three zero seven people versus coleman counsel for the will please p good morning your honour's council may please the court my name is karen daniel from the center on wrongful convictions at northwestern university is my very great honor to be here this morning representing christopher coleman before this court this case presents a claim of actual innocence which is arguably the most fundamental claim that can be raised in post conviction proceedings and in fact it's so fundamental that nearly seventeen years ago in people versus washington this court found that the prospect of holding an innocent person in prison is so important to our sense of justice that it implicates the due process clause of the state constitution regardless of whether according to the u s supreme court it implicates the due process clause of the federal constitution and in washington this court announced a standard by which claims of actual innocence would be judged it's a difficult standard it's not the net very many times in the ensuing period since washington was decided but it's an it's available for the exceptional case in which truly compelling and conclusive evidence of innocence emerges after a trial and in some cases many years after trial as in this case christopher coleman case is exactly the type of exceptional case for which people versus washington was decided in our case there is not one new witness there's not just two new witnesses there are five new witnesses who've come forward or have been compelled to come forward sense trial were not available to trial and each one of these witnesses was present at the crime scene because each one of these witnesses was participating in the crime and each one says conclusively that christopher coleman was not there this is exactly the type of conclusive evidence that washington and the rocks the court to consider and this was reaffirmed most recently in people versus ortiz which this court decided in two thousand and nine in which this court again described the type of conclusive evidence contemplated by washington is the type of evidence that demonstrates if believed that the petitioner was in well the fact that the statute has run is what in this case allowed christopher coleman to compel the testimony of these witnesses the fifth amendment ensures that people can't be compelled to testify against themselves and incriminate themselves and that's what people versus most stat decided many years ago in this case their witnesses involved were compelled to testify they were subpoenaed warrants were issued for three of them i believe one was arrested they were directed to testify by the court they were able to be compelled to testify because the statute of limitations had run that's let's see that's why we have them all stat world that's why people versus washington allows new avenues to be brought forward even after many years had run it's just a simple practicality that not everyone is willing to come waltzing into court and exculpate somebody else at risk of being sent to prison themselves but what i think is important is that this is not a case where the witnesses at least they didn't feel like they had nothing to lose they didn't want to come in and as has been pointed out most of them had criminal records so most of them are likely to have future convictions and if they do the well the focus of the inquiry in all the cases that this court has decided on this subject washington cheez more stat has been on the nature of the evidence is it has said it's not the function during the post conviction proceedings to make that final determination of guilt or evidence or or innocence or even to resolve the differences between the state evidence and the defense of events that's ultimately for the jury the clerk the trial court's munchen is to make a legal finding and the legal finding the one that's at issue here is the third prong of washington where the evidence will probably result in a different outcome at trial and so what the trial court to below the trial court didn't make credibility findings that in the court's mind demonstrated that a jury would not credit the new witnesses over the the trial evidence and that's what we we argue feel a little awkward telling you what you meant when the court meant when you wrote edwards but edwards addressed a very specific and different issue than that addressed here edwards the question edwards was what is  in the documents attach the petition have to show with regard to a claim of innocence in order for petitioner to be able to move forward on the success of petition we've already you would already decided in or that you don't need to show cause and prejudice if you have a claim of actual innocence the question in edwards was how much of a showing does the petitioner need to make at stage one and mr edwards argued in that case all he needed to show was the gist of a constitutional claim which is the normal first stage a standard in this court held no it's more than that you need to show to get in the door you need to show a colorable claim and you phrased it a couple of different ways you also you did use the language of sloop but you didn't adopt that as the standard for getting in the door you you practiced out with a reasonable probability that you could make the same showing as ensure that language was appeared everywhere in the opinion that the shoop language appeared that language is not mentioned in the attorney general's argument expressing that it believes you were adopted at that stage  either way that's how you get in the door once you're in the door then you start over in the petitioner starts over and he has to go to a hearing and unlike at first stage his affidavits are not presume true it's