i'm i'm going to argue to sentencing issues this morning i'd like to start with the question of whether it was unfair for the judge to remove a juror who voted against the death penalty from the jury and then seated an alternate and allowed that jury to begin deliberations anew it is my contention that that action on the facts of this case violated due process of law and the eighth amendment i'm relying on an illinois appellate court case three federal circuit court of appeals decisions and supreme court decisions from the states of california washington colorado and indiana all of whom have enunciated a prophylactic due process rule that before a holdout juror may be removed from the deliberating jury the judge must make a determination that there is no reasonable possibility that the holdout was dismissed based on his or her view of the merits of the case now most of the cases sysfs just rough fronts including the appellate court case from illinois delano arise at the trial deliberations and this case is different from dolls in only in the sense that here we have a death penalty sentencing decision by the jury and it takes only one juror spare ryan predetermined before he was selected to be a juror that he would not vote for the death penalty i think that the judge's judgment would have been correct here perhaps but this juror didn't predetermine anything he made a judgment based on the mitigation which he heard at the trial and since he was instructed and this court has held many times that jurors may consider trial lev as being mitigating as well as being aggravating there was no inappropriate judgment by this juror it was predetermined you might use that word in the sense that he apparently was strongly leaning arguably even had decided against the death penalty based on the trial medication before he heard the aggravation and that's what the judge here found and relied upon so that the state's position in them you differ from the streets position which i think was that after the guilt phase this juror had already determined that the death penalty was inappropriate and refused to deliberate just during the sentencing phase is that right i don't know that i disagree with that i think that's basically what the judge said i think the juror who was excuse said he did listen to and consider regular vacation but the judge has ruled to the degree he made any findings of fact at the host sentencing motion the judge ruled that what bothered me about this guy referring to jerk twenty mr cooper was that he wouldn't listen to the aggravation so for purposes of this analysis i'm willing to accept that as being a factual determination but i don't find that to be inappropriate for him not to listen to aggravation in a constitutional sense because he was considering mitigation that he heard a trial namely yes that's a very key point and it's one that the that the trial judge was mistaken about it is a different situation for a jerk to say he won't consider mitigation then it is for a juror to say he has found mitigation at trial which doesn't make it necessary which makes it unnecessary for him to consider aggravation and the difference is that  eighth amendment requirement that all of the jurors consider the mitigation and there's an eighth amendment requirement that each of those twelve jurors has the right to make their own judgment about what is mitigating and how significant that mitigation is there is no eighth amendment concern that jurors listen to aggravation or consider aggravation so the key difference between a juror who is unwilling to consider mitigation and a juror who is arguably not considering aggravation is the eighth amendment right argument is that that juror was inevitably coerced by the circumstances in people versus roberts decided by this court about a year before this sentencing hearing this court held that one  juror jury had deliberated for two hours and taken two votes which were in favor of guilt it was but inevitably co e just to see it or not alternate coming into that situation and here we have the jury having deliberated for ten hours having taken two votes where the vote was apparently a leaven to one in favor of the death penalty they the jurors were going to get two three of the jurors were interviewed by the judge it became clear to the judge and everyone including all the jurors that what the numerical split was and so it was inevitably coercive for an alternate to come into that setting where a leaven jurors had struggled to get rid of the holdout they had succeeded and the trial judge had although he instructed them to renew to see restart their deliberations he also said to them and don't forget i've got another alternate that is yet to be seated that i c votes that are dramatically up one side or the other i think the psychological studies the jury studies show that the jurors are going to be confronted with a very coercive circumstance and unfortunately the trial court judge here was apparently unaware of this forced decision and people versus roberts if he had known about it i think that he would have declared a mistrial rather your twenty so that he would not vote for the death penalty based on his beliefs background in the way he was raised well what impact if any does that have i know there's there's other notes that in a cave based on the evidence i think he did say that right when as well said that he was willing to consider the death penalty so i think that the judge in essence rejected that portion of the four persons testimony and essentially accepted jur cooper's assertion that a he found mitigation from the trial evidence and b he did admit that he told the other jurors after the trial that he was reluctant or  to vote for the death penalty in light of that that medication so i think that the judge it discounted any suggestion that this jur want to get back to the to the due process eighth amendment question of whether a deliberating holdout juror can be so lightly removed as he was here the due process  no use is whether there is any reasonable possibility that the holdout is being excused because of his position on the on the merits has two important policy concerns behind it one most obviously is we have to have concern that judges prosecutors the parties can manipulate the composition of the jury