his sentence for the first degree murder of one victim i intend to focus on the second argument in the briefs and in particular i want to address the extent to which the plane air rule should or should not limit th ability to review the substantive argument that we've raised in that second issue the request for a new trial in the second issue is based on the argument that the trial judge here violated my client's right to present a defense which was based almost entirely on his ability to contest the reliability of the video recorded statement that he made to the police which the jury was allowed to see and hear we rely on the holding green versus kentucky in this argument and we after acknowledge that the claim was not presented by either of the two point it turns who represented mr jackson during and after his trial now your honour's are i'm sure all too familiar with arguments being presented by attorneys such as myself and my colleagues in the of how defenders office where we see what looks to be an error on the record but the trial judge was not arrested dressed that and those instances present us with both procedural hurdle as well as the hurdle of persuading unit the error in fact to take place the preliminary consideration under that scenario is to determine whether any error in fact did occur and that makes perfect sense because if the errors is not deemed to have existed it doesn't make any difference if it was a preserved there or was not preserved and that's what i was trying to focus on in the reply brief but saying that the point there was not a assistance in guiding this court to decide whether green vs kentucky was violated or wasn't violated the point at which rule six fifteen eight comes into play is to determine whether or not prejudice has been shown to reach and grant relief on the issue another way i would say it is plain error inquiry would ask how significant was the year once the error has been found to exist and we know that pushed up to the front of a responsive brief as though that replaces the noble review somehow doesn't make a lot of sense because in an undeserved era situation you're automatically the know you're the first court to look argument and the court sustain the state's objection to defense counsel's attempts to poke holes in the in the statement that the defendant made on the video but there still has to be a determination at the beginning is how do you decide mean that is another hindrance because frankly because this is a player case and because of that not being out of record we don't know if the judge or the prosecutor or defense counsel is even aware of green versus kentucky and the and the sort of unique situation where the admissibility of a statement is decided pretrial and not a part of the jury's function but the weight or significance reliability of the statement can still be argued to the jury and and so here we're saying it's a substantial error because of the possibility that the just thought that comments and some of them were repeated and that's what prompted the the prosecutor to interject with an objection but i think he was careful and if i were to guess i would say mr sheets did know of how far he couldn't go because he never used the word voluntary you should find this involuntary so i mean that is a kind of a buzz where the judge decided voluntariness but there's a lot of overlap between reliability or trustworthiness credibility and voluntariness if you automatically are challenging some element of whether the defendant was voluntarily giving himself up on the videotape when you're saying look at the tactics that were used and this really wasn't the defendant wanted to say he just wanted it to be over or whatever you are going that's within the leeway that defense counsels have under green versus in tukey and what what you're suggesting perhaps justice right is a view of that question not a plane or if you have to know the overview if you're talking about whether or not that crossed the line or not the same statute says the circumstances surrounding the making of the confession may be submitted to when i met argument so mr sheets was trying to be walk a fine line never use the word voluntariness only the judge in instructing the jury disregard his last comment you're not to consider whether the statement was voluntary you know mr sheets wasn't in my argument it wasn't questioning whether the judge should have admitted the statement you know and i in my reply brief i think i was or it would have been an impermissible for him are entitled to have a defense and the only defense there was in this case was that the statement wasn't reliable the state was reliable this should never have gone to trial so so everything is cut out from under counsel when the judge thousand jury don't worry about whether that was a voluntary statement that's been taken care of and i want to talk a little bit about the second prong of the playing their role because i i think that there is still room for a substantial constitutional errors to be found under the second prong even if it doesn't impact the structural or there are still in which substantial error is reached under the second prong of rule six fifteen and that this fight them not presenting a structural error and i think the reason for it is that sometimes there are some types of errors that just should not be tolerated a good example is that the marshall case that it's in the reply brief that dealt with the racially charged arguments a prosecutor made that was a structural error in that case but it certainly was an overriding part of that trial and was so substantial that the reviewing court could consider the error this fight happened or for that in order to preserve the integrity of the judicial process in the case here today mr jackson's ability to ask the jury to view the statement he made is unreliable or and significant to the prosecutor's case was the most important aspect of his  and when the trial judge told the jury don't can certainly or solve with whether the phantom freely made that statement or voluntarily