evidence of actual innocence has to leave underlies many procedures hard courts follow and still in washington this court recognize that innocence goes beyond proper procedure and has also  today the state tells the court that our only courts are not allowed to consider newly discovered evidence of innocence mr reed's contention is that's not so no matter how it happens the conviction of an innocent person is the equivalent of a stress test on a criminal justice system appellate court seem to doubt that this happens especially to defendants who enter valid guilty pleas this idea that innocent people never plead guilty it has a rhetorical peel only because it overlooks the complexity of the criminal code because it overlooks pressures that most importantly though evidence of actual innocence mean i develop until after conviction sometimes years after it's that stubborn fact that all but ensures that an innocent person may plead guilty because of the perceived strength of the state's case at the time in the end of his brief the center on wrongful convictions makes these points powerful and highlights the case that it's more five in a nutshell that case demonstrates how even innocent people can refuse to roll dice a trial agree to testify against innocent defendants and do that to one of the charges for the minimum sentence and then the other side there is the dismissal of all of these charges we look usually at that kind of thing is it enforcing the benefit of the park and what the state agreed to dismiss all these cases and yet now limit when we're talking about innocence analysis of washington's here inside future sentence is not what the parties agreed to that this court is going to told trial courts that when you're sentencing an individual you get to know something of their life and is perhaps the case that someone who  is extraordinary difficult to meet whether in the police context of the trial context what the circuit court does is they look at these new allegations and they measured against what they know from the record you no you are i think that year by year brick by brick this court has built an incredible structure for analyzing actual innocence cases starting with washington leading to edwards this year robinson sanders and that started evidence is what triggers substantive due process protections so this is certainly not the case that anybody can just change your mind and for reasons we discussed earlier it's certainly the case that if somebody it please the court counsel i'm assistant attorney general on behalf of the people of the state of illinois i'd like to step back a bit and talk a little bit about the policies behind guilty pleas in the plea negotiation process  i think it's and crystallized in my opponent's argument that the remedy that he's asking for would threaten to seriously undermine the incentives that are in place it's sort of motivate the state to enter into pl generally a guilty plea is attractive to the state because it comes with a high degree of certainty and analyse doctrinally the defendant waives almost all of his constitutional rights and then his later ability to claim error in the proceedings below he's obviously giving up his right to hold the state to its burden of proof he's giving up his ability to cross examine the state witnesses and call witnesses in his defense and that sort of efficiency also motivates the state to offer incentives here in exchange for sacrificing all these rights a defendant typically receives a benefit in return in this case for example the state dropped all but one charge and then it offered the minimum sentence on the armed violence charge to achieve pleaded guilty as a result of this process both sides benefit and the remedy that defendant seems to be seeking now would it really allow him to obtain all the benefits of the guilty plea process while holding the state sensually to if part of the bargain but yet to come forward later with his new evidence of innocence and then apparently the requested remedy here is to not permit the state even to go back to the status quo ante he's not asking even at this point to just withdraw his plea and proceed to a trial he he appears to claim that the state will be bound by its decision to dismiss the remaining charges here and will only be permitted to proceed on the armed violence charge to which he pleaded guilty this state will be in addition in an even worse position than it was in the beginning because its evidence at this point has grown has grown stale on the memory of the officer who did the arrest and found the contraband that underlay the charges that has that the memory of those events has receded by this point and the defendant will unfortunately a key he won't get that the purpose of washington is not complete exonerat not to allow him to avoid prosecution washington is intended to do the process over again to allow him to invalidate the convictions that have been entered and then to go back to a trial  he's seeking as sort of drastic extension of washington here by asking not only that his conviction be vacated but that the state be held to its its benefits side of file a post conviction petition under the act it is constitutional violations that occur in the proceedings that lead to the conviction or the sentence so traditionally a guilty plea petitioner may claim that his guilty was invalid because it was involuntary or call worst or it was the result of ineffective assistance of plea counsel so certainly those remedies have always been available to petitioner to plead guilty and just to know below there was a claim