to get the verdict they want for example when it became known that one juror was holding out for not guilty the prosecutor started vet investigating the man's background and found out that he had more prior convictions than he had stated during four deer but the appellate court here in illinois recognized that back investigation and that excusable never would have taken place had the juror not taken a position that the defendant was not guilty and the reason for that rule is we don't want to have judges have the power to reconfigure the twel person jury to get one verdict or the other and the second reason is we have to have safeguards that the secrecy of the jury deliberations the deliberative process is not contaminated by the judge's knowledge of what's going on in this particular case the judge found out what the numerical split was wives of the holdout juror was favoring non death and and he also found out and this is something i haven't gotten to and i need to he also found out that several of the jurors were refusing to follow the instruction says if the jury cannot unanimously agree in favor of death you should sign the verdict that imposes the sentence other than death the judge at page fifty fifty fifty fifty two of the record i'm not sure if the refusal to sign either verdict form means the court must impose a sentence or order a new sentencing hearing or question the jurors unseasonal turn an alternate jury sure and the judge ultimately chose the third option but it's my position what that what the judge should have done here is follow the statute follow the jury instructions and once he was satisfied that there were eleven jurors in favor of death and one juror who was not in favor of death and wouldn't sign the unanimous verdict he should have directed a sentence of life in prison which was the mandatory alternative death here because you can't have eleven members of the jury control laying the question of what sentence is imposed because the statute says it only takes one to save a life it's important that this case give does guidance to the trial courts as to what this judge should have done in this particular set of circumstances the trial judge put the onus of misconduct or something on juror twenty but it's my contention that the jurors who refused to follow the instructions to sign the non unanimous verdict were also hilti of some level of misconduct and the circuit court judges need to know how to deal with a situation where the jurors are at loggerheads and i think the answer is sense the legislature in the death penalty act provided that it takes a unanimous verdict to get done when we have one juror who gallantly holds out from mercy for my client the solution should have been a directed verdict of nanda and i'm asking this court to recognize that that vote against death of constituted a verdict in my client's favor and that it would be a double jeopardy violation because we have the equivalent of an acquittal on the question of life or death here for this court to send this this case back for a new sentencing hearing if the court agrees with me that there was a due process violation here's where juror twenty ever indicate what piece or pieces of evidence came out of the trial now persuaded he just stated that based on what he heard at the trial he felt that the death only was not appropriate he didn't say so and so he didn't say i'm this sure happen to be twenty years old my client's nineteen maybe he identified with his with the boys you he didn't say i've been dumped by girlfriends and it's hard to take but that also could have been a mitigating circumstance this case has a lot of similarities to the cases where this court has held the death penalty excessive because almost all of those cases involve romantic situations where the defendant was devastated by the breakup of his relationship and that's what apparently caused this crime this you're seeing some point that juror cooper said well i that's not entirely true but you do bring your life experiences with you and how you were raised as part of it when you would value await the appropriateness of something like the death penalty  but the judge didn't make a finding of fact that of the juror said that over that that was inappropriate so it's not clear exactly what he said about is the way he was raise murder of three people in an arson after mr bugs is wife rejected him the leasure case which i argued before this court twenty five years ago  really a very compelling distinction versus three years counsel so i'm clear and i think you said this what we are asked to do by you is through me and this case for a n that that would be accurate best issue seven as the issue six which i spent most of my time on i'm asking you to impose a natural light sentence because i believe that my client was entitled to the vote twenty if there are no other questions all take a seat thank you morning honors counsel and may please the court i'm assistant attorney general carl tribble representing the people of illinois the record in this case provides compelling evidence the defendant intentionally killed four people tried to cover up his crimes and the aggravating evidence is compelling in his case and shows that the death penalty was appropriate and i wanted to start off with the standard of review question that justice  it's telling that even counsel argued that it depends on which jerk you believe that shows that the underlying question here is a factual question which is always entitle to deference because the person that's best suited to determine what actually happened and who took leave is the trial court that actually conducted the inquiry and it's true the jury number twenty made some statements that might show that he listened to some of the evidence but he also made statements that he even even he admitted he had said as early as the guilt phase of the trial that he had created term and his verdict and that no matter what he would not instill the death penalty even he admitted that this was at least based in part on how he was raised and the other jurors said that he went much further juror number forty one integer jury foreperson both told the trial court that he had pre determined his verdict of the guilt phase and that he had said that no matter what he was not going to