that started before this trial ever commenced continued during the trial and came to a climax during post trial hearings i'd like for that reason in pointing out the miscarriage of justice that occurred i'd like to start in addressing the first issue as the trial courts in correct recall of the facts and evidence is presented at trial i will then move on to the trial court's erroneous denial of post of the miscarriage of justice that occurred in this case starts with the record of the trial court's ruling gabriel guilty of aggravated battery and in making that ruling and this was in a situation as the court knows there were two defendants i know pesty o and hermes gabriel the case was never sever december of two thousand and five the judge then finds mr gabriel guilty in january of two thousand and six so we have a several month period in which evidence is being heard by the trial court in this case whether that's the reason the trial court incorrectly recalled the evidence whether it was because that day the judge was having a bad day as it happens for whatever reason the reason is actually in consequential because the record demonstrates that the trial court did not recall the evidence number one number two the trial court never took the opportunity to modify its erroneous ruling when it had more than one opportunity to do so looking at the actual ruling sign right ok and as the court knows this wasn't charged as a continuing crime no factual event that occurs that the stop sign is charged within the four corners of the charging documents in this case i argued in the so thank you your honor the judge in this case didn't and the judge in this case made a mistake the the second iranian's point in his ruling looking exactly at the words of the ruling is that hermes was second person in the background in the shadows holding a gun he was never identified as shooting a gun so that is another mistake and that is another demonstration that the trial court incorrectly recalled the evidence as presented again at the end didn't positively identify hermes gabriel as being there the scene of the crime was in the alley it was in the gangway where the shooting occurred and the trial court did not i didn't recall the evidence properly  no the trial court had the opportunity to correct itself the trial court stated on the record that it had that he the judge has reviewed the transcripts in this case before he denied the motion for new trial after the trial had concluded there is no way looking at the transcripts and the testimony that was presented during this bench trial that the trial court could have actually looked at the transcript and not corrected its ruling the trial court should have reversed itself should have taken the opportunity to modify and correct its ruling and that in under the law and under people people be bowie which is cited in the briefs in this case a trial judge cannot go on an independent fishing expedition or cannot go outside the record and the record doesn't support the ruling in this case my second point is that the trial court's denial of post trial relief was erroneous based on  before the judge makes a ruling in the judge doesn't make a ruling about this again for several weeks after the actual hearing a curse however before the judge does that as the judge in the seats really and the kids engaged in this dialogue that is again police just compiled a bunch of pictures of known gang members in the area this was completely improper dialogue first of all the church is asking about information and evidence that wasn't presented at trial and that's improper the judge again is is family's and from australia that was presented by your client my liquor recollection of the record is that he didn't say we're so close he said i talk yet they talked on the phone the day this happened however also you know this wasn't a situation where gold car and he completely exonerates my client that is new evidence under the case law that isn't that hard and particularly and as the court noted you know we did file a motion to supplement the cases we hasta under the statute when there can be an exception for new evidence but the court's rationale in that case and the way they come to their holding them in straight that new evidence can not be taken lightly by the trial  the when the judge when you say how much he has to set out shouldn't it's how specific does a judge need to be isn't there a little more leeway in the judge not being quite as specific as saying i reviewed the record the evidence this is what the jury heard if anything you know it should be more solidified when it is a court that plays the dual role as the fact finder and as he is the person that applies th because judges just like juries make mistakes i mean i don't think that's that's a question and that unfortunately happens in our system and it happens is who was found guilty based on evidence that wasn't in the record and i believe that there is case law from this very opponent district that would contradict the idea that we should just give trial court that they did the right thing because their lawyers and their judge i would say to the people we hernandez case which is the first district two thousand opinion actually out of this very division it's a third division case a there was a shooting that involved a witness who was a bus driver who observed the profile of one of the perpetrators for about i wrote ok but then i would point your honor to his very own words on that point and say quote but this deference and this is in the context of identification testimony on appeal this deference does not require a mindless rubber stamp on every bench trial guilty verdict we address so your honor i very much embrace your words in that case because that encapsulates the fact that we cannot rubber stamp every bench trial guilty conditions subject to all the frailties of human perception and that most would actually move me into the sufficiency of the evidence argument which is my next point hermes gabriel of putting it aside for one moment which this should never be put aside the new evidence issue because it is so important crucial but looking at the trial from what it was he wasn't proven guilty beyond a reasonable doubt based on the vague speculative doubtful impeach that testimony alone and certainly wasn't proven guilty based on an accountability theory beyond a reasonable doubt the law in illinois is that admittedly over and over again a single eyewitness identification can can be so subject to mistakes they have made this rule qualified and the fact such as the witness had to have ample opportunity to observe the subject of the identification the witness must be positive sure incredible the witness testimony cannot be doubtful vague or uncertain and i would submit to this court that lewis's i'm sorry excuse me wants