that both types of claims actually that his guilty plea was involuntary and that plea counsel was ineffective those were then paired with the claim also pursue a claim of innocence that was how he got to the rd stage and it was only an appeal when he had completely abandoned all of the other claims and only proceeded on innocence it was at that point that the th district said it because you haven't also challenged your plea your claim of innocence is not cognize civil so there certainly are situations where a claim of innocence can be raised as long as it's paired with this sort of a challenge to the that is true so the post conviction testing act itself doesn't provide a remedy and i think this court has recognized that the post makes a hearing act and the post commission testing are sort of separate  procedures so there are actually individuals who cannot file a post conviction petition but can nevertheless seek post conviction testing so defendants who have served their sentences can't exonerate on the basis of this evidence but historically there are examples in the amicus brief the dictionary five in particular where individuals who cannot file a post conviction but have the evidence of innocence they have received a remedy from the state's attorney who then agrees based on that evidence to go back and vacate the convictions so it does illustrate that these are sort of parallel procedures and one hundred and sixteen dollars dash three is be allowed to file a post conviction petition it's not really presented on these facts here and certainly that's an issue that the court could leave for another day as to whether those who have obtained that evidence should be permitted to issue and the types of evidence that can be sought are very limited so primarily the forensic d n a evidence or ballistics testing or fingerprint testing so this statu is intended to create a very reliable form of evidence of innocence and this court could if it were to leave this option open potentially allow those who have actual reliable evidence of innocence similar to the federal innocence standard to allow those individuals to potentially seek a post conviction remedy this case falls in the much broader category of unreliable evidence  the his gun that was actually my cocaine and not his cocaine that circuit court recognize that this is a very unreliable type of evidence generally is certainly suspect under the circumstances here it was highly suspect because it was the result of their being in prison together the defendants had spoken and that was the reason that the affidavit was generated these are questions that the court and i  wondered just briefly to discuss the reasoning behind rejecting the claim of the rd stage hearing on this court has traditionally said that those types of reliability and credibility issues are for the rd stage here that did allow him to call his codefendant to provide live testimony the circuit court them properly made a credibility determination based on its observation of his demeanor and then also these factors that severely under ut their reliability the length of time and the lack of any restriction he had already pleaded guilty face no real consequences the prison setting in which this was developed the court then relied on those to reject is incredible the testimony at the rd stage hearing i would disagree that any of those were improper considerations at the rd stage this court has said that they should be evaluated at the rd stage hearing so here we actually have a keys where he he did receive as much as he could under the post conviction hearing act he got the rd stage hearing that he requested he was allowed to call his witness and then just failed to put on a convincing case and i did want to briefly discuss in terms of how this would work in practice the washington test and the way that it is stated doesn't automatically seem to encompass the possibility of a guilty plea petitioner it speaks in terms of the trial evidence and a comparison of new evidence to what was presented at trial it doesn't easily extend to the guilty plea context which is one of the reasons that the th district found that washington could not be applied to guilty plea petitioners if the court were to build in washington however and apply this to those who have pleaded guilty it should consider as this court noted in my point as argument that there is really a very spare record and the reason for that is the defendant has induced that sort of a spear record through his willingness to plead guilty so here it's a matter of maybe three or four sentences in the record that's a state's factual basis and the court should if it does extend washington really put a more onerous standard these petitioners to come forward with the right type of evidence and to account for the fact that he has induced the development of a very skeletal record of the state's case and even the st district in shock which reached a contrary conclusion that these guilty plea petitioners can raise these claims really emphasize the importance of doing this if this court were to extend washington to guilty pleas petitioners assert is a requirement that the evidence be of a reliable type so this comes back a little bit to that one hundred and sixteen dash three point which is if you actually have forensic evidence that can show beyond any doubt for example if it's a sexual assault that you were not the person that committed the assault that might be the type of evidence that could qualify under an appropriate standard shot itself talked about increasing the sort of standard of proof