says to keep your voice that that's not usually a crime for me but if anything people are telling me to be more quiet good morning writers my name's andrea lyon as i said and i have the privilege of representing the i intend to combine my remarks primarily to issue gun the brady issue and to issue to which has to do with an effective assistance of counsel as those issues connect to each other and of course i'm happy to answer any questions that you might have about any of the other issues and i thank you justice quinn for saying i will have some time for a bottle but i appreciate that but i think that before i begin on the substance here that i think it would make sense to just talk a little bit about the procedural not that this case is in because of the many filings prior to my clinic becoming involved in the case and and the issues that arise because the there are successor filings and medical filings including one pro se if i and i think that the way to cut that knot and what the courts tell us that we should do is that we take a look at whether there is credible evidence of actual innocence which allows us to reach the constitutional issues that are presented to the core now would you raise of course an actual innocence mission which i'm not playing to to argue you know and understand how much time we have but that that is the way that we can get to the the underlying issues which are in our view the important issues in this case and that the case of people versus  ortiz which is a fairly recent decision about a year old i guess by now on tells us that we can do that and so i wanted to just at least speak to the fact that this has a lot of procedural history and that this is why we believe that it is appropriate to deal with the number of things one of it which i'm going to spend some time talking about is the connected to the brady claim which is john alexander's testimony and ok so that's one thing there is the confessions under oath of the and so but i wanted to talk to you is about john alexander ok now if i'm telling you things that you already know and i'm imploring you stop me but i want to hear them but but basically this case there was a student clearly a prosecution theory and the prosecution theory was this was a revenge killing of mr rogers that it was arranged to war and plan to buy a guy named john been talked about that was testified about that was their theory unbeknownst to mr gillespie at the time of his trial the police had actually interviewed john alexander and not only interviewed him they involvement in this because he said he was involved and he's one of the sources of the information directly even if it came from the police  was no plot there was no plan there were no religious i didn't do anything you know this was a shooting in revenge for the shooting of the brother by writers of their and that's what john alexander sad to the police  and i should note that one of the one of the odd things about this and you know it's just when i know you were prosecutor for a long time and i don't know if you've ever run into this but i certainly have and well is that there were three homicides that occurred in a short period of time and the same neighborhood and all of usually there's a record the permit number that attaches to run to one case so there's a homicide of a and he gets an id number and b and he decided they may end up having some crossover in their investigation but each of them have their own sets of police reports the reason that this might be important is that the police reports were for luminous and confusing as to who was being talked to about right and so that that might also be important but what is also should be noted is there is no it's not that it's not as clear but certainly the press cations position u b but it doesn't entirely clear with the names in the film of the questioning where the peak that he saw is the same peak or just another guy named pete and that's a h one forty four so one could make it with one could make an argument either way we certainly happen and that is except the tory information and i'm sure the prosecution the prosecutors knew about it they would have turned over turned it over but they didn't but even when the look at it justice quinn this is this is something that should have been investigated and should ha decision in the absence of information and if you don't go and do the interview and the police to is not to write down what the interviewer revealed and this was it might i have stopped him on the street to say you know i think about who says now and off the cuff this is he's in custody for judicata but in a successor situation which this is what we're in and in a successor situation there are cases that go both ways and i wish i could tell you that there's a clear line that if you know if you bring in one new person that's enough or not enough or that there was that there was a clear line about how to do this but when you're talking about a constitutional issue which is a brady issue and what you're when you're talking about matters that were known to the police department which were not  made available to the defense counsel at the time of trial or at the time of the motion then what you are talking about is an incomplete and you know in the accurate fact finding as a result of that and i  wish i could say to you people for such and such answers that question and you know there's cases that we cite cite cases that the state cites and you know i have i've read all the cases and i think i tried here and you know i've tried and and i cannot tell you that there's a clear answer regarding essentially the evidence of brady later on which i think is a fair way to to characterize the new  position of having to file another one which was not it would not have been worse you know but it would not have their choice to define another one but that's the reason that that happened but i didn't and i understand it makes perfect sense professor be it may concern i that were presented in the fourth and new facts that are presented in the fifth which we it is our position that the actual innocence our wows us to raise these issues and that's gets us out of the best you to kind of problem but i cannot tell you honestly here justice claimed that know that there's a lot that has been written about the trial being the main event and that that's where we're think should happen and that you know but should there be an end at some point i think you can ask that question just litigation and it's been our experience here in this state and in other states that that grievous wrongs have occurred with nobody's bad intentions here nobody is saying that with but grievous wrongs have have occurred and people have been wrongfully convicted and we found out much much later and it was our position that the evidence that we have uncovered shows a pattern of behavior by the police not just in terms of how they treated mr gillespie but how they treated e and that all of this has conspired to do two things one is to see that jericho leskie that the child