honor and may it please the court we're here because the court below made an error of law in concluding that any time a person gives a confession that a court determined should not be suppressed under the meaning of the th amendment even if that person is innocent they are and they are ineligible to receive a certificate of innocence this determination by the lower court and its equation of bringing about one's own conviction with having given a confession is wrong statutes plain language its legislative history and all the illinois decisions that have interpreted what bringing about one's own conviction means including people versus sign in people versus do must i know some members of this panel are very familiar with and people versus glahn all support that the only people who bring about their own convictions under the meaning of section two thousand seven hundred and two are people who try to engineer their convictions for some personal benefit or to game the system mr moore who succumbed to what judge brennan in acquitting him called the police's quote persistence in attempting to secure a confession unquote broke down and gave a confession that everyone agrees is unreliable that science shows  faults getting into that law enforcement persistence does not mean that he brought about his own conviction under the meaning of the statute what the state is asking this court to do is to essentially make new laws about how to interpret  stripper strip away relief from an entire class of people who are exactly who the legislature intended to benefit from seo i release in doing that the state's position is incredibly broad they argue that mr moore brought about his own false people who were victims of brutal police torture never had a chance to have their confessions suppressed because their cases were dropped when you have been in service and people like mr moore who are predisposed to listen to authority figures and who crumbled in the moment all the evidence and mr morse case shows and the state has never argued to the contrary and in their briefs before this court isn't arguing to the contrary that mr moore did not confess to mislead authorities to protect a real perpetrator or somehow to game the system he was an innocent man who broke down there again there is no evidence in the state has never argued that his confession was somehow for his benefit and that would be here ridiculous position because his conviction didn't benefit him in some way it did nothing except for guarantee that he would be convicted of a crime that the evidence demonstrates he is innocent of there are plenty of reasons to believe on the face of the fully developed record below that his confession was involuntary for purposes of the th amendment as we understand the science of confessions and as that that the mint jurisprudence has developed today but that issue is actually a complete red herring because there is nothing in the statute that equates bringing about one's own connection with that amendment standards and this court in reversing the lower court should direct courts in the circuit to apply that section correctly by affirming that bringing about one's own condition does not refer to merely c  to a crime but refers to someone taking advantage of the criminal justice system for personal benefit now obviously to receive a c o i mr moore needs to satisfy all the requirements of the statute which include most importantly that he proved by a preponderance of the evidence that he's innocent and i'm we addressed that issue away from her briefs and i'm happy to answer questions that the panel has on that topic when we move to the question portion in a moment but i want to focus my initial time on the position that bringing about one's own conviction refers to someone engineering a situation that results in their conviction this is a question of intention and of someone trying to game the system people versus simon which is a case that the state's brief does confessed in their allocution confessed to the media this is someone who had confessed unlike mr moore to multiple different sources at different times his conviction was vacated despite that confession after the court more fully considered the context of his statement the court specifically held in people versus sign and that was the st district that there does not have to be any misconduct by the state for someone to receive a certificate of innocence and obviously if the state doesn't have to have done something wrong in some way for someone to receive a c o y then there conviction when they're guilty and they're basically saved by a technicality which is what happened in dumas this is a person who arranged a drug sale came to a drug sale stepped out of a car at a drug sale with drugs but their conviction was  on a very precise technical issue about what it means to possess drugs for this purpose you know that's a person who brought about their own conviction they did everything but successfully possess drugs within the meaning of the statute you must talks about bringing bring about one's own conviction in the context of taking the fall for someone else that's why i do less cites to the bets federal decision and there are some important distinctions what the federal statute about certificates of innocence that i can  discuss with this panel if it has questions but there are some differences the importance of bets though and this is why you must was citing it is that it's giving examples of what taking the fall for someone else means in the context of bringing about one's own conviction and that's what you must help but if you're taking the fall for someone else you're bringing about your own conviction as we discussed there's no evidence that mr moore was bringing about what was taking the fall for someone else when he confessed he didn't commit a crime and get away on a technicality like the petitioner and d guilty and i can't think of an example where someone's conduct could quote unquote cause their conviction more than a person who pleads guilty in the system and yet that's a just that's a case where the st district had no question saying that she deserved a certificate of innocence this guy despite that guilty plea we talked in our brief some about the legislative history and obviously some of that history is cited by this court it's cited with favorite legislative history that the purpose of the c e o i statute was to help men and women who had been falsely incarcerated through no fault of their own you know that's what the legislative history speaks to digging deeper into the legislative history there's also a reference in the house arguments about this bill that the legislatures the legislatures who are trying to make the c o i remedy available to people were trying to specifically help somebody named michael levin's he ultimately received the c o i and he's someone who can fa legislature when you've been trying to help