to a clear and convincing standard that's another option that other states have adopted but certainly washington doesn't apply cleanly here as the appellate court i think called it you know inserting a round peg into a square hole it requires some modification and if the court were to modify it the remedy if the defendant's proffered remedy or argument today should not be what he receive as a remedy if this court were to extend washington it should be the case it should be more akin to the withdrawal of a guilty plea and it should permit both parties to return to the status quo ante the state should at that point be allowed to reinstate all these charges that are dismissed pursuant to the plea negotiation and to proceed to trial and all of those charges that would be consistent with washington would allow for the you know the vacate or of the convictions and to contemplate a new trial but it also is where fairly account for the types of issues that are arising in the guilty plea context where we no longer have the bargain and really neither side should get the benefit of that bargain they should be returned to the equivalent of the withdrawal of the guilty plea and further proceedings at that point we've seen different standards from different stricter streamers different states  relied on i mean we discussed the reliability component itself these they've addressed more the standard of proof so that should come along with it i believe that so for example here in illinois we have a preponderance standard for prevailing on any sort of a post conviction claim one option out there is to impose a more onerous clear and convincing burden and a petitioner trying to obtain relief and an innocence claim the reliability component comes more from the federal standard which this court has now adopted wholesale and illinois law but it does account it would permit those who have truly compelling evidence innocence and who have pleaded guilty to nevertheless pursue a claim of innocence but it would also align war with the potential legislative intent under the postcondition d n a testing act two to the extent we intend to allow the guilty plea petitioners to claim innocence it should only be those who have truly compelling evidence that type of forensic scientific evidence and that issue is not fully presented here because we we don't have any sort of reliable evidence at all so this case might not create an opportunity to really get into the nuances of what that standard would be but he should be excluded on these facts from raising the claim of innocence because he doesn't meet that threshold reliability or apartment that the federal courts i believe it was show up sort of articulated this we really require there to be compelling forensic proof or for example you know a number of eyewitnesses who were not known before trial something that is you know verifiable and truly compelling for him to get in the door and this this petitioner claim to those situations if it were to import sort of some of the federal standard into its innocence standard not for cases generally and we're not seeking in any way to modify the washington standard generally as applied those who have proceeded to trial but only if this court were to adopt an expansion of washington to the police context that would be an appropriate way to of respect the reasons behind our guilty plea negotiations and it sort of protect the integrity of that process by saying you can only come back to court with your new evidence if it's truly compelling and it is for all the reasons we've set forth in the  brief general principles of waiver should govern here but to the extent we are discussing sort of how this would apply in practice if the court were to you know adopt an exception for these types of claims it should it in and i don't we certainly don't disagree with the premise that there are good reasons for washington and you know petitioner has proof of innocence should not be incarcerated and there's really no interest in that  there are however principles of waiver that underlie guilty pleas in general that would be should operate in this context to waive a claim of innocence in the postcondition context the sensually if a defendant has waived his right to a trial and hold the stage with the burden of proof he the century given up his right to dent claim innocence based on additional evidence that developed after trial but yes if the court were to find an exception to the waiver principle here and were to extend washington to this context the fairest result in the case of a negotiated plea is is basically the withdrawal of the plea and the reinstatement of the dismissed charges and the right of both sides to then proceed to trial on all charges for an evaluation of evidence so only because a defendant is in this context might have a meritorious washington claim does not necessarily mean that that he is innocent and that i think just as farmer you sort of touched on what i think is like the core issue experience which is that the state doesn't have an interesting punishing innocent people under washington what we say is that newly discovered evidence of and then finally i say i say this does feel like a new context but the core issue is innocence and i think we can get kind of turned around so you have these ideas of contracts and bargains and that sort of thing but everything the state just said to this court about what type of evidence could possibly satisfy washington the state said the threshold issue is a liability that is the rd stage are everything the state has said about how to analyze