial counsel tells the judge you know we might want to call cheryl trafford as a lynch with witness all the parties agree at that point cheryl traffic can testify and that's based just as much as he was based on what we know in the record as it stands in the way and both parties say that they're still looking for her two days later counsel makes an overt quest for a continu the following monday jury selection begins during jury selection glinda its record arrives the court notes of the growing notes record arrives we know now know that the record says that stephen reported went to trial without having any lynch evidence presented it was only after trial that counsel noted for the court it is a motion for a new trial in his allegation that they have the court tonight to continue it the first prong the first one is whether the defendant knew personally of any history between himself and the diff in that the deceased or i'd say had witnessed personally violence by the deceased the second prong though is about the jury it's what the jury's  titled to hear and what the juries entitle to hear in a credibility determination like this is all of the relevant admissible evidence about the victim's violent past and counsel present and none of that evidence to th jury is entitled to hear the jury was faced with a credibility determination between competing statements from my client they were entitled to hear more about steven trafford and they heard almost nothing about  in the states as a set up trial sheryl trafford may be dead but no one actually said show traffic is dead no one provided evidence of the fact that cheryl trafford was dead so first and foremost the evidence that could have been put on at this trial that would have been relevant admissible case law and the only statute that we cite in our briefs where mental health records may be admissible in a homicide case where it's proven it to the the charge defense and now the determination that we don't know what the witnesses would say necessarily but we know that those witnesses were extremely important to the defense and defense counsel ineffective for not presenting them and that's exactly what happened here legally so we look at the to all the more to the prejudice issue you know the s and the jury heard the jury heard every fact you just mentioned and still had an extremely difficult time deciding this case they deliberated almost a full day they were sequestered overnight they asked many questions including two questions that indicated they were grappling with the elements of second degree murder some sort of mitigated culpability here in light of all the facts that you he intended to harm his harm sheryl and then he put gas in her or put sugar in her gas tank and destroyed some clothing well that's what we know about in the complaints first thing i would say about about that is that cheryl trafford who testimony as the judge stated explicitly would be admissible at trial we don't know what else she would have testified to we don't know what other witnesses may have seen or heard between stephen and cheryl who could have testified we don't know what stevens mental health records which i believe rightly would have been admissible would have said it's true your honor we don't there's a lot we don't know about stephen trap and that's because counsel didn't present it but th who allegedly entrapped the defendant the defendant ledges but the informant told him we didn't know what the informant would say but the quickly the court misquote still remaining for a new trial based on based on that just because counsel presented  ping defense and didn't present the key witness to support his own claims testimony i should move on to the sentencing issue sure we such evidence i was always extremely prejudicial this is never been more true but in this case this case involves a stabbing and the jury was about to hear about and see two times i would have put this quote to the ramon case on this issue in my case the defender was tried for simple robbery an aggravated battery and that the judge allowed the police to testify that they found a handgun in his waistband when they arrested him entirely unrelated to the offense here testimony there was a handgun not the gun itself and even the mind of the jury that this handgun testimony was admitted only for a limited purpose clear make on this issue your honor is that this is especially prejudicial here where there were any number of ways to get this information before the jury would have it was relevant you know the course of investigation why they arrested my client but there were numerous other ways other than this extremely prejudicial evidence to get that information before the jury as if that's the rest and even testified he could have arrested him we did major smoking marijuana when he needed to being arrested in your page county and of course they had the weapon that was used  offense itself one of my client's apartment because that was presented to the jury we don't check to that they could have said that was the basis for the rest and yet counsel agreed no the basis for the rest was a pretty crude knife in about the state to not only did counsel fail to bar extremely prejudicial character evidence and not present relevant immiscible character evidence against even trafford counsel was in in effect a for not requesting separate verdict forms in this case there was already the possibility of a compromise verdict the fact of the matter is once the once the state made a decision to focus entirely on felony murder in closing argument counsel was ineffective for not requesting separate already forms at that point knowing or should have should have known that both sentences would be mandatory consecutive after trial that the least serious conviction was rendered by the jury which occurred which was a bit which was made of this argument at that point i wish the judge denied properly no reasonable trial strategy could have allowed for not requesting separate verdict forms especially when the sense of conflict consequences were so severe and that leads me to my final issue which is excess a sense issue the judge heard every single fact in this case the judge heard evidence in mitigation aggravation and heard the allocution which apparently judge from particularly aggravating after all that the judge said i'm putting in prison for fifty years fifty years was a suitable term for him when the state was prone to correctly that the senses are mandatory consecutive the judge said ok make it eighty the sixty percent increase without any further reasoning without any consideration of