the attorneys please step up to the post i want you to state your name tell the court who you represent and approximately how long your argument will take good morning counsel the morning of the defender levi he your your honors we raise one issue in three subparts in our brief or briefs and so on with course permission i'd like to address all three of those in the time that i have my client michael barnes is serving a sentence for a major battery of a child in july two thousand and nine that child katie we call him lived in a basement with his mom felice toni his baby sister mr barnes who was no relation to any of them at home with fourteen other people they had no working shower they had no baby crib they had no real permanent beds no refrigerator no stove they had a separate area for the pit bulls and they had the sink in which they took sponge baths which also reached one hundred twenty six degrees when you turned on the hot water and on july twentieth two thousand and nine is my client was babysitting katie in that sort of squalid condition katie was scrawled during a bath by water from that sink and nobody disputed the trial or here that the child sustained these injuries nobody disputed that my client caused the injuries the only issue at trial was whether the injuries were accidental whether they were intentional and knowing as the aggravated battery stanch it requires but the outcome of the trial that mr barnes head on that issue was unworthy of confidence for three reasons first he was denied his confrontation right to question miss tony the mother about her children being taken away by  and about the fact that she was still under sentence for a conviction that she had recently before the trial second he was denied his fair trial right when the correct let the state introduce evidence that katie the child also suffered a liver contusion and third he was denied his fair trial right when the court decided so well the state to show to the jury katie in a state of personal nakedness as a demonstrative exhibit so we're here asking the court on about a sense that she was still under and about her children being taken away by the c f s the right to cross examination as we know is a primary interest the secured by the confrontation clause witness partiality is always subject to being called on cross examination but the the sentence here talking about arose out of miss tony's prostitution right correct and she her ras were after these injuries out with the state and was motivated to testify the state the way the state wanted her to still that her prostitution problems would go away  stronger up we're not saying that there was any kind of a deal worked out we don't know of any kind of a deal that was worked out so you don't know of any and the state would have been obligated to tell you if there was correct but your honor also in some of the cases i believe that were cited offhand i think it was triplet perhaps but i could be wrong but i said that you know this can be it doesn't have to be proven that the state has concocted this deal but if you could up there and testify will make all the stuff go away whereas relevant is what the witness believes that she stands to gain from getting on the stand from the state so you know it's reasonable to think if you're in this position you're serving community service you're still under sentence you're depending upon the state and on the judge at some future point to say ok you satisfied your sentence you're discharged it's reasonable to think that she's going to get up there and testify exactly as she imagines that the state wants her to in order to help make that go away whether the status promised  occasions without any of us in fact i think several times that week that helps your client right i ate i don't know that it does your honor because if what we're talking about is whether this is an accident or whether it's  intentional i'm not a father yet i'm soon to be an uncle i don't know how often two year old soiled themselves but i can imagine that there would have been fire bans that this man would have given the two year old and so she's up there saying well he now babysat him seven times last week or the week before the incident  he was there assaulted then that would tend to show that this act was somehow different that my client had behaved intentionally knowingly in a way that harm the child second of all she testified didn't know he didn't call her after this happened  which made him what callous or at least indifferent to the child's injuries even the experts said that some of these injuries would have manifested themselves until hours later but she also testified that you know what she came home they got the kid out of his sleeper  em and saw that he had been injured that you know mr barnes was like why i gotta get ready to go to work so this makes him well so i'm just trying to imagine the cross examination she says that the arrests i don't know about the arrest themselves i think we argued about the arrests the arrests may be more of a tangential issue but i think the conviction the fact that she is still under sentence for this thing that she is still beholden to the state is sort of what's in the in the clear of the things that cross examination is always about this tony isn't it true that bet your arse currently still on community service for a conviction that you had six months before this trial something that closing argument  client yes that's the argument that you make we have an i don't want to take us off track of where we want to go we talked about that the c f s issue yet and you know we're not suggesting that the kids were taken away because of the scalding we're not even