judge ford's decision but not of judge people's decision considering the judge people in his abuse to whether or not he abused his discretion they again regardless of the analysis that we use here there must be a showing  prejudice but the defendant here has done nothing to demonstrate that he was actually prejudiced his general claim that memories fade is not enough the fact that he refinanced his home is not enough and he doesn't ever claim that his ability to defend against the indictment was affected in any way out you're talking to have a little bit as far as i'm concerned and i'm sorry to interrupt but how do you how do you get to the issue of actual rights at us that we have to go back a little bit and see if the statute of limitations absolutely but i do presented here right thank you and that's the reason why the case should not have been dismissed overall is that there's no showing a prejudice and that's just one error that the trial court made here as your honor indicated the other error the primary the initial error was that he said that the statute of limitations was implicated in this case and it wasn't the illinois statutes are clear there's no interplay between the commencement of a prosecution and whether or not an indictment a seal and when i lock the least that's worth a prosecution must commence indictment but if i look just to the common law is this this issue about a tightly being sealed has never really played into an interpretation of one of prosecution because it shouldn't because there's no interplay between the chip do i have to go back to the purpose of the statute of limitations i mean isn't it to protect the to make sure to the legislative history and all those things that the statutes are very clear here there's no ambiguity it tells you why the prosecution must commence what commences that were done were tough so there's no statute of limitation issue not at further we're not contradicting ourselves when we say don't look at federal law then look at that we're saying primarily the statutes are clear we don't need to look at the federal law we don't need to look at the outside aids in interpreting those statutes it however this court and what judge for did is is completely miss apply those federal cases either to either one of them thompson or the other approach but first taking a look at thompson judge ford's decision that the indictment was improperly sealed was wrong all of these federal cases say that a an indictment can be sealed for any legitimate prosecutorial purpose and that investigating a related crime is in fact a legitimate purpose here of the state was investigating that broader conspiracy within the park which police department which was directly related to the aggravated battery of this indictment so the primary motivation for sealing was absolutely proper judge ford didn't like what happened after that so he used that information post sealing to dismiss some point that awesome sense of not yet but yes that does initially we have to look to the fry of the ceiling and in that case it is the original feeling is proper and under the thompson rationale we're done we don't get any further than that and that's what the state is proposing our suggestion is is to follow thompson even if under thompson the the ceiling is improper and then under thompson look at harmless error we review for that and the defendant's case in this ability to defend against the indictment was not impaired in any way so specially given he was concerned defending against the civil case the same allegation in civil court comparing it to thompson itself in that case the sealing violation was not harmless still no interplay between the statute of limitations in a sealed indictment what thompson says is if the indictments returned within the statute of limitations sealed or not it cannot be dismissed and statue of limitations friends thompson says then you look at it in terms of whether  indictment was properly sealed so the first step with thompson is to do we always look at thompson under your argument so we are what you do not want us to look at times and we don't think it's necessary to but if there's an element it would it's not going to be dismissed on statute of limitations grounds the other option what we're looking at here under thompson is look at the whether or not in fact it was sealed properly if it was we move on if the defendant wants to make a prejudice argument down the road they do that in these cases but it is not the statue of limitations questions under thompson they're going to see number one was the indictment properly sealed it was not dismissed if it wasn't was that what the error harmless and then you can look at the delay and on sealing you can look at whether or not the defendant was actually prejudiced that's where you get to those prongs and thompson but in our position under thompson the indictment was properly sealed with judge ford did in reversing judge people's decision was wrong judge ford was supposed to consider he was supposed to give judge people's decision great deference he was supposed to consider the evidence leading up to the in he went beyond that our position is that judge for should have looked at what occurred up to what was presented to judge people period and whether judge people abused just discretion on what was presented to him he didn't do that instead judge ford said you know what i'm saying that investigating a related claim is not a legitimate purpose so i'm dismissing the indictment he relied on two cases for that he got and rogers but there's a whole line of other authority that says exactly the opposite that investigating a related claim is a legitimate purpose and that's mitchell right south clinton edwards and you can't say the judge people have used just discretion because he followed the outline of cases what that shows is that judge for didn't give judge people's decision the proper deference that he should have to defer means to presume that that decision by judge people was correct he didn't do that it's like a motion to reduce bond where the reviewing judge is going to look to the original decision and see if anything has changed  course of about it but it i want to just point out again that judge or didn't give that proper deference to judge people's decision just because judge people follow one line of authority doesn't mean that that was an abuse of discretion that's and it's the very authority there's no doubt here that the ceiling was proper the state to misinform judge people if anything they were investigating the broader conspiracy within the police department which was directly tied to this case so that that ceiling beneficial but i we're done we don't get any further even if even if under thompson the original stealing is not proper then you look for harmless error and here the defendant's ability to defend against the indictment was not impaired there's no harmless  was that memory stayed i had to refinance my home he never said he was impaired in his ability to defend even if you look at the majority approach and instead of thompson the then you look at the delay in unsealing and whether or not the