good morning mr chief justice your honor is my name is susan charles solomon i'm a cook county assistant state's attorney here on behalf of the people of the state of illinois may please the court this case is about a police investigation of an intra gaming murder in a town murder where virtually everyone the suspects and witnesses and even the surviving victim was a fellow gang member or an associate of the  and no one was committed to the truth in the midst of this investigation the police were offered an opportunity to get defendant on tape making a second confession to a fellow gang member mike healthy  they got a judicially approved over here and they put him in the room with his fellow gang member michael davis and they got him on tape specifically what's at issue in this case is whether the macaulay right to counsel applies to this to the use of this investigatory tool unlike many constitutional rights the mcauley right to counsel is not free standing it only  rises under certain constitutional conditions precedent it serves as a prophylactic to protect the constitutional right against compelled softened premonition she doesn't even come into existence unless until there are certain constitutional conditions in the interaction between the police and the suspect the constitution strikes a balance storing the pre charge phase the investigator phase of a criminal prosecution it strikes it differently than it does in the post charge after the initiation of adversarial judicial proceedings it strikes the balance between the suspects rights and society's right to the truth this balance actually fosters both the income patient of the guilty and the exoneration of the n s a we can't forget that that's a very significant component of th facts of this case poignantly demonstrate that in this case the police were met with an orchestrated plan by no less than six witnesses to put a case to put to put defendants case on  one of the tools are you so what's at issue in this case is a judicially approved confidential over here the defendants in their part court's eyes that somehow they were desperate to use this confidential over here because they needed to extract a confession from defendant at all costs but that's not really what happened once you can text realize the investigation it becomes very clear that it served two purposes in this case number one it served to fact checked michaela davis and self michael davis was one of the original six witnesses that put the case on nicholas mobley he ends up in custody with the five men during the aborted lineup on july sixteenth they want to fact check him and that's just good police work and it also serves the purpose of getting defended himself on tape a second time this confession and i called davis while it's evidence it's actually  tapes were suppressed based on inaudibility so the tapes are really not at issue here the tapes are not issue the content of the conversation that was is that issue the witness would have because it's called in m or there's the over here is being conducted there's through the police officers themselves also could testify to the content they're listening while the over here is going on so the police officers are would be called as witnesses as to what the defense said potentially there would be other potential litigation that may take place pretrial with respect to that but in terms of that substantive evidence it's definitely on the table right counsel but again the mcauley right to counsel only concent to existence and it's only constitutionally justified under certain conditions precedent that serves to shield the constitutional right against the police suspect interaction of the contacts between a jailhouse informant and incarcerated to fun and there's no constitutional compulsion without constitutional compulsion with self incrimination causes and jeopardized and therefore which is which is my point but the could worsen and the compulsion that that's at issue in this case is a constitutional term of art it's the end result the very danger that for which the pre charge right to counsel and mccauley right to counsel serves to protect it serves as a shield for the right against compelled and that's the course of component we're talking about self in present council this court found he had a right to counsel macaulay right to counsel during the custodial interrogation and no right turn in the lineup and that's because the lineup doesn't in danger the constitutional right to compel incrimination in the custodial interrogation contacts that's where the right to counsel arises rather chilly again this quite sad it rejected mccauley bruce argument based on the facts in that case it said there's no miranda custody during the interview and patterson but really and i will discuss it but really that's kind of more of an open question this custody thing and it's currently pending before the u s supreme court in houlsby fields and that's number ten six eighty and it's argued it wasn't a good october fourth so the custody question really is somehow a way to ascertain over and above the baseline restraints of being incarcerated that's a necessary component but it's not enough and it needs more misquoting patterson's had become parents the relative freedom of movement from what from from where he is located and then the circumstances the objective this case if we look at the objective circumstances of the interaction between michael davis and this defendant it's perfectly voluntary perfectly comfortable even comparing notes there comparing notes on the offense or finding out what the police know what to they know what's going on even at the end lee kind of try to concoct a little plan to put this case now on another guy they want to put on donald shah so he's definitely not in the science of that sort of course of custody that miranda custody requires so specific to three step respect to the interrogation components of the two conditions precedent both court want to redefine it they want to redefine it in such a way that they extricate the requisite constitutional compulsion the appellate court does it by retroactively applying a  statute that that this court found doesn't retroactively apply in this case and that's that's one of the arguments but the real argument is that this statute that that governs the requirement that the police videotape custody or interrogations according to the appellate court any question or any questionnaire can be an in terror and interrogator so that means a spouse well he wasn't being interrogated because that that's the pick in the constitutional science and he was having a conversation with a fellow paying member ye benchmark for the right to counsel in illinois or even under the federal constitution the benchmark for this pre charge right to counsel is custodial interrogation and under the current definition of interrogation that's not what happens between a jailhouse informant and