people good morning honors in it please the court my name is emily brandon and i am an assistant a college defender representing robert goldsmith because this case involves an overlap with another case in which mr goldsmith was charged before i jump into my arguments both inmates at the will county jail and goldsmith was awaiting trial and aggravated domestic battery charges and vicki was the complainant in that case mr goldsmith has from the very beginning consistently and arguing that the indictment was based on mcdaniels perjured testimony and thus obtained in violation of due process that motion outlined goldsmith's working theory as to how mcdaniel framed him on september th two thousand and thirteen prosecutor mcdaniel to sign the affidavit and in it he framed goldsmith in the solicitation case and it was this contact that provided the basis for the charges in this case which brings me to my st argument which is that the state offered him money in its brief the state argues it presented evidence that mr goldsmith acted through his agent and he no this is irrelevant the jury was never instructed on accountability and the state cannot cutlass liability where it did not hold itself to the burden of proving legal accountability and the state proceeded with this theory likely because it couldn't meet the burden to prove legal accountability which applies as your honour's know only to criminal acts the actions here were not criminal the goal was to encourage mr mcdaniel to tell the truth and admit that he framed mr goldsmith and this is abundantly clear based on the timeline and the context in this case goldsmith was following capello's instructions to get mcdaniel to admit to perjury so that he wasn't forced to stand trial for a crime he did not commit it's also clear from the state's own evidence that this was the remarks that he was you know going to tell mr mcdaniel why don't you just be honest about what happened here and the phone call from september th between mr goldsmith and mr since you know what was entered as people's exhibit number eight goldsmith remarks that he was framed these are calls that the state argued at trial were quote unquote true calls because mr goldsmith in city no didn't think that they would be ever be heard and so following the state's o logic these calls reliably demonstrate that mr goldsmith's intent was to get mcdaniel to tell the truth further the state presented no evidence that the affidavit it's self was untrue and we know that at the very least part of it was demonstrably and verifiably true but the state lied to the jury about that during closing arguments brings me to my next argument the affidavit contained a list of benefits that mr mcdaniel had received from the state and that list came from discovery turned over in the solicitation case and included one of the things mr mcdaniel was given was one hundred dollars and mcdaniel admitted under oath at the solicitation trial that he received the things that the affidavit said he had received but denied that he had received those things on the call to send specifically he denied receiving one hundred dollars in commissary funds now the state chose not to fundamentally unfair prosecutors have wide latitude during closings that that latitude does not include lying in misrepresenting known facts the prosecutors here put their thumbs on the scales of justice not only with the closing argument but also in telling mr goldsmith about the twenty one dollars aggravated domestic battery charges the record makes clear that mr capelli wanted the domestic battery charges before the jury because it indicated that  prejudiced the state doesn't challenge that mcdaniel statement in the phone call violated mr goldsmith's right to come from taishan and to say that these statements didn't prejudice mr goldsmith defies reason again the state mcdaniel and that is what this evidence allowed it allowed mcdaniel statements to be before the jury unchallenged and that absolutely never should have happened and with that for these reasons as well as the additional communicating with a witness yada reasonable doubt the state stresses that the jury was the trier of fact in this case this is not a retrial the state's meant the evidence was sufficient for any rational jury to find him guilty state did in this case given the evidence presented as state so it's a fair reading of the statute to incorporate the directly or indirectly language to all of the different ways of committing this  those three ways are communicating false info threats or pertinent to this case the offer of or delivery of money statements that would be on reasonable to read the statute in any other way  because if a defendant did what the defendant did in this case have a intermediary provide the money to somebody in order to in influence that person's testimony if this court hold that's you know not a way to satisfy the statute of the people would say that would be absurd that should be a criminal action under their statute and that's a very fair reading of the statute we've got to be let's see that at least some of it was true is there some geisha and to hold your fire some of the affidavit that was written yes well then the myth your argument is that it was all faults but if the state had information that at least some of it was true isn't that i mean it is the state's attorney has an obligation under the code of professional conduct not just to win cases but to do just prosecute the right people isn't there some obligation here on the part of the state's attorney of course there's always an obligation on the part of the state's attorney to do those things that you you just alluded to this case the state's mits that their statements within the the phone calls and the other physical evidence in this case that point to the fact that that affidavit was not true and right then i'm sorry did he resign did he misconstrued that the prosecutor was less really more talking about the overall theme of the the defendant's mr bolt's missed truth as opposed to the actual truth and that was that was more of a slip of the t that's not what the prosecutor meant that's what the state's position is that based on the fact the affidavit wasn't true based on the statements that were made in the phone calls that again i will get to soon that point to the fact that this affidavit was not true that's what the prosecutor was talking about so whether or not macdonald mcdaniel received those things that he did there's i don't think there's any question about that at this point i don't believe that should give the prosecutor some obligation not to proceed with this case in the manner in which it did because again the pertinent part of this affidavit that the defendant