michael levin's if they intended to omit people who have confessed to receiving relief we've also cited in our brief to a number of lower court cases circuit court little cases in illinois where people who confessed or people who pled guilty received c o eyes and those cases come not just from cook county but also from cases in this district from lake county and from page county where there are confessions and people nevertheless received you know eyes and we urge this court in particular cook county from then chief judge people who said that bringing about one's own conviction that requirement is only intended to quote preclude petitioners from taking advantage of the criminal justice system for personal b t judge people gave a c o i to human sometimes even though he confessed and even though he pled guilty and that's the same court standard that this court should apply because all of this supporting evidence from the political decisions lower court level decisions the legislative history all of it points to not equating bringing about one's own conviction with a confession i think the six going to get up here and maybe say three different things to this court first they're going to say that that's the language and that somehow controls and we talked about that there may be an argue this is an abuse of discretion we've explained why this is a denial of all we're view issue but even under abuse of discretion for all the same reasons we prevail and maybe they're going to say that william or isn't innocent or hasn't proved his innocence by a preponderance this is not a close case where that's concerned particularly where the only real evidence of his guilt was his confession and even the lower court agreed that confession wasn't reliable science shows that that confessionals false and that mr moore is innocent so he's proven all the elements for a c o y including by the preponderance of the evidence that he's innocent and i'm happy to answer any questions about that or anything else that the panel wants to inquire of thank you thank you justice hudson do you have any because it held the movement of a confession being voluntary and therefore he is not entitled to a certificate of innocence where in the record of the trial court rule that the statute requires in all cases the voluntary confession prohibits of the certificate of innocence where is that coming from when the court ruled when it looked at the evidence i mean it said and i'm looking at two dollars to sixty four dollars of the record that it could not find anything about the confession despite its own reliability that would make it the product of either put it legal police conduct or some other activity that would cause the statement to be something other than a voluntary statement and therefore you know i find that he brought about his own conviction and so i'm granting court's ruling is about three pages and when you look through that ruling it says i'm only ruling on the last prong that's one thing the court says it's clear it's not looking at innocence it says i'm only looking at the last wrong i'm only focusing on that that's what he says and then it's then the court says it appears he gave a statement and it goes through and says that statement wasn't the product of physical abuse or verbal conduct or sleep deprivation that would make it involuntary confession that's the only issue that the court's looking at your honor and i don't know if i'm reading his remarks and then we if you are but i'll move on obviously you quoted bet you say the bets in your brief you're familiar with bets correct yes your honor ok betty stated that there must either be an affirmative act or an emission by the petitioner that misleads the authorities as to his culpability that's and goes on to say that the clearest example the clearest example would be a defendant who either falsely confesses to a crime or intentionally with issues takes to fall that's clearly states it's an either or proposition so did the defendant in this case and that falsely confessed to a confession or not did not confess may give a false confession isn't that what you're arguing we're certainly arguing that we're not disputing that he made the statements he made statements to the authorities and that that was a false statement that's correct or well then how does your argument square with bets that one of the things that would be an element to deny would be the defendant voluntarily falsely confesses or takes the fall for somebody else you seem to be suggesting that only apply it where the person takes the fall and ignoring what beth said about confessing things your honor i mean one i want to get to that specific language but i want to talk briefly about the differences in the federal statute because what gets interpreted is actually different in two fundamental respects from the illinois c o i statute because what the federal for lack of a better term certificate is that the federal statute includes specifically in that in the description of what the conduct could be neglect i mean this is talking about negligent conduct not just misconduct the other thing is that it's talking about prosecution and not conviction and those two differences are important because what the federal court is looking at in bets is did this person its conduct bring about their prosecution i mean was it about four that led to them being charged so that's one important difference i you read the language differently from a court i don't read it as an either or proposition i mean what the court what the court says and that's i'm looking at well the five that it says you know he must have acted or failed to act in such a way to mislead the authorities and then it set the clearest example would be someone who falsely ringback confesses in common parlance one who takes the fall for someone else i don't read that your honor is an either or proposition but more importantly when i look at what do you miss was doing in looking to bats i don't there isn't a reason to remanded for consideration of the issue of sort of a certificate of innocence that specifically said it was not taking a position one way or another on whether mr simon was entitle to see a light alternately ok because the court specifically held that it's ruling does that mean that after conducting the hearing plan itself is about whether somebody who hasn't served any time talking about the term of imprisonment language in this or to be given instance statute but the court had the court was reviewing the decision from below to know i mean just like we're asking the court to do because there was a legal error in reviewing that decision to no close the court took no issue with the fact that mr glenn had pled guilty and so the point of one is that a person complete guilty and still not bring about their own conviction and if a person can plead guilty and not bring about their own the conviction you would admit that glenn