first place on the call this morning is agenda number six case number one zero five four three seven people versus terrence walker council may proceed good morning your honors my name is robert stevenson and i represent terrence walker in boston gold on the wall behind me in this courtroom appears the latin phrase audi altera part of its english translation is here the other side is scored supervisory order reinstating my client's appellate rights fourteen years after his conviction ensured that a court would for the first time hear the other side of the trial court did not hear the other side because the trial court forced my client to trial at age sixteen on two counts of first degree murder facing a natural life sentence with counsel that was admittedly unprepared to represent  admittedly unprepared counsel is incapable of voicing the other side the trial judge found counsel's lack of preparedness quote irrelevant the trial that followed consumed only forty two pages of transcript the state's brief in this case is five pages longer than my client's transcript from his double murder trial as evidence by the state's motion in opposition to the supervisory order in the multiple pages and it's brief that it spends criticizing that order it doesn't want a court to hear the other side and the reason is simple whether this court analyzes this case under the first issue raised in terms walker's brief that the trial judge abused his discretion in failing to order a continuance or the second issue raised in terence walker's brief that he received and effective assistance of counsel the result is the same this court should reverse my client's convictions and several factors that are relevant to the exercise of sound discretion when a court is confronted with a request for a continuance the trial judge in this case explicitly refused to consider want least one of those relevant factors and ignored the others and instead reflexively denied the request for continuance on the sole basis that the case had been set for trial on the day of trial defense counsel entered the courtroom and informed the trial judge that she was not originally appointed to represent terrence walker that she had mis calendar the trial date and thought it was six days in advance and that she'd spent the previous two evenings on trials and other matters until past seven pm the night before this is a factor that's relevant to the exercise of sound discretion the trial judge said it was irrelevant it was a dirty shame and there wasn't a private lawyer in the business that hadn't tried to pull something like this additionally step string case law tell us that the judge a trial judge should look to the complexity of the case the seriousness of the charges in the diligence on the part of the defendant when confronted with their quest for a continuance of the complexity of the case the state's answer to discovery listed forty two witnesses at least two of whom were experts in fingerprint and medical examiner also made a couple questions absolutely how does the record reveal how long of a continuance was  no your honor in fact i think that's a critical point the trial judge never even asked and that's why i think the record supports inclusion that was reflexive on his part to deny it likewise because the record reflect what counsel would have done during that continuance appearance appearance that would have changed  ability to defend this case no your honor the record is completely void of that information however it is clear from the record that she thought the case was set for the twenty sixth and we don't by any means are suggesting that that was in fact a trial date it's clear it was set for the day that it went she miss countered that trial date but if that's indicative of any way about much time she needed it was one week it was less than a week your honor that's right and i think that's critical because it shows that the judge didn't even inquire on this basis he this motion and that's why i think we get this abuse of discretion is it fair to inquire what additional what additionally could have been done to improve the defense of this case in that period i think it's i think it's dangerous your honor and i think it's dangerous for a couple of reasons to do so we're left with the record that we have and that record was created by counsel that was unprepared so i don't think we can go back and look at this and say well given this record here's what should have been done because counsel wasn't a prepared enough to know what she should have done in sometime in november she appeared on december sixteenth agreed to the trial date of january twentieth on january twentieth in fact we know the reason she even knew it was separate trial was because my client called her and left a message my sixteen year old client called his appointed attorney the day before trial left her a message that's how she found out that she had discounted it so we talk about delusions on the part of the defendant best certainly shows diligence on top of that my client never asked for a change of counsel never asked for a change of judge never delayed the proceedings in any manner there's no indication that he failed to cooperate with his counsel so when we look at diligence on the part of the defendant which is a factor that will statutory case law say are relevant to the exercise of this discretion clearly that w favor of granting my client a continuance of your brief noted that they're going fourteen continuances in this case prior to this i'm sorry i don't recall that if it doesn't agree says yes that's correct the continuance were all by agreement and it had never that after she indicated it was prepared did in fact and i and i agree and i think it shows some of actually her ineffectiveness which goes to the second issue but at the time in december she indicated that it would likely get a bench trial at the time that we had that they appeared in court on january twentieth there was no indication that certainly a jury had not been waived at that time and i think it's interesting that counsel having appeared in court unprepared to represent a client on very serious charges two counts of first degree murder she's unprepared she has this exchange with the judge which i think reasonable inference is there was some hostility there the judgment formed her it's a dirty shame there isn't a private attorney in the business that hasn't tried to pull something like this this counsel has lost some degree of credibility with the trial judge at this point so what is the first action she takes at this point she has her client waive a jury trial to