thank you and may it please the court my name is tara thomson it and i am counsel for petitioner james now this appeal offers this court with an opportunity to reaffirm and clarify the standard in this district for granting leave to considering the merits of this appeal of the novo but this lower court opinion indicate that it's important for this court to clarify reports in this district how to apply subsection one after how to apply supreme court precedent on the standard demonstrated cause and prejudice he showed that this is evidence that he could not have discovered before and that in fact he only learned through a recent for every class that was made by someone on his behalf and he's also demonstrated prejudice he's demonstrated that there are errors in the proceedings that infected that trial that the trial violated his rights to process now we're spondon in their response brief reference people versus snap which is an illinois supreme court case that actually came out the day after our opening brief was to and that case directly address this issue of the causing prejudice standard and how that standard has been applied differently by different districts in illinois and paragraph thirty five of people versus smith gives clear direction about how to apply the causing prejudice standard and what that paragraph says is that there's really two things for a court to consider when addressing the cause and prejudice standard and the pleadings from petitioners one is that clearly a petitioner has the burden they have the burn demonstrate causing prejudice in their pleadings and they have the burden to demonstrate where they ought to be given leave and that's clear for petitioners and in all areas of the law and is obviously clear in the post conviction context as well but the other thing that's clear and again what paragraph thirty five specifically says is that we should be denied when it's either clear that those that those claims fail as a matter of law or when the when the petition is insufficient to justify further proceedings and a read of that paragraph is that that's a reference to failing to demonstrate facts that would allow you to survive prejudice this is a standard that mr snow met now the state's brief essentially concedes the cause issues it doesn't address cause it doesn't dispute the facts that mr  forth about the four requests and about the other evidence that he got in form of affidavits from danielle press brini and and the fact that he couldn't have obtained that before so i don't intend to focus on the closet issue unless the court has questions about that he's clearly the prejudice piece of it is the more important point here the state looks at the evidence that mr snow presented both as to the polygraph report that indicates that the eyewitness who said that he saw mr snow putting earth when he saw mr snow at that gas station here at the gas station who is accused of i'm committing an armed robbery indicates a fair reading of the notation is that this witness says that jamie snow was not the person he saw now the state looks at that notation and in their response their argument for why there's no prejudice is that there's many different ways to read this that it's unclear interpreted in this case but the fair reading is the reading that mr snow gave it and the arguments that mr snow laid out in his post conviction petition this isn't peaching of that i would says testimony at trial it's important that there is an eyewitness who testified and claimed that he  jamie snow come out of a gas station who apparently in an interview with a polygraph expert said the opposite and this is different and this is one thing that the state brings up and tries to argue that this is a reference potentially to a line up or a reference to the fact that when this eyewitness you line up with mr snow and it very soon after very soon after this crime was committed that that person didn't make an identification but not making it and then if occasion in a lineup is very different from saying this is not the person that this witness says that he saw that's much more significant and serious than what the prior evidence was available to mr snow about this person indicating and this is an important issue that needs to be addressed in post conviction review which is why m mr snow's trial and that's actually more important because this would indicate that there was actually a second witness who also saw someone had that gas station who also says that person is not james now and that's even more significant so either way you interpret that whether this witness is in reference to the and that's one of the issues that mr snow raised in his previous post conviction detention he presented these affidavits from people who said hey mr martinez knew jamie so now that is not something that came up to try ok and again this this is different than at trial that he saw jamie snow someone that he knew and logan correctional center while they were both there and mr snow according to mr owens testimony says that jamie snow confessed to him about having been involved in a station robbery and murder one circumstances that led to mr rowan cooperated with police and provides additional information about the pressure that was put on mr rowland both directly and through his then wife for him to participate and specifically gives an accounting of events that makes clear that mr roland was cooperating because he civically needed help on the dui that he was then facing he testified at trial that he was testifying to be a good citizen and it's certainly true that his counsel addressed the issue of mr rowlands the i and tried to make the inference to the jury that clearly this is a person who was cooperating for his own reasons but making that inference presenting that to someone and having that deny it is very different than having a witness testify know this person is here because they want to feel for their view