is clearly distinguishable i think one can only take this court so far and our point is there's honestly limited appellate court language that looks or helper decisions that look at this issue these are the major three decisions in illinois that it rests on the c e o i statute and give indications to this court about what should be doing here but i created glenn alone glenn doesn't provide the answer but when in context these other decisions give this court direction about where to go right the final observation i wanted to make most times and you were aware of the fact you reference for alluded to a circuit court proceeding in cook county you are aware of the fact that trial court decisions and proceedings are not binding precedent in any way you are aware that  honor and our point is only that if this court concludes that confessions especially in the context of mr morris confession or somebody bring about their own conduct then every single court in illinois has looked at this issue has just gotten it totally wrong and i agree this court doesn't have to agree with judge people it doesn't have to take notice of church people if it doesn't want to but all these courts reach the same result for a reason which is that the length of the statute what it was trying to accomplish speak to our interpretation of what the court did was said that it could not find anything about the confession that would make that something under a voluntary something other than a voluntary statement and i agree that the court is depending on how you look at its ruling anything new about the situation it didn't appear to have looked at the different credibility findings that judge brennan eight when he was acquitting acquitting william or i mean that was one of the major differences in findings about what happened during the interrogation because even though judge brennan did not allow mr moore to have the suppression hearing he specifically credited testimony which had been previously credited about whether or not mr moore was served with divorce papers and the interrogation that was something that the police had always denied occurred and judge brennan occlude concluded in looking at that evidence more carefully and with the benefit of an additional presentation that in fact it were lying about that there is no evidence from what the lower court did that it took those issues into account that it did anything other than look at the initial conclusion that this that this confession should have been suppressed and sort of confirmed that it thought that was true taking the fall for someone else and do you equate that with giving a false confession that those are the same thing i think if i understand the court's question that we're actually saying the opposite which is that making a false confession is not necessarily taking the fall for someone else now we can all imagine the kind of horror situations that the that the legislature was concerned about and obviously there are situations where somebody can confess again because they're trying to commit a fraud on the system they're trying to protect somebody else i mean these are situations where you know again member takes the fall for somebody else and deliberately confesses knowing full well well that they're deceiving everybody and they're attempting to game the system where you know somebody takes the fall for a spouse or something again where it's not an issue of somebody giving in but somebody knowing they're misleading everybody i mean those are people that shouldn't get sort of to get over twice you know to get the benefit of confessing to help somebody else and then getting rewarded for it by the legislature in getting a certificate of innocence and that's what dumas speaks to in our view that it's people that sort of shouldn't be able to get over twice that he was is a person that should have been able to get over twice he's lucky his conviction was vacated because this is a person who obviously based on the record tried to you tried to do a drug sale and one of the technicality and that's not mr moore situation ok thank you i don't have other questions essentially the equivalent of a retrial and it was based record if i'm wrong on the fact that the confession was scientifically implausible based upon the presence scientific understanding of experts that's that's correct your honor i mean the other key piece of this was that the court judge brennan including william and more specifically credited the testimony of the sally that when she left the house everything was fine and all of the experts even the a t f experts and state agreed that if when tina sally left the apartment everything was fine then there is no universe in which under the science will even work it started this fire so it's those two things that the confession was scientifically impossible that tina celie's account you know spoke to honor had you cut out for a nd there i apologize i could hear the question is it correct to conclude that the evidence that was presented at the original trial was based upon and followed the false confession or the impossible confession but your client gave absolutely and at the st trial obviously that confession appeared to be not only plausible but what occurred i mean that is what the state what the experts said was that they believe that he could have started the fire and that the fire did star in the way that he had confessed that something nobody understood in one thousand nine hundred and five that this confession was actually given a scientifically impossible route for this and if that is the case how is it that the trial court ruling was incorrect in so far as the fact that it wasn't just a false confession the false confession was the basis for the conviction and if it's the basis for the conviction how is it not the conviction was brought about by the actions or the story or the confession made by you or your client i understand the court's question and i think the issue is what does bringing about one's own conviction mean i mean obviously in some cause ality sense i understand the court's question in that regard as some causality sense the confession had everything to do with this conviction no question that's not what bring about one's own conviction means for purposes of the statute i mean if it did then every person who ever confessed wouldn't benefit from a c o y and that's simply not what the legislature intended it's not what they did on the face of the statute and it's not what not constitutional it's actually what we would expect of police that they're not going to and i'm paraphrasing that they're not going to take no for an answer that they're going to try to persuade somebody to confess well even more potentially through no fault of the police because it's not about misconduct i mean that's what simon sa call the police and maybe in a way that even is constitutionally permissible and that shouldn't be suppressed