next case in our call is agenda number two number one zero eight two five three people versus the state of illinois people of the state of illinois versus james t johnson the question correct in terms of the substantive answer continue deliberating is the proper answer to a jury question of we are eleven to one please advice although the court gave an ex parte communication to the jury that  the correct subset of answer if he's we continue to agree because that is the proper answer to the result is that the court the defendant cannot demonstrate prejudice under the plane or test and consequently the defendant received a fair trial in this case and as such his conviction should be front today i'd like to just two points the first is that this is a plane air case and second going through the elements that the court the defendant cannot demonstrate clean air any time we post trial motion and the defendant had the opportunity to bring a contemporaneous objection and timely close trial motion in this case he was informed of the ex parte communication when the jury came back and gave the verdict and then the judge immediately informed the defendant and his counsel of the experts a communication at that time the defendant could have objected instead as a counsel said ok he said simply ok that's a record of one nine hundred eighty eight and then he did bring a trial motion that time because from motion did not raise the ex parte communication issue instead it brought other issues including challenging introduction the fact that the victim was pregnant and whether that was him or inappropriate to bring up so the court applied a player test now the defendant says that he did not have the ability to bring a timely pro action but that is incorrect in the child side of cases child's mcdonald's as well as kleiner the court says as long as the objections brought in the trial court at the first opportunity but if and it says but i needed to bring the objection before the jury was instructed ex parte but that isn't correct the point is not just to avoid an error but also to correct court as well as developing any record of possible so if you believe that he had a poker a proper objection where he could have obtained a reversals condition he could have and should have brought that in the trial court  finally the defendant invoked so people are suspenseful a sprinkle was rejected in the corner and sprinkles an affable in this type of case sprinkled the concern is that the trial court it would be impossible to bring in objection because the juries present and to bring the objection would in essence crazy ire of the trial court to the point that defense counsel would endangered his client standing in the defendant's standing in front of the jury hearing the jury had been discharged before the trial so again because he the jury was not there and this is not a circumstance where the trial court gave any indication that he was not amenable to hearing the objection the simple point was that the ex parte communication  is they continue deliberating his the appropriate answer to the jury question of we are eleven to one please advise and when the court gives the correct subset of answer which was in his discretion the end result is that the defendant cannot demonstrate that he was harmed in any way it is important to distinguish between player and harmless error that is why i took you know we make the effort this to specifically argue that this is a player case however he to root for hugo whether harmless error or plain or the ultimate result is that the defendant should lose this case and the reason is because continue deliberating is the right answer however it is important to make sure which analytical boxer and if you feel i'm going to use that term because there is a different standard on the harmless forces playing are you contending that because the response was seem to suggest that this was not the d l says only under the air component saying there was no quote unquote error because the answer was subsequent correct we recognize that it is inappropriate for a judge to communicate  absence of defendant where the defendant was representing himself and only stand by counsel your honor the standard is identical whether it is simply the defendant or defendant in defense counsel ultimately you look to determine whether the answer  the it is actually not a there's language from this court statements that it's critical and i don't i don't want to jump too far ahead but we would not are you to say that that's a staged a prong to prejudice that's our dispute with the public or does that saying that to defend it was denied the opportunity to be part of the jury answering the jury question would not satisfy a prong to that let me ask you this there was a due process violation it wasn't the this in terms of the fact that the fourteenth amendment there is a fourteenth amendment right implicated here so when your honor system process to the fact of the defendant should be present with the communication with with with the jury will an argument can be question whether this is a critical critical stage but to get back to the point of you honestly would not say that this is a prong to error and the reason is that is a prong to where it must be an error which is so gracious that it undermines the integrity of the fairness of the trial or the interview the integrity of the judicial proceedings the point that the trial regardless of the defendant's guilt or innocence must be thrown out and we know in this line of cases that continue deliberating is the correct answer and as such the defendant been a harmless error case with a friend it preserves the objection then we go the burden would be on the state to prove the figure was harmless beyond a reasonable doubt and we know that saying continue deliberating means that it's harmless beyond a reasonable doubt the defendant could not win under harmless error standard here harmless error we know is a burden that is more difficult on the state the burden is on the state in playing where the burden is on the defendant so if he can't win the hundred harmless error how can he win under player how can we say the this is an error that is so grievous that a violation is so great that the trial itself must be thrown out when we know in a harmless error situation the