try to answer any questions the court might have on either issue their first issue is that james the gorski was deprived of a fair jury trial when former assistant state's attorney mike mchale who took the garcia's confession told the jurors that confession was reliable and he believed it as the court knows this case involves the murder of seven people at a brown's chicken restaurant in palatine illinois on january eighth one nine hundred ninety three that crime went on sol for almost a decade ultimately won when james the gorski were arrested they were tried separately and they were convicted luna had confessed and d n a and found print evidence tied him to the crime scene like luna the gorski also confessed but unlike luna there was absolutely no forensic evidence tying him to this crime scene and there was very little other probative evidence of his guilt i think it's fair to say that the jury's verdict in this case hinged on one question w james tagore's these confessions true or were they false the defense theory was that the gorse his confessions were false and that luna committed this crime with an unknown accomplice this defense theory was completely undermined by the improper opinion testimony of state's witness michael mchale as i said mchale was the assistant state's attorney who took the gorski confession and he told the jurors that their confession was reliable in that he mchale believed it and that prejudice was magnified because the jurors were also informed over objection that you were a as a mchale had ascended to the bench and was now cook county circuit judge but now was this call more or less induced i mean the way it was then you gave the state's attorney clear opportunity to embellish and maybe do a little showboating but it was induced so it's like you give me the chance i can take it i don't think that's the case in this case judge history will smith the state says these answers were in direct response to counsel's questions that's not true defense counsel was attempting to establish the object of the indicators of what makes a confession reliable or unreliable so that the jurors could determine if those indicators applied to mr gorst use confession or i think they saw it look ok i saw that in your brief and it was actually pretty compelling as i was reading it in the brief because it it did seem take it to the catholics that you put it in the brief that the witness was overwhelmed by the spirit of volunteer a right to let him know that it was yeah i thought oh yes we were reliable i thought reliable but then when you read the record when you read the transcript it's after twenty pages of hammering out trying to get him to you know get a little bit excited on the witness stand and i think there cross examine or brought up the word reliable reliable reliable over and over and over and it did seem like it was an invited response well i think it's important i don't think you can find it's invited just because this happened  cross and i think there's a couple things we need to take into account to determine if this was actually the way first the context of the cross examination and your honor brought that up the context of this as i mentioned the the theory of defense was these confessions were false why were they false well partly they were false because of the interrogation methods used by the taskforce members of the police in this case the aggressive interrogation methods which included feeding saying that the way he quote interrogated was oppressive amps no absolutely not he talked to him for about five minutes of the left and went to bed for a while and i subsequent well that was before there were the detail can confessions and no we're not claiming that judge mchale used any improper interrogation methods here's what counsel was attempting to establish during cross examination of him first she established that his objective in questioning to gorski as with any custodial suspect was to give a statement that was reliable and truthful that was the objective she also established it was mikhail standard practice to ask the person interrogated whether the police had shown him any reports or diagrams or photographs and then she established through mchale that mchale never asked the gorski if the police had shown him and he photographs or diagrams and i think this is the key i don't know what you mean they would be important what do you mean by that and then here's the critical exchange and it's a page thirty four of our brief question well when you talk about getting a statement that's reliable and truthful you want to statement that is not contaminat someone having information from outside that's the defense theory here's the answer from mchale i suppose that's true that's the direct response to the question that's what the question invited but  broader context subjected to a very pointed cross examination beforehand in the question that arises in my mind is in that context where he's really just commenting i'm his state his feeling at that time and not talking about what the jury should do now and when the response to the volunteered statement if indeed it was volunteered is continuing to emphasize it which is what the defense lawyer did it's kind of like trying for a gotcha i mean we have this thing where it's the response is followed by that's your judgment answer you got it it sure is showing me the frustration followed by based on your time you spent with mr de gorski answer based on the three hour face to face conversation he tales about how he murdered seven people yes i believe him counsel so you want mr gorst you to be convicted answer i don't i want this jury to decide what the right thing to do is i'm just telling you what happened despite a lot of insinuations that you're making i'm telling you what i did that night truthfully and this is for the jury to decide now in that context the question is even if this is volunteered on to two points one in the context of what happens in the cross examination is it error and if so why is it emphasized over by the defense attorney who continues to bring out once this statement that this is his opinion and then on top of that even if it's air under these circumstances in the context of the statement by the witness that he's this was his opinion at the time essentially and he wants the jury to decide what is the harm under these circumstances well first of all  they say that he believed him here's what they did they almost got there just to sapps and i think they did it in a little more subtle way but the prosecutor said in rebuttal was mike mchale spent three hours face to face with the defendant three hours face to face  spent three hours face to face with someone