need not repeat the facts of the case what will be different today is that we will not be interrupting your arguments with questions as we usually do conducting oral arguments from holy makes it awkward to proceed in that manner so we will save time for questions until you complete your argument keep in mind you are not required to use all of your time certainly if you complete your argument your main argument before the signal invite is to ask questions at that time i remind you that no one except the clerk of the court is permitted to record this argument mr heller think your honor may it please the court in preparing for this argument it occurred to me that in my forty two years of practice i have never had occasion to address this court while sitting down while wearing blue jeans or well not being able to see the court and seeing is an important part of perception and that is something that the court can't do from the written record that you have before it and this is a case where perception is probably more important than most simply because this year jacobs wasn't  convicted based upon what he did but what he looked like and what his wife looked like the evidence was extremely close it was contentious and the defendant was not allowed to present history of the case the long and short of it is we had a young girl who really didn't see her mother very much she spent most of the time with mr mrs jacobs  jacobs was not an attractive lady and physically she was not appealing to the jury at all mr jacobs who had spent most of his adult life volunteer ing and helping people did not dress in fancy clothes he talked a little bit funny and he looked a little bit different and those were the strikes that were against  this young girl came in in a situation where her mother was basically entering into an important time of her life when she was getting remarried and yet at every turn in these important events she shut her daughter out of her life and and pushed her away and on to jacobs and when she was planning for these events and her daughter was upset she reached out for attention and the defense expert was prepared to testify about the fact that this is attention seeking behavior he had substantial educational background and was licensed by the state of illinois as a psychiatric or psychologist and to suggest that he had to be on a sex panel in order to to make his testimony relevant is just not consistent with the case the cases and a lot of them come from expert witness testimony cases in the civil side of the case seem to say that the licensure is the key to the courthouse door and he certainly was licensed the trial court's finding that he didn't have any educational background or experience beyond that of the average jurors just absolutely without factor foundation in the voir dire most of the jurors were questioned about whether they'd had any psychological training and they said no clearly his ability to talk about what intention seeking behavior was and what the things to look for such as the fidgets with young girl exhibited on the tape the fact that she was changing her stories in consisten s are simply matters of child psychology of psychology in general and are covered by the license if any of us could simply be experts and have the same expertise as licensed professionals then why would the state require a license to be such a professional and why would we except the arguments of lawyers who have an incentive to tell the jury what attention seeking behavior is or isn't or what the children always do the prosecutor used that term numerous times that's what's children's to children are like many things you could have anecdotal  stories but that doesn't predict generally what children will do you need studies you need to to read the research and there isn't anything in the record that indicates that the prosecutor had any of that experience it would have aided the jury to understand why this little girl would testify the way she did why she needed attention because her mother was shutting her out of her life and when she out of her life she sent her to the jacob so the little girl needed to get away from the jacobs not because of anything they've done is matter fact over and over she said that they're not always been good to her that she called him daddy that she sat days la and that even on the day that this allegedly happened she wasn't unhappy with him even when he had taken her home it wasn't until much later that this story emerged after prompting from mom and from grandma in fact e find out there and it tickled her and then she didn't like it and so mom told aronsen not tickle her anymore and yet that grew into this story this complaint and th prosecution we would like to think that when we put people in jail for extended periods of time we do so because we're convinced beyond a reasonable doubt that they committed the crime but where the complaining witness is just absolutely not credible and the prosecutor engages in misconduct designed to paint the defendant with a brush that is not supported by the facts and those convictions are not beyond a reasonable doubt but frankly this young girl was interviewed in a situation where the interviewer told her when we're in here we only talk about the truth only tell us things that really happened and she told us about things like derren floating in a chair like michelle catching him with a fishing pole and a hook using candy for a bait if that testimony had come out in the context of a will contest there would have been no hesitancy whatsoever for this the court to rule that that witness wasn't even competent to make a will let alone put an individual in jail the long and short of it was that that there was this desire to prosecute mr jacobs and it went to the so far as to have the prosecutor in gauging what i'll call a meeker type statement he said to the wife basically you did you kept a diary because you knew your husband was somebody you had to be protected from but there was absolutely no evidence to back that up none whatsoever the witness denied it and yet the court allowed this case to go to the jury even with that mistake saying that in meeker the prosecutor it only misconduct had misconduct had four times asked for this kind of questions will no case that i found says that the prosecutor gets a free shot not not that the prosecutor gets to engage in one dirty trick and that if you if you get caught with that dirty trick then you can it's ok you can you can get away with it because it's only once is is too