defendant could not win here because under the child's line of cases put the burden on the state the determination would do would be that it is harmless beyond a reasonable doubt when you say continue deliberating in response to the church question this is good it's wrong it seems to me that these rules and these cases conflict and how should is the problem of the thirds districts in our system what were the third district here creating what seems to be off what is the fact that they saw it constitutional or they saw the ex parte communication and said oh there's ex parte communication therefore we're going to presume prejudice they took the language out of of hair and that says affecting the integrity of the judicial proceedings the problem is that the existence of a constitutionally are by itself is not per se prong to air and so the fact that there was a constitutional there was a violation of some sort there was an ex parte communication does not mean by definition that it's prong two because of that was the case if it was simply that there that any constitute any constitutional or other error is per se prejudicial then we would never have any type of appellate review in that that's what they did they said we see there we're going to presume that that is prejudicial what they should have done is they should have gone through the now says and said is there so great is here in essence one that affects the structure of the trial or the integrity of the trial to the point that we must pardon the phrase throw the baby out with the bathwater where the case is such that we cannot stand regardless of guilt or innocence that this case now that is why it's not prong two in this case and we say it's not going to because we fine where there was no evidentiary basis and the court determined that it was an arbitrary determination it was extermination it was not based on any judicial determination people versus blue is another case where the court said that the  we the trial fails to occur in essence and here with the third district it improperly you say we see a constitutional error and proceed that must be eighty to err and we know this is not in  which undoes the fairness of the trial because we know that from the child's line of clay says cases as well as we've done this was in the corner and that if the judge gives the correct substantive answer continue deliberating the defendant has in essence received what he was to be as i mentioned this we've been saying here the key point is continue deliberating is the correct answer to this case and then because continue to raise a quick answer and i know we put prone to first i just want to circle back around to come out differently all of those cases say that there is not a presumption of prejudiced but that the next party communication can be cured by the giving of the proper answer and so we know that if the answer is subsidy correct continue continue to liberate is the right answer there is not this presumption of prejudice and that is another reason why you can't have prong two here if i can circle back to prong one for a moment because the defender of course can demonstrate prejudice either under prong want to prompt to hear the evidence is not closely balanced the evidence in fact is overwhelming and the concern in prong one is the conviction of an innocent person whether you are contributing to the commission of it is a person but if it was charged with criminal sexual abuse he is seventeen she is fourteen there is no dispute about the ages and more importantly for secondly he confessed to the police that he in fact engaged in sexual intercourse with the victim the victim testified in closing arguments the defendant defense counsel said that they had sex now the defendant makes argument in his brief about the issue about how there is a mistrial and the fact that there was no we think that is best determined by the fact that there is an appeal here to the to the sympathies of the pre the jury in terms of the question whether this should have been a crime or not but this court has upheld that it is absolutely a crime when a person has sex under age with with an individual and so we think that the evidence here is not even not closely balanced but in fact an opportunity to communicate with the trial court regarding its response to the jury when they had to deliberate englishman those of the four and specifically know that in both trials and people versus me i also was not present when they were considered  how i understand what your argument but how do you distinguish mclaurin i mean i don't think it's good enough to say defense counsels and present one mclaurin cites cases where defense counsel wasn't present to come to the communication between the bailiff and the jury itself and then mcroy and oral argument the state actually conceded the fact that if mclaurin had had the situation which we have here in which defense counsel was not present that would constitute a structural it was proper no i don't think we have to address it because the error occurred prior to the instruction being given it was the fact that the communication took place outside the presence of the defendant as well as outside the presence of counsel so there's asked for a private instruction they could have asked for another mistrial they could have asked that the jury be dismissed to go home and reconvene the next day and there's no guarantee that had counsel been present the judge response would have been continue deliberating that the jury had a question about this was never done and all of these things could have been resolved had counsel good been given the opportunity to confer with quiet kind of a basic premise at trial court level that once a jury question comes cases is the fact that first of all in charge they found here and second of all it is it was conducted under a harmless error analysis because defense counsel and child as soon as he was made aware of what occurred he did a jet and therefore the analysis is conducted under harmless error the fact is this case we do have the higher burden and it's all of the senate but in this case the defendant also can meet that higher burden simply because he was not available and neither was his counsel at the time expired taking occasion took place and the third district properly felt not only the