good morning ladies and gentlemen our first case of the morning is case number one one seven three four one in radio each junior minor people the state of illinois versus deal a junior are you ready to proceed respondents statements to the police officer were custodial the second is whether his statements were coerced and the third is if for any reason those statements should not have been admitted at the discharge hearing the error was harmless beyond a reasonable turning first to custody it's useful to separate these interviews and in the first interview all of the factors clearly way towards a finding that respondent was not in custody the location length of time mood and mode of interrogation were all fine they were short the interview was friendly the officer even asked permission from respondent and respondent's father to ask the initial questions which respondent agree the officer was there by himself he was in plain clothes and while i had a gun to remain in his holster you never showed it respondents father was present throughout the interview sat next to respond and even interacted with response during the interview and the officer in the second interview again all the factors except response is age way towards a finding that this interview was not a so deal the father remains in the room and the officer constantly remind respondent that response follower is going to remain in the room he's still there so you still have the concern adult present the officer again gives the miranda warnings again explains that response in an interview at any time and so yes so both of these interviews are not historial and not none of respondent statements work or worse i think it's useful this to set up the lawyer so the standard for voluntary confession is not the same as the standard for an intelligent involuntary waiver of miranda rights a confession must merely be voluntary and that just means that it can't be coerced if the person making the statement has to make it up his own free will and again all the factors except respondents asian intelligence in this case where it was a finding that this did that these statements were not the words the length of the questioning and detention were both w there was no detention respond it was not changed he was free to to enter the interview at any time to the diminished capacity have any relevance to his ability to understand he was not he was able to leave at any time it record and even a seven year old knows that when the officer says you can end this it in time all you have to do is say shawn we're down here and that means we're done that is something that a seven year old understand analysis on the custody analysis on the custody analysis i think that that makes it very clear that he's not in custody because he he's he's telling respondent that i'm you you are free to you know once we're done here you're not you're not under arrest you're not under arrest now you're not going to be under arrest under the voluntariness analysis and the question is whether that is some some sort of trickery or some sort of lie to induce a confession the but the officer just explained you're not in trouble i'm here to find out the truth and did not push responding when he made those statements in either direction so it did not change response freewill to either to tell the officer the truth or not you know some some nine year old children still believe in santa clause where is there some obligation or should there be a heightened requirement that the officer conducting that the  make some effort to look to determine the child's level of maturity the officer did ask whether respondent had any special needs and the officer in the father siesta i believe that was it and the response you know mental abilities and the officer simplified things i think the same amount that he would have done i mean a of any of a child of a very young age and whether it's a nine year old or a child with a mental age of an old seven year old things need to be simplified dramatically and the officer did that you're the officer you would you know an officer and even interrogating a thirteen year old would probably not say listen all you have to say is we're done charging is the fact that he was found unfit i fit into our analysis no your honor it's there different again different tests even the test for whether he could knowingly and intelligently waived his miranda rights which would be closer to being fit for is there are different tests and here the only thing that he has to know is that he didn't have to talk to the police officer whereas when you know when you're found on whether you know this evaluation you have to know the of your attorney the role of the judge the role of the prosecutor what plea negotiations are that there's significantly more knowledge that you have to obtain and it's not surprising that a nine year old wouldn't understand things however i think it is clear that a nine year old can understand when the officer says you don't have to talk to me when the officer asks permission to ask him questions and when the officer says you say the word and we're done at the nine year old understand if you find unfit because of his age or because of his low functioning i don't know that those can be separated i think that he was there the doctor cuneo did a comprehensive evaluation and found that this particular child was on and he remains unfit as far as the you know the last record update so he remains on trial even though he's now two years older so i think it's safe to say that was not strictly because of his age at nine years so so moving to the actual facts of the interview for voluntary yes again it was a short short question session two short questioning just sessions it's about the length of time that a nine year old is expected to sit in math class the miranda warnings were not arguing that respondent knowingly intelligently waived his miranda warnings but the miranda warnings the important ones for the voluntariness analysis work and that you have a right to not out but he did he did explain back to the officer what the right to remain these videotapes statements were probably the least inculpatory evidence presented at trial by the state and the state's case the the star witness for the state was the d c fs an investigator who interviewed responde twelve hours