you get a pretty good picture that's almost word for word why judge mchale told the jury he believed the garcias confession so he didn't outright say you were great with hail say that he believed the defendant's confession but he came objects overrule the trial court there if this is a significant enough problem trial court is there to hear the objection and will perhaps to strike the testimony but it seems like it's the defense that really wants to keep what counsel did which probably wasn't the best thing in the world was get the witness to reaffirm that he thought the statement was reliable he'd already come out she said yes your judgment you got it it sure is based on your time you spent with m is what counsel invited by that question based on a three hour face to face conversation where he detailed how he murdered people seven people yes ok he's reaffirming what he already testified to but then just assigning to the question why he had that opinion at that time were not complaining about the answer i just read but then he gratuities slee added and i believe him she never asked him did you believe it she never asked him that it justice mchale later ron klain if there were insinuations made but i think the key here is even if counsel made a misstep first of all we don't think it's invited we think he gratuitously added what we're complaining about but even if it was invited even if defense counsel made a misstep this was in some way a witness off the treat this of the street this wasn't some person who didn't know the rules of evidence this is a fifteen year veteran of the cook county state's attorney's office testifying in a capital murder trial this is a man who will become a sitting judge in cook county he knew better than that justice epstein i mean he wasn't personally under attack he wasn't about to be beat up he was a witness on the witness stand and he if he knew better and i'll accept that for the moment so did the defense lawyer so did the defense lawyer but the the court is sitting right there to grant relief if well such a problem that i think it was such a problem justice la not his very life depended on that question in the jurors knew this and but are we really mr hoffman ignoring the fact that he has issues of that that from everyone knew that that was the issue in the trial the jury knew it from opening statements all the way through to the closing arguments and they knew that all of the people who were prosecuting the case the police officers who testified for the state and the assistant state's attorney b who had become a judge took the position by the fact that they were there and testifying in this case that this was the  view of the confession that it was accurate that it was reliable and that they want the jury to decide that it was so because that's why this case is being prosecuted correct we're really talking about are a few words that expressively said what everybody in the courtroom including the jury knew was the position of everyone involved in the case from the prosecution point of view just as they knew that from the defense point of view that was not a truthful statement because it was made clear at the beginning of the case this state's  really saying is somehow the expressed statement that this is good this witness believed it was such a big fun on the scale that it used think that it created a whole different impression than the jury had from the beginning of the trial all the way through that's not just my view justice i've seen it's also this court's view in the cases that we rely on in people versus minos this chord found clean air where a police officer testified that he doesn't he didn't believe the defendant ever told him the truth while he was being interrogated this court now that was playing air there's a difference between the advocates in a case taking a position based confession and they knew that the prosecutor wasn't present for the confession but they were told vick judge mchale was present for the confession in fact he took the confession but he knows the place he talked about was was on its tracks rather different in the sense that in that case the detective repeatedly testified that he had told they told the defendant during the course of interrogation i don't believe i don't believe you don't believe you but that wasn't the air justice epstein this court said that was not erroneous and that's where the hanssen case comes in that the state's relying is a witness if a police officer testified i'm interrogating  suspect the suspect told me something i said i don't believe you the suspect told me something else and this is what happened to me you know some direct exam up i don't believe you you change your story and the suspect changes the story again and the officer says i don't believe you this court said that's perfectly appropriate that's a tactic of an interrogation that's the officer using his sequential logic to show how the defendant reacts this is probably the the problem in the  know came on redirect examination everything that you mention from you knows was perfectly proper and that's also what happened in hands of the officer during an interrogation said i i don't your sister says you're guilty but then you know on redirect examination interrogating officer only said this i don't think that guy ever told me the truth that night that was the air that's what was improper he's in bed difference i don't think now that that guy ever told me the truth that night to the response to the question was arguably the state argues this is then impression during the course of the interrogation or the questioning at the time where he was being criticized for not doing things that would create a reliable confession that at that time in essence he believed it right isn't that temporal difference a distinction even if it's a temp distinction i think you have to put yourself in the place of the jurors if judge mchale thought that jim the course his confession was reliable and he believed it at the time he took the confession this these jurors were told nothing that his how this was a revelation to the jury even if it was there that mr mchale believe that at the time i don't know if revelation is the right word i think it's how does it matter that i think it matters a great deal and here's why as i said the defense lawyers tell the jurors we you know the evidence will show the confession was fall the prosecutor says the evidence will show the confessions were true this was improper testimony because it's what this court and other courts have condemned as a human lie detector testimony mchale told the jurors that he reached the opinion that the confession was reliable and he believed it not