our first case of the afternoon is the people of the state of illinois versus charles a lot is that the right pronunciation m attorneys several hearings have been held it is my content that mr salaam is still entitle to a day in court that he has not been afforded  charged with the murder of two women one of whom was with his girlfriend and the other was her for him roommate and the defense gave notice it was going to present the defens anti social personality which is not a disease or defect that's what was tendered to the judge that's what was tendered to the defense other trial proceeded the defense presented an expert who said that basically based on here should be reviewed under the standard of insanity that was in effect in one thousand here as opposed to today where there must be a showing that the defendant can't appreciate that from analogy of his conduct at any also cause problems well that was that was the theory that because of the the childhood trauma and so forth he was unable to conform his behavior to the last question regards to relations with with women was actually quite i would even say eloquent in his request to the jury that he be you'd be sentenced to death with which which the jury in fact  d there was a direct appeal which was unsuccessful there was post conviction filed initial post conviction filed this i have to note this is an appeal from the denial of a second petition for post conviction relief stage to denial well that's that's hard to say ron i would say that that it was because when i if i have if i ever get to the procedural history when i get to the merits well we're  familiar with the procedural history all right but i think it's relevant to how these issues arose and why this case to my mind is still unresolved so the bottom line is dr trog it didn't say your client had our cor or or to the defense obviously and the problem arose then later on when he subsequently had a post conviction hearing is shown m r i evidence of your client's brain scan is that right and there's some evidence of organic brain damage he's asked about that at the leader hearing and he says well sure he's an alcoholic or cal or organic brain damage doesn't everyone know that and that's a very accurate a recitation of the facts your honor and i appreciate probably sped up this process and had he testified yeah you know  grain damage but that doesn't matter nine hundred eighty you know of no case well that's where i differ ok tell us about the reason for my disagreement on that point is based on the cross examination that the defense lawyers and when there were hearings on the second post conviction in one nine hundred ninety eight and ninety nine and dr  after after witnesses testified about the organic brain damage which was based on the m r eyes which were not available in one nine hundred eighty i think it's an important point the state then called dr trying to get at the supposed conviction hearing and  basically said well you know i didn't report that because it would have had any effect on his behavior well in the next set of m and ms brooks quotes that quotes that exchange but if you look at the next hearing that was has a very difficult time it seems to me explaining how it could be that given the protocols for evaluating people's mental states given the d s m three or four whatever version they had at the time how one can reconcile a finding of organic brain damage with a and ultimate diagnosis of well this is just an antisocial personality well and the first question is dr try gets opinions based upon his opinion that everyone who is an alcoholic like this the sludgy has organic brain that is not correct well he said in answer to a direct question did you find organic brain damage  and and he says yes yes that's that's correct so it isn't just you know his theorizing saying i examine the person that's what the hell out of it we're talking about what he said his view is everyone who's an alcoholic whatever the basis for the doctor's belief as to why this he didn't need to tell anyone about this the defense in the post conviction proceedings takes walks him through the the protocol for the m and basically confront him with this scheme that they have which i don't completely understand but there is something called a decision tree when one is evaluating someone's mental state as to fitness or insanity or whatever the case may be and that the very first thing that is supposed to be considered is whether there is or there's there's an organic there's a physical defect of the brain and if that if that fighting is made the decision tree doesn't lead to the branch of antisocial personality and that's in the subsequent in the subsequent and dr track it basically says well you know i know about but my my view is he had an obligation to disclose that when he when he made the finding in the in the pretrial examination and his his his basic testimony at the at the post conviction proceedings was well it testimony exactly and yet what it means is this constitutional level because of how he interpreted the information he had before him that the yes because he did not because he did not follow the d i don't know that they went into that but the defense presented experts in the following hearing which who talked about the fact that you can't go from a finding of organic damage does or not the fact that you just would be using this is a means to argue he shouldn't be as credible as he would have before he will exactly and the don't even know i still disagree  the the defense point in raising this issue was that had this been known to the defense at the time they would have pursued a different path they would have pursued a path of of concentrating there you told us in your report and yet in your report to the judge you say this guy is