good morning your honors my name is charles hoffman i represent the appellant daniel ramsey on july eighth one nine hundred ninety six the age of eighteen years and three months da ramsey raped and killed his best friend sixteen year old laura marson later that day he shot and wounded his seventeen year old girlfriend rachel sloop who had just broken up with him and he also shot and wounded rachel's twelve year old sister  he then shot and wounded two children of a friend young kids who looked up to dan as their big brother a jury rejected the defense of insanity convicted and ramsey of murder and sentenced him to death in two thousand this court reversed his conviction because the insanity statute under which he was tried was unconstitutional this court remanded it for a new trial however hungry man there was no new trial mr ramsey pled guilty to murder and other felonies and a jury again sentenced him to death this is his second direct appeal in this capital case we've raised a number of issues in our brief if time permits i'd like to address three of those issues this morning the first is that the trial court failed to require that dan ramsey be represented by a certified capital a geisha a trial by a lawyer at his two thousand and seven death penalty proceedings the second issue is that the trial court erred in excluding testimony by the defense mental health expert that the mental disorders from which an ramsey suffered could also be characterized as mental disturbances and finally that the prosecutor improperly argued to the jurors in closing that dan ramsey's eleven year history of good conduct while incarcerated in this case was irrelevant to their sentencing decision as i said the first issue i'd like to argue is that the trial court erred in refusing to require that dan ramsey be represented by certified death penalty lawyers this court probably more than any other governmental institution is certainly familiar with the troubled history of the death penalty in illinois more than a decade ago this court appointed a special committee on capital cases and this a number of reforms that that committee recommended i think it's fair to say that the centerpiece of those reforms was the creation of the capital indication trial bar in new rule seven fourteen and the requirement that only certified members so justice freiman there was a lot of talk during the years that this case was pending pretrial about the capital to get trial bar he was never admonishing about what that meant there was just a lot of discussion about whether the lawyers needed to be certified and record in court of record in court at one point mr ramsey ramsey was asked do you have anything to say about your lawyers and he simply replied i don't have anything to say about that i don't think there's any way he understood what the capital geisha trial bar was this was a discussion among the prosecutors the defense lawyers and the judge but he was never admonished you have a right to a capital efficient trial bar they have to undergo training and i think the reason he wasn't admonished justice freiman is no notation after the rule that says it is it's it applies to cases that are charged by indictment or information after it's effective date so the plain language does exclude dan ramsey's case but we argue that this court it just result does isn't it true that the language in the rule is consistent in consideration of the fact that changing defense attorneys after seatings might be telling disruptive i don't think that was a consideration i think the consideration charging instruments were filed before the effective date the only person who didn't get a capital efficient trial by a lawyer was dan ramsey the other eight did even though they're charging instruments were for the effective date and there was no delay or disruption in their well apparently it was the judge's opinion that they had enough experience to do capital cases but that didn't mean that they were qualified to be members of the capital geisha trial bar they may have had the litigation experience but they had none of the required training that this court requires and there was no showing that they had familiarity with forensics mental health experts none of the other requirements now the  concerned with the fair the state actually thought that membership would alleviate any potential appellate issue here in the state one of them to get certified in the issue isn't really a defendant's attorneys to say you know you know we don't need to get sort of i don't think it's a built in appellate issue and here's the reason justice thomas the judge could have said to the lawyers get certified or get off the case these lawyers didn't have control over whether or not they would become certified if the judge told them to get certified very very simple solution to any tactic that the defense lawyers were using now i think the reason would you talk a little the injustice is that he did not get the lawyers to which he was entitled when this court initially promulgated rule seven zero one you defined who can be counsel and in courts in illinois  when you amended rule seven zero one you define who can be counsel in capital cases in illinois is that is the defendant set forth or are you point to things that he believes you why how these council fissioned well it's not an issue not yours is it mayor of a nappy if we need to make some kind of prejudiced showing which i don't think we do we do allege several instances of ineffective assistance of counsel in this case showing that these lawyers were not familiar or didn't do what was required under the prevailing capital law at that time we've argued that they were ineffective for not objecting to improper arguments at sentencing we've argued that they were ineffective for not having their mental health expert provide a correct opinion at a pretrial deposition so we do allege prejudice but i don't think we need to show prejudice  justice government and here's why this court has granted relief in cases in which its other prophylactic rules have been violated this is a prophylactic rule just like rule for a one a rule for zero two it's designed to ensure that the underlying constitutional protections are violated and we've cited a case which i think is analogous people versus campbell which is a rule for one case in which the trial judge did not give the defendant his rule for a one admonishments and of course that rule is designed to ensure that a counsel waiver is knowing and intelligent now there was no allegation in campbell that the coun waiver was unknowing or unintelligent just that the judge didn't apply rule for one and this court reversed now the defendant in that case did case didn't even have a constitutional right to counsel because he wasn't sentenced imprisonment but he did have a statutory right to counsel just like mr ramsey had a right to counsel defined by this court's rules and just as in campbell i think this court should say our rules are rules they're not suggestions and if this rule applies and in ramsey's case he was deprived of the counsel to which he wasn't title the only court to address this issue is the appellate court last year and alvarez garcia now admittedly that was dicta because they ultimately found that