please the court yeah before you start let me ask you a question of course you tell me what the significance would be between a finding of  it would just be different data if we had a piece of it the state had a piece of evidence and d n a analysis was done and that particular piece of evidence and nine was i were identified then we would have an eye on all sides profile we would know the the  identity of the d n a profile at that those nine locations and that as far as the statistical portion while a frequency could then be calculated based on those nine calculations if that same piece of evidence and instead generated  information regarding the d n a profile at ten locations we would just have that information and then the statistics would reflect that as well and one would dead information have to do with proving identification well  the perpetrator from that able i'm saying that we can when we have a piece of evidence and we're able to establish a d n a profile at nine lowside with that's that's the date that's the data that we have those and that's the fact that we have and this is yet to prove a god of creation well i guess i'm not understanding what you mean by identification if we have a profile at nine mile psion a piece of evidence and then we also have a profile of a person who at those same nine with nine marseilles or could you the best you could do is to establish a nine exclusion do you need thirteen for a match is there a difference between a no exclusion and a match i've got a few questions record up here but i'd like to hear small eber a short answer is you don't need thirteen for a match in fact you only need one f right then is the finding here exclusion rather than an outright statement that there is a manage what's the significance of well if you're talking about a non exclusion you're talking about the evidence identified on the underwear not not the rectal slab now the evidence identified in the underwear has absolutely nothing to do with defendant's argument regarding the database search his argument that he should have had a database search or that only relates to the statistics for the rectal slob are you sure that that's all he's arguing i mean i got the impression that he is an now it's my understanding that it would only have to do with the rectal slot are what will let him speak about him answer that question after this ok rolling this out is the is yet a evidence has evolved at one time there were perhaps by whites it were used to say that that something is a may act but that based on these probabilities that the likelihood of this matching in other words the no d n a profile when compared to the sample of evidence is that the probability of that occurring in a way in the universe is many whatever as opposed to saying this is a mess that's not how the testimony is normally percent know and i guess maybe the best way to explain this is to break this down there are two aspects to d n a evidence there's the biological aspect and then there's the statistical portion of the houses when you're referring to the match that relates to the biological portion of the analysis of the actual evidence is is worked out using you know  our methodology a profile is generated at the you know the number of locations that we're able to get a profile and differs on every piece of evidence so that profile is generated so we're still that still in the biological aspect of the analysis then if there is someone a person or a piece of evidence from another case where an association is made meaning there is a quote i guess you'd say match at the number of a match again the match the idea of match comes before the statistics and that the biological aspect of d n a evidence on a piece of evidence doesn't actually identify a particular offender all right says it is this profile is present on this spot and then when we have an unknown person we can look at that person's profile and say this that this person's profile i consistent with being a contributor to this piece of evidence so when i guess when the term identify is used it's it's not like the biological aspect of the lab work says specifically this is the guy who contributed it what it says is this guy's profile matches or in the case underwear cannot be route and not and match these specific a wheel so if let's say at that locus there was a fifteen in a sixteen what's the chance on how many people in the general population would be expected to have a fifteen and a sixteen at this location that that's the question that that the statistics the random match probability asks and that is that's the bot that's granted you take them the two of them together because when you take the mathematicians and scientists scientists generate the data and the statistics and then it's up to trial courts to decide whether or not there was a relevant to come in in courts of drop in criminal prosecutions and in this case it's actually read this case actually boils down to this despite all of its complexities and its procedural posture there's a question of relevance the state's evidence regarding the rectal swab had two components as i've set them the biological t established it was conclusive only stated and michelin the defendant originally made a motion to exclude the rectal slab based on a claim discovery issue and the alternative he just kind of threw out there a statement or any alternative i don't believe there was any further mention about a request or op either a while like the arizona study will help making a formal request or an illinois database correct to the best of my recollection and i do actually do you one better defendant then found a motion to reconsider the trial court's court's ruling regarding the exclusion of the rectal swabs and he doesn't mention the database or tissue anywhere in there and then and there's no discussion of why he attached the arizona the results of the arizona search and then said this is relevant to the statistics and to flush out right based on that there's no way for this court to actually meaningfully assassin whether error occurred in the first instance so before the court even were to get to closely balanced vs was one of the problems as i see it in this case from one perspective is requests for particular orders regarding advents that