suggesting that they were taken away because of the liver contusion but they were taken away for some reason and you know assuming that miss toni is right most parents i would think and once are children back she had a reason to get up there and p whatever bad stuff whatever neglect whatever abuse whatever you know indifference to child welfare happened in that house happened because of this guy and you have to make him look like the band went to make him look like well you know he was babysitting the kids all the time if we just put him in prison maybe i can get my kids back but again there's no suggestion here that the c f was willing to revisit its decision to take her imagining myself as a witness if my children had been taken away partially because i had been black for my kids had been injured my kids had been abandoned whatever and something that i wanted my kids back i'm going to try to get on the record every time that i can't that look this guy was the problem he's gone now we don't have to worry about that anymore can i please get my kids back i don't think we have to look at what b c fs had actually done we have to we have to look at what mr only could reasonably believe in that situation she stood to gain from th testimony you know which so we talked about the air i don't think the state and its briefs ever acknowledge explicitly they are if this is their this is constitutional error and they bear the burden of proof the pharmacist beyond a reasonable doubt you know they talked about counsel talked about all the other things they got to ask miss tony on cross examination i think i said in my brief that's like saying well you know look you've got to use a sport to try to hack down a tree but we didn't let you use the chain saw no other evidence came in to to replace the seven as this was the best evidence but getting it missed tony's credibility in the evidence on intent was closely balanced if i can move to the issue of the liber contusion which in which the court abuses discretion by lying the state to present this evidence as we know even relevant evidence can be excluded when it's precious outweighs its probative value and this evidence was far more prejudicial than  e you know my experience is in law and a little further on i'm not a i'm not a doctor but when i hear liver confusion i think about internal organs i think about damage to something inside you know these doctors were out there both of them talking about what force trauma significant force you know even when we hear about interrogation this stuff when you start hearing about it in failure organ damage that's when everybody kind of agrees this is torture and in fact that's what the state argued over well could have been as much as twenty four hours so you've got a twelve to twenty four hour window with a little room even in those margins some of that time mr bryant said exclusive custody of katie some of that time his mother had exclusive custody of him some of that time there were other children in the house maybe other adults i know during part of the time the mother was sleeping on the couch while movies were playing and there were children running around the house so that their opinion exactly when this injury takes place they never kneel down how it takes place they say well it happened when he was holding down a child in the in the tote to wash him again i don't have a two year old that never washed one i can't imagine it takes that kind of force to keep it hid in a bathtub maybe i'll be surprised someday together and say ok we're wrong here's a look you know he admits that he's called this kid that he's sorry about that didn't really know purpose that's his story and the same says hey look there's also this liver contusion that's pretty much it you know that's all that there is to tie this to him and as we argue in our brains even to be relevant and admissible you have to show that this other crime this past crime has occurred and that it's been tied to the defendant that he's been involved in something which the state never did as a threshold matter soul you know the state acknowledges and it's brief that well we don't have to show this beyond a reasonable doubt but more than mere suspicion in order to get this evidence in here that's all there was there was mere suspicion here's this other injury let's just pop the stand in front of the jury and let them figure out how that implicates my client mr parker's obviously this error is not harmless it's not cumulative there was no other evidence of this this in reaching its verdict and as we argued the evidence was closely balanced quickly if i could talk about the start sub issue but the court abused its discretion by letting this is a state's attorney exhibit the child to the jury with his pants pulled down to display the scars this evidence to was more prejudicial than probative prejudicial evidence as we know has an undue tendency to suggest decision   proper basis like sympathy hatred contempt or for now again i'm i'm trying to imagine myself reacting to this and to see a four year old child brought them feel really old charles not like a b learned to ride a bicycle when i was four he knows what's going on he knows that maybe not everything he's not been present for the whole trial because these people are looking at him he knows that there's something going on that they're trying to investigate they pose pants down nobody likes having their pants pulled down they hold him up showing to the jury and you know according to defense counsel he's he's hugging the state's attorney at this point in time and so the jury sees this and i would imagine that the jury is thinking look at that you know the track record