this you know this case is whether mr medallist out because of prejudice such that he should have been granted leave to file his post conviction petition his grains are the council was ineffective for not discovery in this day failed to disclose reports that would have shown to other people at least two other people perform c p r on the junior which could have been the source of some of his injuries and this would have aided his defense at trial that he was only guilty of involuntary manslaughter as opposed to st degree murder speaking this profession see impeded as ability to conduct this investigation so there for that's his car you know that's why he didn't raise us earlier and i think that makes a prime official showing claim but i also think the main thing that really should not apply to the extent that greenwald that new facts can't support a similar claimant contradicts what our supreme court's decision people your t s which held that collateral  not sure if i'm pronouncing that correctly but i think jealous actually shows that mr mcgill should have been granted leave to file because that's what happened and jealousy it was like twenty years after the fact he said that his you learn that  ultimately it was dismissed and on appeal this court did all that he did not establish cause but that's a different standard so i think just how this case should proceed he should be granted leave to file and then the state free to try to argue later well lack of education lack of knowledge of the law lack of knowledge of civil procedure and it's obviously very difficult for them to conduct an investigation from their cell and try to do this and so i think at this stage  to prejudice the same standard apply he is not are required to prove prejudice at this stage just what they have to allege adequate facts to show a prime efficient showing and in this case one of the  the severity and number of the injury show that he was guilty of st degree murder and they refer to the crushing on this just in the broken ribs defense defendant defense counsel tried to argue that there could have been another for the for the standard it needs to be for the leave to file stage so for those reasons i believe mr mcgill should have been granted leave to file and i would be happy to take all the questions on th well i think of course you could be probably found guilty of murder but i think the question here is you know one of the defense of the trial was this when you cause injuries you can also be guilty of involuntary manslaughter and i think that's the sabbat the number of these injuries is part of what the state argued showed that he had the was guilty of the most serious crime we have in illinois st degree murder and so i think anything that would have tended to show that there were another source of the least some of these injuries that could negated the mental state required for st degree murder and i'm not saying that that's what will ultimately happen with the testimony of these two potential witnesses but i think at this stage he has made a prime official showing that prejudice could exist from the of involuntary manslaughter so how does this differ from the original petition that in the original petition didn't he allege improperly perform c p r yes your honor and i think that's wh gets i get this is you know kind of like ortiz he now has documents that really seem to show you know officer contain a said he got there and there was a person performing c p r the other one the police report said that  believe the cat nancy the cashier was performing and then dr today had to go over and then the him he's performed even more c p r on a three month old child so there's a lot of c p r being perform according to these documents so he has new evidence to support this claim so i think pursuing the people he ortiz is not prohibited from raising this because he raised a similar claim in his initial post conviction petition and you're saying now there's  evidence to support the argument about the improperly performed c p r but looking at it from the proper perspective that we have to how is this really material the fact that he now has a stronger case for improperly perform again in light of the serious brain injury that cannot be explained by the c p r that evidence was presented how would that be likely to change the result of the trial well i i think that if as a trial the defense counsels maybe the more persuasively argue look some of these injuries some of the most serious injuries just and really serious which the state referred to as crushing blows if they had been caused by someone improperly performing c p r yes it doesn't explain all the injuries but when we're talking something like this they had to prove the mental state for st degree murder and you know involuntary manslaughter doesn't mean you don't prove causation that means that you didn't have the mental state to intentionally or knowingly kill think that was pretty much what defense counsel defense at trial was trying to say that not all of these injuries were caused by or could have been cover other people and therefore he didn't have the intent for st degree murder so i think you know i understand i'm not saying that ultimately these witnesses will carry the day i don't think we know at this point but at this stage of just making a crime official showing prejudice if he could have shown another source of these injuries i do thank you counsel you raise in your brief and also in reply brief that the new information could lead to a verdict of them voluntary manslaughter and you mention that here several times this morning  under a cause and prejudice claim can you point out what evidence in this case would well i think when you look at involuntary manslaughter you know the case all is that you can intentionally perform an act but recklessly just regard to consequences of that act disregard the consequence of that act counter still having trouble with the with the evidence before us understanding how defendant would have been entitled to an involuntary manslaughter verdict when you have crying and shaking and throwing the child into the hard car seat slapping the victim space at least four times by the victim i i don't see how this ever would have risen to a level of getting a lesser embodiment terry verdict form can you point out what evidence use i heard your argument about that but what evidence is there in the record that would support that well i mean i think you know the state has the burden of proving a tension we tended to kill and that trials actually defense counsel did argue for involuntary manslaughter in the trial court  so that he couldn't argue involuntary manslaughter so i think the trial court felt that there was enough evidence for at least you know it was a bench trial there was an instructional issue but would allow didn't argue was comparable to what the instructional issue would be and so because the court allowed defense counsel and defense counsel got permission from mr mcgill to argue for involuntary manslaughter i think even the trial court thought that there was at least some slight evidence to show involuntary manslaughter and i can understand that there was injuries here and i'm the argument is that yes intentional acts can support st degree murder but eventually act can also support involuntary manslaughter if they involve a reckless disregard for the consequences of those acts testified that none of the injuries on the victims were sustained