why because both of us have been pressured because i is white and been told that my kids need to taken away because this is someone who was seeking a deal and seeking to cooperate with the original the texas on the case many years before all of that is qualitatively different than what travel counsel had at the time of  to impeach this important witness there's also this polygraph report for bruce rowland and the piece of the polygraph report that mr snow didn't have before and the difference is that there's an indication by the poly by the police refer that there were eradicate inconsistent answers to what to the answer there were there are radical inconsistent answers from mr rowland as to what jamie snow told them you know obviously we all know that polygraph results are not typically admissible in illinois and so it's not an argument that counsel could have actually used that in some way directly at trial but what all of the law on brady says is that information can be exculpatory even if it itself is not admissible but if it leads to admissible  counsel had known that there were issues with mr rowland's honesty that were documented that he had been confronted with this evidence and given inconsistent answers more or radek answers this is something the counsel could have used maybe counsel would have thought at that point that he needed to speak to m least not him coming from the court to say that but it isn't pietschmann and so clearly a jury would have to weigh the value of her impeachment him because clearly for starters your honor he would be confronted with this evidence and would certainly be our intention and oppose conviction evidentiary hearing to call him and perform that  peaching and ask him well did is this true that this happened is it true that you told your ex wife that you have lied he would be confined without impeachment and perhaps he would knowledge it perhaps he would have to perfect the impeachment by calling his ex wife if it's unclear at this point how that would play out of the hearing is that less direct than mr rowland himself admitting that he lied possibly your honor i can see that but that doesn't make it not relevant it doesn't make it that expulsion tory and that doesn't make it in connection with the rest of the evidence that there isn't  the court's point is well taken to response that i have that your honor one is that this certainly is not the only piece of evidence that we're seeking to present to the court and that's part of part of the totality of brady evidence and other evidence that we believe would change the outcome but number two there's been one illinois that are considered to be new for purposes of the post conviction hearing at up until the point that those were taken and left there's some indication on the record that someone has been saying this all along certainly if you know ms presley had been contacting people from the beginning and saying i know that my ex husband is a liar come talk to me about it if that were the indication of the record and maybe mr snow would have some explaining to do about why he hadn't brought that out before and this would be a different issue but that's not going to cation here are the indications here is that mr press where he contacted counsel when counsel learned of this when mr snow learned that had evidence it brought to the court and the other thing that's that's also true your honor says that when you look at the record of mr rowland from trial there is no indication from his testimony or from the reports that counsel has that his then wife had some role in what was going on in terms of  getting deals in terms of him you know seeking seeking assistance from the state or being involved in this process if it may be also different if there was an indication that miss prospering had been involved that she had somehow known about what was going on then maybe there would be some argument that she the counsel you know trial counsel or later counsel had some duty to investigate that issue but that's not the state of the record before us we have a person who's come forward possibly the amount of time that that it took for her to connect up with counsel is something that should be weighed in in terms of assessing her credibility but you have a record before you on the face of this record there's no indication of any kind about that and that's part of the point of the arguments that mr snow is making generally is that in this case this is not a situation where the court this petition allow him to make a showing that he would be entitled to discovery to further proof prove up these claims and we understand he would have to make a good showing for that but seek that discovery perfect the record in front of that court and argue that he  court didn't hear any of this a court what at this pleading and said don't come in the door this is a different situation where we're saying that on the basis of the seven and a court concluded he wasn't even title to pursue it the easier and better was pursued a trial grover gross exam because remember he was cross examined about the fact that he had a dui pending and he was asked the question and i'm paraphrasing counsel's question on this issue your honor but he was essentially asked if he had been promised something and what he said mr rowland did eventually get some assistance in resolving that and that it was resolved in a matter that would be different then a person with that number of duis and the sentence that person with that number of duis normally receive and this was an issue that was actually  the subject of one of the motions to supplement that we filed for mr snow before we realized that this petition had already been denied and so there is further evidence out there about that but it is not before the court in this record i don't understand what the roland about this matter but they were also speaking with her and that in particular detective katz was