instill the death penalty that phase and then again at the eligibility phase he said he wasn't going any further and then every single day of the third phase of the trial he said over and over again it doesn't matter what this evidence is i'm going to vote the way i'm going to vote and i'm paraphrasing their course so it comes down to a credibility determination do you believe juror number twenty or do you believe sir number forty one and the jury foreperson and again counsel admits that it comes down to who do you believe and our position is the trial court was in the best position to look at the different testimonies that the different answers to his inquiries and determined that the jury foreperson and sure enough for forty one were the ones telling the truth and even the judge was obviously struggling with this issue because he recognized that defendant is correct that if he was just a holdout juror and that's all it was then it would be improper to remove him simply because he was basing it on the evidence but the evidence indicated that's not what he was doing and the further answers to inquiries the trial court found that out and the trial court made a particular mention that he was concerned that the dominant be just simple animosity between disagreeing jurors when it came to the notes from juror number forty one versus juror number twenty but then stated after hearing from the jury foreperson that he felt like the jury foreperson was very credible that she was being very conscientious and that she had separated herself from that type of animosity and that credibility determination is entitled to strong deference because all we're revealing here is a naked record all we can do is read the transcripts the trial that was in a position to actually judge the eighty percent of communication is told by body language and non verbal communication so we need to defer to that judgment in that case like we would in any other case where the trier of fact is making a credibility determination once we determine that then it comes down to a legal issue and that's where court needs to offer guidance is what should trial courts do when they're faced with a bias and jerk who has been found to be so biased that he refuses to listen to evidence at a major stage of the trial we believe that the trial court did the right thing in this case because as the supreme court's noted in morgan v illinois both the prosecution and the defense are entitled to a fair trial and to have a juror on there who is able to refuse to listen to evidence and come up with his own verdict after not hearing any of the aggravating evidence at all is unfair to the people and indeed since a frightening precedent that will encourage advocates who would refuse to instill a death penalty in any circumstance to try to get on jury panels and to try to get into this same circumstance and disregard any of the evidence and just go ahead and vote against the death penalty no matter what and that would go directly contrary to all my law so that's why the standard of review in this case should be an abuse of discretion standard on the factual roberts the coersion element in roberts was not the fact that an alternate was being put into a situation where eleven people had already deliberated as justice freiman hinted at that situation would come up any time an alternate is seated and that can't be the level of coercion that roberts was talking about so it's important to look at what were the facts of roberts and roberts the defendant had made threats and intimidated one of the jurors and she had been so concerned about it that that's why she had initially decided to vote not guilty and the other jurors on the panel particularly the female ones were aware of this and the concern in roberts was that the residual bias the residual fear might be that they would go automatically towards a guilty plea based on the fact that this defendant had made threats towards a juror so it wasn't the fact that a new juror was coming in it was the fact that the eleven remaining jurors didn't colored their view of the defense and that's shown through a couple of things one thing i tried to make counsel where before argument here today is going over this this weekend in preparation for argument we now know from page  hundred sixty one of the record which is the docket sheets of the trial court the newly constituted jury deliberated for three hours and one thousand minutes and we also know from the record on appeal as both parties noted that the newly reconstituted jury requested trial transcripts when they were deliberating so that shows that they didn't just strong arm this nude alternate juror into coming up with an immediate verdict but they took their time to look at the facts and you  and determine whether or not the death penalty was appropriate the defendant said that this case was different because there was mitigating evidence at trial and that it was proper to go ahead and base a no death penalty verdict just on that but he's failed to state anywhere in the record journal twenty cited to any mitigating evidence it wasn't a situation where turn over twenty and said i've heard sufficient mitigating evidence and at the trial stage and therefore i'm going to vote against the death penalty instead what he said is i'm refusing to listen to any aggravating and mitigating evidence and as the trial court noted if a juror had said that and we didn't know which way he was intending to vote but he was just saying no matter what i'm not listening to the evidence i've already psych made up my mind or if  it was a choice where we knew that no matter what he was voting for the death penalty it would also be appropriate for the trial court to go and remove that juror i also wanted to touch on some other issues if there were no other questions about the juror number twenty  issue one of the issues in the briefs was whether or not the fox complaint should have come in and the trial court did not abuse its discretion by excluding the fox complain again this is an abuse of discretion standard even though the are constitutional implications of the roberts was obviously overruled on other grounds by crawford v texas but its fundamental earlier holding that this was an abuse of discretion standard was not as contends overturned by