are four issues presented in the briefs i'm planning on speaking chiefly about the first today of course of the court has any questions about any of the other issues i'll be happy to answer this court should grant solomon a new trial because there's a reasonable probability that the jury did not understand that it could return a guilty verdict only if it was convinced beyond a reasonable doubt that he was guilty or court read the jury the standard i  instructions are reasonable doubt it did so only after the state first informed the jury without correction by the court that the phrase reasonable doubt had no meaning other than whatever the jury chose to get this court is already twice held  jury now the parties don't dispute in this case that the prosecutor's misstated the law concerning reasonable doubt in closing the only supreme court has long held that the phrase reasonable doubt needs no definition now that holding has two parts to it it's important when packing here the first is that there is no help hold clarifying definition of the phrase available and he definition you give is basically either going to be in the best definition is required the phrase is sufficient to convey a substantive burden of proof of a juror and consequently telling the jury that reasonable doubt has no meaning other than whatever the jury chooses to get because there's no definition to bound its decision of how all of that is means that creates a reasonable likelihood that the jury's going to use the lowers the virtue of the standard of proof beyond a reasonable doubt is the most demanding burden of proof known to american law the jury is paul that without a definition it's up to them to choose a standard they have nowhere to go but down and indeed there are likely to gravitate towards the preponderance of the evidence simply because that's what anybody without any interest in the truth would back or proposition would tend to apply when asked you know whether or not that proposition is true so there's no dispute here that there was error what's disputed is whether or not this error was struck namely whether or not it concerned a right that was sufficiently fundamental to mr sullivan's a right to a fair trial that should be corrected by this court regardless of the fact that there was no objection made to the state's improper arguments in the trial or and both the united states constitution and the united states supreme court of already had something to say  that the reasonable doubt standard is part of the jury and is so fundamental that essentially will leave reasonable doubt standard does not apply and there's a sufficient chance that that hasn't been done then it's as though there is no jury and consequently the errors fundamentally harmless error cannot apply and video greed of risk that the jury is not applying reasonable doubt standard that sufficient to trigger that was set forth in victor vs nebraska again of the state does not challenge term and hence concedes that when the court tells the jury what the prosecutor told the jury in this case that creates a reasonable likelihood that the jury is going to apply something less demanding than reasonable doubt and it's going to be structural where it's can states contention is that when the prosecutor says the same thing to the jury in closing argument there is not a reasonable likelihood that the same result were her but when the same words are said to the jury there's no reason to believe that the boy who reacted and differently and it's important to distinguish improper argument that the  prosecution made in this case from other sorts of improper means because in most cases when the state makes a misstatement of the law in closing argument or misstate the evidence in closing argument there are procedures in place designed to prevent the jury from considering those statements even if no specific objections if the state misstates the evidence for instance the standard i p i instruction reminds the jury that closing statements closing arguments rather are not does get a jury and the instructions also make it clear that the instructions contain the law the jury needs to decide the case so for instance if in this case the state had told the jury during closing arguments it's our job to prove that it's more likely than not that scott sullivan is guilty of the charge crimes that would be corrected by the i p r instruction because it's clear more likely than not is not the same thing as beyond a reasonable doubt the problem here is that instead of directly contradicting the i p i instructions the state's argument simply empties them out of meaning saying yes you'll be told that you have to find mr sullivan guilty beyond reasonable doubt if you're going to be told what that means and consequently it's basically up to you to decide whatever that word means what burden of proof you're going to apply and in that situation nothing to say that that phrase actually has any meaning ultimately the last in the state may be relying on is just an insistence that there has to be some sort of formal difference between an error in the instructions and there an argument but there's two responses to that first is that when the result is ultimately the same when the same risk that the jury is not applying the reasonable doubt standard is created there's no reason to treat the air that you have to find the defendant guilty beyond a reasonable doubt is enough to let them decide the case but once one of the parties has already come in and started saying that that phrase has no meaning just merely telling the jury they have to decide th case you know the reasonable doubt is no longer