convicted of criminal sexual assault on the theory that the complainant was too drunk to consent after a night of drinking at a party of the priest raise several issues i'd like to focus on a few of those today in particular to look at the issue one of the  after drinking and whether to now a seventeen year old at the time what have actually known about it we have almost nothing from the state as to what happened in about two thirty in the morning when they get to their apartment at about six am when the defendant's brother and his friend show up what we do have is the only statement we have is from the state as the claimants son statement at trial that's now was on top of me being forceful the very next sentence after that she denied remembering any sex act at all and this is it's very remarkable because this is not the kind of statement that a reasonable jury could find credible the first you know she is at the very first statement at the hospital she speaks sudden testimony at trial suggested happened despite all her prior inconsistent statements leaving out that she remembered anything that happened in the apartment however the jury obviously felt otherwise is they determine reasonable doubt we know that the jury convicted but we but but your honor they can only convict based on the rational inferences and they just did not have enough information as to what happened in that gap between two thirty and six front and i ask you what what determine what reasonable doubt was it affectively on mord the standard from what is constitutionally required in illinois we've long held that reason without a self defining this we can spell out that self definition by the kind of instruction  defense counsel asked for that a reasonable doubt is a doubt which is reasonable the court though did something else it said ok jury now you are free to make up what reasonable doubt is this was the very last words the jury heard about the nature of reasonable doubt when they were plainly already confused and once they heard those words it was not long after that that they convicted i define reasonable no your honor we don't give a definition that annoy and the we don't give a definition because we think such definitions when we give an elaborate definition that  jury you can reasonable doubt is whatever you think it is you're now completely on more from the plane like well they're the troubling languages record saying it is for the jury to collectively determine what reasonable  where it's a sexual assault case involved it will be with a he said she said and frankly a young black man accused of a crime that happened in the loop this is the kind of case that's going to bring out the stir prejudices the worst premised on the notion that when the court said it's for you to determine what a reasonable doubt is what reasonable doubt is that moved away from the plain language had a given defense counsel's instruction which which kept it toward the plain language of the term that would be speaking system of longstanding illinois rule that was self defining and for the honest this is a closely balanced case this is the kind of case where a jury instruction or preserve or not is decisive and now let's talk briefly simply says we don't know it's up to you jury to determine it and like the instruction at the third circuit dealt with enough for now this case it leaves the jurors on move on more from any objective standard but in hernandez go way beyond that here this was the very last thing that the jurors heard about the nature of the reasonable doubt standard after clearly being confused after you know never being asked initially whether they understood the concept of reasonable doubt and what they have they have ok we give  on whether i like the defendant's appearance they could have done that as well one of the solely up to them to determine what reasonable doubt was it even more broadly your honor it gives us a few signals the jury that they're free to make their valuations from theory on more from the honor on the question of the defendant's statement is fairly clear here the i p i is mandated cases when the defendant takes the stand and says i didn't say that counsel argued that he should get the proper instruction falls back on this position that the error was secured by the giving of the prior inconsistent statement struction it's far too attenuated a leap to think that that was enough to share the air realize that what we're talking about here is what the closing arguments repeating zombie like the for a zombie like at least twice and to think that the secured by the prior inconsistent statements junctions the jury would have had to look at the defense statement struction the one that specific defendant ignore it turn past it go to the prior inconsistent statements instructions determine that did now qualified as a witness even though he was a defendant there is a more specific instruction there still with him make all the recent past the first link the paragraph prior inconsistent statements determined that the notes she'll statements all of the statements in interrogation were in fact inconsistent when a lot of it is simply acted his testimony except for these key lines that he denied and given the importance of that it's in this kind of closely balanced case that's in fact less than a he said she said what she doesn't remember very much properly instructing a jury and how to deal with that statement of most importan year so we know how long my clients him in custody for that's what the statute says the state's reading the reading the schneider gave somehow decided that the word range in the statute means something different than the word range in every other  read in a way that creates a contradiction within the code that very sick section of the code starts out talking about how like every sentence in illinois is a determinate term except for when it's specified in the statute defining the offense than to read only to sections later may please court my name is john walters and i represent the people the state of illinois in the matter before you with respect to the reasonable doubt if there was substantial evidence in this case that this victim was only able to knowingly consent to sex in this case was acutely suffering alcohol poisoning this case her eyes rolling back she was beyond just passed out she was her mouth was open she was making disturbing noises and moaning  thing happened and what i said would submit to you is that it is plausible therefore but even though a victim is unconscious that in the midst of a set a powerful sexual assault that the victim could be roused to a moment a brief moment of consciousness basically to watch over her because she's in this awful state oh so he's well aware of her condition he's it he's attacking here and it's on the point of attacking her that she's roused briefly and then she falls back it into unconsciousness this case look at it look at sort of the self serving elements that are both in the know and in the written statement in the in the no in the written statement both as this theme that the idea to have sex was was her idea but i want you to take a some relationship to one student stated nelson was a friend of the victims and a very important witness also as to the victim's condition before and after the assault defendant why is he at this party he's seventeen years old he's a high school drop apparently he's itself stage of working on his ged at this point in time but he's a high school dropout amongst all these college kids are all from the same places either discuss i mean the teaser salvador dali why is he there the jury knew why he was there look at the statement that was he was there on a mission to to have sex with this victim that's why he was there look at the statement that that david nelson makes to defendant as he leaves the victim with with this defendant he says to her look don't have sex with a victim because she's too drunk intoxicated now but it's a very odd thing to say to another human