of the victim going to the hospital she asked him very open ended questions where were you when this happened what happened and respondent provided all the information he informed victim twice in the head and once in the side he demonstrated those punches and he also after an interview they returned to the room where the other children were and victim you also have testimony from joyce well on the grandmother of the figure who said that she treated respondent just as another granted around the house she was shocked to so the two closest in time statements were that he hit the victim that night and you also have the testimony from the autopsy technician about the extensive damage to the victim's stall and brain and that was the state's case and when you get you add in these videotapes statements it's a lot of miranda warnings it's a lot of denial  side demonstration show that you know response it was that they live in your old did all the damage most of the respondents arguments about her most are actually are unrelated to the videotape statements and i think that it's telling that you know there are all these other issues on the side but the videotape statements don't play into that at all and in fact respondent uses the videotape statements as evidence of respond some of the other issues and attacking some of the other state's witnesses and i think that goes to show how extol the story parts of these interviews were and ultimately even the moderately inculpatory part they didn't fit the state's case and they were the police officer himself if it comes up that the state says he didn't know deficiencies while he knew it within the first four minutes of the video and you can see it chronologically that's confusing to me at sixty six years old to law degrees i think it's very confusing in the child doesn't understand it's not even a child's adolescent variable as are four father in this case set back the bump on the walk he didn't sit with the child in any way are the videotape is part of the record both of them are we looked at extensively in the courtroom the judge  is not even a bubby's it's not even his universe it worries that whatsoever the officer had a gun are i'm sure if you asked most people that are nine years old or that the individual the reason the officer took the video the reason officers there and you look at the officers testimony that elicited during the trial from the transcript my client was the only stuff specular had it investigated anybody else he had  ask these kids questions i kid my child my client is seven point seven six you asked him explain in more detail my client was in custody without any question whatsoever under forty five into it when the officer asked my client whether you understood the right to remain silent what it meant my client said it means i don't have to say anything he goes on classroom at the type of stuff i thought about it nine years old on whether or not you look at this illinois statue seven o five or five slash one dash for one point five says any interrogation very which are reasonable person a subject position could consider himself or herself in custody and during which a question is asked there's recently likely felicity an incriminating response is what the legislature's put down as far as their definition of custodial interrogation is that this case doesn't mean that one hundred percent when you look at that tape both of them you'll want to video to ice i tell you it does one hundred percent not trying to make it a gray area or structure it's very clear that legislate definition that statue is along about going to do an investigation at the end of my ask you what we what we want justice we want the person to kill this kid in prison what we want who is this person convicted and put away and it's not my point whatsoever the medical evidence if you look at that it was it was just a was protesting the stuff in the record is putting it mildly on you know you you look at it and the state says well fourteen month old child from a blow to the one eye you're not going to get that you've seen boxers lead up to faces look at that there's pictures and tons of pictures as baby's face his baby looks like an angel in his l we're going to be creating a precedent so what's the rul when i asked the officer in the transcript shows would he have done anything differently if  he said he would have done it differently i think if a lawyer was present it would protect the interest of the child i think a warrior doing their due diligence would understand what the educational level of the child is i think a lawyer doing their due diligence would honor because when you say absolute in a time it's tough i believe under this circumstance and i believe under most circumstances when you have a child is in my client's case that object we see right up front they don't understand a word like  when you look at the tape he's rubbing his head when he's asked about the other random things because no response back that's even coherent then i think what you have to understand there is in that case yes i would argue believe that there is a murderer walking around sanford county right now and i think killing a baby like this is just it's it's not right i think it should be taken care of but i'm asking this court to rule in favor of said case out saying that the child that was thirteen that he should have an attorney present for interrogation is specifically for the child has a limited capacity for because again i is the court's earlier some point seven six they still believe in santa clause still be released her body you know it's this child don't forget to during the end they want to say well he confessed the c f s was harmless if you look at the transcript and look at the reports everybody is in there the adults i didn't say parents because this trial lost his grandmother and his mother aged three within sixty days each other the adults in this house advised the kid to lie when he was asked questions in the kid live and he reported to people before all this started he was told a lie the theseus best in order to protect the adults that's how it's seven point seven six that's how pliable his brain is for these people the docs are telling him go watch the people that protects the adults because in this case the records very clear eleven year old calls the family says