clear in light of the arguments that the jury regardless of how you look at this once the state makes this sort of attack on the reasonable doubt standard something has to happen to  the states but in fact before things even get that far the state needs to know that it has nothing to gain from this kind of direct attack on the reasonable doubt standard closing the state already knows it's long been part of illinois law that any attempt to define reasonable doubt is error including arguments that are much much less damaging to the defendant's position much more innocent this and this isn't the sort of argument that a prosecutor is going to make by accident while discussing the evidence in the case and the inferences drawn from them for instance in the case of the state's sides  could have presented evidence contradicting this but that's the sort of mistake you hope for anybody can make in the context of argument they accidently go over the line use an inappropriate verbal formulation but there's no reason that there should be a part of any closing our closing arguments in which you tell the jury what reasonable doubt means and their definition in any part where you tell them that they aren't when you receive the definition of the phrase and that the phrase means whatever they want me to did what do you do with somewhat similar to this case but the big difference is that there was an objection made in the trial court and it's of the court's a standing objection when struck the states are once there happens there's basically no aware of it but this supreme court said that they need the trial court then properly instructed the jury on reasonable doubt and apparently that was just telling the jury that the defendant was presumed innocent most of the jury was convinced beyond a reasonable doubt that he was guilty that the state had the burden of proving defendant guilty beyond a reasonable doubt and that the defendant was not required to prove his innocence and the supreme court found that that was a proper instruction that counteracted the prosecutors that what distinguishes that case is an earlier instruction which did a lot more to counteract the state's argument stay said reasonable doubt is in doubt there's substantial mccord says in reply sustaining in objection i will tell you what the laws in this case and the prosecution statement of what the law is is not correct in that case first of all even if there have been otherwise a contradiction between the i p i instructions and what the state its closing argument that would be enough to solve any error in instruction in this regard furthermore another important difference in this case is that in spate the state's argument didn't have the same effect of trying to empty out the phrase reasonable doubt of any meaning so in that case what they said what they say tells a very reasonable doubt is a doubt it has to be substantial and you know it's clear on its face substantial and reasonable are not the word they do not have the same meaning so when the jury gets the i p i instructions the contradiction is clear but yuri's told that the instructions contains the law it means so there's a presumption that the jury is going to disregard the incorrect argument and follow its instructions in this case against go back to the earlier point because the state's improper argument depends on this notion that of telling the jury basically in a way to tell the jury exactly what the court is going to do it lets them know they're going to get instruction but it's not going to be defined and basically tells them in the absence of a definition what the the burden of proof is of i believe the defendant is a little kind of all over the map here as to what the issue is i believe the issue is is solely rooted in and with the state and what the state said in closing arguments and as counsel  stated the the comments themselves these are the specific comments substance of those comments has been held to be erroneous in the past but i believe that this court should not follow that franklin a term in other cases don't apply to this case all your honors because because of the way that these these comments were delivered to the jury in franklin term and other similar cases  the statement such as it is for the jury to collectively decide what reasonable doubt is kind of similar to this they were delivered by the judge in a formal either formal instruction or an answer to  prosecutor and in this case there was one very small phrase one in a section of the closing arguments that was thirty two pages long it wasn't well the pon it wasn't hammered home it wasn't it was it was a comment and while it proper the people do submit that this was not playing there that's really what we need to focus on here the council doesn't argue that this was closely balanced  court have held that structural structural error only occurs in a very limited set of circumstances and one of such circumstances where structural error does occur is where there is a defect of reasonable doubt instruction bowser's the specific words of these even counsel has to admit that's not what we have here we do not have a structure we have a statement in closing argument there is no case counsel defense counsel cannot cite cases as there is none in existence that holds  rebuttal argument that there was no evidence to support the defendant's theory in other words what that what that prosecutor did is actually shifted the burden of proof and i would argue also reduce the burden of proof to sup self representation a trial not applicable here a trial before a biased jury or judge not applicable here in iowa public her public