being unless you have some inkling that they can be dead other human being has some idea in their head that they want to have sex with somebody who's drunk intoxicated that's a very telling point it's not the only point either i said that they were there were there points that  defendant didn't have any qualms about writing his name his phone number everyone knew he was in the apartment with the victim so it's not it's not as if he was hiding something by by writing his name is former it's really quite telling actually in that note that he he felt that necessarily to well look look at the facts of this case she wakes up her clothes are disarray arm you can say that she wouldn't have known anything but there were there was d n a taken in this case there was semen taken in this case yet because of in part because of the no but she wakes but there was there was a soreness and and bruising to her thigh which is quite telling into our upper upper chest it wasn't too she didn't sprain a wrist from falling she didn't gash your head from falling she didn't stop her  knees she was injured in her thigh interrupter test which which actually corroborates her later recall that she had this moment where she she did have a moment of consciousness that just isn't the victim and fis no it's not at all possible because a combination of trauma and alcohol poisoning can impede recall it's actually not implausible and in this particular case years down the road after the effects of of the trauma had dissipated after the effects of the alcohol had dissipated but was she makes these statements within a week the statements that we're talking about that were inconsistent they were made within a week of of a sexual assault she was still very much suffering from the trauma and from the aftereffects of the alcohol at that point use later she had a chance to to recollect i would call this type of case with this one on one and we've already discussed a myriad of was properly instructed in this case that actually the instruction initially proffered by the defense was an improper instruction because it attempted to qualify what reasonable doubt was i think throwing out that the defense counsel  case that is held to be proper in fact there were a number of other cases that i cite in my brief not just fail or there were other cases where prosecutors made similar arguments for you but you're right to decide what reasonable doubts and it has always in the illinois it's always been held to be proper defendant doesn't cite he was single illinois case to the contrary all the law is on my side on this issue the wrong illinois quite clear that bet that particular direction to the jury was a proper direction the case that he cites from the third circuit besides being factually distinct and even he had to admit that there were some more severe things said in that case in the third circuit they have a different view of reasonable doubt then the rule or supreme court does and the wrong illinois is that i think it's beautifully described at one point in one of the cases they say to give a further definition of reasonable doubt is to provide further elaboration of language language without amplification of the idea which i think is i think that's a lovely way of putting it no it really there is no i p i instruction is just as connors pointed out earlier there's no i p r instruction so what does that tell us that it every single case in the state of determination of what reasonable doubt means now i'm going to put something else up to because defendant says oh well the jury might sort of look to a default like preponderance or something like that you know that was specifically addressed in this case the trial court before trial actually told the jury there's a different standard in civil cases called preponderance of the evidence and that is not the standard that applies to this case and you know my record recollection is that supplemental record page forty five that you'll find that the judge actually it just took a moment i'm sorry my recollection of strings numbers isn't as good as it used to be there are there are number statutes that were enacted along with this particular at this particular statute five eight one before they were all part of a public act and i'm sorry going to have to look at this but with a ninety three one sixty five this is also house bill twenty three eighty six and i submitted some of the some of the legislative history is an appendix t back of my briefs so those numbers and that information is here and i also submitted the this was a this was a project actually the only attorney general and the it's described quite well by the witnesses that the attorney general sent to testify before custody we're talking about supervising people that are that are out on the street and the notion here is that we're going to have extended supervision and that you see that actually reflected in the plain language of the statute and it's worth it reflected in a couple of that i said there were several statutes that were enacted at the same time those are three three two a three point five i apologize for having to read these but three thirteen two point five people have a cold  to well i think a couple things one looking at the state should itself because the under the quota corrections let needs to be impose for definitely we've gone to determine at sentencing at the statute itself doesn't say determine sentencing for imprisonment and the role it just says the sentence of imprisonment has to be determined sentence unless the statute defining your fads decide describes otherwise so in this particular situation the statute itself requires a determinant sentence only for a sense of the present the actual custody time it's being served in department of corrections we look at the statute though we look at these sister statutes that i that i mention and these are important because they look at whether we want to do when we're supervising convicted sex offenders once they're released back out to the general public what are the things that the general assembly want see happen before they were completely released from that supervision and to those things that they needed to be a recommendation from the perennial officer in a sex offender evaluation that that that could terminate question wasn't that the question was that the trial court just like in this case had failed to impose a period of m s r and the deal c sort of took it upon itself maybe to try and define on its own essentially impose that term of m s r and i would agree that you will see cannot impose it cannot it is not the legal authority to impose a term of m s r that has to be mandatorily has to be imposed by the tr acts from actual custody based on their ability to be returned to society so it's an embrace of those situations it's an indeterminate length of custody this isn't even custody but it follows the same idea that the  and they don't have to put definition right but the trucker does have to have to sit in the middle most of the trucker didn't actually do it in this particular case didn't do it in the reinhart case either and i think that goes some ways to explaining what happened in rinehart i think that was the real for sure especially take the state's justin look at the medical testimony at trial the traumas a single bruise on the outside of the leg in that she was kneeling in front of a toilet person with the time of harry to about tibet's no surprise the medical testimony is certainly not testimony of alcohol poisoning she's at the hospital the day after saying that she was very drunk she's not getting any kind of liver treatment or anything like that she's really given a little bit of water and had we had some expert testimony this might be a different case described might make sense but it's not the kind of system that this legislation sets out if that's the if that's what the legislature wants to do though before we start imposing a life term on a seventeen year old with two sentences a debate in the senate