not one sided he has to get his witnesses and the clerk he has to get them to testify the other side is allowed to present countervailing evidence so the standard for bringing in the door is really not relevant to what you have to show once you're in the door and i would be remiss if i didn't point out that in edward your honor cited washington as the substantive standard for establishing a claim of actual innocence you you cited it twice so obviously this court didn't feel like there was any inconsistency between your holding and words for getting in the door on the success of claim and washington as remaining the  substantive standard also the standard that the state's attorney is offering is a substitute for the washington standard it was considered in washington it was briefed it was considered and it was rejected so there's really nothing new here washington has worked very well for almost seventeen years it's people are flooding out of the prisons it's the standard isn't met very frequently but again i will return to the fact that this is which a post conviction judge might have to make credibility determinations for example in some cases there's a factual issue as to whether the evidence is truly new that just might invoke a factual inquiry but as to the ultimate question of guilt or innocence or indeed the ultimate question of whether the new witnesses are telling the truth that's not truly the function of the trial court there is a certain i don't want to be keeping function if you will and certainly that the court has to look at all the evidence at trial and presented at the post conviction petition but again it's not a credibility determination ultimately it's a legal determination is there a likelihood that a jury hearing this evidence would would come out with it that would acquit would come out with a different verdict and that's a probability it's not it's not a finding of fact as to whether the new witnesses are telling the truth now of course if you we have a completely implausible testimony or count that's given are special considerations given when witnesses are recanted in prior testimony certain situations like that you know the judge might come out differently but this is a case where especially the four new witnesses that had never testified anywhere before and had never been investigated by the police before or were not co defendants their testimony was not impeached on the question of christopher coleman's presence at the crime scene they had never said anything inconsistent to that and it was not implausible in fact if you took all the witnesses who testified i put together a very clear here rent story if you will this was a multiple offender home invasion two men were caught at the scene so they're clearly guilty and they pleaded guilty and the police in trying to find the suspect who got away came up with four potential suspects and just you know pick their names because some officers who worked at the warner homes housing project thought they might be involved and lo and behold the identifying witness the main one she she picked out all four of those pictures and she said i picked out everybody who was there it turned out we know and that was the truman before trial two of her identifications were wrong grover sent had an alibi  in chicago alberta nickerson she took back right jennifer cation on the eve of trial so she's wrong fifty percent of the time already before trial and if you look at the evidence that was brought forward at the post conviction hearing we now have four new people well motley rob coats robert mackay and de andre coleman and they say we were the we were the four and the and the all the other four chris coleman who's testified at trial but also the other three i'll say we weren't talking before so you have a complete picture that fits together and that on the essential points was christopher coleman there or not definitely have to look at that testimony that was given a trial which was very closely balanced even before the new evidence came in on the defense side we had an alibi and mr coleman testifying in his own defense the were of all the people in the home only two made identifications and only one was actually a face identification of christopher coleman and she was very much maybe impeached isn't the right word but but her testimony was terribly problematic because she she said she knew christopher coleman before the incident and yet she didn't name him to the police that's quillan miller and the same was true of her mother bertha miller who also made a voice and walked identification she said she knew chris coleman but she didn't give his name to the police when these two witnesses got to the grand jury to quillan miller didn't even name chris coleman as someone who was there and her mother bertha miller told the grand jury i didn't know at the time it was chris coleman so something else persuaded her between then and trial that she was sure it was chris coleman apparently it wasn't her test i mean it wasn't what she observed at the time of the crime and those two witnesses  only their witnesses that convinced convicted chris coleman one of the queen had mr coleman in the living room in a chair for the entire incident and her mother bertha miller had chris coleman in her bedroom which an adjacent to the living room at the same time during the crime so you've got terribly conflicting testimony there what you also have at the trial is you had the lone voice in the wilderness james coats who was one  offenders caught at the scene and he testified consistently with all the witnesses testified to later which is that christopher coleman wasn't there and then he named all the other people who were with him he gave that testimony