the facts in that case showed that the lawyers were in fact certified at the relevant times but the appellate court said if a licensed attorney who represented a defendant in a capital case was not certified as a member of the litigation trial bar that would constitute a per se denial of the defendant's right to counsel i also think it's important just discard to keep in mind these reforms were not and acted simply for the benefit of criminal defendants they were and acted for the benefit of society as a whole it's not just defense lawyers that have to be certified it's also prosecutors and i think it's important that this court let the bench and the bar and the public know that this court is serious about enforcing its death penalty laws we don't want to go down that slippery slope again of back to the days when there were serious questions about our death penalty procedures there's a reason this court wrote the rule and i think it's a bit intimidating to stand here before this court and tell it what its intent was in passing this rule especially with the chairman of the special committee sitting right in front of me justice fitzgerald but i just don't think this court intended when it and they acted rule seven zero one in two thousand and one and made it defective in two thousand and two that a defendant facing death in two thousand and seven would not be entitled to a certified lawyer by the time of day in ramse proceeding there were over seven hundred certified lawyers in illinois where these attorneys pointed or where the time they were appointed here's your position counsel that there can't be harmless error here because there were because there was no post this issue was not raised from the poster oh no of course it wasn't because the lawyers didn't think they had to be certified so of course they were going to raise this issue and i don't think anyone would expect mr ramsey to know enough to raise this issue so we do argue it can't be harmless and the reason we argue that the court needs to go beyond the plain language of the rule which it's case law allows it to do there are numerous cases that say if the plain language of the rule may lead to an absurd or unjust result you can look to the reasons for the rule of the evils to be remedied and the purpose to be achieved and here's here's the real problem the state urges that and force the plain language of the rule but if you do that if you say the rule applies according to its plain language there are eight other men and women excuse me men at this point on illinois death row who charging instruments were filed before the effect of the rule if this rule doesn't apply to those cases and litigated several have to have been to this level up to this level yes several have been litigated up to this level ever i think was the issue  whether or not there were no there was no issue and here's why they all got certified trial lawyers every single one of them the only quickly the fact that they have certified trial or because that's what the record demonstrate in each case yes not because it was an issue i t was not an issue in the case because they got certified lawyers so it was no issue here's the problem if you don't apply the rule to any of these cases if any of those eight defendants get relief  either in this court or in post conviction or even years down the road in federal hate b s and they come back for retrial or reset and sing two years five years ten years from now is it would it not be an absurd and unjust result if they were denied capital litigation trial bars simply because they're charging instruments were filed originally before the effective date of the rule that would make no sense whatsoever and if it doesn't make sense for those defendants it certainly doesn't make sense for dan ramsey he was entitle to a capital geisha trial bar but outside of those eight there are many death penalty defendants that have been tried and that did not have capital litigation  you to admit that none of them are on death row if this matter at this time not as a tire to those eight yes and i think the problems in their cases is what led this court to enact its reforms i understand that those cases were not resurrected indicate since they didn't have capital litigation trial birth tourney's that they necessarily would be entitled to a new trial at this stage no and under hickey they wouldn't because in hickey this court held that the reforms are not in and of themselves of constitutional dimension and so they don't provide in and of themselves the basis for post conviction relief so why wouldn't in this case if you want to go beyond a plain reading why what in this case just ineffective assistance of coun rules apply as well as to you know whether or not the trial court made some type of ruling that they were competent to try this particular case well i think the problem with that would be it's inconsistent with this court's well established law and how it deals with other prophylactic rules that are designed to protect constitutional rights why grant relief if there's an invalid counsel waiver under for a one unless the defendant can show that his counsel waiver was actually unknowing and unintelligent why grant relief in a rule for zero two guilty plea case if the defendant didn't get corrected management's unless the defendant could also show that is guilty plea was actually involuntary or unintelligent that's just not how this court does business justice thomas and i think  why pass the rule in the first place if a defendant's required to show ineffective assistance under strickland again i think there's a reason the rule was passed to require that counsel that this not just the council may end up doing a good job but that this court certifies to the public and to the bar that this lawyers qualify what if tomorrow a trial judge appoints lawyers in a capital case who aren't certified let's say those lawyers do a fine job are there no consequences can the trial bar can the trial bench simply ignore this court's rules again i think this court's rules are rules and that suggestions and if the rule applied here the end ramsey is entitled to a new trial or a new sentencing hearing now if this court doesn't feel his guilty plea was affected by the lack of a certified lawyer you argue that guilty it didn't matter whether or not he had a lawyer who was certified to do the trial as for the sentence i argue that this court can vacate the sentence under fundamental justice let's say even if this court feels that the rule may not be a playable nine section five desh nine i says this court can vacate a death sentence if it believes that it is fundamentally unjust even where the defendant was otherwise competently sentenced we've also pointed out chief justice fitzgerald that dan ramsey is the only person who was and who ever will be sent to death row without certified lawyers and we think that's arbitrary and it's irrational and even if this court thinks the rule doesn't apply we think it's fundamentally on justice have singled him out is the only person to be sentenced to death without the right to certified lawyers if there are no more questions on this is issue i'll move on to the second issue which is that the judge erred in excluding the testimony of defense