was trying to get mcdaniel assigned was that mcdaniel faked that conversation he had the roleplay conversation by himself and that it was scripted by detectives by multiple detectives the state smits that is that is the most important part of this affidavit that part of it is untrue and again if i could go to the statements made in the calls that the state believes point to the fact that this is not true that the jury heard obviously the jury believed in the state's case one of those such statements was made by since you know and well since you know by school since you know talking to the defendant he said  number one he said this is a beautiful affidavit and then he said i shouldn't have said that but nobody's listening the state cements why would anybody say that if this was a true document that doesn't make any sense and  can have a slip of the tongue but the defendant well i wasn't really a slip of the tongue he but he acknowledged that he shouldn't have said it but why wouldn't he have why shouldn't he have said that if this was a true document moving signs it that's all that matters again why would he say that if this was a true document there the right answer if this is a true document was no it's all true he called since he know ed if this is all true so why would he say this ain't true if it's all or that that was the right answer in a reasonable jury any rational jury would see no you don't you never said that this is the truth you know is the right response there was this is all true you can't deny it because it's all true  that's the only possible right response no but it's a rational one and it's a reasonable it's reasonable to expect that defendants response doesn't exactly correspond to the theory that this is a true document he says if he signs it that's all that matters that's what the prosecutor was alluding to when he when he's talking about the defendant's truth because of the fed and knows that if mcdaniel signs this document that becomes the truth so it doesn't matter what's in there becomes true and doesn't matter that's what what actually happened it doesn't matter what if that's what mcdaniel believed it becomes truth mcdaniel science and that's what the prosecutor is talking about that's what the defendant clearly that's the main goal here is to get to have some   he said things like that the defendant didn't have him try to get mcdaniel a sign a document well that all the physical evidence in this case points that is absolutely not being true the defendant clearly solicit wired mcdaniel money he said that could have been from him but again though the evidence is clear even on the phone call since he no confirm to the defendant that he sent that money so i don't know why he's being he was being question about the context in which the jury heard those statements sure the state asked to have admitted evidence that mr goldsmith had been charged with these two offenses and battery and solicitation of murder and he had not been convicted of those is that correct i think that is correct i believe that is correct at that point that the basis for the state sorry did the state concede error in that on that issue i don't are we talking just for admission of the evidence of other crimes in this case you know i don't know i don't believe i confess that oh you didn't know what year i was there was a question i was not prepared for i'm sorry i thought my brief said that you did concede error on that but claimed it was proceeded to solicitation case i think the jury again heard the evidence i think they knew that mr goldsmith had had accepted those items as a benefit for doing that from state and again the prosecutors overriding theme of that as i discussed in more detail in my brief was that he was talking about the the mr mcdaniel or mr goldsmith's truth as opposed to the actual truth and that's the kind of the theme of the prosecutor's case that once mr goldsmith gotten danila signed that document which obviously he did do that would become the truth that's what the prosecutor was was referring to in and the comment saying that maybe mcdaniel did not receive those things that was just an isolated comment and that wasn't significant and that the context of the prosecutor's closing argument as a  directly or indirectly language to apply to all three of these activists race elements that the statute would be written differently that then which could have come at the beginning of the statute before any of the act is race elements were laid out further the state always has has accountability if a defendant acts through an intermediary in an innocent agent is a theory of accountability and again what the state wanted to have it both ways they couldn't prove their theory was that mr goldsmith and mr sainty no acted in concert acted together so the innocent agent theory of accountability was out the window but the state also didn't hold themselves to the burden of proving actual legal accountability the jury was never instructed on it the jury got instructions that said you know miss they had to find that mr goldsmith offered mcdaniel money uncontested that they never were in contact uncontested further the state five times in its brief and again here truncates the quote in the phone call between the mr since you know about both the beautiful affidavit and the part that they truncate again is makes it clear that the intent here was to get mr mcdaniel to tell the truth because the the part that the state cut off again five times in its brief and again here says if mr goldsmith responded if he signs it and details his whole plot ok contrary to what the state believes the most important part of the affidavit was not how the intricacies of how mr mcdaniel accomplished this fabrication that doesn't matter what matters is that mcdaniel admitted that he fabricated it and that he lied to the grand jury and again that is very clear when given the context of this case and the timing further in regards to the closing argument the state argument again state implied that mr goldsmith's truth was not the actual truth and that is exactly what the prosecutor told the jury during closing argument and as an state's case what was wrong was arguing that the ledger nothing is that that they didn't present any evidence to demonstrate that it wasn't true except for mr mcveigh except for the phone calls between mr mcdaniel  again the state was arguing that the evidence on that phone call mr mcdaniels denial that he ever received one hundred dollars in commissary was evidence that the affidavit was untrue and again the state knew that mr mcdaniel spawn call or denial on the phone call was a lie and if your honour's have no more questions again you would ask that your honour's reverse