in hundred five and that testimony that account of who was there and who wasn't remain the same fifteen years later there are not many cases that you're going to find that have this level of exculpatory evidence that was truly unavailable at the time of trial the injustice in this case is that christopher coleman has to spend another day in prison without being able to put his new evidence before a jury i ask your honor to to not disturb the washington standard and i ask your honor to grant christopher coleman a new trial so that he can put this new  additional question i merely based on justice freeman and justice garments questions about credibility i thought i heard you initially say in response to justice freeman's question that it is not the culture of the  record determine credibility of these new witnesses based on the things the statute of limitations are inconsistency between the witnesses i mean or those credibility determinations the judges  to determine whether the evidence is conclusive whether it's new whether it's conclusive or is likely to change the result of trial the judge should not the function of a judge is  decide the ultimate question of whether these witnesses are telling the truth versus the witnesses a trial however if they if the trial judge determines the witnesses are not telling the truth is there any credible evidence for the judge to consider to grant petition well what did the judge really is making a prediction as to what a jury would find considering all th settings and so the judge is going to look at the same factors that a jury would look at and this judge announced some of those factors that it's mind cause it to predict that a jury would not acquit christopher coleman based on this new evidence the judge for example looked at there he said they had criminal backgrounds now that is typically a factor that a finder of fact looks at in assessing witness credibility but it's not proper for this judge to say well these witnesses have criminal background so i'm going to find that no reason you know a jury would never credit this testimony maybe the finder of fact ultimately might consider that in the term in whether or not believe the witness but that's not what the post conviction judge should be doing at this stage and i might add in this case the fact that they have criminal backgrounds really is shouldn't be counted against them too much because after a they were testifying that they had engaged in criminal behavior so it is a difference it's a difference between i believe this witness and considering everything the trial evidence  in consistency is but also consistency is between the testimony is that likely is it probable that a jury would reach a different conclusion and as i read the the trial court's findings the judge listed a thank your honor may please the court i'm assisting attorney general eric levin on behalf of the people of the state of illinois i hope to have time today to address the two main issues in this case as we see them both the legal issue of what the proper standards should be and then secondly how the standard should be applied or how the how the case should come out regardless of what standard is applied and in particular with respect to that question what the trial court's role in making credibility findings is  extremely clear about what we are not asking this court to do the people in phatic we support washington's core holding that our state's due process clause recognizes freestanding actual innocence claims we are in no way asking the court to disturb that core holding we believe that washington rightly recognize that when a convicted defendant is able to make a truly persuasive demonstration of innocence whether thirty days after trial or thirty years after trial that  constitution's due process clause will not countenance his continued incarceration which of these factors both the defendant is under the washington standard yes well i think here and this gets to the the trial court's role making credibility findings the question even under washington as washington phrased it is would this evidence what effect would this evidence have on a new jury would probably change the result and can't make that can't answer that predictive question without himself or herself engaging in analysis of the credibility of that evidence if the trial court couldn't make her couldn't get incredibility find that there would be no need for hearing we could do the washing stand could be satisfied in that case just on a proffer of evidence here's what evidence i would present the the and what petitioner doesn't i don't think mentioned in in her argument is the standard of review and even ortiz made this clear that the standard of review following an evidentiary hearing on a post conviction petition is whether or not the trial court's denial of the petition was manifestly erroneous how does this case differ from ortiz well i think here in ortiz the trial court if i recall it didn't actually make credibility findings about with respect to the probability of the evidence changing to trial i think the t mistakenly held that certain evidence might not be material or was cumulative here we have a trial court who heard live testimony at the trial court judge saw the witnesses on the stand judge their demeanor in a way that none of us were able to do took into account the fact that if for the most part they had extensive felony backgrounds that they all wait until after the statute of limitations had expired particularly with respect to deonte claim and i think that's troubling and this was his half brother thomas i believe you asked how how would the credibility finding this what effect do they have on the ultimate terminations