psychiatry henry can rule that the mental disorders from which dan ramsey suffered could also be considered disturbances one of the major themes of mitigation in this case was that the death penalty was inappropriate because dan ramsey suffered from a number of chronic mental disorders  the defense psychiatry's henry conroe testified that they his disorders impaired his ability to make judgments and manage his feelings that his break up with his girlfriend rachel sloop just days before the murders intensified his feelings of rejection and abandonment and in dr khan rose of pinion at the time of the crime stan ramsey was under extreme duress from these disorders now before dr congo left the stand defense counsel asked him can these disorders also be characterized as disturbances and dr carol replied yes now why did defense counsel ask this question to make clear to the jurors that dr  relevant to and supportive of the statutory mitigating factor on which they were going to be constructed that the defendant was under the influence of an extreme mental or emotional disturbance unfortunately defense the prosecutor objected the trial judge not only sustain the objection but instructed the jurors to disregard counsel's question and dr khan rose answer that ruling left the jurors with the exact opposite impression of what defense counsel intended that is the based on the judge's ruling in admonished the jurors must have been left with the impression that disorders can't be considered disturbances and that dr conrad is testimony was not relevant or supportive of the statutory mitigating factor that was an air for a number of reasons first congress testimony that disorders can be characterized as disturbances wasn't an opinion at all let alone a previously undisclosed opinion and that was the basis of the judge's ruling that dr kahn rowe's testimony was a previously undisclosed opinion because he hadn't put in his report or testified at his deposition that dan ramsey was under the influence of an extreme mental or emotional disturbance at the time of the crime but i think it's important to bear in mind exactly what it was the prosecutor objected to and what he didn't object to he didn't object to congress testimony that dan ramsey suffered from a number of disorders that he had difficulty in social relationships that his life was marked by instability that he was extremely sensitive to feelings of abandonment and rejection that he was thrown into deep despair when he was rejected by rachael days before the murders and that at the time of the crimes he was under extreme duress from these disorders none of that was objected to by the prosecution the only objection the prosecutor made was to conrad's testimony that disorders can be characterized as as disturbances well that's that wasn't dependent on rose opinion that was based on the nature of the disorders themselves as described in the diagnostic and statistical manual of mental disorders which when describing these very disorders uses the word disturbance interchangeably it's it's exactly like it's not my legal opinion that a statute can also be characterized as a law that's just a fact that counsel a lot are you that the jury well it's interesting that you ask that question justice carmen because when i was preparing for this argument i was going to argue to the court that in considering whether you know the impression left by the judge's ruling that you have to put yourselves in the in the in the place of the lady or what impression the judge's ruling would have had on a later but then i realized defense counsel must have been left with the same impression that the fact that the judge's ruling meant that dr conrad is testimony couldn't be considered as supportive of the statutory mitigating factor because inexplicably otherwise even though they call dr conroe i think for the obvious purpose of establishing extreme mental or emotional disturbance defense counsel never argued to the jurors at sentencing that dan ramsey was under the influence of an extreme mental or emotional disturbance now they did argue that he was mentally ill they were key didley told the jurors that he was mentally ill but i think that only exacerbated the problem because if the jurors don't consider dr kahn rose testimony as falling under the statutory mitigating factor there are a lot of problems that flow from that first of all jurors i think even though the law doesn't make the distinction i think jurors do make the distinction between statutory mitigation and than statutory mitigation obviously i think they give more weight and more consideration if they're instructed by the judge that certain evidence is actually mitigating that it doesn't fall into the catch all provision a bigger problem though is that non statutory mitigating evidence can also be considered aggravating and this court made that distinction people versus kuntu statutory mitigation is mitigating it's a one edge sword non statutory mitigation is a two edged sword and can be argued as aggravating now and can be considered by jurors as aggravating especially now in statutory mitigation such as mental illness jurors may think that a defendant's mental illness is actually aggravating if it falls into the catch all provision and that's what the jurors were left with here for all we know the ramsey's mental disorders and his behavior fell into the statutory mitigating factor that would have been inherently mitigating and considered by the jurors as mitigating and i think it's important  to realize that in this case this was not an un even if you consider an opinion it was not an undisclosed opinion it's true that dr khan wrote in his report and his deposition didn't use the words extreme mental or emotional disturbance but his report and his deposition are loaded loaded with opinions which exactly the scribe what this court described in people versus phillips when it defined extreme mental or emotional disturbance this court said in phillips a defendant acts under extreme mental or emotional disturbance when an event somewhat contemporaneous with the murder could have inflamed the defendant's emotional stance to such a fragile point as to leave him with little to no emotional control that's what the factor means here's what dr conroe wrote in his report the intense feelings of abandonment following the breakup of the relationship with miss luke precipitated depression were overwhelming him he could not control the intense feelings that overwhelmed him that's his report that sounds exactly like phillips to me the same with his deposition testimony he testified dan ramsey's feelings were so intense intens overcame his abilities to maintain control on the day of the murders there was a confluence of events that led to his feelings overwhelming him this was extreme mental or emotional disturbance the only thing missing was the label and that's why counsel asked if disturbances can also be considered  i don't think it was an opinion i don't think it was an undisclosed opinion even if it was and finally i think the sanction that the judge imposed was far too harsh even if this had been a discovery violation even if dr conrad should have testified at his deposition that disorders can be disturbances the extreme exclusion of