first case are called the docket today thursday january thirteenth two thousand and eleven nine am his agenda number four one zero nine six eight nine people versus can you out of white mr me please the court my name is richard goldwasser i represent the thinking not of white he should refer the court this morning is rather the state had commenced adversarial proceedings against the defendant prior to the time they placed him in a lineup on february twenty sixth two thousand and three united states supreme court has identified five separate and distinct events that are indictment and information or an arraignment under supreme court precedent any five of those events signal the onset of adversarial proceedings before this court deals with whether or not the charge accusing mr white a first degree murder was a sufficiently formal charge signaling the onset the judicial officer to take legal action in response or to set the terms of bail and order the defendant locked up in the present case we have been exactly same situation there was a  complaint filed against mr white and she was term of first degree murder only not here certainly not here for us as i previously stated the complaint was filed and he the defendant was arrested on february twentieth he was not a rained until eight days later does that make a difference in present for an indictment and the same thing can be said with respect to information so the fact that the defendant wasn't present a court hadn't been arraigned really does not harassed by itself was sufficient to trigger the onset of sixth amendment rights in fact they specifically state in their opinion that they were not asked to do  hundred sixty seven with turkey versus illinois and the new thing about the raw theory decision is for the first time we have a definition we have a standard of what a formal charge months what does that mean judicial machinery judicial machinery let's like to first start out by the by saying what the rockery court said by judicial machinery said it doesn't make a difference whether or not it's turned court and you have a judicial officer take action in this case that's precisely what happened we had to charge the felony complaint against mr white was filed on february twentieth on february twentieth the court but i don't read that statement as overturning forty plus years of united states supreme court precedent especially when the the rothbury court specifically states nothing here we are stating is new they're saying this is i was a bad so i you know i understand that that sentence is in the opinion but i don't read that sentence considering the overall context of the opinion the state does not apply the standard set by so forth by ross carry to the complaint in the present case instead the state ignores the proposition set forth by raw was issued by the judge correct correct and in this case it follows that the filing of the of the formal charge that prompted the arraignment in the restrictions on the defen confusion as to the filing date of the complaint which which i hope i obviated when i supplemented the record and that is this the original complaint or the complaint that was contained in the original record was hard to read the date was hard to read so what you saw was february there was a two one that you couldn't really tell with what the following number but i did supplement the record with leave of court and that complaint clearly clearly demonstrates that it was february twentieth commenced does and does a defendant have the right to have his attorney observe the witness making her identification during the lineup and in the present case the  found that the defendant does have that right that an attorney must be able to observe the witness during the identification process is it matter whether or not the state's attorney was present at the time  does not does not at all for two reasons well run is if the inquiry is whether or not it's a it's a critical stage the u s supreme court clearly says that a lineup is a critical stage at which a defendant is entitled to an attorney it is lined up but i think more importantly the whole underline basis for having an attorney present at the lineup is so the attorney could provide the defendant's attorney has nothing to do with this with the states or the defendant's attorney could only could prevent unfairness in the first instance and moreover to allow the attorney a sufficient basis on which to conduct a cross examination to try so whether or not a state's attorney the prosecutor's present there doesn't go to the underlying rationale of having the attorney present in the first you know at it please the court my name is michelle katz i'm a cook county assistant state's attorney appearing on behalf of the people in this case after agreeing to go to the police department to meet with area two detectives upon  contacted by them they are intention being to conduct a lineup on the thirteenth of january the defendant instead decided to hope that the truth would come out and he fled to east st louis to east st louis the detectives continued to look for him were unable to do so and on the twentieth of february after receiving information from a u s marshal as to his whereabouts went and obtained an unchallenged arrest warrant on the basis of having probable cause it was at that point that that arrest warrant existence was conveyed back to the authorities and the defendant was taken into custody and on the twenty fifth he was transported in the evening to the chicago police department and less than twenty four hours later the chicago police department had the line up that they had attempted to have a month earlier at which point defense counsel counsel of choice the same counsel who represented the defendant at his trial was present at the police department asked to be present unquote was permitted to be in the room where the defendant stood alongside the other individuals who were in that lineup and was subsequently told of the fact that two of the witnesses the only two who viewed the lineup had made an identification subsequent  this a trial commenced what did not commence was the filing or the litigation of a pretrial motion to quash arrest and suppress the lineup identifications on which the defendant would have borne the burden of proof what also did not happen in this case is that the defense attorney never challenged the admissibility of the lineup identification the identification by miss sherry collier the weight of the identification was challenged but never it's an edit its admissibility furthermore in the defendant's post trial motion again there is no reference to the propriety of the lineup procedure to any delay that occurred from the transporting of the defendant from st clair county to chicago to the admissibility of the identifications in light of this in light of the established precedent of th for officer principles dictate that this court not reach the merits of the defendant's substance substantive claims with respect to when the right of counsel attaches or the propriety of a particular procedure that was in gauged in and in terms of arguing forfeiture not to belabor the point that this is an unusual case because not only is there