on this but i don't believe that water you know he had a case for building water as a caustic substance i don't think just hot water is a caustic substance i think caustic substance you think of bleach or think of acid something like that i think there was a simple reason outside of this for the jury to have acquitted on the other just with no evidence that this was a caustic substance so that's critical for me about this as this evidence didn't bear at all on the one issue that was issued which is intent so the jury is looking at this are getting really mad and this kid has been so injured he's so embarrassed and look at him he's hugging the state's attorney and it has nothing at all to do with anything but the injuries they didn't need to bring in this trial certainly they have the right to put on evidence on every element of the offense even if the defense will stipulate to it but this was overkill they had enough i commend these photos to your honor's take a look at them i think they were more than adequate to show these injuries finally does evidence was not homeless because it could have contributed to the verdict and because the evidence was closely balance on the only thing that they were arguing about which was intent here are some have any court looks at in determining sufficiency of cross examination is what the defendant was allowed to do what the person was allowed to elicit on cross examination not what they were prohibited from doing but what they are allowed to elicit here defendant proper defendant altered testimony that police performed oral sex on the defendant from that chain fact performed an act of prostitution the defendant alyssa the fact that the apartment was horrendous was horrendous living conditions as defense counsel mentioned the defense counsel at trial brought out the fact there was no stove no refrigerator no working shower no credit no changing table no regular bads no baby bath tub they were living with pitfalls and there were at least fourteen other people living in the apartment that was a listed by defense counsel on cross examination so defense counsel with a lot of bring out that police tony was a disreputable woman and in fact performed an act of prostitution and that she raised was raising her child in her own just living conditions you also had to find it was in the fact that police left cameron with the defendant while she drank alcohol and smoked marijuana that night she was out partying with her on cameron before she left that night before she left them and to friends care defendant defense counsel also listen to the fact that she did not tell defendant what clothes to change camera into which became an issue in terms of defendant's trying to cover up the injuries and mask his intent the confrontation clause guarantees the opportunity for effective cross examination but not to conduct cross examination however the defendant chooses here the defendant was allowed to present his theory of the case the record as a whole establishes that the jury was aware of the factors adequate factors concerning the impeachment of police tony as to her character and and that you have to look at what def she said he told me the water must have been too hot i don't know what happened the water must have been too hot it was consistent with the with what the defendant's theory was she wasn't making anything up she didn't fabricate any evidence here defendant doesn't actually argue they and and were disposed of before trial and had nothing to do with her character he had no time the trial court properly permitted the people to introduce evidence of the liver contusion cameron suffered within twenty four hours of the burn injuries inflicted they're at the results and eleven am where the peak right there we know they were there is there anything in the record to say that was the peak of the liver enzymes i'm not certain that that was the evidence but what substantial evidence to support the inference that it was the defendant who inflicted the prior injury here or it's nothing other then there is an injury and this child was with the defendant part of the time his mother or the other people who resided in the household part of the time i mean where where is the direct linkage to mr barker now you have the fact that katie sustained is an accident because obviously given the severity of the burns this child wouldn't have just been struggling to get out of the water he would illing and screaming and you know so you've got their car and the issue is does the jury believe mr burns when he says i didn't know the water was there i didn't i didn't know he was given the evidence well the fact that mr bond's claims it was just another bath in the child wasn't really struggling any more than he would be in a normal bath this goes to the fact that his whole story about how he behaved cameron how these injuries occurred i actually not true he's trying to make it sound like a normal bath and the doctor says the cascading effect isn't there it doesn't match up with what defines a clean and if you have that going on that he's actually trying to hold the child in the hot tub in the contusion could result from the pressure of holding a child down i thought it was a blunt force trauma and he was he was talking about a significant amount of force not not holding a to or significant force would have caused it defense counsel argued a two year old just walking by could and not camera down and caused it and what you have here is you have defendant who's actually running a child who is struggling he' i don't i believe i believe you're correct there wasn't that specific question but there was testimony by dr was out o that the child would