different from people who have organic damage not now you're saying he doesn't have organic damage well that puts him in a different position and it would have been it would have been very essential to the defense to have had this in terms of impeaching dr truckin and in terms of presenting a defense that is much more sympathetic is much more  doctors who testified as experts in the post conviction proceeding all agreed that dr track its analysis was was flawed and that there's a big difference between people who have an organic problem and people who have and emotional problem with that there's a big difference between the damage assessing someone with a damaged brain and someone with with as as your honor has sometimes characterize i know the big the clerk of the court at least has received a lot of correspondence from him the office has received a lot of correspondence from him some of which is lucid some of which is not it's difficult for me i noted that in your according to the expert testimony from looking at the m r i they're saying that possibly his brain isn't better shape now than it was in one nine hundred eighty because you there assuming he hasn't been exposed to large amounts of alcohol being in the department of corrections there during all this time i guess what i'm getting at those who suffer organic brain damage does the brain suffering pair after that well there's testimony about that in the record on that on that point which it  can to a certain extent but basically the point that they made was looking at the severity of the shrinkage from the scans done in in the one nine hundred ninety s they said it was probably worse in one nine hundred eighty  if it was a lot of what just a statement is saying in terms of alcoholism but he this is the standard here in terms of whether whether the defendant whether he's entitled to an evidentiary hearing supported by the trial record an accompanying affidavits demonstrate a substantial showing of constitutional provision well i think that this is a substantial substantial showing his natural showing requiring as if you're arguing to set on a murder trial from thirty one years ago where this your client viciously killed these two people grounds that is the fences i was insane is that dr traugott could have been impeached more because on the outcome of the trial to impeach back to try again and to open the door to experts presenting the defense based on brain damage as opposed to the childhood trauma one problem participated in the alcohol abuse yes and the and the child of the child the trauma yes what wasn't known was that in fact there was an organic component to his mental makeup at that time and that i would submit presented to a jury there's certainly a reasonable probability of what had an effect on the outcome and that's that's the standard i believe that has to be met year and then evidentiary hearing wh you mean one of the unfortunate things about the case is that the opportunity to present the evidence cherry to to present further evidence on this point was sub commutation of his death sentence and at that time the lawyers who had been representing him from a large firm pro bono and so forth basically i think had forgotten about this claim they had raise regarding the fairness of the trial itself because their basic thrust was that trying to convince the court was disallowed there was no longer fit so for for years he didn't have the benefit of an attorney who was who recognized that he still had issues out there and that all all along he has has been seeking to get back in the court and has been consistently rejected on the grounds that everything analysis your honour's are doing now but believe that the issue was moot because the only thing he said in regard to the ruling on the question was the i'm granting the motion to allow the claim the claims claims but but i'm denying them and he goes on to say the defendant's death sentence has been commuted well that's a non sequitur in the context of a claim that went to the trial not not just the sentencing hearing and as a matter of state law the sentencing issues are moved but a challenge to the underlying convict it is not and he's entitled under the post conviction hearing actually to a court that understands that and there's going to make  this this evaluation this is not something that that this court should be deciding for the first time based on a cold record thank you thank you time's expired i don't want to distract you from your a bottle but i would also like to issue because i believe my brief had urged that there was no jurisdiction subsequently to that briefing filed the defense had filed a late notice of appeal which according to my calculations was timely within the six month safety valve of rule six of sex so therefore the state does concede that there is in fact jurisdiction however of course i know it's a small technical matter we are here on your case number four dash ten zero five five zero which was docketed as on the basis of a prior notice of appeal for which there was no jurisdiction if this court's usual practice is to docket a late notice of appeal under a new number this state would have no objection reply brief arguments it seems like there is some question as to the procedural nature of what happened in the circuit court because part of the defendant's arguments appear to treat this as the first stage dismissal under the post conviction hearing x and claiming that the state is not entitled to argue according to the defense that the defendant's petition failed to make a substantial showing of the constitutional violation which is what would be necessary for substantial showing of a constitutional violation and in fact in the defendant's opening brief that is exactly what he claimed that he has