crawford texas crawford b texas doesn't say anything about the standard of review and in any of that in this case the evidence in the fox complaint was much more prejudicial than it was probative because the facts alleged in that complaint were so much different than the facts of this police interview in this police interview defendant emits at page thirteen ninety seven on the record that there was no abuse of police behavior they were not yelling  screaming at him the officers fed him pizza and soda pop and he says that the officers didn't say this but he says that he even took naps during the period of time where he was at the in the interview room even in his own words he says he was in the interview room from about ten thirty in the morning until about four five a night and on page fourteen hundred of the record he says most of that time he was not actually talking to the police from the record he we know that he was interviewed from about eleven fifteen in the morning and there were some breaks but until about three forty one pm and that's it page seven seventy seven three seventy eight of the record so overall the police question in this case didn't take more than three or four hours much allegations were so much different that there was no basis to cross examine the officers on the fox complaint and in any event even if this court ultimately disagrees with that proposition the failure to admit the facts complaint would be completely harmless because the facts are so much different he was interviewed for such as for short time that this is not like the fox complaint where in the fox complaint they said there was over eight hundred fifty minutes of  intense police interrogation they told him that his wife and his father had abandoned them because he was so obviously guilty they had physically course him they were yelling at him they were screaming at him they gave him what they said was a lie detector test and told him that he was failing that he held his freedom him about that he was sleep deprived none of those allegations are similar to what happened in this police interview even by defendant's own words and it's important to remember in his m original motion to suppress the confession only it said primarily was that he wasn't properly mirandized and the trial court rejected that properly and he's not raising that on appeal so because the facts are so much different even if the jury had been presented with cross examination on the fox complaint the jury would ultimately conclude that because the facts were so much different it didn't have any persuasive value and it wouldn't alter the officers  testimony his brief makes defend his pekinese much to do about the fact that there was an interrogation technique that took place here and that the officers had a theme of appealing to his love of the deceased  and of course there's going to be similarities between any two police interviews what the interrogation techniques here that are described or something that's found now in every modern police interview the police go in with a plan they try to establish a baseline to determine whether or not the person that they're interviewing exhibits the physical signs that most people exhibit when they're either remembering something or when they're trying to think of something and they use that information in their later questioning to determine whether or not the person is telling the truth there's nothing improper in that and there's nothing nothing improper in having a theme when talking to the person about having a love for the deceased and how they should go ahead and tell the police what happened that leads into the  next issue in the briefs which is whether or not the just us tests results should have been admitted here like in people we've done it another case that we cited that expert had been wanting to testify that the defendant fell into the ninety ninth percentile into this test of suggestibility but big for the same reasoning and people the bennett was inappropriate to allow the jury to hear this expert testimony because it was something that the jury could through their common sense and life experience understand and determine whether or not the defendant in this case was particularly susceptible they had full testimony from the officers about the conditions of the questioning and they  didn't hear any evidence at all and defendant has never presented any evidence at all that there was any particular thing that base had suggested to him in those interviews and defended makes much of the fact that they knew they had gone to the crime scene and seen the bodies before they had come back and interviewed defendant but and if they had talked to their technical specialists who were on the seam during the investigation at the time but there's several inconsistency with that undermine that argument first of all the most obvious wounds to jean book walter and harold tennant were gaping knife wounds in their torsos and your owners can see that through reviewing the exhibits of the pictures that were taken of crime scene immediately after the bodies were found if the police had been trying to suggest to a defendant how he had killed those two victims the first thing they would have gone to is said you stabbed them didn't you stab them with a knife but his confession doesn't contain any mention on the night which shows the police officers were not feeding him information on what's say in his confession also if you look at the video of the crime scene and the photographs of the crime scene where eric tenant's body was found was incredibly badly damaged and it's very difficult to tell that there's even a human body in that recliner there's no way an officer on the scene could have immediately determined the cause of death and could have fed that  information to the defendant who is being interviewed while the house was still smoldering from the fire that morning the cause of detach the cause a very tense death was not determined until later forensic autopsy th would they definitely misstated it and that's why we didn't contend that in our brief but again this court can uphold the trial court's determination for any reason found in the record and i think with the trial court was trying to get at is what the argument wasn't people have done it they