defendant once all of that he witnesses had been interviewed once all of the evidence had been reviewed of the materials that were obtained from the purpose of this department the state moved to unseal but even if even if that indictment remains sealed to long the defendant still has to make a showing of actual prejudice before it can dismiss the indictment and that's not done here at best judge ford said the defendant suffered from the delay but he never said how the defendant actually suffered and the defendant again never makes a claim of actual prejudice there's absolutely no showing here that the defendant's ability to defend against the charges were affected in any way isn't there some it is some indication  indications of prejudice that some witness disappeared or other evidence has been destroyed during this period and there was one case i don't i believe it's what was under the majority approach not the thompson approach where the court did not make that there was the defense made a motion to dismiss after the indictment was unsealed and the court said i can't make that decision now because i don't know if you were prejudiced they renewed the motion at the end of trial and found that the defendant had been prejudiced on anyway never should have been dismissed under any analysis that you could take again we believe it was now we believe it was returned before the statute of limitations expired and the sealing up an indictment does not impact the statute of limitations any problem with the propriety of the ceiling or the length of time that it remain sealed is harmless because the defendant's ability to defend against the indictment was not impaired that's thompson but even if the ceiling impacts the statute of limitations and you look at it under the majority approach number one the first factor the indictment was properly sealed number two the second factor the defendant cannot establish actual substantial and irreparable prejudice and because of there was a allegation of a conspiracy correct crap and there was all the information the judge people had at the time didn't want to investigate alleged conspiracy that might have been taking place within the police department that was judge people for the ceiling for their requests to seal just people made a decision to seal based on that and all of that is recorded of record and in other cases where the magistrate the federal cases didn't receive great deference because the the prosecutors the government didn't provide any reasons for the ceiling and they felt that how can we give the magistrate great discretion or a great deference when we don't know his basis for the reasons we have all of that here in the state provided their reasons judge based it brief they make the statement that judge ford's decision to dismiss an indictment manifestly wrong and that is the correct standard of review for the school now we know we're dealing with ultimate with a legal issue and something about which there is no that was using a phrase that's a fairly strong language is based on the testimony that the prosecution was presenting from the prosecutor who was leading the investigation he found also that from sheet at least from january twenty eighth two thousand and ten when there was a search of the park ridge police facility until the unsealing in the indictment much later in november of two thousand and ten any further delay from their previous time was on call i disagree that the judge made testimony of the person from the special prosecutions girl that was handling this and throughout that direct examination went to great lengths to have him explain in an attempt to satisfy judge for that the ceiling was necessary that was appropriate to removing with with the speed that was appropriate for this kind of case he was the one who was explaining well what were you doing in march of two thousand and ten what happened later in the summer thousand and one like in november  in this case judge ford looked at the evidence to consider the case law and he decided the approach should be why was the delay necessary what use was made of the delay and how long relatively w and renew the application or update update judge people about the what's going on no effort and it's in the record here too i presented jason levitt in the circuit court and i represented him before the indict was a pain in the a commander there named teller who with allegedly this is part of the reason it was off for the plate he was getting parking tickets for his friends dismissed and so that became part of the investigation and there was other questions that  so none of that was explained to the judge people right so i think that the delay here to just the fact that it went over year effect there was no effort to renew which or to go back to just people explain the status of o here in the federal system when you read these cases all right so and so what i'm suggesting here is that what the prosecution is asking for here is something that is extraordinar indict was improperly seal the staff limitations alone and the defendant is not called upon to explain how is the fact and i was showing i did that some of the cases require the defendant to show some prejudice is hardships inherent in the defense of these cases that come with the fair inference from the evidence in this record here when you have the prosecutor who's leading the investigation is choosing the people who he doesn't believe of committing perjury and there obviously he's bringing in his i think you're the only possible way to read the prosecutor nine and then the same witnesses who were already spoke to the grand jury in two thousand and nine getting something down there again affect mr mahoney at the conclusion of this investigation or during his testimony he talks about the investigation w twelve plus months making that case stronger and then towards the end of that time two witnesses said something different to mr mahoney then they said two thousand and nine and he termed that is the high point of a high watermark if it was freezing time i just want to point out something here and i think my westlaw search i'm sure i hope was is there always up his ball there are in our combined briefs twenty three federal opinions out there we have this evidence here and we have a case of first impression and something that it's very important i mean it's rare in the ceiling and i think that this is a very important case and we should be closing our eyes to evidence that we have on the record about what really happened when you mentioned this to let and th to us here what's happening as a defense counsel and i believe judge bork wants to put blending all these issues together and putting everything that happened post closing into the mix before it should state's position is don't close your eyes to what happened post closing but open them and consider that evidence when it's appropriate and the evidence post closing is not not a post feeling is not to be considered in determining whether judge people's decision to seal the indictment was an abuse of discretion that doesn't factor in yet the only things that should be considered when judge