necessity of this particular jury replacement procedure in roberts the illinois supreme court acknowledged that a suffocation process like the one that took place here in boston that substantial risk or prejudice that's  this what do you think the president i think there's three main or three main points and maybe some couple some points beyond that but i think one of the biggest ones is the difference in the time  was a lot of moving parts here it was somewhat complex in terms of you know who is related what story and at what time and so we have a whole host of evidence to go through we have the initial the original  language from so what happened that that is the core cause her out and really doesn't do any delving beyond just accepting her word that she had a language problem oh what the judge with the language english is my second language and i don't feel i'm getting everything that's being said in the court and wires into that makes the determination that you know this juror is telling the truth or better safe than sorry whatever his reasoning may be how do we you know many months after the fact sitting here say well the judge was wrong i mean how do we do that but i think again one of the in other words of your peers yours appears but i think it's alarming there was no indication of a language problem during the initial pretrial for here during all of their selection there was there was none of that whatsoever then we have three days at is clearly a person that has english as their second language and she says i really don't feel comfortable with i'm getting all of it how would you how the court completely you know in the verdict forms work or what well i think again i think given the the fact that she just related this three and a half hours into the liberations after three days of trial after having plenty of opportunity for this pretty farfetched to think that somehow this would just surface i mean i think the more likely scenario is that you know this was a heavy heavy gang case and i can't even it's not it's no mystery that sometimes jurors are  instructions well how's that show i mean it's one thing to have a presumption but if a party should be allowed to to rebut that presumption in our position is that that's what these interviews go towards doing if you jury replacement based on its stated language but i think what's more significant here is again we have this timeframe of three half hours that you know it's the deliberations after three this to me explains the time difference it actually elucidates that discrepancy they basically indicate well we were we were pretty much made up were we solidified i think is the word these we solidified or it was juror mentioned filling in the blanks even the replay replacement juror who said something along the same lines she's in i think it's unrealistic to  assume that you know the jurors had not made up their minds or at least formulated some opinions after three half hours of the liberation that test as some of the way they were instructed to this regard any previously formulated opinions but human beings are human beings and right the certainly the judge had instructed them and i think everybody the record certainly supports that suit but you're saying that doesn't matter you believe that they liberated anyway and if they come to a conclusion regardless of what they say regardless of what the court said i mean how do we know that that we that's a problem for us you know and you know if we do what you want we have to write something and it has to make sense ok and what you're telling me is that it doesn't matter whether or not the judge instructed them as long as the jury started deliberating you could never substitute all that's what you're saying and that's not what the case robert says that it's not that it's not prohibited and we have a problem i said ok but there should be i guess something more in other words that the roberts court recognized the high risk for pressure so that there details such as you know where you both take it what kind of opinions were formulated was there any particular breakdown because i thought you think t know this is a matter of degree and i'm not i guess i'm not prepared to you know formulate some kind of bullet point as far as that goes but i guess what i'm suggesting is that it should be something more than just a simple oh ok read the liberated or disregard that because especially after three and a half hours i think that's pretty extraordinary set of circumstances where again after this many days of trial after all of the earlier opportunity it seems to me when he distilled the trail down the i'm sorry w she had no trouble communicating during the course of the trial and we gather so were they followed the instructions or not liberate or talk about the case while it was ongoing certainly they would talk and we change pleasantries and whatnot during the course of the trial and agree that it is a lot of circumstances that the fact that she's having a language problem would certainly be a reasonable explanation but i think what makes it less reasonable is again that it took place after three days of trial after much earlier opportunity to this didn't come out much so you know some basic questions like that and you're not getting so far along where you're getting into specifics about who formulated what a penny or that type of a something beyond just oh you have a leg problem ok your excuse of call the calling the alternate juror after three half hours was already chambre you know i mean i think that's what's most extraordinary about this case so something just beyond what took place here just asking her why this didn't come out in the pretrial for  talked about he read you larry in some of these proceedings in terms of when an alternate is use but you still have to show prejudice and that's where i have been encouraging you to really highlight your strongest significant i mean because that shows that they didn't follow that very important structure of philip of this regarding previously formulated opinions and truly starting their deliberations and you know and this the instructions and again we're not using the interviews to impeach the perfect we're