r your honour's then alexander for douglas tate may have pleased the court consul your honour's douglas status innocent of the crime that he was convicted of we have to ask ourselves when this  happens what went wrong something went wrong unless we think of the criminal justice system as a complete crapshoot when an innocent person is convicted something went wrong and if we look at our experience if this court looks at its experience it's usually a combination of things that go wrong there could be a suggestive id's procedures that the police involved there could be a brady violation and there could be a coerced confession but if you think about it your honour's there almost it's almost always as it is combined with bad lawyer aim maybe not always but often it is combined with bad luring loitering because what we've learned is that a good lawyer  investigation and they have to do good cross examination that's how the criminal justice system works when it works right in this case sadly for douglas tate and his family it did not work and your honors because there's usually a combination of things that go wrong combined with bad murdering that's why this court's decision and how badly should be overturned and i'm talking of course about the free standing rule that if you bring a free standing claim of innocence you can't bring it with another claim you can't use the same affidavit to support another constitutional claim and that makes no sense here that's why we're asking the court to overturn it  there was a brady violation and that's what caused this conviction but the lawyer didn't investigate it didn't bring it out the same affidavit showing the brady violation could also be used to show that the lawyer failed in his job didn't do his job properly so one of the things we're asking the court to do is to overturn this and reach back to washington to the washington decision that said it's unconstitutional under illinois it's a due process violation or the illinois constitution to have an innocent person convicted of a crime there's nothing wrong and it says it has to be freestanding that was picked up hobley and it's been picked up in a couple of other decisions and i'm suggesting to the court that there is no logical or constitutional basis for that distinction and that this is an opportunity to change that and as i as i've talked about in the briefs your honour's it looks like the appellate courts are already doing just that and you see courts trying to reach around better how believable saying that well we'll send the case back and just the actual innocence but everything goes back because it's a post conviction petition so everything goes back to the lower court so now there's an opportunity for the court to clarify this to get rid of this rule that makes it can make it very difficult or impossible for people who are wrongly convicted to challenge their convictions i think the case would go back on all the bases under the law your honor so i'm not sure the quote would get to that but it's going to keep coming up and i would suggest that this would be a good opportunity to clarify the law  on the issue because the court kind of addressed a tangential rule and put somebody are saying that the real significance of a freestanding claim of actual innocence is that you don't need to pass the cause and story raises there is repeatedly that this was a strategic choice you know it's the old common way to defeat it ineffectiveness claim well it was all trial strategy but the case law is very very consistent that if the if the lawyer does not investigate that strategy does not apply the strategy rationale does not apply and here there was no investigation whatsoever even though you know whereabouts were known so it wasn't enough for the correct you i believe you did that this was and i with this was in the police reports this person was on the scene and his whereabouts were known and i believe he did have a duty to investigate i mean this is a situation where the defen attorney put on no witnesses there was almost no defense i mean you still feel like you did to most of the things that the prosecution needed to prove and there was no defense put on whatsoever and there was no investigation well what about the because of the case that we don't know for sure if brown would've come clean with his witness account of the sunday and we didn't know that until we got an affidavit from him which was after the fact after the direct appeal and the direct appeal obviously the affidavit was not a part of the record so when i did the direct appeal i couldn't use in the affidavit i didn't have the affidavit so there was no way that i could have raised this eyewitness account of the murder and i would just like to touch on one thing your honor the state is what the states asking the court to do here is simply because mr tate has an attorney at the first stage of post condition proceedings they're asking this court to abrogate the statute and post conviction and sensually squash it down into a two stage process if a client is represented by counsel saying that we have to basically put everything on the table everything will be construed against us and we have to have every single basis of every single constitutional argument laid out at the first stage of the post conviction proceedings and there's no basis for the court to do that number one the case  you use the redbook or whatever to say to cases that has nothing to do with the subpoena it's a total red herring because we did cite the legal authority so all we're asking the court to do is follow its precedent and factual allegations are meet that test under this court's ruling and how just if they're not fantastic or delusional i don't know how the state can argue that our factual claims here are fantastic or delusional  be a defense and the first stage of post conviction proceedings a court has decided that and we're not arguing that at this at this point you are but here we have a case where under the case  completely contradicted by the record and here clearly we don't have a story that's completely contradicted by the record we've got new eyewitnesses to this killing that say our client didn't do it  because in order to use you have basically the same situation where you have a new eyewitness a new affidavit that contradicts the state eyewitness and this court said you know that right there meets the prejudice challenge of struggle even if you don't believe it it could be doubtful it could be you know witness that you don't think will will abrogate the state's witnesses but it's not delusional it's not completely contradicted by the record and that's all we are and that's where we are at this first stage of post conviction proceedings that's all we have to show and the state raises the specter of that you know the court should collapse the post conviction process and into centrally two stages if it turns are involved to avoid this ghost writing by attorneys but that would only encourage ghostwriting because you know even though doug tell you it's petition was attorney prepared it's still very important to be able to amend