several issues before the court this morning because martin roman trial was riddled with prejudicial errors from start to finish in the beginning during why dear the trial judge publicly paraded the first naturalized citizen on the pan l who expressed an inability to judge people this is significant because three potential jurors prior to this gentleman also expressed an inability to be fair to be pre accepted those answers and moved on but when it came to this first naturalized citizen from mexico the trial judge publicly paraded him shamed him and notably pointed out to him unlike all the other potential jurors that he was an american citizen and asked him will you do it he never pointed this out with the others and he also publicly rated him by telling him he was weak and shameful this is also  significant because after this potential juror there were five other naturalized citizens on the panel two of those ended up on martin's jury this is unlikely had a chilling effect on the divide here process on which notably the state judge yeah was the jury box full of potential jurors i somebody starts by saying i'm not sure i could be fear one reason or another and as it goes down the line each member of the venue year then figures if i say i'm not sure i can be here maybe i can get out of here and there comes a tipping point where i think fairly frequently trial judges say enough of this we were not going to send the message to everybody here that i can get out of it by saying i don't think i can be fair because it's your duty as an american discriminating them on a certain factor his citizenship being an immigrant and naturalized citizen none of the other cases involved that it was significant because this was a theme that ran through this trial we were discriminat other discriminated against this particular juror she in the way he treated him and by publicly shaming him and parading him but also when why would i point out that he's an american citizen everyone is in the panel but would just this one individual why not with the homeless worker who said it would be hard for him to sign guilty verdict why did he say to him if you're honest i believe you that's all right and then come mr rios who's been here since  and immediately he just whites into him he didn't do this with the police officer the wife of the police officer but all of a sudden with mr rios and again that of the other naturalized citizens expressed any  bias and two of them ended up on his panel so i do think to answer your question it's significant here that there was a discrimination it wasn't just trying to put a caution on people trying to get out of jury service like some of the with the discrimination based on the immigrant status based on the fact that two immigrants ended up on the pan or on the jury panel and that immigration was the thing that kept coming up in this trial i think that it it's different it's this or were jurors contacted the defense attorneys afterwards and that's not an option in illinois so if we can explore this issue this way there's just there's no way to ever explore it and also it did it had a chilling effect puts a priority on that over finding a fair and impartial jury which which can't be the case because that's obviously a basic fundamental right and addition to trial judges why deer was also extremely flawed when he accepted every potential juror as qualified regardless of the answers they gave to one of the rule for thirty one b principles whether they can hold martin's decision not to testify against him because he didn't testify this is also very significant the trial court asked every potential juror some version of a question you will not hold it against him if they choose not to testify or choose not to testify correct or right for example of just some of the different offered against anybody if they choose not to testify and they both answered no but an affirmative response to the same exact question was accepted for both alternatives they answered right and yes again both can't be right this makes it inev have a direct conflict the same question it might if that if there weren't conflicts between the of the jurors because there's also conflicts between juror six eight nine ten i threw that in just t also that the long recognizes that jersey really struggle with this concept of the right not to testify and most see it as shelter for wrong doers so i believe that it just really prejudice martin even more so when he elected not to testify also during trial a couple errors occurred the his defense attorney allowed a letter to go back during deliberations that basically to allow such prejudicial and immiscible evidence to go back to the jury during deliberations he simply could have redacted this information from the letter not had the letter back at all because that information came out during testimony so it wasn't necessary additionally a plethora of prejudicial gang evidence was admitted it was not necessary to prove any of the identifications the dinner cations were based on knowledge of knowing the martin and his family members living in the same community for five years none of the witnesses based identifications on this even the offense itself there was no testimony that game signs were made slogans reality the tattoos were showing  offense none of this and the law requires that the gang membership testimony be related somehow to the crime charge that can't be showing this case it just went through far there was so much being evidence it was prejudicial there was naked pictures of martin i don't believe that he did i just see that in the state's brief i don't see a cite and i can't find anywhere in the record definitely not before giuliana's testimony about king's definitely not during printing or garcia's testimony of doubt about things not in the written instructions given to the jury there's no limiting instruction so that definitely also differentiates it and makes effect of the prejudice more pervasive lastly there was several errors that occurred during the prosecutor's closing argument and she improperly diverted the jury's focus from facts based on the determining guilt or innocence and focus on that to see things here on things friends this is well recognize as as improper then we build emotion laden appeals to prejudice the prosecutor also told the jury that he didn't think a camera existed with the necessary flash capabilities to take pictures of the scene at night which was in response to the defense attorney's challenge of the of their photographic