enough to sneak or stand for the proposition that you get three three chances to paint with the tainted brush in a civil case if i were to mention insurance only once i suspect that the court would grant a mistrial but that it that's what happened and given the nature of the testimony in this it can't be deemed to be an in significant fact that was before the jury you basically had a prosecutor who was was saying come on ladies and gentlemen you know look at this lady she needs to keep track of her husband because she knows he'll do evil things and yet there was absolutely nothing in the record to support that there was no indication that mr jacobs had done anything in his life other than serve the people of this community as an emergency respond a firefighter he had absolutely no criminal background he had no indication that he had ever had any problems with this child and the mother who obviously had financial benefits in mind which the jury also didn't get to hear about how she was going to take this family for all they were worth and during didn't get to hear any of that so we're asking your that the court rule that as a result of all of these matters that's a cumulative weight of all these matters that this verdict be set aside at a minimum and that at a minimum there and be granted a trial or in the alternative simply reverse the conviction with that i would take any questions the panel mi particular about how mr and mrs take a look at what where is that coming from in the record how are you coming to that conclusion well i've come to that conclusion because of the fact that i mean everyone who participated the trial saw mrs jacobs she is a very very large woman  them i don't want to say a slob inly appearance but she did not present well in terms of sitting on the stand and then when the prosecutor was  played a role in this in this case and that had it been someone else sitting at the defense table someone that looked differently someone that spoke without a list that the results probably would have been i know they should have been different so this this opinion is is based upon your observations no one has reported that to you is that correct that is correct dr campion certainly is a clinical psychologist he is licensed in the state of illinois but what what experience if any has he had dealing with children but he's had a lot of the experience dealing with children and he does fitness for duty exams involving children issues for multiple police departments these and other governmental entities which would include knowing how to interpret what reactions there are with children and situations where adults interact with children a portion not a large portion but a portion of his practice would have covered that and certainly that's part of the practice that is permitted under the licensure of the state of illinois he certainly was would not be restricted from seeing or providing counseling to children if they came to see him well that may be all well and good but what if any experience you know did he testified to where he was interviewed and has had to that he testified that a portion of his practice did include dealing with children but it was a small percentage i have met that but that again only goes to the way to be given to his testimony not fidgety and unable to maintain her precise posture position that she talked faster when she was not telling the truth or making up stories i believe that maladaptive behavior is a term of art and he the describe it that he did not define i don't believe he was asked to define maladaptive behavior he used the term i believe that from a standpoint of psychologists that's what it means i think that is the accepted definition of that term on a medical basis we could look in a medical dictionary and find that but i believe that is a standard medical term that that is used within the industry and so did he  that he had watched the tape that was an issue which came up in that you could tell from her that the way she moved at certain times that she was uncomfortable with what she was saying and that it was a sign of attention seeking before no he never saw the child he wasn't allowed to see the child so he did not actually interview her or put her through any tests either is that correct that's correct the mother would not consent to that ok so he is watching a single tape or did he see both tapes he saw both tapes ok now isn't it to mr heller is that when the child was talking about the fishing pole and they can be and the floating in air d she was referring to pictures she had drawn yes and then the interviewer actually said we're only supposed to talk about things that did happen and she said these did happen she she said these were actual incidents that she was drawing pictures of incidence of was floating in the chair of michele catching him on a hook using candy for bait all of those things and of course we didn't get a chance to really look at all the pictures because the book she drew in the state had its time of the interview mysteriously disappeared and  abuse or were these incidents or was this something the child did just drawing these during the course of the interview as i understand it based on the testimony and the testimony was from the mother and from tracy miller that this was a book that the child and prepared brought to the interview to talk about there and she used it to show tracy mueller the things that she and the defendant had done and what her relationship with the defendant was and when tracy said now these are these are just fantasies aren't they we only want to talk about things that really happened she just came right out and said these things did happen and she said that on more than one occasion both on the tape and they and in the trial this is a little girl who thinks that you know has that fantasy is the same as truth but i guess my question relates to did she say did things pop in with respect to the criminal conduct that he was charged or just these things this is how they played during the time that she was either with them or being cared for by i think i think the latter ok so they don't necessarily relate did either want to be made by the state's attorney absolutely where there was an objection then i asked the court to take the jury out there i made a motion for a say that so here's the site she said i need to go look at that case and the judge says i do too and we took a recess for about a half hour the judge came back down so it came back argument went on and the judge basically said