that the onus is decidedly on the proponent of the evidence to make the record and i think that it does it does everyone both the parties in the trial court file and now the parties up before this quite a real disservice to extract that or to to suggest that a defense attorney either should could just kind of toss toss something out there there's this arizona the jury may not know the difference between the word prior and subsequent believe that the word matches he did page sixteen you say defendant was not convicted because the nine locusts match but because that match was more than for operate it by the suggesting defendant's guilt in this case so i think that's why the reference to the thirteen lowside and alice s of the underwear comes in i think it's to point out listen that this this piece of evidence of reckless fog was not all we had i also had under i understand but  buckles up there's no numbers generated to say this is how rare or he writes he says he's read and then with respect to the rectal swab and the underwear there are separate statistics generated for each one based on the data available for each one and then be only all frequencies and the calculation of the random match probability of each one independent of the other and then each evidence is presented as a piece of evidence so all that all the testimony one person from those five point four five million could not be excluded as a donor to that profile everyone else but that one would be excluded by the presence of one or more wheels and their profiles and then there are similar statistics with respect to the white because it has absolutely nothing to do with the the state's evidence on the rectifier way of the day says the study basically says that there are so many people in the population of the numbers that they  results of a database search do not undermine how the manner in which the the the statistic in this case for the underwear was reached he's not challenging the product rock it doesn't undermine that number the numbers that came out at trial  respect to the rectal swab cracked and defended admits that defendant i also admit that he admits that the number is cracked and that the method by which the number was was obtained is correct route if the study it if you can't challenge the number itself or the manner in which it was reached it's by definition not relevant well it has no chance of making any issue more last probable why do you sit there that would explain forgetting now the right to raise the procedural hurdle moves how do you explain such a broad disparity between the general population study of the data the studies that not that it has nothing to do with the other but i guess in some i mean if they're terms if they're each if they each would pass the fright test as being a valid statistical study how can they both co exist in the same universe right the i get maybe it's still math but it's simpler math maybe a way to describe it would say that there are two formulas for calculating two different things at the that those are two mathematical formulas that co exist but have nothing to do things up here worse we're studying the same triangle with two different yours we're not setting the same world right and that's what i'm asking because because in this case we have a targeted profile we have a profile on this rectal slab one a targeted profile that's all we're looking at is a target a profile in the the eye pairs the searches of the databases you're not looking at a target profile what you're doing is conducting only and of internal comparisons between people at many different local our different locations with our different number of possibilities  understood that without elaborate explanation i would have become a doctor lawyer i am saying that they have no yes no couple of significance no relevance and i i understand but based on the posture of this case and the record that that is is is somewhat of a of a difficult concept for us all to grasp i think it it it's the and that's right why respectfully that shouldn't occur before this court in the first instance if if there really it relevance was to be to be flushed out it should have been down below and i'm not speaking to forfeiture i'm just talking about the practicality of review it should have been done below so that the trial court could have had some type of hearing or heard evidence the state could have been given an opportunity to call going there there should have been an offer proof but we know that he was really kind of just throwing it out there strategically to i don't know just kind of toss it out there for the jury it would be the only way to say it because prior to trial  referring to here i think i i agree and i think initially we gave the defense the benefit of the doubt on that referencing the arizona study because the defendant has always argued that there was some notion and eliminate that the state kept him from presenting the arizona study through a motion in limine and that's the only motion and women a that appears in the record so that's all we've got and that's what references the database studies and and frankly if it's a distinction without a difference because a search this type of search of arizona's database is no more or less relevant than the same kind of search of illinois database because this profile one of the things you point out was that this profile did not carry another head the great of the statistical proof offered in the general population by introducing alternative studies that countering the statistical significance of a low site study namely there may be a nine lowside study in the context of general population proves that but in the context of a database study proves why and isn't that all the plaintiff has to do because he asked to inject evidence that could reasonably lead it's reasonable doubt but that's not true because that comparing them is because they asked two different mathematical questions the reason that offender databases are not a good a good place to conduct shall we say  reviews are studies of the frequency of illegals in a population so actually that's really more comparing like the f b i is use of population studies to doing a similar study in a database and stat and your question regarding done by you know