or something wrong with the baby they after ninety minutes more then what happens when they come home after that ninety minutes they go to bed they don't check the records very quick they don't check on the the baby whatsoever they go to bed but how do you address the state's argument with respect to her melissa there that respondents your client statements to to detect the bad ones were largely exculpatory and there's only one you start with for the three verse eleven year old child he knew he was told a lie he lied so you don't know what he's whining when he's not lying when he says what happened last was erie department children's services in illinois that joyce wilbur is not related to my client he's related to the mother who stayed out ninety minutes later who went home went to bed and then got up later on to see the kid she she says my cl he ever found anything with the order itself if you look at the lower court's decision on that that that's a problem too in the situation that i feel the state's in correct in that that the judge rel heavily on the detectives the two videos that we saw over and over and to detect these opinions and testimony in this case and i feel that there's no way you can it's sort of like when i would agree with mr walker about one thing and that is i would urge the curt court to watch both videos in their entirety and they will show that the interviews were not a study on the statements were not the worst i'd also like to look at a couple individual statements the don't be all quiet on me which response has relied on heavily it was not made when the detective advised responded that he had a right to be silent he gave that warning he later he then explained that the statements respond made to be used in court against him and the officer event said now if you have any questions don't be all quiet on me ask me ask you that i think within the context of an interview yes a seven and old seven year old or nine year old with a mental abilities an old seven year old w understand that don't be all quiet on me in that context meas if you have a question i  respondent makes a couple comments that he was a scapegoat that was not presented that was not dr trujillo's testimony that was a finding from response treatment providers based solely on respondents statements to the well i should say solely based primarily on respondent statements to the treatment providers that was not dr cooney o's opinion came out on cross examination that someone had called respondent a scapegoat but that was no one's was that the adults told him to lie in the initial interviews to protect them they did not tell him to lie and claim that he did it and eventually the only statements we have from him are that he did it or yvette drake wanted it and there's no real testified that respondents father told him don't tell anybody that you saw respondent do it because you don't know what happened so don't say that you do and during the initial videotaped statement the first interview respondents father says you need to know that you put yourself at risk here if you did not do it then you did not do it now that may that is not necessarily telling respondents a lie but it also shows that he was participating in that first interview and he was not sitting on his hands  so it's entirely possible that respondent was told a lie however it's not there's no reason to think that he was told to lie to his grandmother and this is you know there would have to be a lot of bad actors for respondants theory of the state going after a nine year old when another person committed the murder that some of the adults who have to be bad actors the grandmother would figure joyce wellborn would have to be a bad actor and lie on you know on the stand about what respondent told her that seems that seems unlikely that seems quite unlikely counsel yesterday with her guard to justice kobe's inquiry about lying you know if the child is diminished how and he was told once to lie how can we speculate as to when he was telling the truth so i mean that's fundamental i think is that we can't really count on when he was telling the truth and when he was lying three year old and there's no reason to think that he was told to lie about that so that's a crab orating detail we also have drake wants consistent statements throughout both of the d c s investigator and trial that he didn't see what happened he called his parents immediately after and so here we have one person who's told consistent statements throughout we had respondent who initially claimed responsibility and then after after of a period of time change the story and so again this is why the videotape statements are are most because they they were of the later statements they're  great they just don't add anything to the state's case with regard to response mental abilities and the initialing respond doesn't have to know the difference between initialing and signing his name and it's there's no evidence in the record that an average intelligence a nine year old would know the difference between initialing and sign his name respondent had to know two things custody he had to know that he could in the interview he knew that because the officer told him you can in the interview by just saying the word it's as easy as that to make his statements not coerced he had to know that he didn't have to tell the officer what he wanted to hear it wasn't the truth he didn't have to tell him anything regardless and we know that because again the officer says you can end this at any time he says he asks him permission to ask these questions and he says you know he doesn't threaten him he doesn't bride and there's there's watch the videos and say you know this is the point at which this interview became custodial or this is the point where respondents freewill was overturned and he was now you know in the worst and you know responde denies hitting the victim very early on in the first interview so this court would basically have to find that the entirety of both interviews were either custodial or coerced and respondent tries child has been found to be abused a number of times three abuse hotline calls post traumatic stress syndrome and many diagnose having been repeatedly bullied burned unusual however these these two statements don't change anything about those facts and that's why th