the next case in our caller's agenda number eight wow nine zero one four people the state of illinois versus yellow sanders  on this case involves through a substantive issue of the right to a fair trial an impartial jury most specifically in the context of this case it's whether the trial court by refusing to arrest the state announced for the first time its intent to introduce a statement allegedly made by sanders to the victim's brother some days after the shooting that the shooting was b d business b b b d b find as the black disciples of st game in chicago the defense objected a variety of grounds to the objection was overruled the defense then requested of the trial court that if this evidence was going to be used that the trial court voir dire the jury and submitted six questions related to gaining evidence and going by this trial judge denied evidence was a single eyewitness who was seven years old at the time who the appellate court one direct appeal another could only have a glimpse of the shooter and on the other side there were three witnesses who testified that the defendant was with in the appeal sanders raised the issue of rod dia regarding game bias layers to justice indicated people versus strangers decided in november of two thousand rehearing the night january two thousand and one on the precise issue of ensuring an impartial jury through voir dire based on giving evidence november two thousand one sanders was take the truth of the law regarding fraud of the jury fifteen years old or more look at the law he took me daughter playing by his that was some ten years in the making regarding the bias so to that extent i think those would speak to him straying and morse last question for me and morris at least more is further held that the fact that a court states that its decision is within the logical compas of an earlier decision or is controlled by a prior decision is not conclusive for purposes of deciding whether the current decision is a new rule in the end who would we have no objection to that study then we think that fa retroactive for my gig so i think the idea that somehow there's going to be a floodgate of litigation related to this issue that hasn't occurred to this point ten years after straying i do it hasn't occurred eight years after gardner which held that strain retroactive contrary to the decision in sanders that we are facing today so my position would be that this idea of flood routes is vastly overrated and in fact it hasn't occurred automatically brought by the jury about that issue because they really does it say hot button controversial issue in most urban communities and that's why we haven't seen that many cases on that issue surface because the case so clearly at least we feel confident the less the court is is is inclined to reverse a gardener than it is a real known as well as people vs more on the procedural nature of the giving evidence in this particular case you can't help but conclude that the firmware was not provided a fair trial argument you argue on the one hand that strayed did not announce a new rule for purposes of retroactivity but also argue that strain actually changed the law allowing the petition to withstand re strain does not meet that test as a new law of constitutional criminal procedure which is the phrase that uses i don't think the strong decision reaches that level earlier he could have filed that post conviction petition which was due before maine one thousand nine hundred seven he chose not to he opted to go to haiti a strout but he was denied relief there as well by his own admission he filed an untimely petition in november of two thousand and one for the sole purpose of capitalizing on this court's two thousand decision in people versus train issued one year before he filed his untimely post conviction petition because of these precise factual circumstances facing the defendant in this case for him to get any relief from the strain decision he must argue two things he must argue that strain is not new such that it will apply retroactively to his one thousand nine hundred four conviction but he must also at this very same time argue that people versus strain was new enough to occasion a change in the and it can't be both the pending on the shifting issues to suit defendant's purpose defendant derives his argument from one single case from the first district people versus gardner it is our position that people versus gardner is analytically unsound and the appellate court below correctly rejected the analysis contain their end there are multiple independent bases why defendants postcondition petition was denied in this case and i'd like to address each one beginning with retroactivity but i would also like to assuming that strain is even retroactive address the timeliness and rest judicata parts that exist in this case and equally if there's time remaining i'd like to briefly address why this is not it in a stra that the legislature has chosen irrespective of the wisdom of that standard that is the standard that has to be applied but we did address about the fact that defendants petition meets neither causing prejudice nor couple but negligence for purposes of tim retroactively to cases on collateral review the only exception is exceedingly narrow and defendant has conceded that that exception does not apply defendant argues that strain is not a new case he's wrong and the appellate court below was correct to find that it didn't did announce a new rule strain announced a new rule when it mandated for the first time again bias for deer in certain cases prior to strain the only mandated areas for for one year concerned controversial legal