testimony was certainly doubtful certainly impeached more than once during trial he never initially provided a description to the police about the alleged second person that he perceives on september fourteenth two  was not cooperated by anything he was identifying strangers which is certainly problematic it has been recognized by the u s supreme court in every other court down from there that stranger identification is particularly witness the identifying witness knew the defendant so it wasn't a stranger identification or the slim factors were as applied to the facts in that case were so strong that the eyewitness i doubted the eyewitness identification wasn't powerful enough to overshadow the alibi and there would have been other problems with alibi in that case and i i can't stress enough that have witnesses here they don't provide initial descriptions of either man number one or two at the stop sign or man number one or two in the gangway in fact i think that back lewis who's one of the victims two after the shooting occurs a claim he only had two beers during the trial one on our key witness and the person whose testimony is that issue in this court he never provides any information and he doesn't come they they focused on he had a tattoo on his neck they were able to describe him the other guy that's allegedly twenty feet away that they identify in this photo array maybe he had a gun and he's twenty feet away couldn't describe his clothing couldn't give any facial features could couldn't describe anything with specificity but for some reason they pick number one out of this photo array my client then based on that identification gets arrested by the chicago police department gets brought in for a lineup at  point that's when the chicago police go in get ron lewis in candy to contact them and say come on down and view this lineup during that ten to eleven day period one did nothing proactively on his own to contact the police and provide any information and in fact during the trial he conceded yeah i didn't i didn't say anything to the cops that night and i used cops because i believe that's the way he expressed it he also he also was impeached because the one thing he didn't say t trial which not only goes to his credibility it also goes to the reliability identification record like two minutes and you have some time for our commit a crime who wasn't there and that was proven later after a trial this is a very unconventional case where everything played out again from pretrial procedures to during trial shorts to after trial the evidence in the record in black and white demonstrates how mistaken the judge was in his recollection of the facts and any human being might be month after hearing the evidence the trial or also as demonstrated by supreme court case last week and certainly demonstrated by the most at case where five co defendants came out after trial and the judge denied motion for a new trial aggravated battery of the firearm against three victims of september fourteenth two thousand the evidence shows that this isn't just this isn't two races this is one incident that transpired over fifteen minute period everything happened and it was all related it was a separate sequence of events that all is all one incident that transpired you know in the courts not required to accept the alibi testimony just because conclusive character that would've changed the result of the trial the judge heard all this testimony and he also had heard he was a trier of fact throughout and he heard all the evidence presented at trial and then again at this hearing and he didn't find that would i understand i only have a minute or two to reply in response to these states arguments first of all it cites the bank's case to support its accountability theory that case is completely distinguishable from what happened here the court in banks found that the defendant was an active participant in the shooting the facts in that case were that the police were in hot pursuit of the person that was allegedly accountable they run after that the fact that that our eyes summary of the evidence is the way the evidence came in at trial that in the sense that first of all again better identification at the stop sign there is no w gun coming out candido was not positive and he admitted that so is that evidence is beyond reasonable doubt that the state's theory about the stop sign the two people get in a car they drive over sixty three one north walk out well there are two people that the state's standing up here saying that there was evidence that hermes gabriel had motive an opportunity where is that evidence beyond a reasonable doubt there was no confession there was no physical evidence there was nothing the alibi is concerned that state makes a conclusory comment and stating that these alibi witnesses all three of them were biased because of the relationship to my client the alibi witnesses were the only people that immediately contacted the as the police trial issues concerns again the state makes these conclusory statements here today in oral argument and in their briefings that that are no castillo was bought off by the family that he didn't come forward they knew i didn't have a family and we were kind of in it together we traveled through this path i got to know his family they gave me the six hundred dollars and actually what's in the record is as well is the sheets from  gave up his only chance to ever get out of prison by testifying at that hearing he gave up possibly his life he was sentenced to fifteen years he knew that his only sheeny he knew at the ti testified any knew at the time that you wrote that affidavit and that he was giving up his only shot to get out he gave up his fifth amendment right og against self incrimination and that's a right that year sentence in the u s supreme court's been very clear it's a right that goes through appeal he was advised by his public defender who i'm sure if he was an effective attorney said look i don't know if i would do this if i were there even after having the a and again i would like to remind the court that when the state makes these conclusory statements like he admitted to being a liar and that he was clearly incredible the trial court did not find that the trial court it didn't just say denied the trial judge said i was at the transcripts tonight it was one sentence so that evidence is out again outside of our record here indication that someone could be wrongfully convicted it's the job of a trial for or appellate court to make sure that someone doesn't remain wrongfully convicted hermes gabriel at the very very least should be granted a new trial based on the chronology of events and everything that occurred it's very clear that he didn't he didn't get any fairness in any part of this proceed i'll tell you though primarily that his conviction