under that standard an error which is clearly evident plain and indisputable so if you would give us a case that you think would accurately describe you know clearly evident some case that you think is i offer words with this one i think that there are a few cases from the illinois supreme courts that have granted a new trial after thirt if you can go to well he said he didn't know the shooter so that's that's correct he didn't specifically say the name was of the shooter but wasn't there testimony though that he made some remarks just before the two young that as part of her drug rehabilitation program she wanted to be accountable to those she had harmed and that's why she was now providing the true testimony so does burroughs would that be the case that you think is most closely resembles a manifestly it wrong to use decision at with regards to nash's testimony yes but he well i'm just saying what case would you suggest most strongly resembles that this trial judge  incorrectly determined the standard in the first instance and he said that the evidence was merely cumulative don't you recall that the trial judge was calling something that was absolutely not cumulative because there the eye witness who was on related to anyone he had no connection to anybody came forward ten years after the fact he was living in wisconsin and he indicated why he was coming forward he wasn't friends with anybody and he actually said who the offender was that it wasn't ortiz that's correct but the trial judge said oh this is just cumulative and it second stage as well will smith is a little different than the witness in our team would you agree a little bit different because like if nothing else the trial judge here specifically said he didn't believe smith did he say that didn't he say that he thought nash and smith were both incredible that is true but he didn't really finish the analysis by looking at whether those ordinary credibility issues would still have made the trial of the appear to be there in a different light and coming to that conclusion it is that a more difficult burden for you when a judge makes the civic credibility finding it can be i suppose it  coleman different in that case yes was that the one where there were four or five vendors who said that the defendant had absolutely nothing to do with the crime that's correct however in that case all of those offenders have ordinary credibility issues like smith for instance say many of them have you know i read other cases can you think of really it's ever been reported where four defendants actually testified any hearing and said this guy had absolutely nothing to do with what we did is there any other case like home and not that i'm aware of your honor and in that case wasn't there a young eyewitness a woman who actually confused the the defendant that she knew testified at the third stage during all of those witnesses but that they were friends with the defendant in this case smith is not friends with volumes he has no motive to help him now well how do we know that well he was what is what was his motive for not ever being involved in the first instance well he has said that he was he did speak to the police but he didn't tell them whether williams was or wasn't should or he was and again and he didn't want to come forward and have any contact with the police or the case so he would let someone sit for how many years are we talking that's true your honor although he didn't necessarily know definitively that williams had actually been convicted he so funny said  is understandable you even eat at the time of night did me also say that the shooter the shooters were about sixteen he did which is close to whites williams age was at the time but then did me also say in his findings we don't we don't review this testimony and say he's telling the truth she's lying you know we decide whether or not the trial court used the appropriate standard of review but we don't make determination think there's a case that says that the appellate court can start taking to dish notice of things outside the record in a post conviction proceeding but there may not be a case and everything well actually the last time i thought we looked we usually rely on information about protective hedo the circumstances surrounding the suppose of confession we're still suspicious as a spark noted in its previous opinion he although detective pedo testified to by john roberts in any way shape or form even discuss didn't weigh that evidence against the evidence that was presented at trial for example the the trial courts didn't realize that there were problems with nash's testimony at trial the state now says that now at the stage sharing was vague and contradictory but his testimony at trial concerning the key issue of identification was also begun contradictory on direct examination nash said he was behind the tavern facing west when he saw the shooters however language when he entered his finding here did he kind of burden of proof did he say that the the the petitioner his language and i disagree with opposing counsel describe exactly the standard that it's supposed to be applied and i it's i page nineteen of this third point one page written decision by the trial court where he says when considering smith's testimony along with the other evidence presented during the trial such as motive identification testimony undisturbed by powells instant testimony and an admission to the police smith's testimony is not conclusive especially given his lack of credibility accordingly this court finds that smith's testimony asserting that the petitioner was not the shooter was not of such a conclusive character that it would probably change the result of a retrial that is exactly the question that this court to the trial court to determine and it's important not to lose sight of that because that was is it really what you would call a strong peaceful state trial is that i certainly don't think that this court ever found that it was not overwhelming evidence as it was characterized by opposing counsel i don't think that's in this court's previous decisions ok i'm not asking what our previous editions were what i'm asking is that this is basically kato as well as assistant state's attorney dorner and they both say that when the n s a came to the area and attempted to interview the defendant the defendant told him that he had already told the detective about his participation in the absolutely could have said i already told the detective what happened but i did i already gave my story i don't know the exact terminology that was used by the defendant i do know the terminology that's what you use to describe right but that stated whatever the defendant said it wasn't zero it wasn't just lips sealed and that's what the defendant testified at trial he did he said i didn't say more fearful review because the warner said that the defendant said i already talked to the detector words to that and i don't want to talk without it isn't that really kind of leaves you interpret it however his terminology was after speaking to the detective several times that's what he said and the defendant's testimony at trial is something completely different which is the lie by everything and it also changes in the post conviction this case is absolutely defined by credibility determination that's what the remaining in this case was all about is assessing the credibility of smith ortiz had no credibility determinations as you're under very accurately described the militant to everything that the trial judge already heard that there was no decision about credibility in this case judge i don't have one of our office i don't have boroughs in front of me i look i do want to point out that this is a twenty one page decision that carefully goes through the evidence and applies it so while opposing counsel is presenting alternative interpretations that could be applied to th role that needs to be that's not the role at this point alternative interpretations of the testimony isn't set doesn't satisfy manifesto or fs terror is only found where the decision is not based on the physical evidence corroborates the financing which selected him physically wasn't no