because that meant standard is very high push mr moore to confess that he did it but that doesn't mean that he's somehow to blame for confessing and that doesn't mean that under the meaning of the statute he shouldn't get the benefit of a certificate of innocence because what the c e o i say actually this war is for people like mr moore to be able to get a fresh start to be able to benefit from job training to be able to benefit from some of the other benefits that are in the i statute in addition to getting statutory relief which is really just one part of it we're saying people who somehow give in because of their particular circumstances and confessed don't get the benefits of the certificate of innocence there is simply no reason to think that the legislature was trying to exclude those people from getting relief i mean that would be an extraordinary number of people who would be excluded for relief and there is no reason to think that the legislature was trying to tie that to th amendment admissibility you say in failure to rule obtain relief in every instance and i am thinking of a factual scenario where the police came up with a highly implausible theory which at the time was supported by expertise and the only thing your client did was say yes i agree i did those things that the state is conjuring up as opposed to this situation where this defendant conjured up an highly implausible now we know confession so in one instance i can accept your argument that it was the state that created the basis the factual evidence for the conviction but in this instance this appeal that didn't happen this development was the one who conjured up the facts upon which the state shaped its case and so for purposes of causality your argument that this cause causation or this cause ality in this particular case is going to have catastrophic effects across the board doesn't logically follow it's a non sequitur because it's based upon a premise that is inconsistent simply because there are different facts in one instance it's the defendant who creates the factual scenario and  the other instances the state or rd parties so please and explain how this is supposed to be the only and your interpretation is the only interpretation that will allow d for  relief in situations where there is a false confession well there's actually two things your honor in the st is that actually mr moore situation is the situation that you're under some sort of out where the facts were suggested to him by the authorities and there is ample pattern of how this confession came to be is that all of these facts were actually suggested to him by the authorities you know he told them in an earlier interview that he had been reading the newspaper earlier that day while he was watching the football game and so the newspaper comes into it because of them but he comes into it because of them they knew that he was a smoker and that other people in this in this house with us were smokers and so that's all cigarettes come into this this is not actually a situation where somebody just comes up with a crazy story out of nowhere and how are the police supposed to know  where this came from these are facts that were suggested to mr moore by the police and again it doesn't mean there's nothing in the statute that requires and this is why we cited sign and there's nothing that requires that this court conclude well you know we've got to blame the police for this they've got to be at fault or else somebody doesn't recover that's not again what the statute requires but mr morris actually does the person that your honor is worried about i would use that the nd point to which is that one specific thing that the legislature caution works about and this is in section two dash seven o two a was and i'm quoting from the statute that in exercising its discretion about the weight and admissibility of evidence that a court should give due consideration to difficulties  caused by the passage of time the death or an availability of witnesses the destruction of evan and are other factors not caused by such persons or those acting on their behalf what the appellate court was saying was that it is going to be more difficult in a where you know the passage of time had impacted those issues and for this court to say that what people in mr more situation are going to have to do is prove to this court that there confession should be suppressed under the th amendment or prove to this court exactly what happened that's also going to go against what the legislature intended because that's going to require really complex back findings determinations about what exactly happened and that's not fair to mr moore when you're talking about a confession that occurred you know so many afield from my question or my rhetorical question or rhetorical statement thank you i have no further questions are there any questions that the panelists have i have not no honor thank you good morning your honor is and me at least the court miss thompson my name is stephen leeb and i'm an assistant state's attorney and page county and i'm here today on behalf of the people of the state of illinois the code of civil procedure sets forth the process by which a person who has been wrongfully convicted and incarcerated can obtain a certificate of innocence that certificate can then be used to obtain financial compensation through the court of claims this is not a pro forma transaction through which the petitioner can merely point to an acquittal to obtain relief on the contrary the law imposes a meaningful burden on the petitioner to establish that he is actually entitled to a certificate of innocence st and by a preponderance of the evidence that he did not voluntarily cause or bring about his own conviction petitioner has not carried his burden of proof with respect to either of these elements and therefore the trial court correctly denied him a certificate of innocence turning to the st requirement and i am going to spend a little bit of time talking about this petitioner has failed to prove that he is innocent of the offenses with which he is charged the clearest evidence of petitioners involvement in the fire is his own words it cannot be disputed that he confessed multiple times to multiple people that he intentionally started the fire that killed marion misselling he explained that he started the fire in the living room by dropping a lit cigarette onto a vodka soaked newspaper and he affirmed that this confession was true and from his heart now recent developments in fire science have shown that you can't start a fire by dropping a cigarette onto a vodka so it newspaper and that is the core of petitioners argument but importantly your honour's the only thing that the fire science does is establish that petitioner did not start the fire in the way that he said he did this was enough to create reasonable doubt at petitioner nd trial but it does not establish