in the f b i it's broken down basically into there would have to be enough deviations of that nature to be able to reconcile one in four five hundred forty billion to suddenly emerging database is not the same thing as the rarity of a particular profile so if while it sounds while it sounds like there's some type of significance to it there's just not and i  submit that if this court thinks about it this original arizona study search was first on an approximate i think it was two thousand and one and was presented at a conference in two thousand and one or two thousand and two so that's roughly nine or ten years ago if  bad study if these types of searches of the database calling the question the calculation of profound frequencies for evidence in criminal cases the way we present d n a evidence in this kind criminal courts across this country and the way statistics are generated would have been completely altered in the last ten years and it hasn't been and the reason why is because while these initial findings were discovered they were then examined and addressed and completely discounted so i given to a defended they could give it to an expert in the expert could testify against your expert you see and that's what it's all about but this is not a situation where reasonable i'll read rackspace disagree and raise minds can differ this results of a the same comparisons and then i database are no different because as just as mcbride pointed out this profile only matches to one person in the database and at nine last i and that is the fan it and i would say i'm his up that it that he's that he's wrong that that what he was and that he was and that that was addressed on cross examination it was pointed out as justice mcbride said that we haven't always used thirteen we've used less than that earlier and there's a d n a and that matches kind of what he never he never said that a nine level psych profile wasn't good in fact i am pretty sure he even admitted that his his lab independent friends x did and really knocked out the statistical portion of that  from the opening statements in this trial we've known all along that this case is about the end there charges were filed against mr wright in two thousand and four based on partial profile that been recovered from a victim of that just means that the criminal suspect attention we could have contributed the d n a sample that's been found at the scene and then it's what we do with that next step it's it's we need to figure out a way through this identification process by way of motions to care to to justify a characterization of his rulings as being either erroneous or a failure to correct and they short sidestep one of the reasons all this litigation all this pretrial work was being done was by virtue of the limitation that have been put on defense counsel in trying to work up this case based on the destruction of the well this would give perspective to the strength of the partial profile match developed in this case that's in his first motion and in his second motion he said the findings in arizona are relevant in determining how much weight to attach the statistics he you know perhaps he was using it in our full term there but my recollection my understanding was that he was reverting back to these two motions that words are not ok these two motions had set forth everything that was needed to be later to be able to see what it is he wants to do with the arizona study and the illinois study doesn't he have to do that so we can see whether the court erred in the denial his motions do that when you look at well routinely i guess is this might be a slight misnomer there simply because this is the result of illinois came out a few months before the right went to trial i mean there are there simply is not there has not been many cases that have been able to be worked up that have focused in on this specific aspect of b s this have there been any cases that you became aware of where the denial has been shown to be error no what i get anywhere when i have seen the one time this came up was actually in a case cited by the state and i think their answer to  all right so we have that case what was that again state beach wire it's one nine eighty five a second for sixty nine but that's the only case that you've been able to i think the davis case out of d c i believe mentions the findings out of arizona in the findings in maryland but this sort of leads us to sort of what you know a lot of our conversation has sort of shifted from from the hearing they indicated that this was an association found in their forensic and that's basically these were i don't i don't we establish even if it is there and it's not harmless error now what point do you say that one in seven hundred could lead ok without an offer of proof we don't even know what well of any of that and from what your honor we know what we do with this information you use you start with this information that basically everything that we have to both from the beginning to explain to the jury what you're saying was critical here that he needed these studies somehow in impeach the d n a testimony that has been used now tried and tested for quite some time regarding the random acts of abilities well up a do you want to talk about random acts of probabilities at some point but but first and foremost i don't see how you could do that when you're pretrial motions  of what you wanted to do with it we explained in our motion why this would be used to confront their statistics the state objected and their response they claim this was nothing more than a fishing expedition ever not amounts to any relevant present evidence regarding the arizona study and we want the illinois study and we want an expert to be able to explain why this this  it's credible or it's not believable or it's shocking it's not john but it certainly i think is set out in the motion i don't think that once you once you've put in the motion why you want to do this and you sa you're proceeding on the motions the court says it is read the motions and when that motion is tonight there isn't anything you you know you're not then saying but but but we would like to you know despite your denial of that motion we still want  to you know fly in the face of the of the ruling