of what probability the evidence would have on a new jury and by no means is our argument that the fact that they waited till after the statue of limitations by no means is our argument that's dispositive but it's certainly a factor along with the other factors the felony convictions the fact that they were friends with the petitioner the fact that coats is testimony was inconsistent with what he initially told detective ray these are all factors that the trial court properly considered and together they led him to conclude that the evidence was not credible and that a reasonable jury would not credit it and if a reasonable jury wouldn't credit it we can't say that it would probably change the results of the trial now but by no means a again his argument that the trial court's credibility finds were required but that's not standard the standard is rather there's evidence in the record to erroneous standard of review and we think certainly under that standard properly interpreted there is evidence to support those findings and it's not for review in court who wasn't in the courtroom didn't see the witnesses testifying to essentially overturned those factual findings again with respect to the fact that i think i believe justice garman you asked what would be a fact of conflicting evidence at trial and this too is something for the trial court to take into consideration in determining whether the new evidence whether it's credible or not credible what effect would that have on a jury that heard the original evidence and so obviously the weaker the state's case was at trial perhaps the last compelling the showing would have to be in a post conviction partition but again the the court has to consider all of these things or it can't make that the holistic determination of whether the evidence would probably change the result now both the petitioner and his amicus repeatedly sort of defer to the fact that while a new trial can be held in a new jury can consider this and i think this is essentially in our view the fundamental flaw with the washington standard when washington the centrally took the standard for people which was a case where the petitioner to come forward with his new evidence within thirty days in a timely filed a motion for a new trial and in that procedural posture it makes sense to say that the defendants come forward with new evidence that would probably change that result so we essentially do it all over again the state will have no problem recreating its case the defendant will have no problem recreating his case with the addition of the new evidence and the jury can then come to a new conclusion when we're talking about what's required by the due process cla without a statute of limitations i mean in this case the post conviction petition was filed fifteen years after trial the rule would apply equally to twenty or thirty years after trial the state the the practical impediments to the state recreating its case at that point  are substantial witnesses could could have died they could be unable to be located even if they can be located certainly their memories will if they get physical evidence could have been lost or degraded and so that's why it's important and justice blackmun recognized this in his dissent in herrera where he would have recognized a freestanding actually since claim but he also recognized that the evidence you're hearing on that actual innocence claim for all practical purposes will be the last word on whether or not the defendant can be punished and so that's that's why the the judge at that hearing has to make the determination of whether or not our confidence in the validity of this conviction is so shaken that it can't be upheld  well are you are you basically conceding that if we don't overrule the washington standard that your argument fails i know you have a page where you say that there was compliance even under the water standard as i not at all i think we still do win under washington because i say the this court should defer to the truck court's credibility determinations with respect your honor to other states that seemingly adopt washington like standards what's important to know is that in every case cited in the petitioners reply brief those are states where the standard it was crafted by the legislature essentially like a post conviction statutes unlike illinois which has and washington recognize this unlike illinois which is not crafted an exception to the statute of limitations for newly discovered evidence claims these other states have and so it's one thing for the legislature under its statutory authority to craft two to waive the competing interest in crafts what it thinks is the appropriate rule which it can be changed any time it's another thing for this court and this is what it did under washington which was it was crafting a constitutional rule it was saying what the due process clause requires and the states the cases we cite in our brief that we analog to were likewise i believe at least three of the four of them were were can swear grappling with the constitutional question and i think the fourth state might not be explicitly under the state constitution but was under  that the essential we directed the courts to the to decide cases law and justice require and so it's fundamentally different than a statutory statutory reenacted statute so really i think this gets me back to the point i was initially making is that it with respect to the legal question what we're asking this court to do is very limited we only support the core holding of washington i only argument is that the court should adopt a standard for relief and washington claims that in fact requires petitioners to make a truly persuasive showing of