his innocence why not because there are vast amounts of other evidence which corroborate the main thrust of his confession which is that he killed mary and by starting a fire in her apartment so let's talk about motive it's no secret that petitioner didn't get along with mary and he told detectives that the living arrangement was getting unbearable during his interview the petitioner told the detectives that he started the fire because he wanted to collect money from marianne's insurance policy he explains that he's desperate and he didn't care how he got it or what kind of money he got he just needed to collect some money those are his words motive there was also strong evidence of the planning that went into mary ann's murder and as justice mclaren indicated this was these were details that the defendant came up with himself these aren't details that the that the detectives gave that if it gave the defendant petitioner told the detectives that he came up with the idea to kill mary and several months before her death he explained it something he thought about from time to time initially and again this is a detail that the defendant himself gave the detectives initially considered mixing marianne's medication with what he called street drugs to induce an overdose but he abandoned that plan after recognizing its drawbacks now why is that important because that points to a measured decision that involved the petitioner weighing the pros and cons of his choices ultimately petitioner decided to burn down marianne's apartment and he even took some safeguards to ensure his success like removing the apartments only smoke detector if that were not enough again this is not a detail that came from the detectives the titian or his plan was also corroborated by a letter that he wrote to tina several months before the fire referencing a plan or two of attack for some capital gain for late summer that timing was not a coincidence and then we come to evidence of opportunity petitioner was in the apartment with mary and shortly before the fire began there is no question about it under petitioner's own timeline he was in that apartment no more than a half an hour before mary ann called nine hundred and eleven that's it is clear that petitioner had ample opportunity to kill mary and it is the petitioner who carries the burden of proof on this issue and to date he has identified no alternate suspects who had the same motive the same plan and the same opportunity to kill mary ann this weighs heavily against his argument that he  innocent and let's be clear about the expert witnesses who petitioner says support his innocence to a petitioner three experts testified that the cause of the fire could not be determined they just didn't know the rd believe that the fire was sparked by a small during cigarette ok fine but then the people's expert testified that the fire was deliberately started by human hands importantly there was no consensus on what time the fire began and none of the experts conclusively rule out that petitioner was the person who started the fire this dissonant testimony from petitioners own witnesses no less does not establish that he is innocent another approach taken in petitioner's brief is point to evidence that the people did not present at a nd trial but this tactic turns the burden of proof on its head the people do not have an obligation to present any evidence on a certificate of innocence it is the petitioner who carries the burden of proof and so i would encourage the court not to give any credence to that arguments in the end under the preponderance of the evidence standard petitioner cannot prevail by showing that maybe he's innocent he cannot succeed by showing that there is a good probability that he's innocent instead he must prove that it is more likely than not that he is innocent and here in light of petitioner's confession and the strong corroborating evidence of his motive plan and opportunity the titian has failed the carries the burden of proof now even if petitioner has established that he is innocent the law requires more the law requires petitioner to prove that he did not by his own conduct voluntarily cause or bring about his own conviction and that requirement makes perfect sense it would be illogical to allow a party to obtain financial compensation for something that he was responsible for petitioner asked the court to review this issue de novo he argues that the trial court made an erroneous legal determination and that court and that this court should take a fresh look but the trial court here did not make a legal determination it did not find that any confession no matter the circumstance in all of the bars a party from rel think justice hudson you alluded to that during your questioning rather the trial court made a fact intensive determination the court looked at the entire record and made its own independent decision that petitioner voluntarily caused or brought about his own conviction petitioners disagreement with that decision does not make it a legal one therefore the correct standard or view as supported by the statute in case law is that the trial court's decision should be reviewed for an abuse of discretion its ruling is subject to reversal only if it was so arbitrary so fanciful or so unreasonable that no reasonable person would agree with it this was not an abuse of discretion now there's not a great deal of authority on this issue in illinois however courts in other jurisdictions jurisdictions including the seven circuit and bats have recognized that a confession is one of the most effective ways of causing one's own conviction and that's exactly what we have in this case the evidence shows that petitioner confessed to starting the fire he told the detectives why he started the fire and he told them about the months of planning that it took you to explain that he removed a smoke detector just days before the blaze and he affirmed that this was true and from his heart and i want to talk about little bit about causality because i know that's something that just as mclaren had mentioned did petitioner's confession did these statements cause or bring about his own conviction the answer is absolutely it's important to note that petitioner was not arrested until after he confessed thus his confession was the very act that initiated the legal process against him and of course that confession ultimately led to his conviction as his own expert told the jury at  his st trial it was highly statistically probable that petitioner was telling the truth and we don't get to look at this problem through the benefit of hindsight petitioner made the decision to confess back in one thousand nine hundred and ninety five and that confession was the catalyst for his conviction at his  st trial but it sure argues that he should prevail on this issue because this convention was involuntary because it was can be coerced by the detectives but the