using the interviews to undermine just presumption in the preaching that they did that they followed instructions in other words were using it to show the prejudice good morning your honour's good morning my name is miles kelleher on behalf of the people the trial court properly exercise its discretion when it replaced church account with the alternate juror and the replacement procedure here does not prejudice the fact that the trial court carefully reviewed the matter and took significant precautions to ensure that the find it would not be prejudiced as you would with those questions first of all the trial first of all after receiving a note from the jury which indicated simply that the one of the jurors was have no language problem and they wanted guidance from the court at that point the trial at that point the court called out mr khan and asked her about the problem and asked her a number of problems to make sure that it was only a language barrier problem and not something else trial judge wanted to make sure that this wasn't the type of situation where something else might be going on where you know she was somehow being rushed off to jurors and that the judge by his comments made clear that there was nothing else going on he found out from mr chick on that her native language was spanish and she didn't understand english one hundred percent and she had difficulty during the trial understanding what was going on and it was apparent during the deliberations to you based on a no from the jury and based on the conversation that the judge had with the four person that she was also having purchased well it's it's it's not clear that the language problem suddenly manifested itself as justice to learn know perhaps some of the three and a half hours was the result of the jury having this problem with this juror and finally at some point they decided before we continue our deliberations we need to get some guidance from the trial court as to how to proceed because they were obviously having a problem with this jerk the language problem it was only a language problem and then once the court did find that there was a ensure that she had maintained her impartiality the court asked her whether or not she had followed the court's instructions and she indicated that she had she court asked talk to anybody about the case has been indicated that shit not court asked her if she had formed any opinions about the case has been indicated it should not and the court also asked miss boone if she had been subjected to  outside influences regarding the case in this room indicated that she had not only at that point once the court was satisfied that ms boone was had not in any way  her ability to serve on the court it in jury had been heated at that point the court instructed all the jurors eleven original jurors and the alternate jurors and this was present to the defendant's request instructed the jury that they were to begin their deliberations anew that means that they were to totally disregard any and all deliberations that they had in gauged in prior to that point as well as abandon any and all opinions that they had formed during their deliberations and they were to start from the beginning and the judge really wanted to make sure that the jury understood this so he said oh ok he gave the jurors a chance to respond no one responded he said shall i read that again again no one raised their hand or responded he said is that clear so the part about this given the he thinks the state's evidence is very weak you know they have the are reasonable doubt argument as well given the weakness of this argument why bush just for why not just talk over the weakness of this  evidence rather why not just start all over i mean that's that's that's the argument that he's making that the state really only had one main witness and that witness that had some motive to you know and given all of that why not just recognize it everything here points to the fact that defendant may have been prejudiced by the substitution of the story so late in the process why not give the maybe in the course of doing that i mean that this seems to circle around two main witnesses and both of them you know one or both of them just talk about the shadow is being the shooter and then i think that's where the public defender is coming from that when you look at all the evidence the direct evidence and the circumstantial evidence there is clearly sufficient evidence for a rational trifecta finding essential elements of the surprise beyond reasonable doubt we had again motivated shooting where the defendant met some of his fellow gang members in a park shortly before the offense if it was a member of the well before hand you had statements of the defendant saying let's go see if the clowns wear out this was a derogatory term for the latin cowards and belak interpreted that to mean let's go beat them up or let's go shoot  down and then they they get into the yellow car which is going to ballet if it was in the front passenger seat when they get to the area of evidence indicated after the shooting there were two things defendant wanted to do one he had had a gun somewhere until he had to get back to jeanette's bar to meet up with his coverts so one can reasonably infer from the evidence that he went to this apartment building that was about four tenths of a mile nearby hit the gun and then since fell it refused to pick the founding up and drive him back because he didn't want to be part of this shooting defendant took the bike that was in the lobby of the building rode  bar and that's why when he gets to the next bar he's all sweaty he's tired yes no shirt on and he's mad that he kicks the bike and he says why don't you pick me up so when you look at all this evidence obviously he didn't it wasn't his desire where getting back to the bar he did it out of what he felt was necessity because he had to figure out a way to get there it still doesn't help me my how that i see it there is the inferences you say it's one and and robert burke explained that if someone has gunshot residue on their hands comes in contact with another individual some of those elements can be transferred from one hand to another