actual innocence  alters the amount of credibility owed to the trial court what i'm suggesting is the fact that the case is older fifteen years requires a higher standard for relief essentially well the standard is actual innocence but the question is i mean we can we can never really know if somebody is innocent or not innocent the question is and that's true even at trials where the trial and in a manner where the petitioner very likely won't be able to be retried again and this is what the courts that have recognized such constitutional claims have recognized we don't want to put the standards so high that it won't that we won't be able to vindicate the truly persuasive cases of actually want to since but on the other hand we don't want to put the standards so low that a valid lee validly come to convictions fifteen years after the fact or lightly overturned and so it's a balancing act but i think the courts properly determined that a clear and convincing evidence standard is the right standard and of course if somebody comes forward with a truly persuasive case of actual innocence it will meet that standard i think part of the problem here the the the foundation of the washington claim is that our system one of the fundamental bedrocks of our system is that it's a system of procedures and where a defendant has been found guilty beyond a reasonable doubt that by a jury of his peers at a trial where he's been afforded the flip panoply of our constitutional protections and an appeal in the right to counsel direct to cross examine witnesses etc our in the eyes of the law he's guilty now washington rightly recognize that word defended can come forward after the fact with a truly persuasive case of innocence than believe that legal contract has has been undermined and and there should be relief but that only makes sense if it is indeed a truly persuasive case of actual innocence and i think a time i think these are questions that perhaps better suited to the legislature that can actually draw lines and say you know we'll extend the statute of limitations by this amount or that amount on the run that when the court is crafting the rule under the constitution essentially it's a blunt instrument there's a there's one rule for all cases and so the rules going to apply equally to a case brought four years after conviction or case brought twenty or thirty years after conviction and if the if it's enough to say thirty years after conviction that new evidence that would probably change the result the trial is enough to overturn that validly an act of conviction in a sense and in a manner where retrial won't be possible it's very likely that  with on the other hand ensuring that society's interest in the finality of its convictions and its and in its ability with that finality to effectively punish and rehabilitate its criminal offenders we think that clear and convincing evidence standard balances those interests and comes to the proper result i just also briefly like to address the effect that edwards has on this case it's true that edward i think it's actually if i step back a second edwards was a case in a slightly different procedural posture and petition is right that it was a different issue but it's a it's a related issue the question in edwards was rather somebody should be given leave to file a successive postcondition petition and this court's make clear that there's two ways to get around the bar against excessive petitions the cause of prejudice standard and what's known as the fundamental miscarriage of justice exception and the court noted in add words to that fundamental miscarriage of justice exception is not unique to illinois it's it's also applied by the federal courts and that standard asks whether or not the petitioners come forward with new evidence in light of which it's more likely than not that no reasonable jury would find him guilty now edwards was not a case about whether or not that petitioner was entitled to relief on his successive post conviction petition in which case he would have had to have that actual should loop standard edward was a case about whether or not he was entitled to leave to file and so i think wouldn't make a petition or prove his actual case just in his pleadings if he's but if he's made out that prima fascia case if he's raised the probability that his evidence will satisfy shoop he gets through the door and then of course after now the denture hearing he would have to satisfy the the full should have standard and is so this is where we think it is it doesn't really make sense for this court to recognize the shoop standard that more likely than not that no reasonable jury would find him guilty standard for  satisfy the gateway actual innocence claims but yet applied either that same or a lower standard for free standing actual innocence claims and that takes us back essentially to what is the underlying rationale for recognizing freestanding if they can make the shoot showing is that if they make a showing of innocence statue wrong we can't be convinced in the rightness of their conviction unless we also satisfy yourself that there wasn't a brady violation at trial or that there wasn't a strickland violation at trial et the basis for recognizing freestanding actual innocence claims is fundamentally different there the claim proceed on the assumption that there was no schtick when violation at trial there was no brady violation at trial there was no violation of the confrontation clause etc the the  trial was otherwise constitutionally flawless but at some point if the defendant can make a showing of innocence so srong a truly persuasive case of innocence our society is just not prepared to recognize the rightness of that conviction