evidence because this occurred at night and all their pictures were taken during the day the problem with that is there was no evidence on the evidence camera capabilities it's improper for prosecutors to inflect their personal opinions into a closing argument and to argue based on facts not in evidence the prosecutor also shifted the burden rebuttal by suggesting that martin should have presented evidence of who the real killer was oh and the prosecutor followed up each instance of the misconduct by kind of telling the jury that they hadn't done what they just said they did which made it very confusing and  judge was there we weren't the judge can assess the credibility the sincerity of the jurors that's why we have judges conduct board here so that they can look at what the jurors are saying and make a determination as to whether these people can we've all run across instances where there is a question that supposing that with a double negative and double negatives can be answered yes or no or correct and usually if that would done with a witness somebody would straighten it out but if you ask  question it's got a double negative and it the judge can look at it the jurors nodding he understands or they understand you know it it's pretty obvious to the average person that the juror understands what's going on it if we really believe that these jurors were saying yeah i can't i'll hold it against the defendant in the defense attorney just sits there and the judge just sits there is that really of a believable scenario course it's not that that's ridiculous the commonsense application in this case would say that the judge was there the judge or the answers he knew that yes meant yes and no meant no but the way those questions are posed in the double negative actually both both are correct it just depends on how the jurors expressing it if they're nodding and indicating that they understand what's going on this is a situation where you can't presume prejudice you can't presume that a jerk a biased or sat on this jury plain error has to be looked at here this is not a closely balanced case there are no structural errors in this area so that what the judge did we have to give deference to what the judge did inside and we also have to look  what defense attorneys just have sat there and they still had challenges at the end of that at the end of the day they still had two or three challenges left that they could have challenge peremptorily so that it could have made a motion for cause if they honestly believe that these jurors were being biased or they could have made motion a peremptory challenge and they didn't do either of those things and i think when you look at the record as a whole is clear that the judge knew what was going on and this is just a commonsense application in terms of that the one juror who he called out  there had been three jurors previous john who said he didn't think it could be fair and the judge said that's ok and it's clear when john birt is testifying at that j j forty four in the record that what the judge is doing  is he's evaluating the sincerity of the next person who comes up as edward sharma he was director of the chicago coalition for the homeless he said it would be hard to decide a guilty verdict and the judge said you're honest i believe you and then the next next man patricia dwyer her husband was a chicago police officer and she said it would be hard to be fair and the judge said i believe you to the next man who stood up gave this i don't want to point fingers at anybody and the judge using his discretion in the end the judge was there we weren't said you're making this up this is nonsense you can't do this and it is to prevent the runt of the exits that we've all seen in a jury selection situation where one juror says some magic words gets kicked off in the next six people say the same thing you have to guard against that the judge has to be able to use his discretion to determine whether or not this juror is is it sincere is telling the truth that's what the judge is there to do is to evaluate the answers of the jurors their tone of voice their facial expressions their demeanor as he can tell whether or not based on his experience these jurors are being sincere about their answers and he called this person out and said you know i don't believe you you're this is i hope the answer and so on interestingly enough the answer that he gave i don't want to point fingers i don't want to judge somebody or answers that would be given by a person who is biased against the state not a person who is biased against the defense so it actually doesn't even cut the way the defendant would suggest the bottom line is the judge was there the judge saw what these potential jurors were saying and the judge believed that this person was being insincere and intended to to get off jury service now tell us all britain's gang membership or any relationship say that i see these guys out there all the time i know they're the guys and these these are the guys that are together as a group flashing gang signs and yelling at people as they go past so that's the reason he knows them he doesn't know them from that that's the main reason the parking lot these are the people that are always out there these are the people that are yelling gang slogans so it is relevant to the identification was and where is the evidence in the record about somebody yelling things looking over into bessie s suggest that not at there's no question you could look at your brief so why did he have to bring in it's something in addition well after the fifth there is no question about them no and that's because he explained why he knew them and also the gang evidence as is is admissible to explain it otherwise inexplicable act and if you put the two acts together here we've got the december fourth act and then the december twenty third act and this group of people acting together the friends sometimes their gang members sometimes their family members but the relationship between the parties between the individuals is relevant to determine what you know to show what happened at the time then that would seem to mean that in any criminal prosecution luck involved more than one defendant evidence of gang membership comes in because it shows why they were together it might happen long well actually i think it is a relevant factor if you can show that they have some relationship and  again you're looking at it from the jury's perspective you know why would these people do this together why would they