defense evidence in a criminal case should only be applied in the most extreme situations this wasn't an extreme situation the prosecutors never argued they were surprised or that they were unprepared i think what the judge should have done is allow the state to impeach d omission to let the prosecutors let the jury know that dr conrad had not testified at his deposition that disorders were disturbances and let the jury figure out what that meant whether that meant he was impeached or not for but unfortunately the record shows here the trial judge never even considered considered a lesser sanction and we think that was an abuse of the trial judge's discretion and for that reason we asked this court to vacate and ramsey's death sentence and remand this case for a new sentencing hearing i don't believe i have time to argue my third issue but i will just say that the evidence shows that dan ramsey had three minor disciplinary tickets for nonviolent infractions making a phone call when he shouldn't have other than that he was a model prisoner for eleven years that's mitigating evidence it was wrong for the prosecutor to tell the jurors that that evidence was irrelevant to their sentencing decision that skewed the weighing process here and we argue that that's another reason that dan ramsey's death sentence should general's office on behalf of people of the state of illinois now while this case does present six issues because opposing counsel has focused on two issues i will begin by responding to those arguments first but of course i would be happy to answer questions on any of the issues at any time so turning them first to the issue of the capital litigation trial bar certification of defense counsel whether this court applies the plain language of the effective date language or even if this court were to extend it to the situations of three trials under the facts of this case the rule simply does not apply and this is not an absurd result in the alternative and the error was not reversible error because it was invited forfeited and harmless beginning with the plain language defendant does agree that because of the facts of this case the rule does not apply given the fact that the charging instrument was filed more than five years prior to the effective date in concert how do  consequences of the other people trial date's indictments before the fact well perhaps they thought in the exercise of caution that it's a good idea to go ahead and get certified even if they were not required to do so i'm not specifically aware under those cases why that occurred but that certainly is a plausible explanation and indeed as was pointed out in questions to opposing counsel the state urged defense counsel on multiple occasions that it really would be prudent to go ahead and get certified to avoid a potential appellate issue in the future now while defendant likes to point out these extra eight cases looking and focusing on this case it is still true that defense counsel not only  mitigated and acknowledged and agreed with the court that the plain language of the rule did not apply but defense counsel's response when encouraged to be certified was to say if the state is concerned that they should simply stop seeking the death penalty and i think actually that that is very compelling evidence that defense counsel was either aware that this could create an issue on appeal or was trying to at least use the issue to pressure the state to affect their discretion in how to proceed on the case it is true that  court could have perhaps ordered them to be certified but the parties and the court all reasonably looked at the plane in an ambiguous language here and concluded that the rule did not apply and because defense counsel say they stated that they did not want to get certified because they said they did not want to third certified to turn and to be appointed to help them and because defendant when he was directly asked said he had no comment the trial judge said he's the tourney's were appointed wouldn't you think the defendant would think that the because again the plain language did not require them to be certified the rules simply did not apply and so there was no reason for the trial judge to actually order them to do something that was not required under the rule and this is actually not an absurd result despite defen argument to the contrary because what the drafters did here was to draw a bright line rule and the natural consequence of drawing a broad bright line is that there will be some cases that fall on the other side of the line the simple fact that the rule will not apply to some cases in and of itself is not an absurd result it's an inevitable consequence of drawing a bright line and just as you pointed out in a question to the opposing counsel there is an indication in the findings from the special supreme court committee that drafted this rule that they were considering the attorney client relationship and balancing that against this prophylactic goal of discouraging in effect constitutionally ineffective his assistance of counsel when trying to choose the date on which the rule would be affected and so choosing a date that was very early in proceedings the filing of a charging instrument was indeed a very rational and even wise choice because the farther the criminal proceedings  progress the more destructive it is to change attorneys and to rebuild a new attorney client relationship and that is true whether it's retained counsel or appointed counsel as there was in this case mr mitnik you said a couple of times  actually judge was it's acting prudently one could say because the world did not require this stuff so there really was no basis for the trial judge to put this burden on counsel to become certified so so actually there was nothing improper in my carr ordered to order them to do something they didn't want to do well i guess it's a little unclear under the rule what the trial judge is supposed to do in situations even assuming we had facts where the rule did apply what does happen in the case where we're counsel refuses to become certified the only indication in the committee comments to this rule is to encourage counsel at the very earliest moment they think that it might be a capital case to either decline representation or to go get certified immediately it has nothing about what the trial judge to do so actually the rule is silent on that issue i guess i personally can't think of why the trial judge perhaps couldn't do it but on the other hand at really is irrelevant in this case because the pla language does not apply here but from what you said ruled with the implication is the attorney declined right all kind of explains to the attorney and these attorneys to do so so following up just as her mother's question is and perhaps the judge have maybe said dismiss them yes but still the very first and most important fact is that the charging instrument was filed five years prior to the effective date so maybe that's true in future cases in which the rule does effective date just the fact that the proceedings lasted for six and a half more years during pretrial in and of itself was mostly due to the fact that defendants sought to interlock atory appeals and show be punished for that city well no but