postmortem isn't this bagel to defend r because he said that the hemorrhage and showed that you don't juries were not post mortem but defense counsel questioning said if someone had been performing chest compressions improperly in a different spot that could have also pushed blood which would have mirror caused these injuries post mortem so it wasn't as conclusive as initial what he's stated on direct examination but in determining whether or not the premises your case has been made the court looks at all of the evidence and then this case here descendants statement was that the trial was already deceased you know you are going about the path allergists but what do you what do you have to say about the defendant's statement that he believed the child was already deceased well i still i mean the defendant that you know whether he believed he was already deceased out of this conclusive as to whether his state of mind was at the time could've caused the red injuries that it would have changed the outcome that's correct now it's not that it would have changed that's not the standard at this stage it's just whether he's made that adequate facts were five official showing that it could have changed you know strickland is not if we were not in a really beautiful fearful nonsense but even under strictly you don't have to prove conclusively that it would have changed the outcome it's whether there's a reasonable probability it could have changed the outcome and i'm just arguing at this stage if this claim doesn't clearly fails a matter of law and i think that the supply sufficient documentation to justify further proceedings thank you counsel thank  you know request requested documents from the west chicago police department i mean so it's i don't know exactly there but once again i think the standard is whether it's alleged adequate facts to show cause and i mean clearly obtain these documents so i don't think i think it's a fairly logical conclusion that he did have a for a request you know any you know but the i don't address the state's comments about the serious chest injuries and some of the other front injuries could have been from improper c p r and the trial court heard that several times both in cross examination and as well as an argument is that correct yes your honor so what exactly would be records are these this information from the police reports actually accomplish here to extend his cause or to expand his position well i think at trial there was very minimal evidence that anyone saw you know i think someone said that they thought van winkle the i believe that's the retired firefighter had before we go testified he didn't perform c p r and there was no really other evidence other than maybe someone did or maybe r and this is all before the m p s get there so that wasn't really ever presented to the trial court that we you know taking these allegations as true at this stage that would have been two people including a lay witness and with d knology that perhaps very improperly performed c p r could have caused could have been caused post mortem so i think that is this is something new that was not before the trial court all right but what we have here is rather conclusive evidence that the child was dead when st his mother arrived and then certainly when other people arrived because there seemed to be some some lapse in time between the call and mother arrived home and then we have possible or in opinion that improper c p r post mortem could cause some hemorrhaging so isn't it the job of the court in this case the trier of fact to weigh this evidence and make a determination from the evidence that's presented that is significantly conclusive well had already been inflicted on these crushing blow to show that he had this intent to kill this you know the severity of these you know so the fact that the child was perhaps  people arrived doesn't necessarily solve this question tonight and i think what's different here is that there was no real evidence presented at trial that there was improper you know a layperson performing after and therefore that would support that yes there was injuries here that showed causation for doug but was it enough to show the st degree murder and that's you know like i said i was basically what defense counsel defense at trial was and this shows that counsel is perhaps ineffective because there was evidence to help his defense at trial that he did not look at the severity of the injuries generally is something that we look at very carefully as does the trial court during if it's the trier of fact during the trial the brain injury is probably one of the most severe that we see is that correct yes your honor i mean there w fracture i believe but it was a definitely an a severe injury but i think you know with children like you know there could be that caused by accident falling dropping of the you know we don't know exactly i mean but yes there was a severe brain injury while the doctor did say there was also an injury to the back of the head that might have caused the brain injury because three month old babies have sort of soft spots on their head but i just don't if we're looking at all of the injuries taken together including those on his bottom and those on his face how is justice hudson i'm sorry is justice bridges asked how does improper c p r after the fact and we'll accept that is true indicate or establish reckless conduct on behalf of the defendant well you know  to previously if it's a question of mental state here and that was what the defense counsel tried to argue at trial and so i think that the more injuries are you prove the defendant's looked at the more you're going to be able to argue this was intended to kill the baby it was an office temper and threw the car seat down or threw the you know the carrier down or whatever it's you know so i think that as defense counsel tried to argue a trial that if these injuries were caused by another source it doesn't necessarily take away causation but it could show that the mental state was not for st degree murder i thank you counsel you will have an opportunity the court counsel good good morning you know your honor i would like to kind of i know a lot of the questions discussed the prejudice i would like  briefly address the cause on opposing counsel rely significantly on people of your team to say that the fact that the defendant is now innocence claims that each time or tease the discussion about collateral stoppel was whether or not you can have the application of preclusion doctoring applied to post conviction with station she or the defendant priests says that you know just because you bring more information that does not make it a new cleaning and so therefore the defendant has not mccaughan i would also just point out in people the green to hit his three month old child because the child was crying and the you know i as your honour's pointed out you know the results of the trial would not have been any different had this information been prevented because the information one dr harvey testified that the brain injuries alone was a cause of death and none of the police reports go to the in the record both counsel and the court considered the evidence as if the evidence was there showing that there was c p r done and that it was it was improper and the court very extensive list of injuries plus the defendant's statement the child because the child was climbing there just no way that there is any merit to either