not any sort of objection to the admissibility of these lineup identifications which would normally constitute a simple forfeiture but you have in this record evidence of an affirmative waiver because you have a representation by the defense counsel at the post trial after the state's case is concluded in the defendant makes a motion for a directed finding and the defense attorney and i've cited this in my brief discusses his decision and there is no claim of ineffective assistance of counsel that's ever been wa place case history teaches decision not to attack the admissibility of the lineup identifications and if you look at the defense strategy in this case it hinged on utilizing a lineup identifications and to be clear here while two witnesses identified the defendant one of those identifications was not offered in evidence by the people but by the defendant in his case in chief he calls a witness who made one of those identifications the state did not utilize that evidence but with respect to the other identification this is why the defendant chose not to test the admissibility because his theory of defense was very simple and straightforward and it was this that upon the commission of this offense martina brewer who is the victim's girlfriend who was present at the scene said in into motion a course of events that resulted in the identification of the defendant when she named him as being the perpetrator because the theory being first of all that she lied and you've got her substantively admitted testimony that contradicts that but that when she identified the defendant and the defendant frodo was put in a photo array with other individuals that because of his physical ailment but essentially nobody else on the planet looks like this defendant and that the identification resulted from that distinctive face that he admits and that the trial judge remarks on that nobody else shares and so based on the particular facts of this case that argue even more strongly for this court not to reach the issues the substance of the issues that are raised but if this court and we urge that you don't but if you do bypass application of those kerry did not change anything rather kerry is essentially the court's response to the united states supreme court's response to texas act of bypassing the rules and i agree that there are five things that constitute the initiation of adversarial judicial criminal proceedings but the wording is not formal complaint which is what the defendant just stood before you and said its formal charge and right kerry is very clear and as your honour's have noted specifically states that it's holding is narrow and that what it addresses is a defendant who appears before a judge is the price of the charges against him and then there is action taken that effects were restraints are placed on his liberty bonds is  the case can't be separated from the facts of the defendant's appearance in court and the case comes under the in under the arraignment portion of what constitutes a formal charge and essentially i think the best case even though it's not binding on this court it comes from outside of illinois but it really very clearly tackles this question of of when does the right attach his bos kick the first circuit case which i cite in my brief which talks about what is this complaint for preliminary examination rather kerry dealt with the fact that there was a practice in taxes of bringing individuals into corps and charging them with an offense but the prosecutor would not be present and texas urged that it wasn't really an arraignment because it required involvement and the united states supreme court said no i agree the rules are the rules and arraignment is an arraignment if you are being brought before a magistrate and something is being done you're being informed of a charge that constitutes the initiation of formal judicial proceedings and when you look at the five ways in which this can happen they require one of two things either prosecutorial involvement because when you're talking about an indictment you're not talking about i agree a defendant coming before a court but it's clear that the arm of the state is bearing down upon because the prosecution is acting to formally charge you when you appear in front of a judge and there is an arraignment that takes place that's a formal charge and the court rejected the notion that the prosecution in in texas could stand by and basically put ten they didn't know what was happening or say that we're not a participant therefore it doesn't count that's all that rothbury did but there's something very important in rothbury that needs to be discussed which is the fact that rockery says look forty three states are doing this the right way there are some renegade states that are not doing it the right way to my mind it's sort of analogous to seeberg and a practice that was bypassing the rule in the lands of that's sort of what was happening here but what it says is forty three states get it right and guess what illinois is specifically stated as one of the states that's doing things in compliance and that is pretty ensuring that at the time of the defendant's first appearance in cork counsel is a point to and that's  what happens in this case this chaos you're saying the judicial machinery and superman to the arraignment yes well if it if if you can say that then don't you believe the prosecutor's prosecution has been committed to prosecute the defendant the judicial process already started so why schedule rayment if it hadn't started before long before that i don't your honor and let me explain to you why because rauf gary talks about fifty sixty years of precedent that came before it most notably its decision in go  now in the language of rothbury it says this is not like go where we were being asked to extend the time line backwards in time for the attachment of the right the court says this is where we're being asked to suspend until a prosecutor is involved now if you look at go via who he is a case where federal were individuals were in federal a federal penitentiary and a murder was committed and for a period of eighteen or nineteen months they were halted individual isolation segregated from the rest of the population while the f b i was investigating and no charges have been brought and go via says that during the pendency of that investigation the sixth amendment rights is not attached and when the question was raised well what about this delay doesn't this delay somehow mean that there should have been like a de facto attachment of the right the court says no you can't use you can't grasp hold of the sixth amendment to deal with something that little different the prosecutor had already committed to prosecuting the defendant your honor i would respectfully disagree with your assessment that where the suggestion that the prosecution had committed itself there is an entire body of case law that talks about the ability of the state to for there to be an investigative delay the state is not required just because there was a finding of probable cause the united states supreme court has said this to go ahead and file charges formal charges against a defendant that the defendant saying