well meeker they made for misstatements and in this case counsel only made one so your motion is denied will go on so you were objecting to a single statement that time is that correct  object on the other three occasions there was only one in this case that's that's the whole point is that the the the court ruled you can get one free by what i thought you said that to said several times don't do that and in final argument there was an issue that that was arose as well but everything i think and i could be wrong but  o objecting and being overruled isn't worse than not objecting at all and i don't know i don't accept it's not it's not necessarily the result of the objection it is the objection that is relevant to preserving the issue you objected one time and the other however many did not have objections is that correct that is correct in your motion a new trial did you only relate to wanting the injection for nyquil all way related to all in the motion for neutral ok so do you believe that you properly preserve those issues for review i do did you ever argue a plain error argument for because there may be some issue found and what the circumstances are want to find the page numbers but we have other we have other questions as well all right i think i think on page nineteen of my brief we we do address that and we cite cases for what this standard is and why it was reached in this case we did in fact have a motion to bar the testimony of the child based upon competency which was heard before trial started and denied was hea and there was i was also i also raised the objection immediately before trial in the trial court and the judge basics that we've been through that to overrule the cause i'm kind of noticing in your brief that you somehow con she knew that she had to tell the truth even though she said something else about the treatment she she may not have know what would happen to you if you didn't tell the truth and she said she knew how to tell the truth correct because it's at that here at the hearing and at trial she was asked to talk about only things that really happened and they demonstrated she didn't know the difference between fantasy and the truth i mean she she didn't know that she knew she was supposed to let truth is she told you the truth and that was that there and was floating in a chair and you know you said that at trial she was three at trial she was in fact by  if that's the case that's great i mean that's not a fact if that's disputed safeguards reliability is that you have to understand and be able to relate the truth how could you have a reliable statement from someone who is deluded or who doesn't know the difference between truth and fantasy how could that state i mean one of the exceptions to the hearsay rule is in other dishes of reliability and certainly if you had a delivery person that would be in addition of non reliability and that and the circumstances of the statement or she was all over the have to and if the witness says ok i know i know the truth and i am telling the truth and then it's determined that they don't know what the truth really is then in fact the witness they used you also have argued that there was insufficient evidence which again i think you kind of meld all together bit in your brief i found no citations or no authority regarding the section  do you believe it's unusual for a seven year old you recall every single detail from two years previous actually i think it depends on the seven year old i have three boys and that's that's not part of the record here so we're not going to talk about that you made arguments that your statement of fact about her failing to recall every detail under three hundred and forty one a day and the supreme court ruled you're not supposed to make arguments in your state and if that that correct we could have strict in your brief or we could i guess regarded those arguments do you do you understand  said earlier you've been practicing in front of us for a long time i would think you would know that in the statement of fact you don't include argument just i think it's page twenty  one page twenty one dollars it's clearly a part of the argument maybe that's not right maybe i'm maybe i'm wrong which paid you to just be careful in the future sir in winning arguments in your  statement of fact i will do the statements that you made a bible him or the ten the average or the qualifications to testify and why could the jurors glean nax from their hearing that test you could you i did i'm quoting they didn't have any anyway it's certainly one thing to have defense lawyer say something as opposed to have a licensed clinical psychology telling them that's in fact the case licensed clinical psychologist has to be qualified to make that statement and that they made the jurors powe that's my point is just because he's a psychologist how does that aided your something they don't already know well none of them had any psychological training none of them had any inkling how to gauge what that conduct meant this this is not something that  born with we might again have anecdotal experiences but since kids are different what i see in my children might be totally different than what you see in yours and to have a psychologist come into play when it when a child is faced with a problem you know they look at this little girl wailing around and and being defensive in these answers and and there are things going on in her life that he would know medical malpractise cases or in legal malpractise cases or in engineering cases you require an expert to come in and testify as to certain facts or don't have that don't have the everyday experience with something like that with the da da they don't have a medical degree they don't i mean who doesn't if you're saying you know i'm not going to go into it that's fine that's fine thank you no for the question ok thank you emotional stability of mr jacobs and my observations of the videos and impressions which i hope were very clear from the be very beginning its testimony as you mention would have gone to the credibility for  credibility of another witness which is what his proposed testimony was if you read the eleven thousand five hundred and ten hearing where dr campion testified he didn't come right out and say here's when she's not telling the truth what he said was here's the things that you can look at and then he would have left it to the jury to apply the the standard to which he would have testified to the the psychological condition and what was going on to let