incarcerated to foment this court itself how is that manning so if  find that he was in custody you would still argue that he was not in absolutely and perhaps the interrogation the interrogation condition is actually the real primary basis of our argument because that's where the defendant she wants to trial an interrogation inside out if defendant if it's going to accept the fun stuff mission of interrogation in illinois the suspect can now be quote interrogated without his knowledge and that's contrary to all existing precedent it's contrary to the very rationale for the existence of the macauley right to counsel it takes the effect of compulsion on the suspect out of the constitutional framework it's no longer the benchmark what the new benchmark is under defendant's definition is the questioners on communicated intent and that's just not the way that this entire paradigm the entire  and his own hubris no where in the constitution we obligated no word doesn't say that we have to protect suspects from themselves the right is against asian and that's not in this case necessarily in the interaction between a jailhouse informant and a suspect is not constitutionally compelled there's no enron around the constitution h just plain old good police work the use of all the legitimate constitutional investigatory tools at their disposal in the context of this case in particular it was it was good police work to use the c r wage that's what they do that's what they did they followed the investigation michael davis presented himself to them and it's perfectly constitutional we're honest we asked this court to validate that and we asked this court to  being incarcerated is the person a miranda custody there's no stopping off quite unless an untold they're released from prison so in shacks or the guy invoked console and the edwards immunity that that comes with that survived for two and a half years because he was incarcerated on other offense which chance or size is fourteen days it's a bright line rule they say it's for the sake of argument that's the only date that he potentially could have an overturned on its position would be it would be what you are well defendant's position is a little fuzzy on that i don't think he takes an actual position could be july eighteenth could be the phone call could be any time you guys want to find that eighteenth there is your i have an i apologize there is evidence in the record there is no there's no at the end of the day once this court accounts for the entire body of evidence in this case there's really no legitimate way to find that he factually and counsel despite the trial court's finding the trial court's finding is not necessarily right it's being presented the trial court did say that but if you take a look at the whole series because the belief that he didn't invoke and in fact perhaps the strongest evidence of that your honor defendant's own counsel who also testified in this case said from its notes he didn't invoke until very inception of this case back in two thousand and three i participated personally in the motion to suppress i was present very the proceedings that occurred back in absolutely correct around here although there was testimony by the defended himself at the hearing that he invoked his right to counsel under about july eighteenth he testified that it could have been the seventeenth  been the sixteenth he wasn't quite sure it was the date that was presented as far as the statement of facts are concerned in the in the record by the state when they reference the fact that there there was an admission by the police that there was supposed to be a procedure that was are going to occur in mid july the first one was in mid may or may thirteenth they may seventeenth eighteenth or night think i forget which one of those two but they haven't so the first time it was brought over was in mid may there was in the fact no question about  custodial interrogation conducted by the police in that testimony and i may add david hunt testified personal way that he invoked his right to counsel subsequently there was another time when he was according to his own testimony where he was brought over from the cook county jail over to area for again for purposes of what the police said was going to be wind up but turned out to be an aborted line up because they couldn't get witnesses or some such thing so that bad day he again testified that he invoked his right to counsel police disagreed with that case chris sanderson testified at the hearing chris anderson testified that sometime in late june when he was first appointed to represent hans and the unrelated case that at that time he had a discussion with one in the bullpen and this corroborates once testimony that hunt was being taken out of the county jail i forget the exact words  snatched out i think was on staff the money and brought over to area for for questioning with regard to an unrelated homicide so there was a brief discussion between hans and anderson at that time with respect to what his rights were what he should do what he shouldn't do anderson testified that he recalled hans asking him and he recalled that his common response would have been under those circumstances well whatever you do don't talk to the the evidence to determine whether or not these witnesses were telling the truth and or what weight should be accorded to their testimony the state points to nothing not a single scin evidence based upon that only the facts that were presented but the inferences that were drawn there from the state nowhere says that there was an abuse of discretion that it was against the man if they they argue that it's against the man that as far as in answer to the court's question when he invoked his right to counsel in my humble estimation is really not all that important because we're not re proposition that there was a denial of access to counsel in that case and as a result of the denial of access to counsel that turned into a due process violation of due process violation of course being the interference by the police with the defendant with the custodial suspects ability to communicate with counsel under circumstances where he affirmative we did everything in his power to get the lawyer present no other words informing anderson prior to the july thirty first over here  that he was being questioned by the police with regard to this unrelated m aside his phone call to anderson and there is no dispute the state doesn't dispute that fact at all and that's an extremely important detail  and again another detail that judge syria could well use it as a reasonable inference that hunt was telling the truth that hunted invoked his right to counsel and that was the way the fact that the police  problem in the case what he determined to be the violation it was the denial of access to counsel and that's why we're here today we're here because he was stages i've been called many times by family members