just the truck or just slightly misstated it to make it sound like a fry plus reliability test but the trucker was really getting out was the fact that this was your role of an expert testimony because i'm for the reasons i just discussed any juror could determine whether or not this defendant was particularly susceptible to a police interrogation based on the fact that they saw the police interview themselves and they heard testimony about the conditions that were present when the police interview him and again even if this were disagrees there would be harmless because of the reasons i just stated we know from the corroborating evidence that the confession that was given here was truthful so there's no danger that he was being fed information another fact that shows that it is the officers testified that they did a gunshot residue test of the defendant at that time they were interviewing him because they didn't know that there had been no gun shots fired in this case so the fact that they didn't they did a gunshot residue test shows they weren't feeding him predetermine information on how the county happened they were doing an investigation and trying to figure out exactly what happened but i think the most telling evidence again is the photographs of the crime scene showing that there's no way they could have just gone and looked and determined how every time it was killed another issue that he talks about in his brief is that this death sentence is just fundamentally  unjust but that's the record belies that fact defendant went was rejected by sara tennant again and again for a period of months so this wasn't a sudden emotional outburst and then after that last rejection even then he didn't immediately act out but he went to the basement garage and thought about what to do and ultimately grabbed a tire iron and decided to kill her then he didn't stop there he went up stairs and murdered harold tennant and gene book walter at the top of the stairs and then didn't even stop there but went into eric tenant's room where he was sleeping after working all day long on the farm just completely exhausted and killed him by beating him in the head with a tyrant as he slept so this wasn't the actions of someone who had just spent it rejected him was in the throes of dealing with that rejection and acted out of anger he told the police he did the subsequent killings because he knew that they would know who did the murder which even deborah tannen said right away to the police well you need to go interview defendant in this case because he's the one that did it so he says that was his motivation and we don't know of course what is true motivation was but it appears that he murdered them because he was afraid they were going to be witnesses against him not out of a sudden emotional outburst the mitigating evidence in this case is not persuasive to finance a suit case where this co that it was ineffective assistance of counsel for the defense attorney to fail to present an organic brain injury mitigating evidence in a case but that's not what happened here what happened here was the jury heard the unpersuasive were getting brain injury to evidence and rejected it and it was unpersuasive because you know in cross examination defense experts admitted that the cat scan was not the most reliable test but that the m r i was more reliable them and it showed a normal brain activity that the e g test showed a more that showed a normal brain activity and also they admitted that he had had these types of obsessive jealous rage based behaviors after prior rejections long before the auto accident so these one something that were caused by accident so even though there was mitigating evidence about an organic brain injury it was not persuasive for those reasons and based on all that information this is not like other cases where this court has held that the death penalty was fundamentally unjust finally going back to the opening and closing arguments issue that's brought up in the brief the opening statement did go into background information on mostly the victims of this crime although also  going to the background of deborah tennant who was the wife of harold ford excuse me the ex wife of harold and it most of that information was just background information showing that there was a tight family bond and the rest of it was just harmless background information it wasn't so pervasive that the trial court abused its discretion in denying a mistrial based on that information and also it's important for this course of hold that this issue was forfeited because defendant did not object to the opening statement at the time he waited until after several witnesses had been called and then at a sidebar said we're making a standing objection to the opening statement we're moving for a mistrial that presents the trial court with an all or nothing decision of starting over with a whole entire new jury selection or allowing an opening opening statement that may have wandered into some areas it shouldn't have going forward and that type of all or nothing decision is completely unfair to the trial court there have been cases in the past where this court has held that forfeiture can be used where there's a similar objection that has been made but it's important to note that this objection didn't take place until long after the opening statements had already concluded so it's much different than those cases and the defendant says that there were several side bars so we don't know whether or not there was a sidebar that took place before the opening statements actually started but all of the side bars that were not transcribed were at least noted in the record and they all took place after the first witness had been called there were no  or during the opening statements so it's unfair to suggest that he could have objected to this at the time and we just don't know about it and as to the closing arguments even if this court finds that it was improper for the prosecution to make that type of argument it's important to remember that this is not like people he couldn't to the argument was cut off immediately by defendant's objection and then the trial court properly admonished the prosecutor to cut off that line of argument it could have perhaps been stated more elegantly or more like a