petitioner has had several bites of that apple he's repeated that same argument over and over again before enough mention well there's no indication that the trial court relied on race judicata or a question to that effect and i would agree that the court was not did not indicate that it was bound by the prior judge's rulings the court found hey i'm reviewing the evidence by myself and i'm making this decision the only new evidence that petitioner offers is the recent developments in higher science and while it may make one aspect of his confession less reliable it has nothing to do with the voluntar confession that is later proven completely false can still amount of voluntary conduct that brings about a conviction we don't have a completely false confession here we have one aspect of it therefore petitioners failed to carry his burden on this issue as well for these reasons your honor the people respectfully request that this court affirm the decision of the trial court and i'll hold its denial of a certificate of innocence thank you very much for your time and consideration and i would invite any questions thank you just use words and you have an illinois statute and i think we can rely on its reasoning in interpreting that statute i understand it's not binding on this court much much like the trial court's decision on judge people in co county it's not binding authority but it addresses a substantially similar issue i don't think there's any meaningful difference in the federal certificate of an instant statute versus the illinois statute and i think it's reasoning is absolutely persuasive when it talks about a person should not be able to reap the benefits of his own misconduct or his own neglect by falsely confessing to a crime i think that applies with equal force here and again  the most effective way one of the most effective ways that you can secure your own conviction is to confess and i think that that applies with full force to this case as well that you would acknowledge state law could vary from the discretion standard of review and yet you ask us to reach the question of whether petitioner proved he was innocent of the charges but a preponderance of the evidence despite the fact that the trial court did not reach that issue or a pine on it so how could we reach that issue and decide whether or not there was an abuse of discretion on that point well certainly there there was no there would be no discretion to abuse on that issue because the t court didn't use any discretion on it whatsoever it didn't reach the issue in the st instance however i think that's why we have to use a dyno oh standard in order to get there on that on that st point on that on the st point on the on the st issue yes i i would i would agree with that but i think that this court can still reach that issue i think the authority of this court is clear that it's permitted to affirm the decision of a trial court on any basis that appears in the record i talk about that it paid fifteen of my briefs and this is a basis that appears in the record although the trial court didn't rule upon it it was fleshed out by both parties it was briefed extensively by both parties it is an issue that appears in the record and based on the french case among others that i cited in my brief i think that you can still reach that issue ok and then let me ask  certainly it's possible that he started the fire perhaps not as he said he did originally and you talk about the opportunity that he had but my question is what about the tim e there were no signs of fire when marianne went back to the apartment and they were ten minutes away when nine hundred and eleven was called so how do you account for that as well it there was no no fight when she went back you know she didn't smell anything she didn't see anything she didn't say anything was smoldering the timing just doesn't work out i i would agree that that is how tina misselling testified at trial she testified when she came back and i think to grab the keys or purse that she didn't smell smoke she didn't see a fire or anything like that but although that's her testimony i don't think it's enough to get the petitioner over the preponderance of the evidence standard st and in light of the testimony of the the experts they can agree on how or even when the fire started so i think i think that's an issue there that prevents petitioner from meeting its burden but in addition to that i mean talking about timing if this happened it happened in the course of a half an hour at the upper limit at the upper thresholds if you account for petitioner and tina's timeline that was given at the st trial and and in light of the fact that petitioner was there there's no question that he was there within a half an hour of marianne calling nine hundred and eleven there is there is no one else there's no evidence that anyone else was present at that apartment besides petitioner and tina there's no evidence that anyone had the same motive and the same planning and foresight as the defendant to where i i think that even though tina testified as you said i don't think it's enough to surmount the standard of the burden of proof in this case i believe i believe that would have been petitioners for a sexpert who said that he believed that may have been caused by a small during cigarette that had been left in the recliner and that's that  testimony is is has given no support by petitioners other two experts who said that they don't know how the fire began that the cause should have been listed as undetermined and when you consider those experts against the people's petitioners to two of his own experts say that the cause of the fires undetermined that that's not enough to get them under the preponderance of the evidence standard that at best as just judge brennan ruled  at the nd trial and at best there's an equilibrium in the testimony of the experts and that's certainly not enough to get above the more likely than not the fifty one percent standard ok argument today that we don't necessarily need to look beyond the logical connectives connectivity that is because there was a concession made that he wasn't arrested until after he made the confession that that is sufficient that's all that's required but how did do you explain dumas i mean don't we need to look at this issue in light of whether or not he was taking the fall for somebody else isn't too much i i don't think you to do your honor i think that dumas just provides one example i don't think it imposes any sort of limitation on you know which types of confession  which motivations for confession are required for a to obtain a certificate of innocence i think that's one example it certainly doesn't impose any sort of limitation and when you look at the statute there's no requirement for when you look at the plain language of the statute there's no requirement or showing regarding the motive of the defendant's confession