have experienced excruciating pain and been struggling not sitting in the bathroom crying just a little bit uncomfortabl defendant portrayed the scenario to defendant said i was just bathing him but i must have been a little too hot i couldn't tell and i couldn't tell because the book the buns didn't even come to later there was a lot of testimony from the both doctors the flash coming off because that's the pain that that this child was experiencing the defendant scenario is not matching up with the medical evidence and therefore it's not an accident it's medically it does not appear to be an accident could happen during the time period that police was with the with cameron or any of these other occupants of the household or with cameras so the phone was allowed to present  court also properly permitted the people to show cameron's burn injuries to the jury in addition to the photos taken closer to the time of trial here even if the photos w allowed to be brought in and even if this court is concerned that there was something wrong with that the people should have been allowed to bring in both the photos and present cameron the fact here is that the senate was not prejudice by the jury  photos and cameron lie before the cherry as counsel stated it there was no issue the doctors did not disagree as to whether or not the injuries were show permanent  t that was the reason the photos were shown that's the reason the camera shot that's not an issue the point was that mr burns was not contesting that either he wasn't contesting that exactly so we have to look at  what's the point of having a camera when the extent of the injuries is not an issue well cameron's best evidence we have to prove opp people had to prove up that he had permanent the segment and they're allowed to show the best evidence and that was camera that also allowed bring in the counsel claims he thinks they probably would have been by the evidence they see uses the suspected speculative terms because we have no proof if the jury was so outraged by seeing cameron and i seen the the way just to show rosato was testifying he was referring to the pictures saying this does not show a cascading he was showing the photos that were taken at the hospital right and the photos that defense counsel is objecting to on this are the photos taken close to trial as i understand the defendant's position it's that he's objecting to the fact that cameron was right in line i'm not saying the photos them solve were prejudicial it was the fact that this four year old was brought into court and his pants were pulled down before a jury of strangers ok well at the pretrial motion he actually argued that the photos taken close to the time of trial as about in this issue of showing cameron and photos so let's make that clear there are two sets of photos so the photo showing camera at the hospital they don't have an objection to that and that's what dr without his testimony was based on now they objected to both record there's nothing in the record to reflect that what defense counsel argued in their objections actually happened and in fact the court says that this now what happened the record doesn't show it and the court actually argues the defense  i'm sorry could you repeat that i to haiti he had his arms around my neck that defending their defense counsels no i think this city attorney said this is what happened i don't characterize that as a hog you know that is not what happened which contradict what defense counsel claims you could read and counsel in fact said i would imagine the child would be frightened i would imagine i don't have kids but i would imagine that child would have been upset  i could speculate the other way i can't think of one i really can't think of a four year old who could walk into a court room you have this answer taken down in front of strangers and and think that that was just fine i mean i didn't say it and reality and what we're year olds are likely to do when they're being held up he's being held facing the state's attorney with his backside to strangers up high enough for people since of course this arms are going to be around this versus now is  told she was just holding the child but the court actually says that's not what happened wasn't hugging she was simply holding the child she's holding a child like you just said they have to have the arms around her and you can you can say there's there's a distinction between a hug and merely holding on to someone for support well and that's what the court said your characterization is not accurate so you have the record which actually doesn't reflect what counsel argue and you have to the court of self worth they are saying even if it was hug like mommy i love you hug just holding clutching clinging to the states trying to because he's frightened or ashamed or embarrassed it isn't necessarily what the state's train leaves is a hug now connection between the state's attorney in this frantic child ok well and and that's troubling to me well the record doesn't indicate the hugging or the other things that defense counsel objected to at the time and the court said that's not how it happened counsel you can speculate that the child would have been upset that the child was actually really tightly honey but there's nothing in the record to show that and when defense counsel for these reasons and those stated in our briefs the people respectfully request that this court affirmed defendant's conviction it's up to you i'm just trying to figure out how what what about this whole case demonstrates beyond a reasonable doubt that this man intended was sad that defendants version the burn injuries the accident isn't medically possible