done so therefore the state is in fact entitle to respond to the claim that his petition made to substantial showing and even if the trial court ruling had just been denied or dismissed this petition soley on the basis of i'm referring only to claims twenty nine and thirty the first twenty eight were previously dismissed or denied twenty twenty eight was denied after never venture hearing one in twenty one to twenty seven without any evidence or hearing but as claims twenty nine to thirty which are issue and the defendant's brief now if when the trial court rules that those issues are moot because the commutation of his death sentence to natural life without parole by the governor that that makes those issues moot now the state would recognize that i believe it was claimed thirty showing that the brady claim that he is raising is a meritorious issue that would be the defense burden he's failed to do that not only showing that something was withheld from him in violation of the rule of brady but what seems to be glossed over and not what perhaps is the more important issue as well is the new necessary necessity of the defendant to show that any withholding of information in violation of brady had been material and the materiality showing showing you something that he is not emphasizing here it's something that really has to be considered because it perhaps the most important part of the of the issue and the burden that he has to meet in order seedings this court enters an order directing the trial court to enter a final order essentially i don't know that there has been a specific state motion to dismiss filed in the circuit court dozens was not commuted until two thousand and three by governor ryan when he had filed his second post conviction petition i believe it was in one thousand nine hundred there was no first stage review because even though i believe there had been a statute in effect it did not apply to death penalty cases so this was never a first stage review case because he had and he had a pending death sentence so so this claim that somehow because it had reached the second stage the only the first stage of death penalty cases basically there had been a point to turning for him he's adding new claims it's simply the only claim he could make is that there somehow was a missing motion by the state to dismiss that but he still had his day in court so to speak because i guess if he's trying to say is because we never filed a motion to dismiss he didn't have then a chance to respond at a hearing on that motion but what he asked this court for is  and so it's so and it may be a practical situation where it seems like this court ordering the trial court to enter a final order i'm not sure if that had the practical effect of telling the judge to socially petition because if the final order had to be returned within the set period of time that's what the order said the only final order that practically could have been issued within that time frame would have been an order of dismissal so th have had to either seek an extension of time to file a final order if there had been in this testy of noticing of motions to dismiss or possibly even holding another bench or a hearing on this petition so if he was dissatisfied with the way that went he should importantly showing that this petition has somehow contained in an affidavit for example from an expert witness that he might have attained to show that this was in fact material in other words that if the defense could have been to obtain an expert attached to the position an expert who if there if you could have found one with that who who may have a pint that if the defendant had organic brain damage caused by extensive alcohol abuse over his lifetime situation than the typical argument this is a case where a we have an expert witness who was in that james to me is perhaps forthcoming as opposed to withholding completeness or form as opposed to the rendered opinion as opposed to a situation where some third party can process of a crime when a cop withheld that other more typical or clear that was all that was known in one thousand nine hundred and then also appears to be something that went on in dr tried its own mind and there's no showing by the defense that anything that were merely thought or conception inside a psychiatrist own had its own mind was something that was possessed by the prosecution and therefore the prosecution had a duty to tender that in other words brady refers to things that are withheld and when you get down to what is the essential fact that the defense relies on here that was never disclosed according to the defense of what the prosecution should have disclosed is that people who have organic brain damage are people who are alcoholics have organic brain damage a fact that would've been widely known in one thousand nine hundred which was common knowledge and therefore is not something that is subject to brady because the well essentially i guess my argument is the defense argument says that if this had been known which is common knowledge which wasn't really withheld which which the defense if their own reasonable should've known alcoholics have brain damage he assumes that he would have attained an expert then that would have focused the insanity defense on the nature of of the defendant's brain having loss of matter for example if substantial capacity the argument would go because he he had the brain damage from alcoholism or possibly contributing as well from head injuries as a child so because the connection between alcoholism or brain damage is widely known it's not subject to brady not it's not an error in even if it were it's not been shown to be material there's there's no expert opinion that would that the defense petition has that would go to establishing