it's just did the defendant voluntarily cause or bring about his own conviction or i think he did here and so how do you respond opposing counsel its argument that if we ruled that giving a false confession is sufficient to meet the nd requirement that we were just trying to nd guess we were talking about today that that would mean that nobody would get a certificate of innocence who falsely confessed can you can you repeat that justice i apologize and you're not following how do you respond to counsel's point that if we rule that giving a false confession enough itself is sufficient to satisfy this less requirement that nobody will be able to get no one who falsely confesses will be able to get a certificate of innocence but that wasn't the legislatures intent here  because the statute requires more than than just that one singular element there are other showings that have to be made regarding proof of the defendant's innocence you have to show not just the false confession but a causation the causalities element so i i don't if you did this to me let me i'm sorry for interrupting i know it's hard to do on the phone but from seeing those firemen are aside and we're just talking about this one now this would preclude anybody who was falsely confessed from a certificate of in i i understand the court's question i i mean that goes toward the intent of the statute i i don't know that it would necessarily be that require that same result in every case but that the statute and the legislative history does talk about we don't want to let a petitioner take advantage of his neglect or his misconduct by obtaining financial compensation for something that he caused so i mean if if he did it voluntarily and you know this is distinguished from you know say for example the burj torture cases where  a defendant has a confession beaten and tortured out of him that would not be a voluntary confession so i think that it's important to remember that the ruling would i think not be as broad as you're suggesting because it would have to not just be a false confession but a balun terry false confession based upon scottish law you know i actually when i was talking to my wife about this case about a week ago she had actually mentioned that i think if i'm if i'm referring to the same thing do they also have a rd verdict of i believe it's unfounded or something like that call not proven not proven and not proven is  put it another way not to say can mean one of two is it can mean it's not proven because it is the bird beyond a reasonable doubt and if they don't do that then it's not proven it also  and or that it might be possible but the evidence seems to indicate that some other person committed the crime and so the  guilty not guilty these are guilty not proven and innocent are different and we had to oral arguments before yours where the issue related to whether or not there should be a  a conviction based upon whether or not there would be a probability of a change in the convictions and it was based upon the allegation in a post conviction petition that innocence arose or th innocence was present as opposed to whether or not it was merely a situation where the evidence that was presented might create a situation where the person was not guilty and i proven not guilty and so a certificate of innocence is not a certificate of not guilty by its own statement your argument originally relating to the fact that the defendant was not innocent indicates i think and tell me if i'm wrong that you are actually basically saying that he may have committed the crime it just is that his confession was inconsistent with what probably happened and as such there was a reasonable doubt as to whether or not he was guilty is that correct well justice mclaren i i i agree so his is confession was inconsistent with with what the science showed in at least one respect and that's the exact manner in which he says that he started the fire i would certainly agree that there's a distinction between guilty not guilty and and being innocent and i think the kirby case that i cited in my brief talks about the fact that you know a confession is not required to match the rest of the evidence in every single particular there is allowed to be some variance and of course there is no perfect confession there is no such thing as a perfect confession so i think that that one inconsistency that the inconsistency about the manner in which the fire started that was enough for a not guilty finding that was enough for the trial court to say hey i have reasonable doubt about what occurred so i'm going to find the defendant not guilty and we don't dispute that finding a judge brennan here but now petitioner has his own burden he has to prove that he is innocent and i think given all the other evidence that i've set forth today i don't think that petitioner can meet his burden of getting to that xstrata that rd step of proving his innocence how would you character determination that there was a lack of reasonable doubt i believe it was a determination that the state had failed to prove the defendant guilty beyond a reasonable doubt i don't think any where in the opinion did i think was a seven page written opinion on the anywhere  there did the judge brennan say that he was finding the defendant innocent he said that i'm finding i'm not guilty because the state failed to meet their burden of proof ok well i missed the joke i said the lack of reasonable doubt or lack of doubt which could have been if there was no the state failed to prove beyond a reasonable doubt so i have no further questions does the panel have any other questions i do not no thank you thank you everyone i appreciate it and i couldn't miss thompson you may proceed with your rebuttal thank you your honor i have two points i want to make before addressing any final questions the st is that the thing the state said one thing in its argument which is really the crux of all of this to bring about one's own conviction they said that somebody should not reap the benefits of their own misconduct or neglect not only is that and they said that the legislative history speaks to that and it actually does not and i challenge the state or anyone to find any language in the legislative history or in the plain language of the statute itself that would support that reasoning but even if that were the standard where is mr moore's misconduct or neglect what did he do wrong here that makes us say we should punish him i mean the state's interpretation of the statute is essentially that somebody should be punished for giving in to effective questioning by the police and giving a confession there's no evidence that he committed misconduct  neglect in doing that and that's why that's not the standard your honour's i want to talk some about mr moore's innocence as well and how this relates to the other factors because it's absolutely mr morris burden to prove his innocence as