that this complaint somehow prompts arraignments tranche of the complaint itself the complaint didn't prompt anything other than the issuance of an arrest warrant the complaint has you know would you help us with this this is some of them really concerned i guess i'm sorry i'm concerned about how we're using the expression complaint yes is this a complaint filed by the police asking the court in this case and it is unclear if you look at the appellate court record there's a reference also to try to clear this up there's a reference to the fact that the complaint was filed after the point in time at which the lineups were conducted there were two complaints the first complaint was presented to the court the same day that the arrest warrant was presented and signed and who just someone signed it as an affidavit is it the police officer worries it  three it is not by the assistant state attorney it is by the detective it indicates that it was filed in court there is no judge just signature on it there is the name of the defendant the charge that he's signature appears the purpose of the complaint whether you it's it has the language on their complaint for plimer hearing or not the purpose of the complaint is to obtain a warrant in this way the case is no different this is why science by the other detective who was on this case but that that one which is almost identical has a date and a place where the defendant is to appear at the top of it if you look at it it says there's a line that says where the court appearance is going to be that a second if it was my question if the first complaint which again it's our position just triggered the issuance of an arrest warrant prompted the defendant's appearance in court why file a second one because it doesn't do that it's the second complaint that was filed the one that the appellate court referenced in its opinion that actually it is the one that's in front of the judge when the defendant is arranged and why i mean is it just a matter of procedure if it's one is exactly the same it's result of the same way it's signed by the chicago police department to different to talk to us why would we look at them and analyze them differently because it is the language of the same in the present sense because the first one because they have no legal signee here is my position they have no legal significance position that's that it's what rothbury says and that if you look at it united states supreme court case law as a whole it has refused to extend that timeline out to the point of investigatory delay which is a legitimate state function and which is permissible and which does not trigger application of the sixth amendment because otherwise you end up with a very strange situation where the police in an effort to fully comply with the fourth amendment go and obtain a warrant get a finding of probable cause and somehow that is now going to automatically trigger application of the sixth amendment word defendant for whom no such steps are taken why did it take that long to get the defendant here the appellate court suggested that we should have provided an answer i don't know the answer to that question because the defendant never made an issue of this below so there was no litigation of it was there a waiver justice freiman we don't know is the answer there can't be a no as an absolute affirmative answer to the question because the the record is simply silent as to what transpired the only thing that we agree on with respect to this is that he was not brought to a judge clearly he was not brought to court because if he had been brought before a court it would be an entirely different case but there was no challenge to the passage of those five days now the again we're we're in a situation where we have a warrant so mclachlan and gerstein and those sort of rules don't come into play we've got a statute that says without unnecessary delay i don't know what whether there was a medical issue whether there was a transportation issue because you're dealing with several agencies that  don't know if the defendant did not want to appear he wanted his lawyer clearly his lawyer was waiting for him at the point at which he arrived in chicago and stood by him while the lineup was engaged in and clearly the police  from the onset of this thing that they needed to conduct an investigation that in itself could be deemed to be an unnecessary delay that was transpiring at the point at which the investigation was still ongoing but so we don't have a record that in any way suggests and i think the appellate court said this if there was any wrongdoing on the part of the authorities clearly his attorneys have those stations so they're trying to cooperate to absolutely not well the west case that i suggested as otherwise your honor i apologize for not being familiar with the west case i i would need to look at it i'd be very happy to just to respond to that  a motion that after this argument is concluded the only thing i would wonder about the west case so much is in the case that the my opposition relies on the mississippi case is that i don't know whether that case rested just on six the men on federal sixth amendment principles or also if it was tied in to the particular constitution of that state or their own procedures because that was the case  defendant who perhaps incarcerated and unable to afford judicially imposed the bill which preliminary examination on the authority of a charging document filed by the prosecutor last typically by the police warrant requiring the defendant directing to the state to lock the defendant up and said bill i don't know if that answers your question but that's that's what the complaint does the the motivation the purpose behind why they filed the complaint i'm not sure defendant must be brought before a judge in the county he's arrested in without undue or unnecessary delay so the reason of the motivations the state filed to the second complaint i'm not sure perhaps i don't know how you could have constructed a line up where you have people who look similarly enough to him to render the line up anything but suggest an argument or improper  suggestion is a fourteenth in a fifth amendment argument a due process argument the argument we're making is a different argument we're arguing that the defendants sixth amendment right required an attorney to we don't i'm not making the argument based upon keith's slaughter's identification my argument is based solely on the illegal improper introduction of evidence of the line testimony and introduced a picture of the lineup thoroughly the state brought her lineup identification had significant import in the case and that's why they relied on it so about the vagaries of eye witness testimony and a question and in a quoted justice frankfurter further question what is the value of the eyewitness testimony especially that of a stranger collier testified that she did not know the defendant she had never seen him before she clearly was a stranger to the trial court relied heavily on her testimony both sufficient opportunity to cross examine her because he was not in the lineup room as she was making her identification six eight nine people versus can you not a white agenda