again because the fact that the rule indicates that it is the early stage of proceedings the filing of the charging instrument if this court were to try to extend this rationale to reach trials and say perhaps the date of the remained in the reversal is comparable that that is then the date rather than looking back to the original charging instrument that would be changing the plain language but if this court were to choose to do so this case would still not be a applicable to the rule because that happened more than a year prior to the effective date so again under the facts this court would actually have to ignore three components of the plain language of the rule in order to get it to apply to this case not only the fact that there's not a provision or an exception for remains and retrials but also the fact the charging instrument is chosen as the only key event to determine effectiveness and third the fact that this obligation of getting certified is triggered under rule four sixteen c at the moment that a case is clearly capital and that happens on one of two events either when the state files its notice of intent to seek the death penalty or the expiration of one hundred twenty days after the arraignment which is when the notice is actually due to be filed by the state here the one hundred twenty days after arraignment expired more than a year before the effective date after the reversal in the rematch so there would have to be extensive rewriting of what is plain in unambiguous language of multiple aspects of this rule in order to get it to apply to this case and there is simply no call for such extensive rewriting in light of the fact that the only absurdity that defendant points to is simply the circumstance the happenstance that he is the only one that does not have counsel as certified but again drawing a bright line rule means that someone will fall on the other side of it were these attorneys the same with release of them and in the first row of the lead counsel did represent him at the first trial  the co counsel mr carter was not involved in the first trial so another point that's important to consider is even if this court were to find some sort of error this was not reversible error not only was it scuse me invited error because of what i've already cited about how defense counsel explicitly refused to become certified and tried to use this issue to pressure the state not to seek the death penalty if the state was really concerned about the issue but wasn't there an issue to th not play into what i'm saying you know well under the rule there is no certification requirement of of the states attorneys or assistant attorneys general so there is not the same dynamic in terms of that maybe i'm misunderstanding your question  very well the state's attorney in two thousand and two did not say absolutely that she was not seeking it instead she just made a record that she had offered him a deal to plead guilty in exchange for a life sentence but he rejected that offer in two thousand  and from there they proceeded as though they were you know preparing for a capital case they were having these discussions about capital at a geisha trial bar council they were having extensive motion practice which included motions challenging the constitutionality of the death penalty again the attorneys knew that it was a capital case two thousand exactly that is correct and so then as has been touched upon in opposing counsel's argument it was made of record the qualifications of defense counsel that to the extent that they could they clearly show that they satisfied three of the five requirements under rule seven fourteen in terms of being licensed in illinois in terms of their years of experience and in terms of their number of trials and murder trials now while it is true that there are two more requirements about substantial familiarity with ethics and procedure under illinois law as well as forensic evidence expert evidence that while it simply cannot be recited in the record in the same way given the fact that both of them far exceeded the number of years of experience it is essentially expected that they would have been certified if they had apply especially because the process includes the possibility of a waiver which the suppressions supreme court committee acknowledged was put into place because of recognition that it would be hard for attorneys from smaller counties to meet all the qualifications as easily as people from larger counties and indeed this is a case out of a smaller town in illinois now it is true and there are many examples that can be found at page thirty seven of the appleby's brief of cases where this court has declined to reverse given a violation of a rule unless prejudice has been because again this was a prophylactic rule and because of the fact that the trial court said that counsel was was qualified to the extent that he could make a judgment that these attorneys were qualified and the fact that the only types of ineffective assistance of coun claims that are raised here on appeal are simply sub claims that point out when certain issues were not properly preserved in the trial court and one side issue about turning over an expert opinion during discovery now there is nothing capital specific about these types of potential errors and furthermore defendant has not actually succeeded in establishing these claims as is discussed in more detail in the appleby's brief so if there are no further questions on this this issue i will then turn to the fourth issue the other issue that defense counsel focused on and that issue concerns the defendant defense expert dr conr now defendant's argument which apparently is one that is raised for the first time on appeal is that it is simply not a matter of opinion whether a person has an extreme mental or emotional disturbance is important to note that we have two entirely separate references or sources at issue here defendant tries to assert that because dr conroe diagnosed defendant with certain mental disorders and the fact that the diagnostic  statistical manual used by psychiatrists to make these diagnoses sometimes use the word disturbance that it was simply some sort of matter of semantics or labels that he ultimately gave this there is this question about whether he had a mental disturbance the bet is confusing the resources that applied because after all the reason this was even an issue was because defendant was trying to make an argument under the statutory mitigating factor of section nine one c two now the way that that term is used in the statute as defined in phillips and other cases is an entirely separate issue from the way that psychiatry ists might choose to use that term in their own references to put it a different way the fact that defendant has quoted here even today in his brief extensive portions of dr conrad report about his observations of defendant's emotional state his feelings his abandonment the characteristics of his mental disorders those are all pieces of evidence that might go to the ultimate decision of whether the statutory mitigating factor applies or not in the same way that perhaps a psychiatrist such as dr conroe may point out various characteristic of the characteristics of a person and use those