telling her that mr roll need to purchase needed to participate and if he did not there could be consequences civically from his prosperity in terms of her children being taken away it also says on this topic is not say anything about why or how what it indicates is that that detective told her that his and i apologize for not having these details clear in my mind but you do that his wife or his ex wife worked for d c f x and that he had a connection with the s and so for that reason that wasn't simply i'm the authorities we could have your children taken away but i have contacts in the c f s and i could do something about that through my con and that's also part of the claims that we're making in terms of there being a pattern of misconduct by these detectives to course people and we also believe that there may be information from those  two potential things on iraq i mean the first is that if if someone if the court wants to make an argument and i'm talking about the lower court not this court but if someone wants to conclude that mistrust really is less credible because i'm half and that's an issue that should be addressed in one of the issues on the face of that is that she's coming forward so many years later and that's true but that's not enough to say that what she has to say is irrelevant or that it somehow is now worthy of anything i believe it is your honor and it's adequate because of the specificity of years later but tears are dispersed really is there for david let's go back to here the prejudice standard addresses that your honor dresses it obviously gives the court the court has to make some consideration of all factors one factors clearly the passage of time that can be considered alone in the abstract it also depends on what this process really saying and if that evidence is important enough given the context of the case to warrant further investigation mr snow mr snow is contention is that in this which requires a showing of both cause and prejudice and this made a very high bar for important reason which is that the there is an important interest in the finality of judgments and that it's this is not something that is going to be lightly set aside on further review so in this case the defendant showing was not adequate to meet the stand the high standard of prejudice necessary to proceed on a successive post conviction t initial post commission receipt because it came afterwards and that the allegation is that the state allegation which has to be taken is true at the stage of proceeding is that this that state withheld that evidence and therefore the defendant does have  these cars part of it but the defendants show both ties and prejudices of prejudice is lacking and the standard here is because these are brady type claims is the same as the strickland standard which is whether that and it has a reasonable probability of a different pumping gas hoping air in his tires at the at the car station at the time of the robbery even if that were the case that is something that was already capitalized on at the trial in the sense that the defendant same lineup but martinez did not identify so really what this is saying in this polygraph note which a polygraph examiners learning about the state of the investigation at the time of the polygraph in one thousand nine hundred four which is that martinez is not identified snow in the lineup essentially that's what this is meaning now what the defense is trying to say is that that this means something entirely different and that's not supported by what the defendant is offering in this petition which is the simple life one shorthand phrase in a polygraph examination report and what the defendant also wants to do is blow this up into something a lot bigger than simply contesting that there could have been additional impeachment of dean martinez they're also saying that this is somehow part of a pattern misconduct when the police were out manipulating witnesses to say things that weren't true which is not supported at all either and the other reason why they they believe that this somehow makes a difference is that they called in martinez the prosecution's star witness but yet the prosecution even at the very outset of the trial emphasized to the jurors that this was not and i did witness defendant picture in the paper after his surprise and then doesn't tell anybody and then two thousand looks at a photograph of the same in person lineup which he could not identify james no and then make and the prosecutor's office and that the prosecutor the defense then very heavily went into the cross examination about whether the lighting was better in this tiny picture or versus in person lineup and why is that so many years later that that martinez to be able to make i didn't occasion to really martinez testimony really wasn't worth a whole lot and it was actually carlos miss you know who did identify the defendant at least in the in the in the element of nine hundred lineup that he was able to identify james snow as the person who looked most like the person that carlos had seen from across the street now there was it like he knew that that was james snow but hundred ninety four lineup which our team is the new people clued ing james now is that right in two thousand and leave when he was presented with a photograph of the name and the picture for example and hearing a statement back at some other time in some other i'm supposed report for example that they mention that there was no no police report dealing with this the posted meeting between police and danny martinez in the state's  show that this short hand remark in the polygraph examiners report means anything other than simply that it was a and a failure to identify the line what would be more specific was this brought out at trial really prior example birthdays you know having some sort of existing presently presently existing relationship with james no that would have well