even if there were no constitutional problems at that trial and so we ask only that the court apply a standard that actually comports with the rationale for recognizing freestanding actual innocence cla of course just briefly on the facts as i said i do believe it's obviously it's a closer case under washington than it would be under an enhanced standard but under either test the question is whether or not in light of the trial court's credibility determinations the defendant has made whatever showing is required with respect to the effect that this new evidence would have on a jury and in light of those credibility findings which are not required by the evidence are supported by the evidence and write of those findings the the extensive criminal backgrounds the fact that they waited many years before coming forward this evidence until any jeopardy and jeopardy that they face from implicating themselves at past the fact that they were friends with petitioner the fact that the the two offenders caught at the scene did not initially give the same story that they gave later all of these factors together are things that the trial quote rightly considered in finding the evidence to be incredible higher standard as proposed by mr levin that we would be creating a prototype a model for post conviction claims after a long period of time in which you know similar factors to to some of the witnesses prosecution already handled as to some of the new witnesses and and also all they would have to do was file that type of claim and get a new trial basically with it with other witnesses probably gone after fifteen years why wouldn't we be opening to the door to all kinds of claims especially since the other half of your argument is that the trial judge can't make an ultimate credibility determination with respect to those weapons one of the most important aspects of the washington test is the first crime which is that the failure to bring forward the evidence at the time of trial was not due to lack of diligence on the part of the defendant that's one of the most that's one of the ways that the claims get knocked out and that's a difficult showing in and of itself no one is going to know the prisoner is going to willingly let many many many years pass by sitting in prison in the hopes of waiting long enough so that the the witnesses die off and that when he finally gets his new trial twenty years later which is the coleman is on he'll be able to get out because he's already done twenty years it's very important that you have to show lack of diligence at the get go and i think that pretty much takes care of your own you aren't as concerned that and the motivation of a person who is innocent to bring that evidence for as soon as it's available and it isn't always fifteen years later sometimes it's a few years later i think in order to use it might have been around eight years later  and washington itself i think it might have been six years people bring forward the evidence when they can if it were a big concern your honor you'd see a lot more cases where people have gotten new trials under this standard and that just isn't so  mr levin said just at the end he said something that struck me which was just briefly on the facts in this case the facts are everything and i can't do them justice in this period of time i know your honour's will will carefully look at the facts but i want to point out two things one a comparison between this case in ortiz which justice thomas inquired about  was a compelling case but there was only one new witness there and we have five actually eight no witnesses but five who were at the scene and said that the defendant mr coleman wasn't there i also point out that in order to ease the trial judge in their case deny relief finding that the evidence was cumulative and in our case the judge felt the same thing in correctly the attorney general's conceded the new evidence was not cumulative and i realize that the judge went on and said assuming argue why don't wasn't cumulative it wouldn't change the result but still i think it's fair to say that was probably tainted by his incorrect view that this was cumulative evidence  finally just on the facts the judge listed a number of factors and your honour's can look at it and we've pointed out why first of all some of the factors the judge relied on were factually incorrect for example the judge said  that to clear miller had reconsidered her identification as of mark rober sent as one of the offenders she did not at trial she still said that he was one of the people that participated in the home invasion and even the police knew that wasn't true the trial judge did not note ever in his opinion the problems with the eyewitness identifications that i pointed out he did not note anywhere the inconsistency is in the  prosecution witnesses accounts of how the crime happened he did not know anywhere in many many many consistencies between the post conviction witnesses testimony regarding certainly the christopher coleman wasn't there but also the descriptions of how the crime went down and it really seems to me that both the trial judge and the attorney general are not disputing that these five new witnesses were there and participated that doesn't seem to be an issue in dispute and if in fact they were then that undercuts the entire basis of the trial and the entire testimony up to quit miller the identification witness who said that the offenders were the two guys arrested at the scene and four different guys if our new witnesses in this really for truly no witnesses if they were all there and they participated then the entire theory of trial was incorrect and that's a very plausible theory it's really not impeached and it was