topics the insanity defense in cases involving that defense the death penalty and jurors views on that in capital cases abortion cases dram shop cases liquor laws violation cases this court had said prior to the issuance of strain in multiple decisions that the purpose of war dear is not to ascertain opinions with respect to evidence a trial but that's exactly what strain mandated in the case of gang evidence integral to trial this court has girl case that eight announcement from this court is a new rule if the result was not dictated by precedent existing at the time or if prior to the rules being established there was a significant difference of opinion both these conditions obtain in this case there was absolutely no precedent prior to strain requiring gang bias or it dear as opposing counsel so eloquently stated strain it took two areas of law huard year and of course again evidence and coalesce them for purposes of voir dire in this case and that is what makes strain a new rule there was absolutely no precedent requiring that decision likewise their water water should change you know it is not and defendant can see that and it is a significant rule but it does defendant's own admission he chose not to file a postcondition petition in the time period there is nothing that he's alleged that actually impeded his ability to file a post conviction titian by looking to the gardner analysis he's implicitly acknowledging that his choice not to file a post conviction petition was simply do based on his belief that it might not have been successful but that's not actually in accord with the remainder of his argument because if he's right and strain didn't announce a new rule but yet there was a vailable law at the time he most certainly could have filed a post conviction petition and if he's right that the decisions going against him for instance the direct appeal opinion below that he's challenging if those decisions were really outlier decisions that he just as he calls them they would've been recognized as wrongly decided and the rest judicata bar would have been lifted in a timely petition but that's where defendants argument doesn't fit together between retroactivity and timeliness in rest judicata bars in this case there was nothing impeding defendants ability to file a timely petition and for negligence standard your honors i know that my opposing counsel indicated there is not a parade of horrors in this case because none has happened yet there actually is a parade of horrors that hasn't happened yet not for lack of trying on the defendant's parts they have been citing people versus gardner they have been arguing for not just the retroactive application of changes and evolutions in the law but also using the same body in the garden or case courts have been actually rejecting it and in fact it hasn't been confined to strain type arguments although gardner valiantly tried to narrow that decisions application to only the very very specific facts of that case defendants have been using that case to try to attack or use retroactively other decisions in fact prior to this court's pronouncement in morris morris vs whole world defendants were arguing that whi presents and as the gardener court created what that will do is open the floodgates because it won't just apply to a strain type case it all apply to all cases where defendants can claim that it's a change not a new law but it's a change in  freighted with the power of a new law to excuse and untimely petition and to lift arrest judicata bar there's a couple of decisions that defendant mentioned people versus hernandez and also i believe it was people versus wellborn that he claims that we're arguing have to be over ruled those cases to the extent that they cited or at least will warrant to the extent it cited gardner didn't really offer any independent analysis the problem as we see it begins and ends with the gardner decision because that is the encapsulation of what defendant's argument represents the problem with hernandez is not in hernandez itself it's how gardner used hernandez to create this change evolving law if you take a look at the hernandez decision they excused the defendants  an evolution and a change in a law but later on in that decision was shortly thereafter the hernandez court recognized that this evolution this this change was really a new rule and that's all we're saying we're not saying that laws don't change that laws don't evolve and there isn't some significance to it but our position is that if the law it changes to the extent that strange change the law in this case that's a new rule right these courts have understood with respect to culpable negligence when there's a citation to a later decided case it's only those cases that announce new rules negligence because really only cases that announce new rules would be unavailable to a defendant during a timely period and afterwards of course he could take advantage of it because it wasn't available to him at the time by arguing that strain announced a new rule defendant is essentially admitting his own  admitting that the rest judicata bar should not be lifted this court has called culpable negligence a conscious disregard for a course a conscious course of action in disregard for the consequences it's actually actually what defendant did in this case likewise this court has recognized that only novel laws will lift the rest judicata bar novel laws that were not in existence at the time that defendant had originally propounded this issue something unavailable to him that's not what he's arguing with respect to culpable negligence and rest  this evolving law concept this change law concept