commit a crime together they have some relationship and it was important to show the relationship between the between these individuals they were the same individuals the did the december fourth crime of and the december twenty you argue did to the did it happened at the same place that there is a related well there is an incident in the factory where the one individual comes out bloody comes into the factory all bloody and then in the worker in the factory goes outside and his car windows are smashed on the street so the o t sees that sees that this group of people was involved in that incident basically they were trying to get into that factory they couldn't get into the factory and then they because they couldn't get in was there any evidence that the game signs were made you know there's any evidence they can slogans with me not at that time no i mean any time now and that wasn't the people he he had a hearing he looked at the he weighed the prejudice versus the probative value and he decided that he would let the gang evidence in it anybody testify or suggest that they couldn't to show that to two of these people juliana and fernando had identified this this defendant and the other defendants as members of the latin kings and this was to corroborate that in fact the defendant was a member of the latin  letter that supposedly went back to the jury there's no evidence in the record that that letter went to the ex and went to the jury the letter itself was never read to the jury what happened was on cross examination of fernando garcia the defense asked did it the state write a letter to ins explaining that you'd given help and he said yes the letter was not introduced at that point then on redirect  a letter is discussed the state shows fernando a piece of paper that's talked about is exhibit one but the judge says  the documents english with op withdraw the document later on there's a discussion that this exhibit exhibit number ninety which is never identified anywhere else was in evidence however at the end  after closing arguments the court has all asked the lawyers to go through the exhibits with each other whatever you agree on to give to the deputy if there's any dispute let me know what it is and i'll help you solve it we don't know exactly what evidence did go back to the jury based on that record and it incumbent on the defense to make a complete record even if it is the evidence in this case was not closely balance the evidence was in fact overwhelming on one side you had three eyewitnesses that place defendant there so that even if this had gone back and there's no evidence that it did go back it would not have been the straw that broke the camel's back nor would the gang evidence itself have been the straw that broke the camel's back the evidence in this case was overwhelming  boys were related to their family lived in the area they rented apartment out to the boy's uncle that lived beneath them they knew the family i was not needed to show that they acted together as the state just conceded on our argument they can show this by showing th eir family family was that if there was an argument or on cross examination there was there was questioning directed to why didn't you go to the police why did you wait several days but the witnesses were able to testify without bringing up the king evidence they said that they were just afraid of them again for the same things that i just said because they knew the family they knew they were afraid of their family their family the testimony and even the prosecutor's closing argument it simply wasn't neat necessary and it was prejudicial and it just went too far also there is evidence that the letter from the prosecutor to the immigration and naturalization service went to jerry page in seventy three of the record and also on page one in seventy six to seventy seven the prosecutor did remove some exhibits that he did not want going back to the jury they were mainly stipulations other trials this was not one of them it did go back to the jury the jury is presumed to follow the law instructions given to it and that would be to consider all the evidence before it's there is no reason to assume that this letter was not considered by the jury  lastly there is no difference between miguel rios response in the during friday or and the homeless worker or the wife's response saying that it would be hard to sign a guilty verdict is no different than saying you don't particularly like point fingers at anybody there's no difference here the difference is only in the way the trial judge treated these people it's improper and it has a chilling effect on discrimination can't be used just to enforce a civic duty jury duty service on people  regardless of whether it was forfeited as the crown court recognized and some of the federal cases and the briefs the forfeiture rules relax especially when such a basic fundamental right is involved the trial judge was there to assess the credit credit credibility but he failed to do stuff also near members tone of voice their facial expression their body language all inform the judge just reaction to their sincerity when they answer a question in a way that may get them out of jury duty taken in context your honor maybe was certain words i would agree with you but when we're talking about comparing yes and no there  to mean something yes and no there's there's no wiggle room with that he thought that was it i was referring to the mr rios is first said i i don't like to point fingers at anybody and there's a way that that could be said that would lead the trial judge to believe that this is this is not a sincere belief on this particular and your members work yes and i agree your honor but i think that it went too far at the point when he discriminated against him based on his immigrant status which has an effect in this case because of the two jurors who were naturalized citizens that end up on the panel and this is what makes it different and cola balla which was relied on in that and the brown case a it's a federal second circuit appeal case very similar to these facts except for where the judge discriminates based on this fact he didn't call anyone else out and say you are an american citizen this is shameful will you do it now he only did that with mr rios and that didn't happen in these federal cases that maybe the judge on was annoyed with the waterfall effect of people trying to get out of jury duty service but none of those judges publicly paraded and scream unaided and that's the differen