we use case number four fifteen zero one four now the people of the state of illinois versus manone pendleton and for the as well as we have miss warner and for the apple even mansion you may proceed counsel thank you will conference following that but he will not be joining us today thank you make sure her time doesn't start until now may please the court my name is amanda horner from the state of talent defender's office and i'm going to be taking mr pendleton suffered prejudice nearly that he cannot meet cause under the standards set up by the illinois supreme court more importantly the state doesn't really disagree with mr pendleton about the nature of the constitutional violation that occurred in the trial court below or whether the trial court was or whether the case closely balanced in the trial court so really are honors the question before this court is whether  mr pendleton can meet cause based on sort of three objective factors that that come together at one time the egregious nature of the error and this case the closely found a closely balanced case where we can no longer have faith in the verdict and then they provide a civil level of ineffective assistance of counsel on a number of levels because the error in this case was so pervasive in the trial court and because we can no longer have confidence in the verdict the circuit court erred by denying mr pendleton's post conviction early to file successive post conviction petition where he also alleged multiple levels of ineffective assistance of counsel to understand this case better it's really important to understand what actually happened the trial court level and the egregious nature of the doyle violation that occurred there when counsel this case hinges on whether or not he can show cause he has yet to show cause and prejudice what is the objective factor that impeded your client you look at the facts of the case it's tough to deny what happened at the trial court below and whether that case was closely balance given the jury's verdict but mr pendleton has an error that was missed by trial counsel by the prosecutor when he repeatedly brought this error up by even the trial court when it ruled that some of these some of this evidence was admissible and then by direct appellate counsel who pendleton is not arguing that every time a defendant says well i didn't know what the law was that that that manifest itself is cause under the cause and prejudice tell you i am against it says in circumstances circumstances such as those here and that we should car grant some type of exemption you know there is no case that exists for your honour's to allow this see go forward it's quite frankly a miscarriage of justice the justice system has redundancies built into it to avoid this exact kind of fair we have a man he was who testified that this was a consensual encounter and we have the state or we have trial counsel who had him  pendleton wouldn't speak to police and we i have a ten minute video that's played for the jury where mr pendleton refuses to speak to the police and if that's not enough we have the prosecutor then arguing in closing arguments twice that we should infer from mr pendleton's failure to speak with police that he is guilty of this crime that he is lying to the jury to match up physical evidence  are yes i think that's right and not just to me and to other people that have looked at the records and that post conviction petition mr barnes obviously raised the issue the record indicates that another attorney told mr pendleton about the issue after he'd already filed a post conviction petition but essentially his direct appeal counsel brought this out in front of the jury and the state sort of tacked on to that and we can say that that was perhaps ignorance on the part of the state that it was prosecutorial misconduct who knows but it's objective lee true that this error occurred over and over for minutes in front of the jury where the jury heard heard by the jury and even if trial courts or even if defense counsel strategy was to feel like well he didn't trust police there was no strategy that would have been had the jury watch a ten minute video where the police over and over repeated the details of the crime and sort of postulated about what they thought happened where he sort of refusing to speak to police and that would never have been allowed because that was called in as a rebuttal witness when mr pendleton readily admit if you refuse to speak to police and certainly the state's argument some of which was just not true at one point they argue that mr pendleton said he lied to police which he does and the record doesn't show that why would that also have ever been objective lee reasonable to allow the state to argue to the jury right before they went into deliberations that we can't believe mr pendleton story because he didn't tell the truth to police he had to make up something to go with that d n a evidence all of that is objective leon reasonable and even if we assume that hey he wanted to get in front of the jury he didn't trust the police everything after that point should have been objected to with the ship in some effort to exclude it and quite frankly there was no after mang when you also consider that the jury directly repudiated the state's theory of the case and directly repudiated most of the complainants story she testified that she was gang raped by these five individuals and not only that after eight and a half hours of deliberations and after prim and struction had to be given and after we had to call the jurors in individually and hold them they found all four of the co defendants not guilty so they refuted that part of the story but they took it one step further she testified that she was attacked by all five people that this was a gang rape she never testified it was an individual one on one they found that mr pendleton was guilty but it was not a gang rape they found him not guilty of the instruction that says he acted in concert with other people in other words every single thing that she sat they directly came back against in their factual findings and the only difference here is that yes his d n a was present but the last thing the jury heard when they went in there was that while we had d n a present he refused to speak to police if this was a consensual encounter why did he tell police that in the first place counsel i wonder is this court have the authority to carve out this a miscarriage of justice by showing actual innocence we know that in people being around the fundamental miscarriage of justice exception has been limited to crimes of actual innocence and combination with the multiple levels of ineffective assistance of counsel and you know the state argues in its place that you don't mr templeton could have went hired private counsel which is its own issue i suppose under you know equal protection given that he's an indigent client but that he could have found this this by himself but it's difficult to imagine that since counsel and the state and even appellate counsel he had appellate counsel in the state of our defender's office whose only job it is  you these criminal cases and i mean errors and each one of those was not able to do that well counsel i mean you agree that there is no claim for actual innocence right i agree there is no pla and as to his declining to talk to the police i guess in reviewing this case i have a different take on it i think that it's pretty common knowledge that you don't have to talk to the police and you know they're not supposed to use that against you i mean you've got all these crime shows on t v and i think that's pretty well known so i do have to wonder about what justice damron indicated earlier about perhaps this was a strategy that look i'm i'm a good guy i'm open i you know i i told him upfront i don't trust you and i know you're going to twist my words so that's why i'm not talking well first i agree that the right to remain silent  is something that we're all pretty commonly familiar with certainly