at the first affidavits as we move into the second stage and that's very important and under the state's plan by collapsing that into two stages attorneys would lose that attorney clients represented by attorneys would lose that ability and that's only going to encourage this goes friday because i mean essentially clients represented by attorneys have a big strike against them they've got to get everything laid out every all their ducks in a row at the very first stage and everything has to be perfect at the first stage so i'll just sum up see if the court has a more questions  precedent lays out so i would ask the court to reverse some of this back to the trial court for further post conviction proceedings there's no further questions thank you properly affirmed the dismissal of defendant's attorney prepared petition this issue requires two considerations first whether the liberal construction rule applies to attorney prepare petitions and second whether a defendant can use the same evidence to support a freestanding claim of actual innocence as well as a claim of a constitutional violation a trial it is the people's position that the appellate court properly upon the dismissal of defend its petition the little construction rule doesn't apply to attorney prepare petitions and a defendant cannot use the same evidence to support a freestanding claim of actual innocence any claim of a constitutional violation starting with the liberal construction rule this rule develops because courts realize that pro se litigants were usually unskilled and untrained in the law because of bad and because of the court's desire to ensure that these proceed litigants had a fair and meaningful access to the courts the courts look at pro se pleadings with the lenient i and again it's to ensure that these litigants don't lose or forfeit potentially legitimate claims because they are not familiar with the technicalities of pleading and the requirements to actually state that clay those concerns are present when we have an attorney preparing the petition a defendant represented by the attorney has the skill and the training through that a separate standard we're simply arguing that attorney prepare petition should not be given the benefit of that liberal construction rule which is specifically designed for pro se litigants contrary to counsel's argument this doesn't require a cult collapsing in the first and second stage you still have to meet that first a standard of whether this is frivolous and patent without merit whether you're stating an article basis and line fact you can you do that and get to took four months investigating and drafting a very extensive pleading in that pleading in the post trial motion to raise numerous claims including claims of ineffective assistance of counsel based on a witness that was included in one of the police where the people suggested back she couldn't do that and counsel vigorously are you that she was bringing issues to the court's attention that were brought up at the time of trial and she attached these reports that include all these witnesses to her post trauma motion which became a part of the record on direct appeal all of these witnesses could have been race these facts are substantially similar to the case of people be stored where the defendant hired a new attorney to represent him o these witnesses were listed in the police report right but there was nothing in the police report that would indicate that those particular witnesses had favorable testimony to offer on behalf of the defendant right in fact that's it let me just finish that's the other side to your argument your your argument is well there was nothing there was no duty on the part of the trial counsel to investigate any of those witnesses because there wasn't any favorable testimony listed so he made a strategic she i guess made a strategic decision not to move forward and interview some of these witnesses but now you're using that same fact to say that it should have been raised at the post trial stage that somehow this should have been raised by the by the attorney saying there was ineffective assistance of counsel because indeed they didn't look at this new attorney who spent again four months investigating now the source of this alibi is the defendant he if he actually had an alibi he would have told this post trial counsel who was raising these various issues of ineffective assistance of counsel to raise a claim that my counsel wasn't a factor for not presenting this alibi testimony again petitioner was the friend it was a source of this information and if we notice there is no claim that his  facts and say if this he was the source of this information if counsel spent four months investigating drafting and preparing this petition including kinds of ineffective assistance of counsel based on the failure to kal witness that was listed in the police report police reports that she attached to her motion that listed all of these witnesses at some point especially defendant a girlfriend who he claims is an alibi you would think that at some point the person who have this alibi information in his possession which is a defendant would have told counsel i have an alibi he or she is she's in the police report it's my girlfriend my child counsel should have called her and no point however did that come into the motion and because defendant was the source of that that information along with those police reports he had asked her for that back that claim under these facts again we have to if you look at people the stuart we have substantially the same facts where this court sad because you didn't raise this in a post trial motion at your earliest opportunity it's now perfect for post conviction review like this kind of ineffective assistance of counsel which again we maintain was forfeit if you look at petitioners claim actual innocence that claim also has no merit before we get into the actual merits of that claim however we need to look at the claim  using the same evidence to support both a freestanding claim of actual innocence and a claim of a constitutional violation defendant argues that and i apologize i'm using the f argues that freestanding has no meaning it's irrelevant now that it's contrary to this court's decision and people the washington if we look at that case there was a very specific and logical reason why this court held that little boy can recognize under its constitution a free standing claim of actual innocence a free standing claim of actual innocence is based on the definition of actual innocence we're not talking about legal innocence we're talking about you are completely exonerated or vindicated and in washington we had a defendant who had no other constitutional claim to race and this court recognized that in that situation it would be unconscionable to have and innocent person sitting in prison simply because he didn't have a constitutional claim so this court recognized that you can bring a claim of actual innocence under the post conviction  even though the court recognized that there were very specific limitations placed on that because this