characteristics to decide to diagnose that person with a certain disorder but that diagnosis that ultimate decision of whether that diagnosis is appropriate or that ultimate decision of whether the statute actually applies is a matter of opinion and indeed there are several cases from this court which show that the specific section nine nine one c two is a matter of expert opinion and so indeed the trial judge was correct in concluding that this was a matter of opinion that didn't need to be disclosed during  defendant here conceded that he never used that term in his report or his deposition acknowledges that it wasn't disclosed so we can't simply dodge around that fact by simply saying it's a matter of labeling labels he did not use the word disturbance that is but it does mean the same thing if they if you thought a label well you know it still for him to make that ultimate conclusion i mean yes it certainly relevant to that decision but that ultimate decision still should be expressed and still should have been disclosed to eat during discovery and again i would turn to that analogy of a diagnosis say his report listed all the diagnostic criteria of one of his mental disorders but he left out the sense that said i diagnosed him with asperger's disorder if he had never said that sentence it would be inappropriate for him to give that opinion later on even though you could point to his report and see the relevant evidence that would go to that decision isn't there elevat equally able to make that ultimate decision itself it's not simply a matter for mother to tell you the details disregard that disregard that one question and answer but they were instructed during jury instructions that they should consider the specific statutory mitigating factor of section nine one c t so they were told yes you should consider based on the evidence you received whether this mitigating factor exists and so that actually supports the argument that they could make that decision for themselves and it  speculation to think they would have interpreted it the way the defendant asserts two questions one is how is the state unfairly surprise by the spin interest me and two is your posing counsel is in response to  they certainly knew from the from the report that they were going to put forth this evidence about his emotional state but they were not informed specifically about the statutory factor that that's what it would be used for to make that ultimate opinion and as for the argument that was made during closing argument defense counsel is correct that during closing defense counsel did not make that specific argument but that could have been a strategic choice because actually there was much evidence to the contrary to show that no he was not acting under it can extract mental or emotional disturbance because he actually showed extensive steps of planning and concealment and rational choice about trying to conceal what he had done such as making sure the adults were l outside the sleep household making sure he snuck in so no one would see his approach cutting the phone lines before he entered making sure his gun was accessible these are not the steps of someone who simply had an emotional break and responded irrationally as is invasion under the statutory factor instead there was actually extensive evidence that he acted in a very cold and calculating matter after all that is one of the death eligibility factors that the jury found during the eligibility stage so perhaps instead defense counsel made the strategic choice rather than expressly emphasizing that factor to simply play up his mental illness as a potential mitigator in terms of explaining why rather than painting what happened as being an emotional break and if there are no further questions on this issue i'd actually like to touch very briefly on a few other issues and i would welcome questions at any time obviously about any of the issues but since we touched briefly on the successor and predecessor state's attorney i'll turn to that issue briefly it is true that in november two thousand and two states attorney andrews offered a guilty plea deal in exchange for a life sentence but it is clear on the record at that time that that deal was rejected defense counsel said at this time i think we're going to trial and the fact that from there four and a half years into the future the parties proceeded as if they were preparing for a capital trial shows that it was understood by everybody that that deal was rejected and off the table there was again those motions filed about the death penalty there were these questions raised about the tb membership which shows everyone knew that the the offer had been rescinded and had been rejected it was not until april two thousand and seven that the guilty plea deal that actually was made was entered and that was a different deal it was pleading guilty in exchange for the dismissal of some other counts and defendant was clearly admonished and he individually confirmed that he understood that the capital sentence was a possible sentence that he could receive and so it is clear that this is not a case where there was unfairness as defendant cites because after all defendant relies upon two cases that are distinguishable the concurrence from walker and the brownell case notably in the  walker case there actually was a plea deal of a deal that was made that there was a guilty plea entered in exchange for a sixty year sentence and that specific fact that there had been an agreement between the parties was cited by the concurrence as why there was notions of fairness and due process that prevented the state once the guilty plea was sought to be vacated by defendant from peru from seeking the death penalty three months later important to sing wishing factor about the brownell case was the very short time frame the offer was made at ten pm that they would not seek the death penalty if the defendant provided a written confession while at ten pm he said i'm not going except this offer defense counsel did tell the prosecutor at one am that i need more time that we need more time to consider this offer so the fact that at two am defendant outside the presence of his attorney did provide the written confession this court said that it would not be fair for a defendant who in this course of four hours had no indication that this offer would have been off the table the offer would have expired but that was why this the state could not seek the death penalty afterwards that is not what we have here because we have an offer that was rejected or even if your hon agree with defendant that it was merely deferred we have four and a half years of the parties proceeding as though it was a capital case that was going to trial that was an important intervening circumstance that justified the successor states attorney using his discretion seek the death penalty and so if there are no oh and actually one last point about that defendant acknowledges in recent reply brief that this was a forfeited issue and if he is correct that he can raise that for the first time in his reply brief which seems to be true under the williams case he still has his burden of proving the elements of plain air and he has not done so sufficiently he does not even attempt to argue