prejudice was presumed but that prejudice was actually failed but in those cases as you correctly point out there was no finding  the answer this question that just spoke out about whether the reconciliation of the cases is possible i think the reconciliation of these cases the rights of cases where the child's case the maclaurin case and the johnson case under lying in the third district is possible because the distinguishing factor is whether it's decided under a harmless error or a plain error analysis and again as i stated my briefing as i stated earlier the state in its argument concedes that error occurred it concedes that this needs to be evaluated but it never addresses the fact that two of the defendants substantive rights were violated here not only was his right to present violated but his right to counsel was violated as well and it's interesting in this case that one of the things that happened in this case is the fact that defense counsel was made aware of the trial court's communication with the jury after the jury had been dismissed the verdict had been entered the jury had been dismissed and left the room and then the trial court came back and said basically oh by the way we had this jury question and the state seems to focus predominantly on the fact that at that point in time defense counsel didn't of jag but at that point in time defense counsel's objection it's it would not have been able to have accomplished all of the possible things that that counsel could have done had he been aware of the ex parte communication before hand in other words at that point time defense counsel was foreclosed from contributing to the court as strong as what kind of response he could have given all he could have done to that point in time was in the mood for a new trial  second prong if a substantial right is implicated in the right to kill so constitutes a substantive right if that is implicated the prejudice is present but even if this court makes the determination that it does have to show the defendant would then have to prove prejudice despite the fact that it's presumed then that this defendant can't show that he was prejudiced because there's no way to know that the jury would have come back with the same verdict had this ex parte a communication not taken place to ruin the defendant's favor in this case you would have to overrule people versus child people versus minor people versus mcdonald and people versus mclaurin all of those cases say that you must analyze whether the defendant was prejudiced there is no presumption of prejudice in this area existence of ex parte communication by itself is not reversible error instead you must determine whether the judge's instruction was substantive correct and if it was substantive correct then the defendant is not prejudiced under childs kleiner  times had counsel to have a shocker there must be complete denial of counsel such as the getting in versus wainwright situation or denial of counsel choice involved he was also lopez at all times he had the presence of counsel the issue is whether counsel was present when the ex parte communication occurred and in that situation again we get back to the child's line of cases which say that you must determine what it prejudices occurred so there the question of ex parte communication by itself is not sufficient to create per se prejudice there is no per se prejudice here and that's the childs line of cases justice thomas to question you asked childs is exactly on point in terms of the fact that there was both the absence of counsel and defendant when the ex part communication occurred and childs the state's attorney and the trial court were having a meal together during jury deliberations there was a phone call to the judge the judge answered the question without ever consulting with the defendant and the  defense counsel in that case it was reversed because this clerk held that the judge's answer was not stops in the corral and also in that case the defendant person preserve the objection or through time the objection and so in child ultimately there was a reversal under the substantive component because the court held that the defendant could get the say could not demonstrate that the defendant was not prejudiced cannot prove the on the stair component because the answer was not substantive correct but in terms not they all are actually a little bit different in child support defense counsel and defendant rapson incline are very seasoned in mcdonald it was defense counsel was present but the defendant actually was representing himself a defense counsel w stand by and then you have mclaurin where defendant was absent but the counsel was present so all there's this question of the factual difference of defendant versus defense counsel are both absent that's not the factual distinguishment here are the cases all use the same our point is that this is not a type of error where one can presume prejudice as i just went through a minute ago this is a type of error where prejudice must be determined based on the substance of the answer because it is a type of error where you must look at the substance of the answer you know by definition it cannot be a problem to type error because wrong type errors are errors or you presume prejudice regardless of what occurs the defendant says well i don't know what could have happened she sort of says well i could have given put maybe we could have had something else happen the reality is in all appellate review nutritionally look at what did happen did did the defendant get was what was entitle to him the defendant is entitled to properly instructed jury a jury that had its questions answered the defendant received a jury that had continue deliberating responded to him the defendant in this case is saying well i could have given him put that that by itself means that i lost the right and i should have a reversal here but again child kleiner mcdonald all say that that is not sufficient by itself if you're honest whole that the inability to give input by itself even when the judge gives the right answer means reversible error in those cases all four of those cases are in conflict and we need to be over unless your honour's have any additional questions we would ask that you reverse the judgment of the third district and reinstate the defense