court realized that the trials phase the phase when guilt or innocence should be determined we're not trying to retry the defendant at every stage of the appellate process so this court set out that you work claim of actual innocence has to be based on newly discovered evidence that is material and not cumulative and of a such a conclusive nature that it would probably change the result on retrial if we go to people be hopefully where this court there was a brady a constitutional claim and a a claim of actual innocence this logical reason for that and this case demonstrates that reason in this case he's arguing that his attorney was in effect for not calling these witnesses he's also argued that he's actually innocent based on these these witnesses a move discovered evidence the evidence is newly discovered which means it wasn't available at trial or it could have been found with due diligence if you're arguing that this is newly discovered evidence then you would basically have to disprove your ineffective assistance of counsel claim because if the evidence wasn't available to you and it could have been found with diligence and how can your attorney be ineffective for calling unavailable at unavailable witnesses and contrary if your attorney was  newly discovered evidence so this is one of the reasons you can't use the same evidence to support two different claims at least two basically leaves the defendant in a position of disproving one of his own claims again if you look at the merits of  actual innocence claim and i just went through those evidence is not new to discover they were all known to the defendant at the time of the trial or they could have been found with due diligence more importantly these at these witnesses are not counsels state at that these affidavits contradict the witnesses well contradicting the witness isn't enough at this stage we in this case we have more positive coroner's report where the nature of the injuries is consistent with what they saw the trial court heard all of this evidence and if you look at this evidence in light of what he has as what he claims is newly discovered evidence you see that this evidence is not conclusive it's not completely exonerated it's specifically if you look at wilson's affidavit which no way i your honour's up will start at the end of the physical evidence in this case which the trial court said was of the utmost importance the physical evidence corroborating that screws me corroborated in this case is that somebody shot maurice wesley that's all that corroborates it does not shed any light whatsoever on who pulled the trigger the only the only evidence against her for there was no physical evidence whatsoever connecting defendant to this crime the only evidence was these four felons some of whom didn't even make a statement for the following year after the slaying were trying to get their cases reduced one of the witnesses was talked to god he says and had a revelation also wanted to work off one of his drug cases this is terrible but it's very unreliable evidence there is no physical evidence connecting tate to this enough at this stage we have an eyewitness or brown who says he saw the shooter he was five feet from the shooter he knows douglas tate and it wasn't douglas today if that doesn't contradict these for felons i don't know what does and if you look at o z that's that's more than meets our burden and the state says that's not enough at this stage we're at the first stage of a post conviction petition and what stage would it be enough probably never for the state the affidavits and i just want to point out i forgot to mention in my opening statement that under how jews at this point only need to show that our claims are subject to independent corroboration that's the purpose of the affidavits at this point not to post them you know when somebody says i was at my girlfriend's house that means you were her house but she wasn't there i mean you know very low those are not proper things to analyze at the first stage of post conviction proceedings the state says the only rationale the only logical rationale of the state office for the for the free standing requirement on the actual since clinton is essentially but you can't do alternative pleading illinois so what they're saying that ok i admit that and that from the ineffectiveness claim we have to show that some of the evidence could have been discovered should have been discovered by the attorney but by the trial attorney and under the actual innocence we have to show that some of it could not have been discover and i think we to certainly i wouldn't really have that you're honest the alibi witnesses i think the state is correct that the trial counsel should've should've known about the alibi witnesses for sure which goes to the ineffectiveness post conviction motion if the court finds that you know one of the witnesses the attorney should have found one he could in the final size a reasonable diligence then both claim survive at this point we've made the basis but that's not a logical reason to say that nobody in the state of illinois can raise actual innocence unless it's freestanding the state says it's unconscionable to have the innocent person convicted if you has no other constitutional claims have to do with it if you look at the washington decision it says it's a due process violation of the illinois constitution to have an innocent person convicted and imprisoned it doesn't say if he doesn't have another constitutional claims that's not logical and makes no sense now the court says going back to the waiver argument first of all stuart the state relies heavily on stewart and has a very specific procedure as record knows if you want to withdraw a guilty plea anything not on the record has to be put on the record or it's a different way that was the that was the rationale of store completely different situation it's a very specific rule that says you have to put extra record stuff on the evidence when you withdraw the plea or you waive it has nothing to do with this case don't address the fact that they themselves weighed this argument it's not until there was sponsor brief to this court that the state ever raised the issue of waiver based on post trauma motion all the briefing in the direct appeal in the trial court there  was never raised the issue that we weighed anything by not putting in a post from motion so they themselves have waived the waiver issue and it doesn't matter whether they were because it's based on affidavits which are outside the record mean that right there kind of says we place an hour you will claim it's not fanciful it's not completely contradicted by the record it's not delusional so your honors i think the court looks at the briefs and looks at the facts of this case to be clear that we more than met the standard for the first stage of pleading post conviction pleading in the trial court  conviction proceedings if there's no further questions thank you can make your case number one one two two one four people versus take taken under the visors agenda number three the supreme court stands in recess