made that statement that stop the attorney from urging the jury you could no longer urge the jury to give the statement think is designed to allow because here we don't know again whether the judge even realized that dream versus kentucky gave defense counsel leeway that he was trying to walk the fine line explain why you contemporaneous objection would not be necessary to preserve the issue because of the rule that if the judge is at the heart of the error the defense attorneys should not be put in a position of questioning the judge as you know application of the law i never intended to call it misconduct it was just the fact that the difficult position because he doesn't want to make matters worse i grant you that if the sidebar had talked about green versus kentucky that would have made us a much better record because the jury doesn't need to hear about the you know the intricacies of what causes him to be able to argue or not crossed some line of challenging the judge's pretrial ruling but my my point in trying to get around waiver of forfeiture was that it would be a futile attempt and possibly counterproductive in front of the jury to put that now the fact  there's a chance that nobody knew about the intricacies of grain versus kentucky or the case on and that's why it was waived and that you know that's why we have to kind of figure out a way free incriminating response during the videotape where the detectives are providing misinformation to mr jackson about everybody's told us that you've done  and they already know that this is the person that they did the crime and that they're you know just pushing toward an enemy of their college correct but you're saying it would be sufficient if it was entered into  that they did you know there wasn't a you know a great defense available in this case other than to trying convince the jurors and the jurors  asked to see the last portion of the d v d not sure if that was the fainting part of the part where you mean the admission so it would had some success in getting the jury to focus on whether or not to buy th defendant's you know honest statement to the jury or to the detectives so that you know that's what the defense counsel had to work with them he was  you the other thing i would say is that it hasn't been much of a focus because of the attention on the plane narrow but the air would have to be harmless beyond a reasonable doubt and i think that this  rules the umbrella under which we will analyze this issue first step of that is that that the plane or rules of course to determine if any error was committed at all and people submit that there was no air whatsoever in this case two cases in his briefs both illinois supreme court cases people versus jefferson and people versus people's most cases he cites those for the proposition that even after a judge holds a conversion confession is voluntary the defendant can still argue factors as well as an argument for three pages of transcript he argues the credibility weight reliability and truth of this statement with such comments such as this is something less than a confession he said that  said that officers have agendas to get to get confessions and that this agenda all colors their version of the truth how it's also stated that he went over in depth the conditions of the interview that are video such as that this was at the police station and not the defendant's home for example that it took two hours and twenty minutes total that there was a small room that there were multiple police present that the founder was not allowed to talk to  family as these are conditions going towards the credibility wage truth reliability he argues also he says in his closing that the jury got to see that the police quote worked on quote the defendant the conditions surrounding this confession and argue twice that this was not the product of the free will and one other time that this was not a confession the statement that this confession was not a product of the free will of the defendant and was not a confession those are statements that clearly indicate or that show that counsel is clearly trying to tell this jury that this was not a voluntary confession and i was just just this right you discussed  that this is a question for the judge clearly the people submit that the defense counsel was trying to have the jury consider whether or not this was a voluntary confession talking about free will but what else could that phrase if this is not a product of the free will what else could that mean other than that this was involuntary i believe both the phrase not a product of free will is synonymous with the phrase voluntary clearly where it was going he wasn't arguing credibility your way to liability or truth he did plenty of that he was allowed to do that without objection because that's permitted and the fact is he was clearly going for  this joy while you are i believe there's questions of degrees or not i don't think it is very murky i don't think it's entirely black and white and i argue i could even argue i wasn't the case here but that th prosecutor could have objected to some of those statements as well go home i think he didn't see a lot of the defense counsel some leeway and i think at a certain point when counsel have going on out from well and kept going on about the fact this is not a confession i think at that point prosecutor decided basically enough was enough and this is getting it whatever gray area there is he's he's crossed into a distinct color if you will and this is getting much more towards voluntar people in the quantity that defense counsel presented in this case all the statements and all the talking about the circumstances that you see on the video i think when you have the totality of all of those statements and circumstances i think you get closer and closer  ut it's a murky area i completely agree but i would i would definitely say that that this is the fast counsel in this case just hammering home the not a product of free will statement not a confession i think he was clearly trying to have the