pop culture and television is taking care of that for us the fact that i cannot use against you however what that actually means you know i don't think that is so common knowledge that you have the right to remain silent is true but i think what miranda tells us is you have the right to remain silent and anything you say will be used against you not that if you're silent we're also going to use that in a court of law to infer your guilt right so i  disagree with the idea that it's perhaps in the legal community it should be common knowledge but to nineteen year old who's been arrested in a case like this i'm not certain that he would be common knowledge especially given that his own counsel brought that out to start with and again i come back to the idea that yes his counsel was the one that brought this out but it's tough to imagine how this was a strategy and if it was a strategy it went horribly wrong and at any recognized it anyway if he could recognize it but again he's a nineteen year old who's relying on appointed counsel and we know that appointed counsel never ending catered to him that this was an issue he says that his petition and again are in terms of the actual underlying merit mr pendleton's not asking this court to give him a new trial at this point all he's asking is that he be allowed to docket his petition so that he can further these claims so if for example truck works like it was a strategy we talked about it beforehand even though mr pendleton doesn't say that his petition but let's let's suppose that's true he can testify about it in an evidentiary hearing we're not asking this court to undo this guilt or this guilty verdict and start all over we're merely his day in court to be able to go over these issues and right now the pleadings are taking this through and he said he didn't know this was the first time he found out about it in the moment he found out about it he brought it up and it's also interesting that if we we assume that even in the legal community perhaps counsel should have known but if you're if you're a cop or a defendant here defendants and your counsel ask you a question there's sort of a presumption that that's an appropriate question and want to pallor counsel tells you these are the issues i can raise a sentencing issue by the way nothing that challenge the actual conviction then you trust that counsel knows what they're talking about and really the post convention process is meant to bring that sort of gives it all the more credence that he would have not necessarily realized that talking about that right in front of the jury as a problem your honor the other thing is as this error is unfolding in front of the jury it's pretty difficult to imagine  it didn't have an impact on that jury and given the jury's ultimate verdict it's it's also sort of hard to contemplate that we're not going to be allowed to explore this further simply because he brought it up now instead of  stiff and we can show there were multiple levels and ineffective assistance of counsel at least potentially because again we're talking about a post conviction petition not a direct appeal where he has to show that that has actually occurred if we can say all those things but what we're also seeing is for you having not brought it up sooner that that's troubling your honor that that seems to be you know a flaw in the post conviction process and the way we look at claims if we're would be i think again you have to look at those sort of three factors there has to be some sort of agreed just constitutional error you have to have a closely balanced case and you know you have to have multiple levels of counsel that didn't catch that and you can imagine this doesn't come up very often certainly we know that counsel sometimes makes mistakes with the oil violations we see the cases where there are certainly cases that exist but normally those are a single mention by an officer of he refused to speak with us or it's something that is not as pervasive where we literally have the jury hearing from mr pendleton and self from the state from a police officer a ten minute video and then in closing arguments so it's truly a grievous error that took place over the last part of the trial normally also you don't have a case that's this closely balanced not only where mr pendleton has taken the stand on his own behalf but you have another witness that supports his version of events and then you have a jury who's come behind and said look we disagree with the complainant we don't agree with the state's theory of the case and with the exception of this one guilty verdict we're throwing the entire thing out i mean normally those two things do not occur in concert and then finally you normally again we have redundant systems here that are supposed to catch these the appellate counsel should have caught this error trial counsel or the state should not have jumped on the air and made it worse but none of those happened here so i think in terms of what defining just like actual innocence becomes a miscarriage of justice i think that when you have an error that is this a greta it's just a sort of demands that we do something about that and again we're not who counts so what did the supreme court mean when they sit and people be around that unless the death penalty is involved or the defendant makes a claim of actual innocence illinois law prohibits the defendant from raising an issue  successive petition and that's the defendant and the sample is because i will agree your honor that i think that means that without some sort of extension of the law or without carrying this forward that if we look at the jurisprudence in illinois supreme court right now he cannot based solely on the law that we have based on evidence and based on brown bring this to mr pendleton's argument today that this was caused because he had these three factors that came together come from the case itself but happen the trial and then the multiple levels of ineffectiveness and you know your honor and there's there's again and i want to be very clear there is not case law that would necessarily support this this is an extension of the law argument that there was an egregious constitutional violation that the case was so closely balance that we cannot have faith in the verdict and that there are multiple levels of ineffective assistance of coun essentially are honors what we're arguing is that had mr pendleton just raised this issue sooner our faith in the verdict would have probably been so low he would have received a new trial and to deny him a chance to explore that now because he d has been hammering away both their brief and here and here today as the egregious prejudice but she simply can not and the defendant simply cannot establish cause in this case because  prior attorneys is not cause for purposes of post depiction petitions because you take your chances that that is something not external to the  point this tape the sister of said to mr pendleton's claims his reasoning for why he didn't bring up this sooner but that's actually not accurate he identified in the post conviction petition in earth motion for leave to file the post conviction petition that he did not bring it up until his post until a successive post conviction counsel informed him of it and that's on three to five in the record and more importantly he attached a letter from or at least part of the letter from that council informing him of that and then in terms of addressing the constitutionality i would disagree i think this court does have to address the constitutionality of you can decided on other grounds say there's no cause in prejudice that's that's fine but additionally he's argued that if there is no cause in prejudice that this violates procedural due process because it's a miscarriage of justice and i think that that is a separate attack and and the state has argued that you know this was unclear whether this is a facial or substantive you know a facial as applied challenge but it's a procedural due process challeng