based on some objective evidence that came before the jury but he said yeah i sat there i talked to the guy for three hours i concluded based on his face to face conversation with him where he detail how he killed the peaveys people yeah it was reliable and i believe that that's improper because it's his opinion testimony he is saying to the jurors basically i'm  year veteran the cook county state's attorney's office i work felony review cold cases i'm now a sitting judge i interviewed this guy for three hours face to face i concluded what he told me was reliable and i believe that that's entirely improper and here's why the jurors know what the fence counsel and prosecutors role is they also know what the role of the witnesses who comes a judge who says the defendant's confession is reliable and i believe that these jurors must have been incredibly relieved to hear that and that's the prejudice justice epstein because as you said they know the key question in this case is his confession true or false this is a death penalty case they know his heels and his life depend but of course he's confession is true and it's reliable the right thing to do is to convict him so basically what judge mchale said by that statement was i don't think that cleaned up what happened i think it you know i want this jury to do the right thing oh by the way  confessions reliable and i believe that i don't think that cures anything or lessens it obviously it's up to the jury but if i'm a juror in a capital case and i hear a judge come in a judge who took the defendant's confession tell me it's reliable and he believed it a nd excuse me if it's hyperbole but there are there is our lines of cases that talk about errors that lessen a juror sense of responsibility gee i wasn't there i don't know if the gore speech confession is true or false but judgment here was there he took it he said it's that the judge had had presided at the defense first trial and he actually grinned the defendant to try and what happened was they brought the judge in to testify about what happened at the first trial basically reading transcripts so all the judge did here we cited a d c circuit case because of the position and authority of judges there's considerable risk that a jury will court a judge's testimony substantially greater weight than it deserves there's the danger there's the answer to your question how is this prejudicial because he was a judge who took a defendant's confession in a murder case and told the jurors that the confession was reliable and he believed it the key witness on the decisive question in the case and i think it's extremely important for this court to consider that was the case there was virtually no other evidence of james the course of his guilt the state has in its brief recount its evidence that they think makes it absolutely overwhelming we disagree  think the other evidence was so weak that it probably wouldn't have supported the conviction so he lives on the other again i'm not going to plan on making money if this court has any questions on issue two i'll be happy to answer otherwise  was to establish that he was trying to obtain a quote truthful and reliable statement from mr gore scheme is clearly that my brief on page thirty four and page seventy nine eighty of the record the defense counsel was truthful answer if he was willing to give me state and of course i want to be truthful i went there to see if he was willing to talk to me give me a statement that was my job so clearly the goal of the defense attorney was trying to establish that mr mchale took as a mile to the jury and then showing how this questioning did not comport with past practices which they argue in planned ar would undercut who believe a bill would be of the statement and that's what really this was all about the question is how big a skin after twenty minutes or so on questioning the witness hat and whether that got under his skin and caused him to volunteer something that he shouldn't have said which is why we're here today absolutely are and i understand it just taking one step back briefly in terms of a cross examination doesn't need it or it's best practices certainly that's appropriate the problem here was the cross examination went from general concepts of best practices to precisely the interrogation the in the interview that occurred in this case were  taking a truthful statement from jim de gorski that's in so that what changed the tenor and became about the precise actions that occurred in this case but getting more to your point and i appreciate the fact that it's the question of whether or not that ultimate answer is a problem but what michaela didn't say at all and what he failed to even acknowledge really in the brief it all is that this is a question for the trial courts there was an extensive miscount motion based upon this the trial judge after hearing the motion made the determination that it was within the context of the closing of the cross examination and that it didn't require a manifest necessity in this trial that it didn't demonstrate undue prejudice to the defendant given everything that occurred in the importance of that fact the fact that there was a mist response in regards to his argument for that whether or not mr mcneil could be identified as a judge at all as opposed to the answers the question on cross examination we disagree with that obviously is the proper standard review for evan entry issues is  discretion that has always been the standard in regard to what right mr hockey is arguing now is that despite what the jordan case says despite what the grisette case as which he relies on which found it was an abuse it was not an abuse of discretion in that case  either that's the question of whether or not any witness should be allowed to identify on direct examination what their accusation is is a matter of law is inappropriate he then goes on to say but of course many people do it and it's a matter of routine and that's not a problem so it would seem to be that he's acknowledging that its relevance exists in just about every case but that sometimes the prejudice outweighs the relevance the probative value that's a question of discretion for the judge to sit there and make that information that balancing between probative value and prejudice so i don't really see how it could this could be anything other than interviews a discussion standard especially since in this case judge one was presented with the jordan case was presented with the argument by the founts made a reason determination and directed the parties  could be identified as a judge but that he wouldn't be walking in with a robe or being referred to as your honor in any way and that's