good morning ladies and gentlemen our first case for this morning is riley against callaway to even cite a rule from ask is straightforward the state may not relive a gate an issue that has necessarily been resolved by one trier of fact in front of another trier of fact and hope for a different result that's exactly what happened here the state presented three eye witnesses to a jury in an attempt to prove that spencer riley was the person who personally just charged the gun that caused death for the jury received an identification instruction and both parties argued that the only issue was the credibility of the eyewitness identification testimony so this is one of those situations though where it depends what sound because if the jury had answered special into rock atory to the effect that he never even possessed the gun then logically he couldn't discharged it either but what the jury finds instead is that during the commission of offense he discharges it but it's possible to possess without it you know even if it's possible that you might or might not have discharged it and you possess it all  so at this point it's the possession of matters where your honor the only question for the for the jury was whether riley was the person that possessed and discharged the gun well they say discharge that the question is i remember says discharge the special verdict was about discharge but the subsequent prosecution of the individual criminal trial was not about possession of some gun it was about possession of the same gun used by the murder at the time of the shooting no i understand that but what i'm saying is i the prosecution they did the jury says has not proven not proven the during the commission of the offense he personally discharged the firearm if that same jury had been asked but was he nevertheless holding a firearm it might consistently have said yes because you can hold a firearm that you don't discharge well your honor i would argue that analysis is not consistent with as advise us to look at the evidence in a practical framework to determine what the jury rationally decided what we know you're just as an ass is that there was no issue of intent or whether there was a murder so we know whoever possessed that and shot him well i mean the the district judge here sees a couple of possibilities where the two are consistent and certainly for collateral stoppel it really does have to be the identical issue yes and i'm and i'm going to comment just parent thetic lee it really doesn't matter whether the state court cited ash or not i mean we are obviously not grading their opinions right it does issue an issue here is the identification of the person who approached the decision and shot him and shot him and so you know again if if it's possible to love to possess maybe there was another gun or maybe somebody else shot there there are just other possibilities out there well your honor the trial judge at the armed ritual criminal trial could not have found that spencer i was the person that possessed that gun based on the evidence medic weapon allen pulled out a semiotic weapon and testified he pulled out semiotic weapon and shot hudson so the issue of whether he was the shooter was exactly what was being litigated again at the arms of ritual criminal trial and the fact that the appellate court insight ash i understand are not being graded but it does i think evidence say that they don't pay a whole lot of a attention necessarily to the controlling supreme court case that dictates the type of analysis that they're supposed to apply well ok i'm just looking at the district court's opinion nineteen twenty and that's where she's really coming to the ultimate conclusion that the necessarily decided facts are that hudson's murdered and riley didn't did not do it and then she notes that defense counsel itself offers other reasons for reasonable doubt no physical evidence more  it only helps my argument because it means they rejected the identification testimony with the in ask the court found basically the same thing that there was not there was a robbery and that the defendant was not the person involved and that was enough to preclude retrying issued his identity as a robber was the same he doesn't actually think that it was established in the first case he's not even there he's not the robber and so the person number one person number two person over three and so forth you can't just keep retrying the same thing when the fundamental issues been decided that that's what i'm trying having trouble seeing other than the two issues the district court identifies well the fundamental issue here is the identity of this person the identity of the only  time for rebuttal certainly that's fine thank you and ultimate issue in the second trial and ultimate issue is an issue or a fact that must be found to beyond a reasonable doubt the second trial and the only fact that had to be found beyond a reasonable doubt at the second trial was whether he not whether he discharged it not whether his discharge actually killed the victim are you sure that's the illinois law of issue preclusion though the supreme court has frowned on the distinction between subsidiary facts and ultimate facts they say facts are facts and it's a particular fact if you know for example from a special interactive jury answered by a jury that in fact it's been found the modern laws issue preclusion suggests that you regard that as resolved between the parties correct your honor it doesn't have to be an ultimate fact in the first trial it does have to be an ultimate fact second trial also because otherwise because as petitioners are going you know we he wants to preclude the fact that petitioner was the murderer and that is not the issue in the second trial it did reason the state presented the evidence in the second trial of what position or did with the gun is because it would have been bizarre for the state to present you know these witnesses to come up and say i saw the i saw optician or he had a gun the end of their record trial is all about that aren't career correct right yes but they were there there is some context needed and that the state another gun it's not that he didn't discharge the weapon it's that he didn't just charge the weapon in the commission of a murder and as you know defense attorneys was murdered so some guy was the guy was murdered and someone did it but defense counsel's first point in closing it was there might have been two guns on the scene he cited the police officers testimony for that and not just the police officers testimony but we have the physical evidence so we know that you know the one of them has an aluminum jacket is that right correct and and if you look at the physical evidence combined with allen's strand stripe statements so allen says the first shot the victim is turning around to the shooter was behind him the victim was turning around and shot  allen thought he got shot in the face and there's only one bullet found anywhere near the face and that is the aluminum jacket bullet that initial there which was not a fatal shot head and brown didn't head so one shot brown saw zero shots they both ran alan said he saw that shot and then he turned to run and he actually sought to shoot two more times but not at the victim he said the shots went past my face so he was still shooting up and then he ran no one  petitioner or anyone else fire any more shots at the victim and the so then the victim went to face first onto the ground and the remaining below the copper jacket bullets were all found rear entry through the  those were the fatal shots so we have no evidence that some mysterious person came up after everything all these other people run away to different defense counsel did not present any any alternative suspect except for potentially head but we know this was  state the state had no interest in presenting these alternate experts because her potential shooters because the state was trying to prove him guilty of murder and so the state's argument at trial that the first trial certainly was he was the only shooter and defense counsel argument is you can't be sure of that because of this physical evidence and defense counsel been argued but the jury certainly rationally could have concluded based on the eyewitness testimony that everybody only saw one shot at the victim leads to the arm career criminal that is one possibility that the jury could have acquitted on that would have led to reasonable doubt in the first trial without finding that he didn't have a gun the district courts notes and more so the state appellate court notes a few more that overlap with the district courts and you know just the possibility of two guns is enough for the jury to find reasonable doubt and there certainly was evidence that there was enough for the jury to have reasonable doubt about the possibility of two and so yes so that's that's the only fact that the second jury had to find and the first jury didn't find the contrary and therefore collateral estoppel was not the district judge says to determine whether the defendant possess that person it would have been irrational for the jury to acquit based on intent another issue intent or a lack of a corpus leckie we know that the only issue it was identity was spencer riley this person that possessed and shot the gun the jury said no arm to chill criminal judge disagreed and said yes even made a comment saying that he thought spencer discharged the gun that night