as to this claim that the evidence was closely balanced and his only attempt to establish trying to play an error is to say that this issue is about whether there was a death penalty or a life sentence and so it was a serious error well that is not prone to plain air because that rationale that applies to any claim in any capital case in this court has not applied trying to play in error in capital cases so broadly so this claim could be rejected on plane air alone or the failure to establish plane air i have a few more minutes so i think i'll turn briefly to the sixth issue which council also briefly touched upon there are actually two types of statements that a defendant points to during the prosecutor's closing argument there was  one quote about potential about this defense expert testimony about his potential future positive job behavior and also there is a set of statements about the potential applicability of an because he provides a more limited quote that does not provide the context of what counsel said before and after the part that he quotes importantly the prosecutor began his comments by saying that yes you should consider mitigating evidence when he got to the part of discussing dr cunningham the defense expert he says it is not relevant to doing justice in this case for you to to consider this evidence of positive feel behavior but isn't it but under davis isn't it r well yes and actually he concluded by saying quote we suggest that dr cunningham's evidence is not entitled to much weight here so considering the context of all his statements he was not saying that the evidence was legally in his that i support it was not relevant well he said it was not relevant to doing justice in this case so he was making the point that when you weigh the seriousness of the crimes the brutality of the injuries inflicted against us that he behaves while in jail that it's not really relevant doing just adjustment davis is notably distinguish will be distinguishable because there it was the judge who was the sentence or and there he said i refused to consider as a matter of law this evidence as the sentence or so he was making the  nation that he would absolutely not as a legal matter consider this evidence at all that is different than what we have here because what we have here is the prosecutor saying when you're weighing all the evidence this is not relevant to doing justice and the jury was instructed that closing arguments are not evidence that it is for the trial judge to decide the in this ability of evidence and after all dr cunningham was allowed to testify in full so this evidence was a search of the jury for their consideration it was not barred as it was in davis from being considered at all and this is also distinguishable from defendants other case of skipper because they're the trial judge made a ruling that i am barring this testimony of positive jail behavior to be considered by the censor so in both of those cases it was a determination of legal inadmissibility by the judge who's does it whose purpose it was to make such a legal ruling that is not what we have here here we just have a prosecutor talking about the aggravating and mitigating evidence and saying this is not entitled to much weight and so that is why it's distinguished as a final point since i see my time is becoming limited at the very least even if this this is considered error it should not be considered crime to plane air because after all both components of pronk of excuse me the six claim were not preserved they were both forfeited and so defendant has the burden of proving plain error here this is not rise to the level of trying to claim error because again the standard is whether there is a substantial risk that the jury would misunderstand their duty and given the entirety of the jury instructions and considering the in full they found it has not met that high standard also the evidence of aggravation and mitigation was not closely balanced certainly at pages seventy six through eighty three escape court can review in detail the discussion of the aggravating and mitigating evidence but to quickly summarize this court should note that there were three deaf eligibility factors found the defendant pled guilty to attempted murder which shows that he admitted that he intended to kill five people that night from the ages of two through seventeen all of these victims who are vulnerable defenseless and friends of defendants he killed twelve year old donna sloop and shot two toddlers for doing nothing more than screaming at the shot the sound of gunfire he brutally raped his friend laura and taped her head says she could not breathe before shooting her in the head and i could go on but there certainly were extensive details here about brutal injuries inflicted about the concealing and calculated steps he took to make sure he could approach the sleep household undetected to make sure there was no adult supervision that showed planning and cold and calculated attempts to commit these crimes which had drastic damaging results to even three surviving victims whose injuries were all term to be life threatening and so this court should find that the aggravating and mitigating evidence was not closely balance are there any other questions about this or any other issue if not i would simply ask that this court affirm the convictions and sentences and to set a date certain for the execution thank you let me start out by knowledge in these were horrific crimes but this court knows well that in considering a death penalty case you don't only consider the crime but the history and character of the defendant this was an emotionally disturbed mentally damaged eighteen year old who simply could not control his emotions after he learned that his girlfriend had broken up with him and his friends were telling him maybe she was just using him this was an unimaginable tragedy dan ranta is not among the worst of the worst offenders although his crimes were terrible i urge this court as the prosecutor does to read the medication and aggravation in this case and i think you'll see that this is as much a tragedy as any crime that's come before this court on the question of the prosecutor's improper  argument skippering davis don't control here but though because the issue isn't the same but those are the cases that held that good behavior in prison is relevant if it's set the the stage for this issue and it's interesting that my opponent said that we didn't give a full quote in our brief three times she said up here the prosecutor said that dr cunningham's testimony wasn't relevant to doing justice in this case but that isn't all he said the very next sentence is the one we complain about he said is that relevant to doing justice in this case how is that relevant to what the appropriate sentence of the defendant should be or to his actions in this case or to any issue that you have to decide in this case that isn't direct contradiction to skipper and davis to argue to the jurors that a defendant's eleven year history of good behavior in prison is not relevant to their sentencing decision now there it's true the prosecutor also said to the jurors don't give it little weight but there is a right way in a wrong way to argue that mitigation should