them make that determination he would not have said he was lying here i've read the record we're going to wait too long with these questions shorten your answers but i brought the record you want to get through the back door what you could not get in through the front door under back or you want to you're you're basically you're saying that he would have given the jury the tools to determine for themselves when she was or was not telling the truth is that essentially what you're saying yes or both both michelle and the defendant were peached correct yes and when a jury is looking at whether or not the defendant is guilty they look at all the evidence really don't address simple versus back or do you well i have in front of the eye if i didn't apologize for the whole it seems to be directly on point that it's on a date for my reply brief i'm sorry state that i'm looking at the state's free i don't see that ok well i apologise we have an obligation to follow supreme court rulings correct absolutely are you familiar with falling ill w t f is not off the top of my head consistencies in child abuse cases are expected are they not and they are to some extent yes but  that inconsistency is are also the primary way in which to determine whether a child is being truthful or not because when they invent stories they don't tend to remember the don't always get the details right where they make them up issues when it barred dr kevin from testifying as expert witness i want to bard linda frisbie from testifying when it allowed the victim to testify find her to be a competent witness and allow the victim's hearsay testimony to tried to really gauge his case to the supreme court which is improper and not allowed as discord point out during your questioning essentially special a doctor canteens testimony and as for whether or not the victim was a competent witness meds beyond understanding average person but the average person can understand that b has the capability to determine were not a person testifying is able to be credible or not and to determine discrepancies between current testimony prior testimony that the captain was only there to make an opinion on the credibility which as court noted in the becker is not allowed as for mr frisbee testifying her testimony was what not she overheard if it was mother making a statement that the bugger believed that defendant was guilty of the crimes he was accused of the found convicted of fortunately from this st means she did not know who made the statement and still do not know the time of trial so court was correct for barring that testimony and as for that one not the victim was competent miss as noted by the record the court had a review but never actually argue plain error and failed to argue plain error for his plane to review and finally as to sufficient evidence to find guilt defendant only is focusing on the credibility of the victim he does not question any other aspects of the evidence and as long as a single witness is deemed to be credible by the finder of fact i could fiction will stand for this for this case for his victim when she testified defense only point out this one is where she pointed to a picture she drew of defendant flying in a chair being real to him by the fed his wife by his wife with candy it somehow just makes this victim unable to discern reality from fantasy this five year old little girl made a picture of something to happen between her and the person is possibly taking care of her while not know there's nothing in the record that describes appears a defendant order wife anything any argument as to peers defending his wife has no bearing on this court's determination as it was not part of record nor was no indication from the record was looked upon down upon by anyone to the point talk did the state's attorney mention you know anything in closing argument to that regard for my recollection of record no there is no mention of cause record as to the appearance of defendant or her life or his life is it is there anything in this record other than possible argument that indicates that mother had sort of abandoned her because she had other it with reference to these two pictures that are that council believe that critical to this child's failure to be competent for trial does did she draw did w draw these pictures in front of me mueller or did she bring them in some sort of a book or package to the meeting and show them to make a meal or leave she brought the pictures with her but i do not know exactly how the pictures were created but she never said at least it the record does not reflect that that this is what happened the day that you know he tickled me and i didn't the argument which was allegations of prosecutorial misconduct during the exchange with michelle on cross examination she was asked whether or not kiley and timmy were staying with them with the jacobs before the week before the wedding and she said she didn't write that down and the prosecutor then asked don't you have this all catalogued as he to testify before that she wrote everything down and then she made the comment i do it to protect myself was it that time where the prosecutor that said is that because is that because you're married to the defendant and the answer was no that and that there was an objection and the jury was instructed to disregard that question correct yes john was the subsequent question not the st question that was disregarded the other asked about becker becker clearly says that there cannot be direct evidence commenting on the credibility of witness as opposed in direct and there are cases subsequently that talk about reasons were for there were multiple reasons but one of them for example the three days that she left the child was because of preparation to the wedding there was there was all a fairly substantial amount of testimony about the reasons the mother had not child to the hospital and when the doctor asked her why she if you knew i she was there her response was i've been abused that is what a five any questions on that just as such it's a yes thank you you've used the word mr heller abandoned by her mother a couple of times did you use that word in front of the jury didn't and i quite frankly i used that word it was part of the question that was asked opposing counsel but we did talk in front of the jury about the fact that the mother was leaving the child with others for a long period of time and that was near and michelle and you're defining three days before this impending wedding as a long period of time