that he's crafted doesn't exist anywhere in this court case law it doesn't exist anywhere in the united states supreme court case law he relies heavily on the decision in more and he said that in more it changed the law nowhere in this court's more decision when it was dealing with the kilpatrick decision as to whether that was going to be retroactive or not nowhere did more call kilpatrick a change in fact it called kilpatrick a clarification it's said that kilpatrick has been the law for twenty years and he also said that kill that kilpatrick had relied on supreme court precedent north carolina v and even a statute so defendants comparison of his instant case to this court's decision in more with the spectacle patrick does not work at all for him in fact it actually harms his position defense evolution of the law a change in the law concept as legally significant and distinct from new law is a self serving creation of fiction which adds confusion distorts retroactivity law and renders banality of judgment and melody there is no definition the defendant has provided of this change the law evolved concept and that's because it's definition less that's what the law does it evolves every time a decisional case comes down from a court on a new set of facts so what defendant has done is created  characterization of something that happens daily that will allow defendants not only to take advantage of it and apply it retroactively but also allow it to excuse all untimely filings and lift the rest  erases finalmente of judgment from the equation and we would strongly strongly urge this court to follow the analysis of the appellate court below in so far its root of its rejection of this princip as an absolute final matter your honour's assuming that strain is retroactive and even assuming that we get to apply it to defendants case and lift the pollution doctrines this is not a strain case this is not a game bias case where that evidence was in turkey to trial by comparison to the strange case the instant case is being evidence pales in this case there is multiple witnesses ten witnesses for the state one witness mentioned a statement attributable to the defendant about the deed business being the reason for the shooting there was no mention of the word gain in opening statement there was just this one witnesses discussion of what defendant told him that went to motive and there was only brief mentions a closing argument the focus of the instant trial was on credibility after the there were pictures but those pictures were also of the scene and during closing argument the prosecutor mentioned that that's b d n g d that's what this is the business it was a reiteration of the victim's testimony your honor but again it's our position pretty power so it may well have been your honor but it is our position that this is not a game case in so far as the jury was exposed to multiple gang witnesses where they i wouldn't gang membership impacted on credibility in fact the credibility contest in this case did not involve any mention of gangs and to the extent that defense counsel indicates that the game component of this trial impacted credibility that's a misinterpretation of the record the defense alibi witnesses indicated that they were called the events with clarity despite the fact that it was months afterwards that they learned to find it was arrested for the affronts they argue that they remembered it because they had heard shooting that day but on cross examination they were ask agreed that they'd heard shooting before so the prosecutor's intent in question them about shooting in the building before it was not about gangs there was no gang in friends drawn from that evidence that evidence was used to attack the such precise recall of an event that really wasn't singularly identifiable for these witnesses because they had heard shooting before so what was the motive of the court say it was it was a jury trial and all arguments established that it was somehow gang motivation there was no there was actually no evidence your arguments were alluding to that was that's that's all we used it for yes and it was it was actually very peripheral because this was the motive wasn't explained other than you know this is maybe a gang shooting there was no evidence by contrast to the evidence and there was no evidence about gang rivalries there was no evidence about gang wars there is no evidence about which again was a raid against another gang or aligned with another gang there was not even evidence that defendant was a gang member in fact direct appeal defendant even argued that there was no evidence that  irrespective of whether strain sets the ceiling or the floor with what we can define as evidence of gains integral to trial the instant case falls far below it and for that reason substantive strange should not apply but ultimately your honour's what we are asking for from this court is a ruling that indicates that strain announced a new rule and therefore it cannot apply retroactively to cases on collateral review we also asking this court to once and for all eliminate this notion this this amorphous nebulous dangerous notion of change or evolve law that can erase anality of judgment from the equation that every time a quarter announces a ruling it doesn't amount to a new rule of constitutional criminal procedure or to me that sometimes in  that right we just saw a direct appeal and that's it provided post conviction that to contest final judgments on appeal precisely because we think  referring to the graffiti on the wall or some sort of commentary on fur in public housing the common it was he who lives g do these dives refers to