gun was recovered no they don't there was no physical evidence nor tied him to this nor would you expect there to be physical evidence given the circumstances as they played person coming forward saying well he's not the guy although he doesn't say who the guy is but he says this guy is definitely not that and then you have this nash person who's really real names power and now he's so if you're here this all over again is there a chance that this case would be presented in a different light absolutely right if this case would be stronger  it's what i'm saying is this there's a reason why the state was looking for sex and the reason the state was looking for smith is that he had a prior identification of the defendant which would be admissible or substantive out of it under one fifteen twelve that's what happened ten days after the shooting when he said when they finally find smith and and at a retrial unlike the original trial where the state couldn't find smith now a retrial this is a higher identification of the defendant by smith ten days after the shooting this court did find his jailhouse recapped inherently suspect so yes nash was shown an exhibit that he marked in open court at trial under oath that showing detective kato because this is absolutely crucial oh there was never any allegation at any point in this case of coercion or of any kind of involuntary statement there's two versions that the defendant gi about that statement one is the trial version where he says that he would his lips were sealed and he just asked for a boy or over and over again gave no statement then in his in his of the post conviction petition that he writes out he says that the the confession i gave shouldn't have come in because i asked for a lawyer first those are what the defendant is saying nowhere in there is ever there any allegation consistent with the innuendo about detective kato brief and i do renew my request to strike those references to bettors that are outside of this record but there have been cases like this pan sorow warner was just at the area when detective kato his partner were on the street wonder she responds to the defendant when he's knocking on the door she answers it and he says i'm ready to tell the truth any partner come back to the area and it's detective warner who goes with detective kato in and talks to the defendant and that's when the defendant comes off of his second alibi the one where he says he's innocent but the enjoy johnson probably did it he comes off that one and says yeah i was involved with it as well and he gives honestly a detailed it will be oral but it's a detailed confession that is properly by the physical evidence it also fits with i don't have any knowledge of that but i do know is at in this record there is this this confession isn't based on just one witness there's three witnesses that helped establish this oral confession and if it were written confession there would still be arguments about it the fact that it's an oral confession doesn't really eliminate it like the fact that we would have to discuss this and i think it's so i do want to go back door to this for just one minute  because there's an important distinction to be drawn between the actual innocence witness in ortiz mr hernandez who really was the real deal in terms of an actual innocence witness and smith and nash here because what you have had with hernandez is someone who was unknown to the police during the investigation he was never interviewed by the police he ends up being in wisconsin for a decade and happens come home to chicago talk to the defendant's mom and lexie i think he did he went to the mother he said that i was afraid for ten years of gang retaliation and that he felt that he needed to do this because he knew that ortiz was not met him up the street he went down that's what i understood it but it it really i don't know that it is you know it's not the same case but i think i think one thing that i do different understand and i remember the who the project was and he the decision in a different light and whether when the judge made his decision whether the manifest and manifest error like i said is where it's not based on the evidence it's arbitrary and reasonable and here you have a trial court that has multiple clear reasons why that this case why the defendant why it smith testified incredibly described in accurate explanations of the defendant's appearance which differed from the shooter constantly changing his timeline of events inconsistent accounts of his initial interview inability to give a logical explanation for his past actions and if i may and with bad your honour's i do want to you may i do want to emphasize this because it is our special consideration and that's  according to some that right he says that he had two conversations with the investigators one he changes the timeline so but he's referring to one that does happen ten days after the shooting and another one that happens before the trial and in both of those according to smith the detectives showed a picture just met of the defendant and said is he one of the shooters and and smith never said  you have to ask yourself why why did he say not you got the wrong guy it doesn't make sense especially because smith is now claiming that he had a cordial relationship with the defendant they never had any issues he knew the defendant from the defendant's dad's candy store why would got a innocent man out to dry for murder it makes no sense and what makes even less sense is the reason he attempts to give when he's put when that question is put to it to him when he's asked why didn't you just say you  because my reputation in the neighborhood i'm from i would have handled it myself than all nations who put it down or even somebody i don't think would hurt anybody in any way if he said exactly i didn't do it i don't think anybody a neighbor bets on it is going to criticize him for saying he didn't do it any other pm there's a lot of pressure when witnesses do identify someone because then they're considered snitch sure they're considered you know if you're or they're but saying if that explanation applies to a completely different scenario that explanation of the should have allowed him to say go because if he's going to handle himself on the street then even if the defendant was the shooter smith should have inconsistent assertions of illogical explanations unquote that's what smith's testimony was the burden is on the defendant to show manifest error the defendant did not meet that burden you cannot meet that burden to him so we asked th allowed to so kato was allowed to testify up that he doesn't spoke to smith and then he was looking for williams afterwards but we don't know specifically what was said the police didn't memorialize any of the statements if you gave one even if he was the first person to somehow discuss williams with the police didn't necessarily know that in fact this is there something you know really basically illogical unbelievable and incredible for a person to say he's not one and say it fifteen years after the fact why wouldn't he tell the police immediately that you've got the wrong isn't there something basically incredible faulty flawed about a human being letting someone sit in jail for ten years and then say you've got the wrong guy it does pose a little bit of a credibility problem but i don't think it means that there should be a new trial granted the instant case  found that he was incredible in a number of ways and is there anything manifestly it really is about saying why would somebody let someone else an innocent person si when they come in and say you've got the wrong man you've got the wrong shooter if you wanted to is that is anybody going to be considered a schnarch under those circumstances it's probably less likely did you be a snitch if you're saying that person didn't do it a snitch is when you tell once somebody that when you say you've got the wrong person you're charging the wrong man you've got an innocent person here who is going to criticize someone for doing this for being forthcoming and saying don't charge the wrong person maybe switches didn't want to talk to the police at all maybe he