turn it over to this judge so having admitted that she's unprepared to give him a sixth amendment right to counsel she first thing she does is have my client waive another constitutional right and i hadn't wager a trial at that time and given the situation that she is now forced to go to trial unprepared two counts of first degree murder possible natural life sentence i think it's on a reasonable to sit back at that moment and then waive another constitutional right the right to a jury trial this judge has hostility towards her client's position it was very clear at least towards her or phrase at least towards her position so i think to turn the case over to at that point raises some serious questions of judgment no your honor and i don't think that the fact it was going to be a bench trial or a jury trial in any way entered the court's mind and i think that for at least a couple of reasons one she had indicated bench beforehand to the judge did not a state witness the state's answer for discovery was forty two witnesses forty one of them had and state addresses the one remaining witness is address unknown his name is dr lindsey civilian at no time when counsel requests a continuance to the state object on the basis that they had an out of state witness at no time did the trial judge say i can't grant a continuance because we phone in the state has an out of state witness and you know at a state witness testified at trial there were four witnesses three chicago police officers there were still current chicago police officers at the time they testified in an assistant state's attorney that was still in the system state's attorney at the time of the trial so even when we get to a point which i think is a valid consideration when confronted with a request for a continu says no your honor i don't how do we differentiate and i think there's there's two factors that we have to look at the first is what did the judge do can we see from the record the discretion that the judge employ and in this case we can and i think that any decision this court renders can be limited to d's mercifully unique facts and in this case the judge immediately denied it he didn't ask any questions wasn't counsel how long do you need now so why weren't you prepare he could have asked his courtroom where  last night this could have been verified he could have asked questions he didn't he said i'm sorry mr else this case has been set it's going to trial what the counsel's time has a dirty shame it's irrelevant to him so i think we know that the court didn't exercise discretion in this case plus when we review the factors and i've gone through them that stache training he's thought tell us are relevant to the exercise of sound discretion all of them weigh in favor of granting a continuance in this case so that's the first part of the answer the second part is what happens from this abuse of discretion and i think this court should look at it and say as the case of tyler says which is cited in my brief did counsel appear skillful and diligent in the state on page sixteen of its brief actually concedes the defense counsel did not act with diligence and we agree with that she acted with neither skill nor diligence and let's go through what she did and didn't do a trial to find out the effect first thing she did i've discussed she has her client we have a jury trial given the situation that she's in that strikes that strikes us as fundamentally unreasonable the second thing she did was waive an opening statement indicating that she had no fear of the case the state calls its first witness and she has zero questions the state calls that second witness and that is an officer davey who was the evidence technician that arrived on the scene and she has t v two questions i'm sorry three questions did you pull prints from inside and outside of the car yes did you pull prints from the left and the right yes and if you pull sixteen prints in total yes end of cross examination the state calls its third witness and this is l fingerprint examiner brewer and i think this as actually critical to this case the state called jeans were for one reason and one reason only so that he could testify that one of the sixteen prints found on the automobile  which two deceased individuals were discovered matched my client that is the most damning piece of evidence he had that is why the state called him defense counsel stood up and asked him two questions in the lissa did that same response she st and had him repeat the most damaging evidence against her client had the state tried to have genes to repeat that information kompany defense counsel would object on the basis of asked and answered it your honour's in the most absurd of situations defense counsel has bolstered the state's case by having this information repeated to the finder of fact now the appellate court said that this actually calls into question my client's guilt they don't explain how listening information from a state witness that her client's fingerprint is on a car calls into question his guilt the state has not taken up that argument and i personally do not understand it after james brewer's testimony assistant state's attorney bernard testifies at the time she was a felony review assistant state's attorney she and she viewed my client terence walker now defense counsel had previously filed a motion to suppress statements on the basis that it was involuntary and that there wasn't a youth officer present during his interrogation the question she asked brewer made on their face i'm sorry bernard vander face appeared to be relevant to that motion to suppress but when we look at it there are fundamental flaws in it and the first is this her questions towards assistant state's attorney bernard pertain to whether or not a youth officer was present at the time that the arresting officers interrogated my client sounds good except for the fact that isn't state's attorney bernard was not there at the time that the arresting officers interrogated my client and that was her answer i don't know if you thought she was present i wasn't present after bernard's testimony there's a couple  stipulations the state rason defense counsel interested relation that stipulation is essentially a mirror image of terence walker statement the statement she's trying to get suppressed which is if the two arresting officers shakin fleming were called to testify found second degree he said not looking past the four corners of the statement in the statement was tense walker state it was not based on defense counsel's argument which i argue was actually a legally deficient theory of self