well as the other element of the statute and that's far more you know the british are recognizes that's not a pro forma issue so he has never argued that it is but the state's characterization of the record to get there is fundamentally wrong and there are as we explained our brief multiple problems with their summary of the evidence even what they said before this court just a moment ago every expert agrees that timing is dispositive in this case which is why i appreciate the point that and she had already been divorced for only one more she obviously had no reason to help mr moore and she absolutely maintained at that time her account of what happened when she left when she came back into the apartment and left last and saw nothing there is simply no way to square what tina celie had to say with william or having started this fire and what the state wants you all to say once this court to say is frankly that it should substitute its judgment for that of scientific experts a bunch of them even an a while said that willingly or could have done this that's not a technicality that's not a we don't know that's every single expert saying the timing does not work it's not mr moore's burden to show some other suspect is the state suggested that his burden to show in a universe in which this court even believes this fire was intentionally set which is not just friends conclusion some other suspect he doesn't have to show that he certainly has to show by a preponderance of the evidence he's innocent that's what he's got to show but he's done that because the timing simply doesn't work it functions as an alibi for the state to argue otherwise for this court to argue otherwise is specially on the basis of very flimsy motive evidence which we've addressed in our briefings and are addressed in the record there is no reason to c because that statute also speaks to how we should think about this you know the state said that it shouldn't be pro forma in terms of a person who's been acquitted but the legislature said that where somebody has been granted  post conviction relief on the basis of actual innocence and they can satisfy you know their requirements wanted to have a statue that they don't have to prove that they voluntarily that they didn't voluntarily bring about their own conviction then have to prove that under the statute and that speaks to what the legislature's intent was it was not to create an extra barrier for people like william or there's no evidence we're trying to tricky body but people who just gave in to questioning there is no evidence they were trying to do that there's no evidence that they wanted to require somebody to prove a lack of misconduct or a lack of neglect which is what that says not the only statute there is no evidence that's what they intended the evidence is they wanted to help innocent people they wanted to help them clear their names they wanted to help them get a fresh start william morris one of those people to for this court to hold that the standard is otherwise would work a great injustice not in just in mr morse case but it every case of a person that is similarly situated to i will address any other questions that the court has but as the court knows mr moore respectfully request that  extent that you are arguing that the case law does not hold and should not hold that the mere fact that someone can falsely confess should not be a basis of conclusive basis for denying that person in certificate of innocence i think in all fairness that's legitimate argument but i'd like to ask you this is it your position of the cabin st has to be true effect of somebody gave a false confession that could never be the basis for denying his certificate of innocence is that also your position our position is there has to be something slightly more which is there has to be some evidence whether it be from the way that somebody can fast or anything else about the case that shows that they were trying to take advantage of the system for personal benefit the way that judge people spoke about this although as the court has indicated is obviously true the court doesn't have to accept that but that is the standard that speaks to what the legislature intended so if somebody is falsely confessing because they're trying to trick somebody then that's one thing and maybe that stated that you believe that it's by a preponderance of the evidence that you us have to establish innocence is that correct yes your honor so far as the alternative or the mitigating factors that would preclude relief or the grant of relief are those factors also determined by a preponderance of the evidence i believe so your honor the statute is a civil in nature in the ok and what is the standard on review of an abuse of discretion considering the fact that there is more than one finding in so far as whether or not the person is innocent but there are intervening factors or is this just is it against the manifest weight of the evidence i if if there were no legal error it should be abuse of discretion and we've obviously are good at length about the legal layer here but in a situation where no legal or occurs there are multiple cases that say that it's in the sound discretion of the circuit court whether or not to grant a certificate  there was committed here it was that the court was looking very explicitly in its ruling in its oral ruling about whether or not i believe that this confession was voluntary and it started by saying that an appellate court has already looked at this issue and conclude that his statements were voluntary the court spoke for about a page about these issues and said it also concluded that the statement was a voluntary statement and that is the wrong standard to apply and that's legal  innocent there are certainly people who deserve post conviction relief because the state can't meet its burden to show that person should be convicted and there are people who will be acquitted or have their cases drop that situation and go home and they should be very happy that that's the outcome you know mr do most of the nd district cases one of those people there are there are other cases where some will be acquitted and certainly as judge brennan said you know his he's not in that situation at trial to decide whether or not mr moore is innocent i mean that's what his ruling says it's not his job in that situation but where the evidence will also show that someone can meet their permanent burden to prove by a preponderance of the end of the evidence that they're innocent so sure there are going to be some people that get post conviction relief in illinois where a scottish verdict is the issue mr moore is not one of those people the scientific evidence is dispositive and he can prove that he's innocent unlike potentially some other people who might seek relief from this or other and apt time thank you very much the proceedings are now globes if your honour's you're welcome