where i don't i don't even know who the defendant i'm called to a police station i go to the police station i try to confer with my client and i'm laughed at by a police officer because how we don't have to let you see or quiet because he doesn't even know where you are those words have been used directly to me i've been involved in situations where one time i waited literally five hours in a police station in a pre charge situation demanding requesting i want to see my client i want to see my client all the time i was big in the game being given excuse after excuse that while we're busy we're conducting a rape investigation we're probably not going to charge your client anyway i sat there with the family in that police y b and so i could finally see my client some five hours not reasonable to suspect that this could be a mix of extension but our position is that it's not an extension our position is that mccauley what macaulay says is that any suspect as a right to consult with a lawyer during the periods of time that he's being held by the police in a place that are regulated and controlled by the police and there's no question in this case just talking a calm call is a situation where the police offices are questioning the defendant rock yes that's not true here here that is not true that police officer is not so we are in a different setting calling in this situation when there's not police interrogation going on well because davis is acting as an agent of the police the police of utilize his his skills if you will for there's no question that he's a he's an agent of the police there is no question that he's asking him the right questions that would i wish that incriminating responses so in this s is the best answer i can give the me the chief evil in mcallen is the denial of access to counsel which results in a violation  being a due process violation so that in terms of whether or not this is a compel interrogation being conducted in a police dominated atmosphere  is obviously that's something that this court has to decide but i don't think that that is the crowning glory i think that once everyone who works at the question of the custody  his restricted movements whether or not he could obtain before all of the information that is necessary i hope that i've answered the court's question although i understand and recognize that some of these cases discussed the fact that it compelled self incrimination and although that was part of the that was an aspect of macaulay i think that the chief evil in the call is the denial of access to counsel resulting in we know in the case no i don't think so because the true intent by the police officers at that time was to conduct what they believe to be an interrogation of the defendant whether or not hans knew himself that this envision when we talk about due process that in other words restricting the flow of information restricting the ability of the defendant in custody a suspect situation to be able to obtain information for instance the in the pre charge stages if a person is taken into custody hasn't been charged yet police haven't interrogate them yet there you knocking on the door could i please come in under those circumstances what if it's the police is always intention to ask the question although they haven't done so you have to ask the question of the defendant may we have your consent to search your house would be nice if the warrior could get in at that point instead of the him being devoted and sort of there is subterfuge being employed keeping him but in addition there too i guess the other part of that argument would be the chest surprise because there is no question then everybody apparently agrees that the august sixth scabrous asian was within the fourteen days july thirty listening and that is a situation where maybe not necessarily a bright line rule requiring them to be in another room listening to the guy was asian the same time but it's their interference with hans ability to confer with his warrior at a time when the investigatory stage is really just as important as the rest of the case and to be able for a  in the trenches to be able to go out there and advise his client you have a right to do this you have a right to do that wouldn't it be necessarily reasonable for the lawyer under this these circumstances to go out into the room ask them iraq well interrogation is an issue but it's not the key to the situation in other words it's the key is that the police were in a position where they kept the information from my client that he could have otherwise used in a very important way to for himself just one question sure curiosity did you get a chance to hear the ta situation were the you were is an outside the door asking permission this is quite a but is it the orchestrated that's the key there because the lawyers ask to see the client the police are not interfering they're on the way to get him but he makes and convert it into him bring it backward and have it control the investigatory phase of a criminal investigation the constitution strikes the balances between these two different phases differently for for to serve the purposes of protecting the constitutional rights at various phases and also for society defendant talks about access to counsel actually he says my right to go talk to my guy it's not the lawyers right access to counsel that we're talking about in the pretrial phase is the right of the defendant  counsel exists in illinois if defendant's right then basically counsel him self will be given an unfettered right now illinois to just basically interrupt at will and any and all police investigations that are taking place at this station with no constitutional justification he takes compulsion now he just says want to show up i want to talk to my guy and whatever your police are doing you need to stop there's no constitutional basis for that don't recalibrate the constitution at this phase the investigatory phase the defendant wants it's already a good balance  already serves both sides very well if you recalibrate where defendant wants it's going to swing we too far in favor of of suspects at great cost to society the facts of this case show that what happens if the balance is true they exonerated an innocent man because they were able to investigate the irony of this case is that defendant's own new right to counsel even protect him in his second over here there was no counsel he fired up the rimforest before he went and he was advised after the first first interview that don't talk to anyone just exactly what the fun of saying he wants he wants this quote to protect he was afforded that turn around and did the same thing the second time he did it because he wasn't compounded he did it because he trusted mistakenly for him his fellow game gang member there's nothing unconstitutional about it it's a perfectly legitimate sometimes very necessary investigatory toil in investigation of these