ford considered whether judge people abuse discretion is what information was provided to judge people at that time and whether judge people abused his discretion and sealing the indictment based on that information regarding two cultures a chicken and egg argument because judge floyd who works at judge ok the information what's happening is that there is an approach that needs to be taken it needs to go in order and what counsel and judge for did is push it all together and make one decision none of the cases say that none of the cases this council suggest say that if you've gone beyond the statue limitations and the indictment a sealed or not you're done none of them say that even if you take the majority approach if the indictment under the majority approaches the indictment itself and until counsel but that doesn't play into was the original decision to seal proper even if you take the majority approach we get asked that because there's no doubt here the original decision to seal was proper with the information that was presented there was no misinformation the state didn't lie about anything there are cases here in our briefs that show that the government missed it provided misinformation to the court or their decision to seal and they said that's it you don't get that was not a legitimate  dismissed we don't have that he'll here we were looking at the broader conspiracy investigation directly tied to this indictment that's a legitimate reason to see if you want to move on then to step two you can't forget that one that's prejudiced to the defendant then look at whatever happens post ceiling to determine whether or not the defendant was prejudiced including the below guess that's when the delay factors then that's not what happened here judge bork didn't like what happened here and he dismiss that for this reason appears thing that will that the judge people's decision to indict with and abuse of discretion he doesn't get to do that that's what's manifestly erroneous here judge for taking all of this and trying to apply it were doesn't belong and that can't happen with this court either we need to identify what information goes there what step of the game and if it is laid out in our brief how it should go again the state's position is that the statue of limitations wasn't implicated but if it was sealed i also think it's very clear that when we move to the next step if we need to there's no resulting prejudice defense counsel talked about hardships what are they he doesn't put forth any he says that he had to refinance his house and that memories sometimes defense based on the fact that you're out there and best to getting people in that he's going to lose witnesses i think it's farfetched since he was already mounting a defense for the same allegations to defend in civil court so i don't think that that's going to hold hold to be true and to also be clear with this prejudice analysis defense counsel want you to have this bright line rule of twelve months and i think that that say a reference to the parker analysis first of all if there is a competing there's a line of cases that says that an indictment can remain sealed longer than twelve months so long as it is unsealed as soon as that need but the delay has passed and that was done here but that presumption for prejudice that i think he's referencing with the parker nelson should can't it's a completely separate question from the prejudice that's required for statute of limitations you can't just point to that presumption of prejudice under the first parker factor and be done with the statute of limitations argument that presumption of prejudice does not negate the validity of the of the original ceiling in this case and the presumption of prejudice doesn't mean that the defendant was actually prejudiced that his defense was actually impaired even under the bark analysis all the presumption does is trigger the rest of the parker analysis and that fourth factor that you get to the defendant has to establish prejudice and other cases where there is a protracted delay that negates the defendant's need to establish prejudice under that speedy trial analysis there's no s supreme court case that says that there's no point line rule there's no specific length of time and the illinois case is that say that the delays were much longer it was twenty nine months in belcher and thirty one months and that's more than twice the length of delay that we have here so you can't take that presumption and say there's prejudice here all of the cases across the board have to consider to consider prejudice and that deference to judge people's decision it is his decision that that's that def the findings the factual findings that judge ford made he wasn't supposed to make them at that time but he was supposed to do was just limited to what judge people had decided and that's a function or you need a function of the system in the question the judge people was asked to make at that time but the argument was that at the time when the request was made to sealed indictment judge people wasn't provided the necessary information that's right lou that is what their formation  post feeling they didn't have any of that information at that time what they had at the time was what they presented to judge people which was we have sufficient evidence first of all there was sufficient evidence that came up when he testified we have sufficient evidence for the aggravated battery charge but we need more time with a more extensive investigation into the park which police department there's no doubt it was an extensive investigation the f b i was brought in they were still investigating investigating at the time this hearing was help there's no evidence to support that the reason we sought to seal the indictment was to target the defendant and to find more evidence in this case there's no evidence anywhere in the record to support that argument and they have a macone specifically testified the reason they sought to seal the indictment was to have the time to complete that greater broader more substantial coconspirator conspiracy within the park which police department that was a huge investigation and again we know it was huge it was still ongoing when this hearing was held and we're not asking you to do anything monumental here we're asking you to apply the law and we're asking you first with the statute of limitations to apply that law as it's clearly written in the statutes here so the prosecution was  when the indictment was returned period that's what the law says the bottom line here is that judge work and defendant they don't like what happened they didn't like what happened post stealing so they are trying to use that to say that indictment should be dismissed but judge ford never got to the last piece and you cannot ignore the prejudice wrong no court anywhere across the board has analyzed this issue without considering prejudice and no trier fact in this case could have concluded that prejudice existed here especially where the defendant was the fending against the same allegations in civil court again we ask that you reverse the trial court's decision and reman