molester did not get a fair trial and and it is very likely it's our position actually innocent of this crime and two that the jury didn't get to special prosecutor well the problem is that the petition that was filed in front of judge ford and we did raise this argument to judge saks is that the petition filed before a judge before a judge before it was a fourteen zero one successor which we believe  it is a right i don't believe that i even need to it is meant to be the state's characterization of those cleanings i would reference this court to the petitioners characterization of it with the pleading that was filed on may seventh two thousand and ten with this  that was a petition called motion to lift stay in saudi peels and file a brief instanter at paragraph three of the motion that petitioner filed with this court he characterized the petitions as said the only difference between the issues in the two petitions was the addition of a fourth claim in the second petition contending post conviction counsel was ineffective for failing to locate certain witnesses so i think that also goes to your questions about race you could cut in the effect of the church for ruling they've admitted that they are identical except for the six and i think that it it raises potential problems when you have the issues on appeal and the same issues being really good little gated you certainly have a risk of inconsistent verdicts and in this case i think that it ok i think that there was just an issue of whether or not a freestanding claim of actual innocence was properly brought as a as a fourteen one petition as opposed to being brought as it be as a p c i don don't misunderstand me i'm not you know there are multiple affidavits that are submitted i think it's evident from the argument and i believe evan from the priest submitted in the arguments before judge sachs that the journal alexander sort of interweaves all those issues he goes to the ineffect assistance claim he goes to the brady violation he goes to the actual innocence he really goes to to all of the issues in a common theme with respect to john alexander is whether they knew about it and whether it was disclosure and i think that a simple review of the trial record indicates and i think that justice quinby pointed these several of these things out and there are several others that i would like to point out it's if there is absolutely clear that number one the  testified regarding that photograph mr parks was shown the photograph and mr parks identified jonelle alexander in the photograph but he identified him as k b so mr gillespie knew him his pete there isn't a photograph  b there is in the photograph so i don't think there's any reasonable interpretation of the trial proceedings that can be said that they did not have awareness of him at trial and it's certainly clear i think from the testimony also in this confession to include a confession which we don't have any friends that i so that's the issue and one of the issues here it would be helpful next time you work on these if you'll be working anything you know you are you're fine and the confession and that's the the the brady violation it's sort of part and cross so that's certainly the knowledge of general alexander i believe is evident the determination of whether it needs to be disclosed is is certainly there's no dispute that the state has an in any way in fun that even if it was disclosed it would not have affected the outcome of trial his statement is simply his denial of his involvement he does not offer any facts that it was not an after the fact effort by the court to say well it was sound trial strategy to not call john l alexander this isn't something that the core created it was the actual trial strategy utilized by defense counsel would direct the court's attention to the closing statement of counsel for mr gillespie he got a closing statement and he attacked the indictment he attacked the indictment saying where's the organizer the person who organized this entire plan is not in this indictment i chase the state's case justices i don't believe rosenthal and whether or not general alexander acted as the organizer in order and provided this claim it is absolutely unrefutable that there was a plan if there wasn't a plan you've got six people who showed up at the same place at the same time on the same day with a gun swearing mess to execute the same person as a simple coincidence and i don't think believe that he organized and certainly they are good at closing that you know had he been the plan and the organizer he would have been in the indictment so you don't believe that then you can't believe the statement claiming that he was the fact organizer but one of the problems horse with the cases that first of all i do want to say that the testimony of the detective with greg and john now came close and i just ask your honor take a look at page two thirty one comes awfully now in our motion we did indicate that issues are were similar and the legal issues where the same of course we are presenting new facts and again it's our position that when you present new facts that there's a reason to consider both petitions because the facts that were in file more post conviction is like until you know i'm eighty or something this is him well you know no that's that's not going to happen the cases are you know you going to rip down the street shooter does totally exculpate jerry cholesky says that there was a plan with the three of down that show gillespie had nothing to do with that that john alexander had nothing to do with it and in fact actually it's the closest thing to a branding confession i've ever seen he was quite irritated that the  that the medical examiner had not drawn the six shots that he put in the man's head to show the accuracy of the shooting seriously so i do i have to took issue that though that that is not  telling them that there was no such plan that these three guys that the shooting was on their own it according to what he heard in the street he said that and really didn't write it down can you trust the closing argument  raise another issue which is that if in fact john our joe the rest these statements and rise correct the truth which he says it's not and we say it's not but if it were and the then that's more of a trial sort of argument i agree and that what what i want to say is this yes there have been a lot of petitions i wish that a proper investigation had been done before the first one was filed do the kind of investigation that needs to be done and post conviction and this is the standard of a practice now it might not have been twenty years ago but for up when people throw thought of course convictions kind of like had an extra appeal or something where you can just sort of talk about the constitution but you know the standard of practice is that you really investigate the case from the ground up that's how we have had the exonerations that we have and that was not done in this case until we came in and for all of those reasons we asked this court reversed the