what is the bush record as far as the extent to which we're doing this allegation the hearsay allegation that bruce ron had received help with the dui case and pressure from to take receive pressure from detectives in order to make a statement and to testify into an allegation there was patterned misconduct that police and prosecutors were giving out deals and making pressure and against towards other witnesses and then asa not disclosing those deals in order to secure statements and testimony that's what they're trying to do sort of leverage this sort of remark against one you agree and it names the detective it tells you about his apparent interest in her showing up at various times making reference to his house more that she had this ongoing what do you call it relationship or pressure from the specific detective who's working on the case and that may be the part where she's getting some of her information about what deal was being offered to her husband her ex husband and we add that to the fact that he's in jail house and if it the room that defendant shot someone at the gas station that the defendant didn't deny that randall howard to defend its best friends who at least for the minute that the defendant said that he had committed the crime and said before until he said that he was actually and a lot of times these were situations where like have a child for example who claim to defend it confessed to him but then later got a federal sentencing reduced because of his cooperation in situations where there were no just a person of interest he provided some description which wasn't really it was a separate composite made from his description i think there was an earring there wasn't really much of a connect comparison between the other composite that w then weeks afterwards police find him hiding in missouri in an attic and then during the ride back to illinois keeps asking police about the clark station robbery shooting the station is most agitated when they're talking about that crime with him and there's a admitting that  compelling that's left and that's why they can't meet the high standard showing of course the issue of course isn't to reverse this or be forces whether or not a success of post conviction should i may be filed and then see the second stage and two primary points i hope i have time to address i want to clarify the record on this prosper his affidavit and the court's questions about her coming forward and there is actually another important piece in her affidavit that bears emphasis which is that she does say in her affidavit that she tried to contact  sentencing counsel tell them that her husband had lied and she says nothing ever came of that and it's true in the affidavit that she says no one ever contacted me i you know didn't reach out intel i talked to his lawyers after i was contact after i contacted his post conviction counsel when i learned they were looking into the case that's paragraph sixteen and seventeen of her affidavit so she does say i tried to talk to them initially nothing came of it nobody came to talk to me and then i contacted post conviction counsel fourteen years later because we're because you were in they were looking at the case and it's possible i mean that even the haven't even doesn't give the level of detail that this court may or may want to have or may believe that needs to happen it gives enough detail to explain why she's coming forward if the details affidavit is the court sat about what she says happened during that time period she's she's laying out there she's telling the story for a court to conclude that this is not enough for mr snow even to get to file doesn't meet the requirement so what caused the prejudice to rock what about the question i significant additional evidence out there from the first post conviction titian it also suggests that people were given undisclosed feels that there's recantations from numerous witnesses maybe not from hers rolling at this time from numerous other witnesses saying that they lied her saying that they were given benefits to say didn't talk about this but she also said there were witnesses ahead recanted and serves that there's no showing that any of that any of the accommodations that were made to witnesses were details but they've heard after the fact for certain with witnesses that's true i mean this is a case with a ton of people a ton of witnesses and so counsel says well mr snow is just chipping away but that's all he can do because of the number of people here he presented significant evidence the first time around about what was going on and he's added to that evidence here and we've gone back and forth about the meaning of the martinez polygraph report but the the interpretation of that that mr snow presents is supported by the record but the point on all of that is this you know counsel says or maybe counsel tries to suggest or some case i tries to suggest at this point michael be it that the standard for prejudices are you getting over the hump is this a fifty one percent versus forty nine percent situation but that's brady law says for prejudice is this is the fact that this evidence wasn't presented or whatever new evidence there is that credo verdict that is not worthy of confidence does the new evidence that we now know about undermined our confidence evidence from her perspective is such that it doesn't undermine confidence and clue is something that the court has to assess they have to assess whether this evidence makes a difference and respectfully he had it's we presented here when taken in the aggregate with the evidence from the first time around with were at the earlier post conviction to issue a material which yes your honor and the reason why is that for purposes of brady the court has to consider what a future retrial what looked like it doesn't say looking back in the past let me take this one piece of evidence and see what it says that specifically what