and we don't know exactly what happened here but it's we do know that that's telling the intensity in fact that the states really doesn't know exactly what happened here and they basically are putting on an expert who examine these elements that were found under defendant's hands and concluded that he had fired or been in close proximity to the firing  was involved also well first of all he pled guilty and sure that in many of these cases there's more than one person guilty they may be accountable for each other's actions so w offense here and concluded that defendant because he had because of his game and membership the way he said let's go see if the clowns are out it's a derogatory term referring to th separate in the area thirty seven in marshfield fact that he drove over there with ballet he gets out of the yellow car with that with a gun in his hand saying i'm going to do it shortly there after five or six gun shots  fired the gun is recovered from a building where the latin counts hang out it's the same building where defendant takes patricia berryman's by rights over to one member of a game in a game related shooting is involved and they can be accountable for each other's actions i would like to just go back to the alternate jury question for learning to wrap up and i'd just like to address the couple points defendant made about the post trial interviews as the church trial court noted those interviews were improper for a number of reasons first they were simply very representations the defendant  and here you can even if this court were to look at those statements there they're insufficient as a matter of law to to show prejudice the statements indicate that each jerk believed that he or she was beginning their deliberations anew and this harz the timeframe first of all the three and a half hours originally some of that to lay could have been attributable to the language problem and also the hour and forty one minutes that the jury deliberated after the reconstituted jury that actually demonstrates that the jury took the trial court's admonishments very seriously and did begin their deliberations a new an hour and forty five one minutes as substantial period of time that allows for the jury can gauge in meaningful deliberations it would have allowed for the alternate church account to have ample time to participate to express her views and this isn't a situation where the jury comes back ten minutes later with it this is an hour and forty one minutes and that's a significant period of time so to suggest that that somehow indicates said the jury didn't follow the trial court instructions is is complete speculation the jury is presumed to follow the trial court's instructions and there's absolutely no evidence here to indicate that they didn't do that in this case whether there's no rule that says that the trial court had to call up the jury and admonished them in court to stop their deliberations but there are and it is the judge the trial court can use the deputy sheriff to you know provide simple instructions to the jury obviously not instructions on the law but just simple instructions as to you know when to begin their deliberations or stop their deliberate but here there  ample evidence in the record indicating that the jury had stopped their deliberations that the trial court instructed the four person trial court said if we check on please stop deliberating at that point and and when the trial court brought out mr kahn the judge said and tell everyone to stop deliberating deliberating and wait for the jury to show up and trial judge even said at one point any objection to the jury being taken out for a walk while they're not deliberating to go outside and neither party objected so when you look at the record is that right as a whole if it's clear that the jury did not continue their deliberations why they were waiting for it's not supported by what's in the record and it was only once the jury was alternate roun showed up and the judge was satisfied that she was  had stopped their deliberations when the record is examined this whole e as far as the jury going off or air well ok they went out for air well that doesn't mean that they don't formulate a paid him to share it with whatever that doesn't like anything there's that the bottom line is that there's no indication that the story was instructed  specific directions were followed and therefore the pressures and speaking of prejudice getting to some of your questions about the sufficiency of the evidence if if if this court overcall it if in its first opinion regarding you know the the first trial you know basically what we're left here if without alec and we have the same kind of how much higher patchwork of circumstantial evidence that just you know as far as the environmental factors certainly the experts come into that i guess that there if it comes to question of reasonableness and i guess when we add on to the other factors that i discussed in the brief in terms of why ballots should be just discounted altogether i think what's even more severe it is again we have a timeframe between when the shooting took actually took place which was around one thirty ish somewhere between one and one thirty then we have all this unaccounted for time seems to be about at least forty five minutes to an hour perhaps slightly more of where baloch had the same opportunity he supposed they took his car home but he wasn't he was accounted for for the significant period of time which of course you know obviously testified he wasn't sure now whether that was true or false is another story but wasn't his testimony to that effect subject to the the scrutiny of examination cross examination that went to the jury and they of it's a story mentioned that our forty one minutes is you know reasonable amount of time to deliberate or even though it somehow would suggest that a court follow the instructions and maintain that that may be true in some cases but that certainly doesn't hold much water when you're talking about a reconstituted jury who was called upon to look at the same bundle of evidence the same clothes the things that a previous jury spent about three to three hours they have hours on