defense which i was playing in a minute it had nothing to do with what defense counsel to the trial judge said it was based on the statement the statement that the state turned in evidence and the reason it's legally deficient rahner is because there is no mention not even an argument that there was an imminent threat and without an i argument that that made that occur and again because the trial judge specifically said not looking past the four corners of this document and that was terrance walker statement which was introduced into evidence by the state not looking past that he found second degree so it was the state's evidence that compelled the finding of second degree not defense counsel's actions by putting forth without even feeling to our website with failing to argue a necessary element of self defense that doesn't show skill intelligence and that's what we're looking for here there's no skill and diligence in a listening the most damaging piece of evidence from a state witness brewer there's no skill  diligence in asking assistant state's attorney bernard about who was present at a meeting or at an interrogation that she was not present for there's no skill in diligence exhibited anywhere in this trial by defense counsel and i'm going to quickly touch on my second argument your honour's obviously we have asked this courtship assume prejudice and i would like to hit three quick points before my time expires first the appellate court rejected us because they found that the defense counsel called into question my client's guilt concerning changed testimony when she listed that one of his fingerprints was on the car i've been over that that is not that does not qualify as calling into question my client skill nor is it meaningful adversarial or testing of the state's case the appellate court also found that my client performed meaningful adversarial testing by her questioning of assistant state's attorney bernard again or not wasn't present at the time in the circumstances the defense counsel question her about that it's not meaningful adversarial testing and finally they brought up the argument that we just went over your honor which is her argument on self defense and again it was found on the state's evidence not on the fence counsel's argument in sum your honor my client asked that he be given the right that every criminal defendant in the state of illinois has given a right that has been to night him for sixteen years and that is the right to have the trial court hear the other side reverse his convictions remand the case to the circuit court and let the circuit court hear the other side thank you you with the exception of no review at all defendant in this case cannot establish that the trial court abused its discretion in denying a last minute continuous requ a date that was set for trial defendants repeated claims that a juvenile defendant in this case was the night effective assistance of counsel and a fair trial are all maryland the fact that the entire regular proceedings consisted of mere forty three pages as the defendant would have it does not necessarily mean that the trial court abused its discretion it was case the length of the record was largely dictated by the amount of the evidence presented by the prosecution of the city's even though it was a so called double murder trial the prosecutor took only four light witnesses whose testimonies are relatively prior to january twentieth namely on december sixteenth one thousand nine hundred ninety three defense counsel confidently advised the court and the prosecutor that any court date would be convenient with her with the exception of february because she advised the court that she was on trial for the last two days before judge kearns was but as as it was mentioned by counsel when one questioned by the justices in this court she didn't bother to explain to the court how much time she needed she didn't really advocate her case for requesting a continuous in this case she didn't tell her well i was on trial before just kind of as a scientist case it was this type of  case i could bring you an affidavit from my counsel co counsel if there was any to prove that i was being sincere in representing that to you other than the terse statement that she was on trial and she wasn't ready rather the court my calendar and say look judge douglas calendar this case for the twenty six i would have shown him my calendar that says i was on trial in front of judge harnesses for the past two days i would explain to the court this is the amount of time that i would need to prepare now that i've represented to you that i'm not ready for trial and this is what i need to do in order to fully fully and competently represent is absolutely and i think if you get to trial judges in the states who has been on the bench for a very long time a benefit of the doubt he certainly had that in the back of his mind when he well i think the record belies that point because if you look at the length of time that she had the case time to study to file them prepare for trial look at the motion of surprise that she was there she filed and nov nineteenth one thousand nine hundred ninety three which was in addition to the motion of surprise that was filed by the regional attorney and you look at what happened that trial defect that she cross examined the state's witnesses made closing arguments presented evidence on her client's be half which as your honor has already noted ultimately resulted in to try to effect finding the defendant guilty of second degree murder i wanted the charges i mean it's reasonable to conclude that the trial court in this case certainly had that issue namely a right defendant's right to a fair trial well i mean we don't see anything other than the truth voluntary confession because it wasn't really it was somewhat tested let's put it that way yes ok but isn't there a before this court that the evidence was not overwhelming that would quote according to my view would be a fair process a chest res obviously we differ on that point but that's one of the things that this court should take into consideration according to case law your honour's could take into consideration the strafe of the audience against the defendant those presented by the prosecution you had to defend at the tail confession that detail the execution style slaying of the two victims as they said on our end in that car that confession was corroborated by the physical evidence as well as the stipulated medical testimony he he confessed that he shot damien stanford four times in the back of the head and the medical evidence supported that fact he