you've just made and call someone that we we indicated would be of the whitely you know the likely proponent of that evidence our further work where you never designated an expert to we never does an expert because these motions were being ruled on i believe about nine months before i actually that was made up but that they were being ruled on months before the before the actual trial had had this i mean obviously at this at the almost others any other possible down that mr right i i would have to say i think this would be reading between the lines of the record i but the bedrock point here is that because of the way these motions were denied prior to trial you know and the thrust of the defense strategy altered there was never then the need to fully cross examine or or attack sort of the manner in which these these connections are made when the when the state's experts were on the stand the record equally suggest that the defense of consent it was argued but not you know presented by way of knew of all the d n a evidence at the time that they were filing the motions if if the concern was there also really was not going to be anything to syria to fully be able to attack the science that the decision about consent could have been rulings of the trial judge in proceeding on the on your preferred original theory it's another to completely counter the facts and being simply arguing in the alternative gives me a considerable  was known to them from the get go there is no confession there is no eyewitness there is no there's no physical evidence outside of the only evidence that the state was really going to go forward on in this case is going to be d a i'm contesting i mean i basically the the reason why we're seeking to the reason why they were seeking to to determine the number of nine no sign marriages illinois  was two was was obviously hinged on the finding out of arizona that when you when you actually start to look at these databases this opens up questions in terms of the number of w rapture is that could occur well then why has this something that is being litigated strenuously in other cases across the united states wouldn't this be something that would be a very common area for cross examination and going into cross examination what is the error of a structural nature that you would would tell us was present here to get past  confront the scientific evidence that's being offered by the state yes was the pretrial ruling on these on attempting to be able to to discuss the findings out of arizona and or figure out cross examination i do reach the magnitude of the second prong of plainer now this is this that's what you're doing it seems to me what i'm doing is i'm explaining to you that when you cut off the the only real way to be able to adequately confront this evidence then you've necessarily i mean this this case has always been the focus of the strength of the d n a evidence the notion that you can't confront and attack that how could that not deny a fair trial why the trial was based on what is the significance of this d n a so errors by the court on questions of relevant story in cross examination that w runs pretty broad extension what can i finish what's the limitation actually goes to the ultimate question that is at issue in the case i'm not talking about you know the inability to to ask a question about prior conviction i'm talking about the ability to adequately confront the only evidence that's brought this man to court the only evidence that now has this man serving a life sentence i think we agree i  he wanted to cross examine and arizona is that what we look at what are we looking at we look at what the court said objection sustained i think that what we're looking been turnover of attorneys and i've you know the attorney who then was there to handle the forensic evidence was not a party to the to the rulings to the motions but had to do with the that had to do with the you know the old the initial rulings this was a new attorney that that may not have even been privy to the fact that the court had already said you can't even go into arizona and the question was asked in the court just said we've had motions and the i think it's important to make one one other quick point five may one of the areas that you were sort of focusing on was in terms of you know what's out there in terms of research what's out there we have studies that are saying our numbers actually aren't being able to fully explain why you know we're getting nine which i don't know does me let me ask you then how would you reconcile the statistical perced processes and the mathematics that leads to one five hundred forty billion through one approach and one in seven hundred to another let's assume that they're both valid there's got to be something in the stand one of those studies that would be of a significant be a significant for for one zero or two zeros but the ensor four eight zero sister very significant and what we're doing with i mean all we're dealing with is is they've we have these numbers  that have been assigns and but based on each of these illegals and they multiply out and so you arrive years you rise at a place in which you have astronomical numbers and then when you actually take a look at these databases once you actually are inside the database you're now finding pairs of people that are matching at many more lows lowside and those numbers would never ever hope to explain in marilyn's they had three that actually match and because every the basically of the commonly used models were not ever arriving at a conclusion that explains the twenty and he was finding that you would have to elevate the number of errors to in amounts that is  sort of going against common sense in order to to find it to to get to a place where you're finding enough that would match of these ten we this is this is this this is in its infancy i mean i've been playing with this case now for two years and we're not we're not to the point where there's a lot of material to work with this case began its very first line was that this was a case of first impression and what that means is i mean we're starting a conversation and that's why i was happy to come back to continue this conversation say these are things that that are in the process of working