be given little weight and this prosecutor knew the difference he argued that dr girs testimony about adolescent brain development shouldn't be given much weight he said it should not be given much weight by you when you consider defendant's mitigation he didn't say dr greer is testimony was irrelevant the prosecutor argued also that in ramsey's dysfunctional childhood we suggest this mitigating evidence is not worth much to your decision that's fine he didn't argue that was irrelevant he argued that the skipper davis evidence was irrelevant and i don't think it matters that he also made a proper comment that doesn't change the fact that he made an improper comment  if he had limited his comment about dr cunningham the same way he did to the other things we wouldn't be complaining about it on the campaign litigation trial bar issue this can't be invited there if the rule doesn't apply then there was no error if the rule does apply then ramsey should not be bound by the actions of lawyers who shouldn't have represented him in the first place so we don't think there's any invited error here also we don't really disagree that much about a bright line we agree that the court made a bright line in terms of trials  specific argument here is the intent of this court was not to exclude retrials or re sentencings that take place after the effective date because if you think about it re trials really aren't not very distinguishable from the original filing of a charge in the case of the defendant's right to a jury is renewed every trial right to counsel is renewed even if they want pro se right to remain silent all a r murder and felony murder and the prosecutor dismiss two charges of knowing an intentional murder but they were they were meaningless justice burke the prosecutor also argued that even if it applies to retrials it doesn't apply to this case because this retrial the appearance after remained was still before the effective date but if you think about it the logical conclusion of that argument is even though dan ramsey wasn't entitled to certified lawyers at his first three trial if he happens to win this case the arraignment on remained will take place after the effective date and he will be entitled to certified lawyers i think the argument that a defendant was entitled to certified lawyers that a second retrial and not his first retrial is probably more absurd than if you don't apply it to reach trials in the first place there's no logical way out of the problem that this court to reject this argument will have to say if any of those eight defendants on death row now who got certified lawyers but won't get them next time if they're if they appear back in illinois c there's no way around that it's true justice time i heard that one of the lawyers did represent him at his first trial and he was familiar with the case but i think if i were a defendant facing the death penalty i prefer a lawyer who was certified by this court to be qualified to represent me rather than simply familiar with my case the these lawyers didn't control the outcome here i don't know that the court could have required them to become certified but he certainly could have told them get certified or get off the case and the extreme mental or emotional disturbance issue here addressed posing councils argument that even without certification most of the certification requirements were met by the attorneys  here and what i'm thinking about is what if what if there was an attorney that was certified who would let the certification lapse would you be arguing that there's a person a rule that even though that attorney was certified a day before the retrial and that certify the day of the retrial the necessarily a new trial would be warranted i think if a lawyer had been certified by this court and it laughs by one day i think that would be more analogous to the failure to pay dues issue because that lawyer would have been found by this court to be qualified and i don't think just a bureaucratic snafu would make him or her unqualified but that's not what we have here these lawyers didn't meet probably the minimum requirement of experience the lead counsel had two prior murder cases second chair had one prior murder case and the required five or eight felonies but facts i don't think  close meets the requirements here there is no showing on this record that they had the required experience in so many areas that are vital to kapalua geisha and such as forensics and it even mentions in the rule a familiarity with mental health experts and we know what happened in this case with dr congo so i don't know three out of five is a number that's just a statistic the fact is they got no required training and there's no showing they were familiar so i would argue they missed two out of three rather than they had three out of five  i hope that answers answers your question as i'm just thinking you know the whole purpose of the rule is for the court to been satisfied that obviously the attorneys trying the case are competent yes what is the is this court  could this court make a good noble resolution as to whether or not these two attorneys were competent to try the case i think there's a didn't go into a traditional in effect right assistance of counsel type of an els i think there's a difference between being competent to do a case and being certified by this court as a member of the capital litigation trial bar if the rule didn't apply then all you'd have to decide is whether they were competent to do this case and whether they competent job but if the rule did apply clearly they didn't meet their requirements they had none of the required training and they weren't counsel to which this defendant was in title and again justice thomas if tomorrow a judge would appoint non certified lawyers to a capital case and those lawyers did a fine job i don't think this court would take a very good look at that and i don't think the proper thing to do would be to jump right to a strickland in effect of analysis i think what this court would do again as it has done in so many cases is say i wus or not suggestions i rule is apply and they must be enforced on the extreme mental or emotional disturbance  if i had an expert witness in a capital case who testified a deposition that there was an event someone contemporaneous with the murder that inflamed the defendant's emotional status to such a fragile point as to leave him with little to no emotional control and that's all the witness testified to and he didn't use the word disturbance i think that i could argue that the defendant was under next three motional disturbance that's the definition of it right out of this court's opinion and phillips now it's true that in ramirez this court held that an expert witness can testify to the ultimate question and can use the language of the statutory aggravating factor but that doesn't mean the witness has to and clearly if you compare the definition of extreme mental emotional disturbance in philips with all of the things dr conrad put in his report and testified to his deposition there's no question that any experienced capital litigator would have understood that the purpose of his testimony was to establish that statutory mitigating factor i think the court first time