the burning grease didn't happen in the manner of the defendants that were even if they didn't how do we know that there was an intent to hurt this child to to  disfigure this child to abuse this child and not just clean him up because the doctor says it didn't happen the way defendant sat defendant is lying about the way in which this happens you have the medical evidence and you don't have even cascading which would comport with defendant's version of events you actually have more severe injuries in the general the region and the bomber jacket which would be evidence of the child being forced to sit down if it were true and next of his legs would also be severely burned and  and if the child was trying to struggle to get out the way defending claimed you would have burn injuries on the feet if he poured the water the way he claimed over cameron even if he didn't know it was hot which is why he claims he would have had  burns down on his shoulders his ears his had in a manner that were was more significant than what actually happened therefore and his medical expert testimony as a board certified physician in pediatrics child of the record that witness the expert witness admitted on cross examination you know there could be a reasonable explanation for this it could have been an accident again i know i've been accused of speculating all over the place if i had just burned a kid and i knew about it i would have been out of there i would have been getting dressed for work actually taking my time putting a kid in a sleeper i would have big gone in to me the very things that council says indicate callous a certain difference towards us trials injuries indicate no consciousness of guilt he's just going about his business we spent a lot of time talking about her hearing about you know the the business about the hub and i feel like counsel  forgot what actually transpired when when counsel and trial court were talking about this a two fifty four and fifty five defense counsel says judge i want to put this on the record the child was hugging the state's attorney during the portion of the exhibit and giving candy the court never says that's not what happened the court never says well that's just your interpretation the court says first of all the jurors didn't see the candy part second of all it's a four year old boy the state's attorney picked the put up held him against her and the jurors were shown his pants i assume there was more than pants or else this was a really poor demonstrative exhibit so that that's what actually happened according to the transcription  i think your honor sprang up with the same counsel you know there was no issue about the price of everybody agrees about the burning so why not only bring in these pictures but also have katie in there you know we talk we heard about well nobody knows what the jury is thinking we never know what the jury thinking we have to investigate and use our bar our minds to imagine what the prejudicial effect of any iranis lee admitted evidence would be on a jury moving men to the business of deliberate confusion it's not true as council said bat that my client mr barker said well this was just a regular pay off if you look at page one sixty for a one sixty four sixty five he said that cameron was struggling to get out of the tub but he kept him in to get him brain stuff he admitted that he was crying he said he was trying to play with him to keep his mind off what it was aggravating him and told the child big man this is just a bath it's just water so he you know it wasn't just like every other bath he knew something was amiss he thought the kid wanted to get out of the mat it's just simply not the case that he tried to pass this off as just another just another bath of cancer said well the fence is just trying to infer or imply that a two year old came by knocked him over gave him a river contusion the evidence pates a seventy two and seventy three is that there were kids as old as twelve who were living in this house a twelve year old can do a heck of a lot of damage to a two year old baking up finally to the business of me the c f s evidence and the conviction evidence that was not well took to be cross examined the bell council spent a lot of time talking about what defendant was able to get out that this woman had given oral sex to the my client for money that she had engaged in prostitution that she lived in the dirty house and try to make it seem like that's the same thing that we're talking about we're not talking about saying this is a  is a january twenty ninth two thousand and seven arrest for prostitution a country club hills and that's still pending she's on community service again to me that seems like she's still under sentence her senses not been discharged she's got us she's got  something anything any further than that that the state may be privy to about what this case involved is not in the record kelso said that my client was able to get out his theory of the  the least tony is a bad moment because the theory of the case the theory of the case is that my client did this by accident and you know just being able to get out these things did not get her credibility the way that this other evidence would have counsel said finally that the court said that did he c f s records could be used for impeachment we were talking about trying to use him as impeachment trying to catch her in a lie about something that was contained in those records we're talking about the motive to lie or the motive to collar her testimony throughout her entire time on the stand but a rose because she had this relationship with the c f s and her children if you are some have any other questions i'm happy