the factors that was an abuse of discretion and should this the court with regard to the first issue the bottom line is that edwards is still good law if you buy the defendant's argument if you accept the defendant's argument then edwards would have to be reversed which with all due respect you can't do edwards contemplates exactly this situation every defendant in an edwards situation is still in custody every defendant in an edwards situation has been denied access to an attorney that's the whole point of edwards edwards has been recently affirmed even in one of the cases that the defendant cited and was referred it was affirmed again last week in another case edwards is still good law so the question is why did this defendant reinitiate and we have to look back and remember that this was there was a motion to suppress statements and it was a hearing on that motion that was head held on specific allegations made by the defendant and he said that he was given he was not given his miranda rights that he was questioned after asserting his rights that his statements were obtained by psychological mental coercion that he was confronted with illegally obtained evidence and material misrepresentations he's been in all but one of those arguments here but that's what the hearing was on it was once the city allegations of police misconduct and intimidation misrepresentations and of course there was no evidence of any of this evidence that the court heard was that this defendant voluntarily reinitiated contact with the police the police officer who was down there said i can't talk to you you've asked for a lawyer which is what he's supposed to do that if it says i want to talk to him anyway entitle to to wait the judge found specifically and as required under edwards that the defendant's rights were stripped listing honored the thing remember in this case that this is not a situation where you have  taken off the street and they're holding him hostage till he makes makes a statement or something this defendant knew that he had been arrested on parole violations and he knew he wasn't going anywhere no matter if the police came back to talk to him or not he was going back to prison for a hearing on his parole violation cell it was a question of geez maybe i make a statement or i don't get out i'm getting out if i give them what they want he wasn't going anywhere there aren't any mounting psychological pressures in this case there's no evidence that in fact he never says that i was denied food i was denied access to the bathroom normally there is a bathroom in those holding cells to begin with so this isn't a situation where he's in a interview room he's in a cell he's in a lockup he's waiting to go to prison he's not going to go to court on this parole violation seems mr fisher from looking at the record i know that they scrupulously entered his right to remain silent and they certainly scrupulously entered his right to get chatty the question i have for you is did they do anything to scrupulously heiner his request for a lawyer and to the case law the miranda case law require any sort of actions on the part of police  right right we'll know he did be initiating i'm saying they the police did know they didn't do anything if they you know if you remember also that they didn't even know there was a murder in this case at first and again he was using there on a parole violation and during the course all lawyer don't talk to him anymore and the police are entitled to go down and look around and so they scrupulously entered is right for a cigarette told me didn't have the same thing when he said he wanted a lawyer they didn't do anything to affect that and access nation unique to illinois other states don't have this it's not a us constitutional requirement certainly not a constant requirement under edwards it's a unique illinois fact pattern and it doesn't apply here there was no lawyer outside waiting to talk to him and they didn't keep that information from him f and they were based on the record so they're correct she's just the eighteen hours that he was in the holding cell he was sleeping and i simply was yes he said he was he wanted to he wanted to go back to sleep that was the the first the first the first interview  again this is before they knew there was even suspected there was somebody dead they knew there was a bloody close but he had an explanation for that at the end at the time they had no reason to you know there was the thing about the dog getting you know hitting the dog and putting in the backseat and they had no reason to  i mean clearly it was available to him he was not diligent in getting this there was an order of protection but lynch lynch just two prongs and you can go with either prong under the first prong the defendant can introduce evidence of which he's aware to show part of the victim defendant doesn't have to know about those bad acts but they can't be i heard this guy is violent or anything like that this guy just says that specific bad acts convictions people testifying t batteries things like that but we have here is an allegation in a complaint for your protection and in that allegation there are some potential property crimes discussed but there's no violent  acts in there it's also discussed that the defendant may have or the victim may have some mental health issues and it's interesting because this came up a couple of different witnesses braden hall the pool hall the guy who ran leagues and in a pool hall he testified that you know he knew the victim in fact he had taken the victim a couple times to one of these hospitals for treatment he didn't grow for homicidal tendencies he didn't go for suicidal tendencies he went to the hospital to get awful pain and in fact when they eventually got the glen oaks in the election brothers and they got these these hospital records he was admitted to get off of cocaine and alcohol he was a drug addict and he wanted help with that and riley was there he happened to speak to a psychiatrist and the psychiatrist mentioned that the defect that the victim mentioned suicidal and homicidal thoughts how that would ever come in at a trial is beyond me it's certainly not lynch evidence bad thoughts don't get into the second lynch lynch prong it's just not there is not bad acts and again this is this was  doctor discussion you would have to get past privilege and then you'd have to get to relevance there's no way in the world that this information comes in donna kozik didn't mention that she thought the victim might have been bipolar again being bipolar is not a lynch factor being bipolar doesn't even say