specifically confessed that he  back of his head and by his right ear and once in the right shoulder and certainly the medical testimony stipulated supported the f a in addition they recovered a twenty two caliber tracing in the front passenger side as well as t additional fired casings from the back of that car in addition they recovered as was mentioned a fingerprint on the outside and long run does subject the fingerprint it's important to know that on direct examination the evidence technician who lifted all the prints he was this specifically by the prosecutor hum any less do you recover and he could not recall and it was only on cross examination when counsel got up and asked isn't it true that there were sixteen total prints recovered and his answer was i believe that's true if that's what the report provides so contrary to what was stated by the defendant in his counsel made no effort whatsoever to explain to the judge why she had not contacted the prosecutor previously even though she found out that night before that the case was up the next the overwhelming evidence it's clear that even if the trial court were to have abused its discretion he certainly cannot establish that he suffered any prejudice in this case well counsel complains about the type of questions that were asked by defense counsel across the felony prosecutor but the appellate court properly found that those are relevant questions that pertain to the motion that certainly is a relevant question and that goes to litigating that particular issue granted there wasn't a full blown hearing on that particular issue but the way the motion if i understand it was  the day really didn't matter there was nothing to strike or if you look at the record as a whole whatever she alleged in a motion to suppress statement was contradicted by what was in the record for instance if you look when the defendant was interviewed by the fellow interviewer system and his signature and his name appears on each page of those seven page header and confession and if you look at the other allegations contained in paragraph four of the motion namely that because of his physical and mental deficit that he was unable to understand his miranda warnings that claim is the rockley contradicted by what the defendant told the probation officer for the purposes of the p s i i because he he told the probation officer that he had no history of mental illnesses he has received no inpatient or outpatient treatment for any mental issues and that he was facing attending relies i think rightfully so based upon the amount of evidence that was presented against of the fan that that was a non issue at that point that it would be futile futile to pursue it correct and as a court noted in chronic counsel is not required to engage in from a strays and representing the defendant in light of an overwhelming evidence and that is exactly what we have in this case i think it does and it probably should but at the end of the day if you look at all of the factors that even the friend then mentioned in this case namely issues of docket measurement the seriousness of the case the complexity of the case all those has to comprise of he judges ability to deny a late last minute continuous requests such as we had in this case the fantasised to tyler but actually if you look at the facts of tyler it supports our case because there they originally appointed p d resigned and went to work for the lake county state's attorney's office the new p d that was assigned to the fed and showed up on the date of trial and they asked for a factual friendliest to the chronic issue defending ken that establish that one that he's fit his counsel entirely and completely failed to subject the prosecution's case to any meaningful ever serial testing and that the circumstances were such that it had the effect of deny him counsel completely and it should be noted that the defendant does not argue before this court that stric vs washington analysis applies he relies solely on cronic he cannot meet his burden under that trust and therefore we would respectfully request this horrible corps to front defendants conviction for first and second degree tell that counsel appeared prepared and acted with skill and diligence they are not going to reverse the conviction the inverse is true in this case your honour's appellate count defense counsel is not prepared she acted with neither skill nor diligence in representing her client and therefore it should be reversed it is not the same standard we argue that you would apply in a strickland case and when it comes to the effect that this case hats on future cases an abuse of discretion this case and i think rightfully so should be limited to the again mercifully unique facts that are present here this doesn't happen frequently in the state of illinois this is a forty two page double murder trial and a judge that i doubt negated his responsibility to engage in any discretion secondly the state asked this court to give judge morsi the benefit of the doubt based on his long experience we asked th court that if anyone is entitled to the benefit of doubt every bit of law that has ever come down in this country dictates that it should be given to the individual my client who sat by while counsel was unprepared and the judge forced that counsel to proceed to trial in the state argues well counsel didn't go in and provide further explanation for her need for a continuance let's not take this out of counsel's position counsels that court she has a sixteen year old client facing two counts of first degree murder she's got a judge that is obviously hostile to her the state wants her to continue to argue with this judge who will apparently in forty two pages of transcript be deciding her client's fate to further argue with him about the validity of her need for a continuance it was prudent not to do it the judge could have made a phone call if you didn't believe that she was on trial the previous night and it is the judge that needs to exercise discretion and it is the judge that is not simply a referee b judge is responsible for the justice of his judgment and in the words of this judge this judgment is a dirty shame and it impugns the integrity of this court and the entire criminal justice system in the state of illinois and any one associate with that system ought to be and barest by it but we should also be proud because we are here now sixteen years late but we are here now  this court has an opportunity to correct it reversed my client's convictions remand this case for a new trial thank you may stumble one zero five four three seven is taken under