trial racial racial discrimination in grand jury selection also both not applicable here ate the fact of reasonable doubt instruction that's when you know the u s supreme court and people over savva at the state supreme court and that was not long ago twenty ten and it still took until we get further instruction figure i would discuss them both but your honor you did mention that thing about state that the error was cured the people submit that you know possibly there could have been cured in this case but never at seemingly never ending confusion and confusion regarding the the second prong of the prayer clean air analysis that hopefully in certain time i will be able to hammer out clearly but but again you're all right i completely agree that this there's always exceptions i your honor i agree if i but i don't believe we've been there a case exists that in instructs us that an error such as the one that we have in this case is structural there i don't believe unless somehow i missed that or counsel missed and i don't believe that this happened because i don't believe i don't believe franklin a term i don't believe those are similar cases again that i don't believe this is an instruction at all i believe this is a comment closing argument and i believe there a significant differences between closing argument comments and formal jury instructions which make it look prosecutors that you will not be given an instruction on this this is what i jobs i don't believe so i believe and instruction whether i believe in instruction is a very specific term i believe that's a term of art and and only the judge gives instructions and  the fact is that the reason the reason i don't think what the with the prosecutor did here was  prejudicial or so or a substantially prejudicial is kind of the problem i have with franklin a term in this whole line of cases anyway and it's been discussed in the sense and in passing but the fact of the matter is that if there is no definition of reasonable doubt in these cases there's lots of cases that say that there is none and that they will review provided not let's say hypothetically that the judge nor the prosecution or defense counsel give the jury any any comments done in this case or franklin or term and then and deliberation what is the jury supposed to do they're going to come up with the the conclusion the inevitable is inescapable conclusion that they themselves have to determine what reasonable doubt is if nobody says anything that that's that's clearly what they have to do so how could it possibly be error for the judge the prosecutor or the trial judge if you want to go into franklin turman to say what  know to give the jury the conclusion that they are going to reach anyway it is reasonable doubt is what you collectively determine or individually determine what else could it possibly mean if you can't do it and define it for them but i don't understand how telling them that they have to define it is any different than the conclusion that they're going to come up with in the liberation i don't know thank you very much i don't know if that's off hand but it's what bothers me about all of these cases that that we're saying we can't do what they're going to do anyway i don't quite understand it and that's why i don't i just don't believe that that there's any prejudice or anything to this to what the prosecutors in this case or frank the defendant is guilty is that ok just because the jury ultimately decides that oh if you're saying that if the jury that that's ok in your mind because the jury's going to arrive at that conclusion anyway so i'm asking you if the judge says the defendant's guilty before the case goes to the jury does that become ok because that's what the jury decided oh absolutely not ron and i think that that sounds like that's the opinion of the trial that there's no error here if the and this court is reviewing the actions of the trial court the conviction not renewing the actions of the prosecutor the actions of the prosecutor important only in so far as they give rise to error what's important is once the prosecutor has said this is there anything more that the trial court should have done to protect the findings right and at least potentially in this situation there are things  what the category of structural error is it's things that regardless of whether somebody waves them the court has a duty to step in and make sure they occur because they are that important to the functioning of the criminal justice i think it's just kind of implicit in the nature of the you know the structural error analysis it does come up in a footnote in the reply brief there was a kind of argument about whether or not this court reviews the actions of the prosecutor or the actions of the trial work and you know we cited the constitution states the trial court although the prosecutor's comments give rise to error in this case they are the air itself the error occurs when the trial court fails to respond and remove any prejudice that would be caused by the process respond to this suggestion that unless the jury is given a definition of the phrase reasonable doubt then they necessarily have to decide what it means or determine what it means it's only appropriate to say that the long as the phrase is sufficiently clear of the phrase understood and the one standing wrong and since at the very at least in the people vs cable that the phrase reasonable doubt is clear in the absence of the chord defense counsel or the state's attorney telling the jury a definition for reasonable doubt the jury will simply hear the words reasonable doubt understand them and apply the reasonable