their way through the courses this is happening in chicago this is happening in california further development further efforts are being made at all times to try to better explain these numbers as it currently stands the defense is basically attempting to use these these  when dealing with when you're getting these astronomical numbers those numbers are seeking to explain two different ideas one of which is the rarity of the profile and the other is the random the random match it's and that's where i did want to take it to to at least make it known i in my briefs all along i've never challenge the fact that these products will numbers are still an accurate statement of rarity what i am challenging is that we don't actually know if these are still sees be true a true representation of the randomness of the random match probability and using the findings in illinois using the findings in arizona that is the beginning because what we're dealing with is trying to explain this information to which you're it and you know as any of us would know once you throw one of these you know fourteen zero or i'm front of a jury we're done it's a ninety four ninety five percent rate that they're there now that's about if we begin by stating hang on one of the things they're attempting to do is explain how random this this could occur look what happens when we actually look in a we actually find random occurrences that we would not expect and then they could call their expert that said of course we would expect that but doesn't that still amount to an ability to put forth the defects and ability to actually confronts these numbers which are the only things that are that are putting a manageable for the rest of this lot also we've not interrupted you because we want to make sure you get an opportunity to complete your presentation if there's nothing else  cross examine with irrelevant information if that were true then the trial courts would not be given the power that they are given to limit cross examination and it would be an unfettered right to cross examination the u s supreme court has made clear that d evidence is subject to the same rules of law as other evidence and a basic rule of law about it and swap is that relevant evidence is admissible and irrelevant evidence is it is inadmissible  results of a search are irrelevant now i os as far as the confrontation goes i'd like to make clear and i think this is somewhat clear defendant was not in any way prevented from developing an court order to order the illinois state police to do such a search and that is what the trial court did not the quick he never asked the trial court to rule on the admissibility of database nach database searches and the that such such facts would be inadmissible the same thing and then then we have the colloquy prior to trial where defendant says defense counsel says i'm not going to use it and then you have the court's ruling on the objection during cross examination whereas justice mcbride pointed out the same thing happened objection sustained and defined and abandoned the line of questioning the court didn't affirmatively block him i prevent him from giving an offer of proof if at that point he had a change in strategy and decided and the relevance but we do stand by our position that  i would also like to point out that the statistics regarding the rarity of the profile on the underwear on for like the better work higher than the statistics the rarity of the profile on the rector of swat so if there's any confusion regarding the quality of the state's evidence i mean this the profile identified from the work up done on the underwear is rarer than the one on the of swat and while he now is saying that he's challenging the statistics with that that's that's really not something that's ever been addressed his final comments regarding the numbers that's a reference to database match probability which is a completely separate beast than even the database searches at issue here and really it is that as a red herring database match probability asked the question what's the likelihood of finding a particular profile in a database that's like you know if it has nothing to do that would never be relevant in a criminal case in a criminal case the issue is whether you know what's the what those what do they mean yes in this case this isn't a complete profile of that was able to be gleaned from the underwear that's true it is a is it a complete profile it's not a complete thirteen locus found yeah i think that would be a pretty accurate way to state it what it is is it was a mixture whenever you have a mixture of that means more than one contributor so in this case the yes so what they do is they take the jennet they test the sample and they get a chart or not a chart excuse me it's like a graph an elector fairground with a lot of peaks on it and that shows the presence of different only ills at different locations in differing amount and from that they then have a known blood stand i think it was a blood standard from the victim in this case where they've generated a profile so we know at the victim's thirteen profiles so then the analyst takes that known and as an expert you might have a couple of different possibilities for who that other donor is that male donor so as i go have explained they take the conservative route and report both because that is that that's that's the correct way to do it because there are for there are at i think one or two different roles i have there were two possible profiles of the contributor i'm so they report out both and the statistics because again this really all comes down to the statistics take that into consideration i weigh said that it's done in the most concerned the statistics are done in the most conservative manner and by conservative i mean to the benefit of defining so russ rare numbers sail i don't know if that answers your question it's if you subtract out the known you generate a discover a deduced profile of the other donor and end this case that there were a few locations where there  were few possibilities for that deduced profile and that deduced profile was reported and define it cannot be excluded as the contributor as as as being a contributor to that deduce profile and the statistics of that were one and