argument here by looking at it from a different perspective i'm not going to bring in any new facts or anything i think i can explain why she testing should be covered by section one hundred sixty s three better than i did  basically the issues are important in this case because they are the only physical evidence that links mr berrill to the disease house there was a piece of plywood in the basement near where the scene was found there were many many food impressions on this piece of course the expert couldn't rule mr baer of the shoes out because he didn't know whether they had been you know they could have been they were nearer the time of the offense and had worn down later or it could have been the they were always warning they did not make the in that did not appear on the beach you impressions that may have matched the shoes and the expert for the state for the same reason though would not aluminum mr barrow shoes just because of this defect in the shoes he said maybe the defect happened after the crime was committed by mr barrow we just can't know so now is the state of the evidence of the shoes at trial only they could have made the printer there is no way to limit made them based on the evidence that was presented  ever peers in a little too where it says if it's previously subjected to testing can be subjected to additional testing utilizing a method that was not scientifically available at the time now mr barrow comes under a  never been tested so the subsection eighty two doesn't come into play where what would the stand she's trying to prevent would be doing the same d n a analysis over and over again but here the shoes were never tested by any applying to the you know to the original lug nuts and that's the argument that i would make about you know why it can't be tested on her under the stud new statute and you know that's that's obviously one possibility but i mean i just don't feel like i don't know how often that would actually happen i mean i mean are there are cases where there are like a lot of shoe x i'm i mean i don't know i see your point but honestly you didn't apply it in the thing i mean  this case from the other and again this wasn't disputed that the trial that he would be able to determine the crucial fact about the issue did the defect exist at the time the print was made or torn that was you know what when the she was made and examination and i don't know where he would draw the line but it seems to me that in this case the the line is clear this is this would be the pop this positive about a very significant piece of the state's evidence and  testing this case would be appropriate so if we want to keep talking about the problems why the shoe testing mine that come under the statute and we may as well because that's why i'm here you know you have the the whole problem that the statute doesn't say anything about testing shoes i you know my point on it would be the statute says motion for fingerprint integrated ballistic identification system or forensic testing not available at trial regarding actual innocence and my argument is that looking at the shoes comes in under forensic testing the statute doesn't limit itself at the outset to forensic d n a or anything it's it uses a very broad term of forensic testing and is supposed to be a broad provision for providing forensic testing as it says at the outset and the legislature by you know legislatively reversing the appellate court's attempt to limited to specific types of forensic testing shows that the legislature wants the statute to be considered broadly its purpose is a broader purpose and it would cover testing shoes in a case like this where it's a very important piece of evidence and you know it when you think about it counsel was in effect different access to the shoes but he had one had ineffective assistance claim without having the shoes tested because he is no way to establish prejudice from counsel's failure to test the shoes so if this statu the employee life happens in everything we've always been able to do this so far that there's no indication of a timeframe i i don't recall it no no as far as i know there is nothing saying you know we've developed this process since one thousand nine hundred eighty four one trial i don't remember anything like that at all my whole argument on that point would be that it was unavailable because of trial counsel's failure to ha tested by somebody who could make that determination then and this is the second point i think where it does not clearly clearly follow under the statute but first as i said before recently mr barrels coming shoe guy was actually you know the experience you could make this test so there was no basis for mr barrow to go in depth but the second point i would make is you know this is just a motion for the testing this this should testing it's going to create a great burden on the system that you know that this is just the first of and should be the easiest hurdle to jump and then you got to try and prove that yes indeed i'm actually innocent and there are this isn't going to get mr berrill necessarily a new trial or an appeal by or anything like this he's going to give them a test result that he can then maybe move on with if it's favorable and then he can file you know his p c alleging actual innocence so what we're asking here isn't going to have any chance traffic results for the state or anybody else because it's in scary limited release we just want the shoes tested and you know the test me w relief it really allows him to proceed with his substantive claims and through the rest of the stairs obviously but i think those are the two real questions and in this case does it have to be a new technology you know as i said no i just had it not have been subjected to testing at the time of the trial and it wasn't and were not shoes or are covered under this broader term of forensic testing and i believe that they are cases where people been exonerated from death row where they've been framed where their seemingly been overwhelming evidence and the type of objective evidence that you hair here the shoes would i say significantly advances claim that he wasn't there and that and that roanoke was framing him now you know whether you can can make the whole deal out of that i don't know but it means the statutory test and then it is about whether or not you can convince you know the score or the only supreme court is actually innocence but i think it meets the minimal standard of advancing the claim of the actual innocence the only thing i would mention about issue two if there were no more questions about the shoes it is the testimony by mr and sonia i don't know how you pronounce his name and he doesn't want to test it that it's difficult to test that cushion to close that the state police  local police that they would have tested you know whether it's good policy they have a lab directing investigation of a local crime i don't know but his testimony is not it that evidence cannot be tested it's that it would be difficult and believe that there might aside from all this evidence about whether there had to be a struggle when the state was trying to bring out that maybe the seat cushion it been contaminated mystery and so we said oh yeah anybody who touches anything can leave d n a on so if you apply that to the state's argument that there couldn't be any d n a on these things i think you see that that undercuts the state's argument significantly there could be d n a from the person who was holding that pillow down on  of issue the statute which operated at the time the defendant files motion two thousand civically says that that he made the defendant may make a motion for testing on fingerprint evidence which of course this is not  case two thousand and three is almost identical to this one at that point of section one sixteen ish three as it read did not include integrated listees identification system testing as it does now but the defined in that case said i believe that they did not therefore this this request for the shoe print testing could not have been granted based on the statute as for the first two issues did just like to discuss the overwhelming evidence argument just briefly first of all this wasn't an issue of trial the state never said the evidence is so overwhelming that there's no point in having this testing in fact the  state agreed to have evidence tested at trial so obviously the state's position at trial is that this could make a difference and secondly when the trial judge ordered testing a trial implicit in that decision was that the evidence is no so overwhelming that the testing would be you know worthless and i think this court should defer to her implicit ruling that testing is the appropriate in this case if you want to get whether or not the evidence is overwhelming i can't you know he you know learning information from the police on the tape statement you know mr barrow doesn't name the disease or anything like that there are a few discrepancies between his description of the crime and what actually occurred on things like you know he said that i came in after midnight well there's evidence that it looked like the way it came back on ten thirty and you know i hit him all over and there are no marks on mr o burroughs body except for the bullet they said you know the illinois supreme court says it's overwhelming but there are discrepancies if the d n a came back or the shoes came back that would change the entire calculus because now we would be missing some of the physical evidence your physical evidence that tended to exonerate mr barrow you would have that much more reason to believe that mr rahman of bringing him and the calculus of the case would have changed and i think that that's what a lot of the second district cases talk about when they say we should grant testing without being overly concerned about the overall nature the evidence because if it is a favorable result the calculus the way the evidence is significantly changed and again