that you're a violent person even if it did it couldn't come in under lynch lynch is very specific of the kinds of things that could come in so this evidence could never come in and of course a bigger problem is  that the defendant himself believed and the parties themselves believe that this witness was dead both sides were looking for her before trial the defense attorney said judge we can't find her the state's attorney said judge we can't find her they want to use her as a life death witness or something like that and the state couldn't find her after trial she wasn't found the party believed she was dead the defendant himself said he believed she was dead  there's nothing you could do there's nothing a continuance would have done here even if this injury even if the residents haven't is even if it was admitted it would have overcome the fact this man stabbed the victim sixty one times he had previously threatened to kill the victim his actions afterword are clearly indicative of a guilty conscience even it even if you act in self defense you still wouldn't drive out to do page county and dump cleaning out the car and there's blood all over and she gets a hank of hair and says this isn't dog care and he says that's our story and i'll kill you if you say anything about it so yes and during the course of that night if you'll remember he also made some phone calls to her and said don't ask about it i don't want to talk about it i mean it was very you think of the essence of the fence he might have told her something at that point but no he just tell them to shut up and let's let's hide the whole thing and that's our story so it's  not a lynch evidence the third issue is the introduction of the the so called freddy krueger knife and the problem with this is is a little deeper because what happened at trial is the judge was forced into euphemisms less than the truth came out the truth is that this defendant was arrested for for different reasons on a parole violation he was doing drugs he had run to convictions into page county for which he was on probation and those constituted pro by oceans he also was in possession of this freddy kruger knife no those things was allowed under parole so the judge came up with this compromise the compromise is really sanitizing the truth so that the parole officer wasn't allowed to say he was a prologues or he hadn't used the use euphemism on the law enforcement officer he wasn't allowed to say the defend got a break on several things in terms of if you really want the truth to come out that's what the truth is in this case and they aren't disputing that and in fact when the judge made his ruling the defense attorney a very experienced  task force that twenty six three for many years he said that sounds reasonable judge and then didn't put it in the post from ocean again the jury's entitled to know something about why the defendant was arrested that he wasn't just plucked off the street and for no reason all of a sudden makes this confession to this this is murder it's really murder that they have to be given some context which is why we're allowed to put in circumstances the rest in the circumstance of the rest were sanitized so we've taken the truth out and we've narrowed it down and now they don't even like that portion of it but the bottom line is the freddy krueger knife wasn't the balance in this case the evidence in this case was was absolutely overwhelming so even if the judge should have let i mean basically their argument is ok shuttle that one of the other crimes in as opposed to this crime so the judge picked the wrong crime i don't think there's any doubt that the judge would have been entitle to allow something  n he certainly kept out the fact that if it was on parole so on the defendant got several breaks he just didn't get all the breaks he now wants and again the defense attorney at trial said he thought it was a reasonable usable situation a limited number of plane errors under the second prong in illinois they have to be structural error this is not plane error this is not structure or this is not per se or there is no such thing when you come in the introduction of evidence the term is used far too loosely as a second player has to be one of those structural errors and this is not a structure where it's introduction of evidence so the term should not be used in this context finally in terms of sentencing the two issues raised  was a strategic issues of pretty much that issue is foreclosed it is strategic there are reasons where you what you would want not to get into the allowing them to have the compromise in this situation and finally the issue of whether or not the defendant should receive fifty or eighty years it is true that the judge at sentencing said that your actions on the murder are worthy of fifty years in prison and that's what you should serve he also did give him at the same time and before the state pointed out he gave him the thirty year sentence on the aggravated kidnapping so clearly in the judge's mind he had apportioned that the word murder is worth fifty m what you did on the aggravated kidnapping is worth thirty when it was properly pointed out by the state that judge you got to make these consecutive instead of concurrent the judge said oh well you're right and i do clearly the judge can add he knew that this was a now an eighty year sentence and if he had this it revokable motw mindset that this was only worth fifty years the church would have said something he would have said ok fine ok it's now it's eighty years so clearly the judge listened to all the evidence and aggravation mitigation he knew what he was doing and he knew jury it's among the most prejudicial evidence that a jury could ever hear in this particular issue if testimony but i handgun in limone case was prejudicial having the jury see him pushing to the jury the fredd krueger knife twice was extremely prejudicial and requires a new trial i'm as you to run the lynch and continuance issue i would only know that there is a lot we don't know about the severely refused to look into that increase did not occur and on remand all these questions about what could have been provided at the trial could be answered and finally on issue cases show that isolation in a police lockout is just such a method of persuasion there is a case that requires the police give access to a phone and that's the shooting case where they specifically found that the police actions in that case effectively denied the defendant access to a phone and thus access to a lawyer and without your owner's request that you reverse my client's convictions and