textbook case in a law book but the jury saw that this line of argument was immediately cut off and was also properly instructed that opening and closing opening statements and closing arguments are not evidence and should not be given any weight so in light of all that information it could not have been prejudicial for the prosecution to actually accidentally make a fleeting statement income to the prosecution had gone on and on and on over several sentences several phrases about how the jury shouldn't give the defendant in that case five murders for free here there was just one fleeting comment about not sending a message to the jury that was  immediately cut off so as far as the remaining issues in the brief here are we would rest on the briefing on those issues unless you have any specific questions about those and we would ask that you affirm the judgment  conviction and sentence in this case is you have a combination of factors one you have the long deliberations and them and the multiple votes that are already taken place but more uniquely to this specific case you have these jury interviews which had been taking place during which the jurors who were in favor of the death penalty were fighting to get rid of journal or twenty and in the course of those interactions between the judge and those jurors it built up a a concrete position in the majority that an alternate would inevitably have learned about when she came on the jury and when the judge admonished the jury to renew their deliberations he said i still have another alternate left and that sent a message to the jurors that one of them held out they would be replaced so i think that was a coercive circumstance that goes well beyond the normal situation where a juror falls ill and is replaced by an alternate or the jury  has a juror who's heard some extraneous evidence that has to be excused as in the roberts years and my opponent started out his argument by saying the abus discretion standard is the correct standard of review because there's these credibility determinations but he continually ignores the due process question and the due process standard of review is de novo because this court in as good a position as the trial judge was not to determine what my client or what what the juror was thinking or what the other jurors were thinking but this court isn't as good a position as the trial judge was to apply the due process question standard rule which is if there is a reasonable possibility that this juror was excused because he was opposed to the death penalty based on the evidence in this case it's a due process violation and we know that there was more than a reasonable possibility because had juror twenty voted for death the judge never would have been informed that he hadn't that juror twenty had made statements after the guilt the deliberation stage expressing his profits against the death penalty based on the mitigation he heard at the trial so they know overall is the correct standard or review and the correct holding in this case is that it's clear that juror twenty was excused because of his position on the merits not because of something he said during the trial deliberations you know this this stachel circumstance has a lot of parallels to impeaching the verdict essentially what the judge did was investigate the deliberative process here at the behest of the jurors who favored the death verdict and then send a message that he agreed with the death the pro  and that's why we have a due process violation because the jury composition was changed in favor of the prosecution and denying my client ballot one vote it could have saved his life now on the fox complaint this is probably too complicated to cover in the next few minutes but mr fox was interrogated by a group of will county authorities including the same two detectives  interrogated my client and mr fox made a false confession based on information which was fed to him by will county authorities and the similarities go beyond the same t detectives in both cases mr fox and my client allege that they were given false promises of leniency if you tell us if you confess all you'll be able to go home with your loved one who's waiting downstairs in the police department in both cases the police the mr fox and mr nelson allege that the detectives gave them facts that they could build their confessions on in both cases the detectives themselves said we tried to get the two defendants emotional by talking about how much they loved the victim mr fox's daughter and brian's girlfriend trying to build up the emotions in both cases mr fox and mr nelson alleged that they asked for counsel and those requests for counsel were ignored or denied and the significance of the civil complaint which ultimately led to a judgment in favor of mr fox in federal court is that when detective guilfoyle testified here he knew that he was in jeopardy in the civil case of a huge financial judgment against him and he wanted to minimize any statements he might make which showed that it was his usual interrogated technique to use a motion to use promises of leniency to to in the accusatory stage of the of the interrogation to feed facts to the defendant which might be the basis of a false confession and that fear of the civil judgment against him biased detective guilfoyle against talking about the accusatory stage and and explaining to the ladies and gentlemen o the jury all the facts that he learned when he went to the crime scene and all the facts which he used to accuse my client of guilt and to get him to confess based on those facts so what i'm saying is that he texted gilfoyle had a financial interest in minimizing his explanation of his coercive interrogate of techniques and that's something the jury was entitled to know if the jury knew that they could better evaluate the defense that my client offered that his confession was faults and the product of a story that was fed to him the facts that were fed him by detective gilfoyle and his partner so for those reasons i would ask that a new trial be granted in the alternative i'm asking that this court find that there was a due process violation in excusing the one juror who could have saved my client's life and order than a life sentence the substituted for the five three for all people versus