ineffective assistance of coun l claim or the brady claim and because there is no manner that the defendant can show prejudice and if there is no other me i apologize i keep thinking there's no other question but sorry no no no it's understandable that we have we have process in our head and sometimes it's hard to disengage it all right it's hard for me not to try to interrupt you and ask that question this is this is the process i just  intended to the child show that even if even if there was more substantial evidence beyond that was counsel already put into the evidence that is insufficient to show that that one injury would change the mental state from intentional to reckless and just firm haven't shown cause because crime officially this was the this is not a new area of litigation the defendant throughout the course of his proceedings ha showing of cause wouldn't establishing an alternate theory for the cause of j r s death be enough under ortiz to present a new cl said new evidence but you're right you said actual innocence so thank you for the clarification and also the record before us doesn't the senate diddly demonstrate if the records of those who perform the c p r was tendered to the defense there was some question about whether or not they were but assuming they were not in fact tendered why would this be considered a brady violation sufficient enough to establish br defendant's statements as true and that he did not receive the information one hundred people the green he still has to meet profit which is you have to show how why he did not request this information earlier when he originally brought his claim and greene says that just because you requested for your request later doesn't mean and it shows some information does not mean that causes mat and secondly going to the prejudice prong again a defendant can't show prejudice if there is no merit to the claim and as i as we discussed in our briefs the defendant can show materiality and i believe you discuss and secondly as in terms of materiality it would not have changed the result of the underlying proceeding because as we discussed there are a number of the head injuries alone cause was one cause of de the police report do not discuss any showing a potential showing of a reckless dental state towards the injuries to the head thank you she believed that nancy and van winkle had performed c p r yet then correct she didn't know about the other officer because part of his was outside is that correct just a day now the trial court trier of fact already had information that mrs or defend it's wife believed that somebody had performed c p r is that correct yes so now we have in the record that somebody performed c p r but we have a rather definitive answer by dr harkey bit he hasn't seen improper c p r actually cause these issues even by a lay person or is that generally what he said yes i believe that trial defense counsel questioning and dr h hardy did not believe that the the injury shown would be the result of improper so in fact when we look at these reports that have been obtained by floria what really is new or different in those reports other than identifying officers today i i i would agree most the most the reports a different spin on the same information that was presented at trial  as to cause defendant said that he had not told prior cellmates who may have been able to help him with this the spanish about the  the nature of the crime because he was fearful for his life and they were gang members i'm having a difficulty believing that his prior cell mates didn't know why he was there is there anything in the records that would indicate why they wouldn't have known no there there is nothing there is nothing in the in the record that indicates in the case i put his the current cell matre did try to help  him we just know that he has in his affidavit said that they didn't have any officials who could help them with spanish speaking issues and he did his best is that correct yes she was just trying to revive you know i think it would have been these reports show up much more conclusive you know officer containing it shows up nancy performing c p r he takes over the jealous the fact that it's not necessarily that there was a property grantley filed just that there is a low standard to leave the file stage in the state as a kid and i think our supreme court case and bailey says that the state free to argue further as a further that these are you know i think that's part of the reason there's only has to be a prime official case and then once he has an attorney he can develop that claim and you know that i would just like briefly to say the state has to be ortiz in your argument supporting your friend has responded that ortiz is distinguishable because that was an actual innocence case in which no cause or prejudice must be established how do you respond to that his lack of proficiency in english and the lack of translation assistance at the jail impeded his ability and so i you know i think i don't read all that yet you got your cause i just think that the principle of orgies is that what we're looking at you know i mean it's basic this is no matter what shows you can ever raise anything to do with any defendant far the most conclusive evidence is in the future but if you've already raised the claim based on that without any questions i do not thank you just thank you i do have one or two possibly how in this whole bit of conversation that we've been having here how do we overlook the testimony or the you know the admission to the officers that defendant said he intended to hit the child to stop it from crying and he also i think he told his friend that he also told his friend he had done something terrible and when he called his wife he said something tragic has happened how to  the case was clearly you didn't tend to intentionally inflict injury but that doesn't necessarily mean that because death is cause of that st degree murder it could be a conscious disregard of the consequences of that so you know so you know that's i think here was the state relied on him pardons you know saying look you have these crushing blows to the chest and rip back she's not all that shows like the totality here show this was not a you know a case where you acted recklessly you know you hear this kid but not with the intent to kill that they're saying look at all of this so i think that anything that would help defend the defense at trial which was frankly what defense counsel was trying to argue through a fair amount of this trial was that he didn't look at all these injuries and he didn't have the intent for st degree murder throughout all of this i was looking for cases and did not find any but are you aware of any case that literally quantified as the number of injuries to establish the intent to kill or anything of that nature when we're involved with the child no your honor i don't you know i don't imagine that these are all going to be exact you know come down the factual you know i don't know that it would be a hard and fast rule that x number of injuries equals st degree murder and x number equals you know so i'm not aware of a case that says hard and fast rule no but we do in fact have lots of cases about children of this age and their how how they could be seriously injured by what might be not a serious problem for an older child or an adult correct correct they're just different they're different little humans and they're much more fragile