exactly what happened here so this was a proper exercise of discretion at the beginning of the trial of terms of allowing this mikhail to be identified as a judge because it goes to his overall credibility in context as who he is and the jury can then establish and assess who he is and whether or not he should be given any weight as a witness and then the abuse of discretion standard carries and most importantly for the  the ruling that judge vaughn was able to make after considering everything could assess the effect of the questioning and the answer upon the jury and made a determination and that's what's supposed to be so highly deferential to him at this point and just a couple of the points about this  in terms of a question mr mchale immediately discounted any assertion that he was asking the jury to find him guilty based upon his personal belief that did not happen at all  its it even though defense attorney kept pushing him asking him to give that opinion finally judge one had to stop and say that's not a proper question mr mchale never gave a presence of opinion as in the hanssen case which is very much unlike the munoz case unlike the crump case and very much like the trayvon case that we cited in additional authority and finally this is a case where if any error has been negated by the jury instructions not just telling the jury that they are the  to anybody a prior incident implicating himself there were numerous statements in the price that was my next point is about to me that he gave multiple statements he gave statements at the time of the crime essentially to i leave the colony in lockett's he gave statements to  being in possession of james sikorsky and then never seen again which was shown to be that type of gun was shown to be consistent with the physical evidence that existed that killed the seven victims at the brown stricken on that night and so for those reasons we would ask this court to  he got he this was false bragging to impress these girls and it was based on information that he got from one lone i understand that this is the argument that you're making here visa v judge mchale's testimony right is that it was really improper because it was the jury was deciding just whether they have a confession he gave to mchale was reliable or they were he said the police was reliable right well he had said it ten years however many years earlier to his girlfriend right and if if what he said to mikhail was true and what he said in the girlfriends was true if what he said to mikhail was false then what he said to the girlfriends was false like i say he either did this crime or he didn't of course our issue would be stronger had he not made those that argument is i don't know if you read our briefs you see the problems those two witnesses had locked in with col i don't have time to get into that as to how reliable after ten years where they testified their memories were blurry of that time they couldn't remember who said what whether luna said something or whether divorced he said something like it hasn't really severe drug problems but be that as it may what i want to urge this court not to do is to hold that aggressive cross examination excuses improper prejudicial testimony this was a very tough cross examination i don't think we want to send a message to trial defense counsels don't be too aggressive in your cross examination and best practice is because you might open the door and is not disputing that it's really troubled by the invitation to reiterate it over and over again and even go further that were that was made by the defense attorney after the clause that you complain of correct that's true calling he said reliable before she did any of that and then he added and i believe that so this is all he kept saying reliable reliable reliable i believe it is an even more egregious statement and you know where we draw the line on tough cross examination is what a defense counsel is trying to big believer in tough cross examination and then there are times when you have to ask yourself is it time now to ask for your id of instruction or are we going to keep highlighting the the the answer which we will later claim is is a reason for a new trial but as you said to my opponent justice epstein this was about best practices so here she was trying to establish that he didn't ask the gorski if the police offend him any information and he even c well it's probably true that i should have done that that should have been the end of it yet he only said that had he only said that and then not added but i didn't do my best practices because hey his his his confession was  e why do i need to do that that's what started this whole thing up till that point there was no where there was no invited there there was no uninvited air once he gratuitously added and it was reliable that set it in motion maybe defense counsel made it worse but i think if all that happened was that he said it was reliable i think we'd still be here and i think we still would have raised this issue because as i said this was the key witness in the in the decisive question where do we draw the line on this let us defense counsel is grilling a police officer world isn't it usual to do a gun residue test well yeah usually but we believe the guy when he told us he shot the victim i mean this could happen in any context though i guess my my point there the that the proper defense response to that would be to keep reiterating the damaging things that you get later going to rely on well let let's say that defense counsel's actions made it more reversible but it was reversible to begin with before that head to head start and again i just there's this court to consider even in the heat of cross examination even if counsel made a misstep this was not a lay person this was a person very familiar with the rules of evidence i think  in order to provide james to go or see you with a fair trial regardless of how hot under the collar jurors mickael got it would have been much better and it would not have caused this airhead he just bit his tongue and that said there's no question about that and we're constantly presented with things that people shouldn't have said and the question is was are they are and if so was it under the circumstances and that's those are the questions that we have here and i think if you're honest consider whether or not this was error if you look at henderson munoz and crump you'll find it was there if you consider whether it was harmless i think you have to find it was not harmless because the confession was the key evidence in the case and with that i think your honor so your time thank you for a very well presented argument and very well written