that as well as the facts especially some of these were cited prior to and after the murders of both sherrilyn and and one of the facts was identified was his making out in the car that he was choking her cars coming along after they had spun off on the side of the road and he stopped choking or acts like he makes out the car passes then he resumes choking her before he knocks her out of the car and stabs her to death and then also when and into vote who had returned to the trailer this was a few hours later he doesn't kill and right away he waits until the and right after the phone leaves then they get in another alter cation him again stabbing in the heart the same way he did it to cheryl and he had reasons for picking the knife he had reasons for choosing where to stab these two these two women and the cheryl and it seems like there's not a showing that because i think there is a reference that she was drinking for several hours and i don't believe the record showed that he had all that much alcohol there had been a pitcher order he didn't really have well the closest case i found was that i believe it's a police officer who went on a t v camera after the trial and that was not withheld because it was a view expressed after the trial and this essentially a feud that wasn't the record doesn't show it was ever shared with the prosecutors and it was something that comes out after the trial is over it's nothing that should have been or could have been to the defense by the prosecution which is the burden is not on the state psychiatrist to disclose favorable information or evidence to the to the defense it's a burden on the prosecution and agents the prosecution is sure if this expert witness qualifies as an agent of the prosecution he might have been somebody who was court appointed i don't remember exactly if that was to present that defense and of course once he the psychiatry supplies that he was in fact legally sane at the time of the murders the state is going to want to present that in order to rebut the claim of insanity so so i'm not sure that that meant that he became an agent for the prosecution even though he had been called as a witness for the prosecution is just very limited as to the commutation issues only courts recognizing exactly impose sentence replace the death sentence therefore the defendant loses the limited pardon from the governor a limited pardon only taking remitting the portion punin punishment that is the death sentence rather than a commutation which replaces his sentence so therefore the claim is in fact mo your honor had a question about the second post conviction petition the the defendant had basically exhausted  new this new finding in a second post conviction petition and the this is the state supreme court entered the stay allowing the petition to go forward also should point out that this is   whether we can go behind what the supreme court decided to do i think implicit in their order was the belief that this was something that couldn't have been presented earlier and that was material to the court's denial order and then talking about the commutation indicates that he erroneous we believe that the issue is moot and i think that under this court says decisions in people cases like people versus carter talking about the confines of the post conviction act that that is is the framework that should be followed and mr  judge who doesn't think that his claims are moved and he's also he's also in a position where he's he's been told that he could represent himself but he said judge after judge say yeah i'm going to let him represent himself i'm going to let the lawyers withdraw because there's nothing left here there's nothing to be there's nothing to be done his sentence was commuted ignoring his his various efforts to get them to consider this this claim that's not moved and this is the same judge who made the the order after you do your honors remain and had had earlier been in presented with the motion for a status hearing he's asking well can i be heard on these claims because they're not move sludgy is entitle to the protection of the post conviction act in terms of the structure of where claims are presented he asked was mistreated let me ask the same question i asked the state's counsel about withholding evidence  i trying to recall any case quite like this that is just the threshold issue is this a withholding of evidence when you have the state's experts who apparently has i  think can be said from the defense point of view about him and i don't i not inferring your claim that he lied just a matter of his initial report wasn't as complete as you think it could have a should have been maybe that's true but there is very subject to test them up to cross examination it's a technical point he wasn't asked how thirty years later can we view this as a with holding of evidence under brady constituting a substantial constitutional deprivation well because the the evidence that was a deuced in the post conviction proceedings shows that this this would have was withheld well i guess and i'd get into that because the there was testimony at the post conviction proceedings from trial counsel for the defense that truck had not been court appointed doctor talk it had been retained by the state so he's an agent of the state he's in possession of of relevant evidence and for whatever reason whether he doesn't think it's important i don't think he did anything unethical i just thought it wasn't important but that's not for him to decide because it is relevant to the circumstances of the crime to the circumstances of the defense and that's that's an issue that mr so i view has to has yet to be heard on and i would ask this court to give him that opportunity and i thank you for your time thank you to the matter