physical evidence that has the potential to establish new and not cumulative evidence materially relevant to a man's innocence that that testing should be to me and that statute reflect legislative judgment that while finality of actions is that important consideration or value science has much to offer in this case there is physical evidence which if the testing broken way so that whole file can be uploaded into a database then basis expanding all the time you can hit a match it's one thing to be able argue well it's not my hair on the back it's quite another thing to argue if the testing bears out that in light of the struggle  it actually got feels perfectly to a conclusion that the killer would have been at some point inside the car this red house testimony was the kleiner says that he grabbed the victims here that there actually was a struggle within the car so this is  quoting the state's witnesses that there was a struggle and that brings you to the hands it is possible as that the lower court assume that those tears were picked up at the dry cleaners that they belong to five different people that have nothing to do with this case and that's what the testing bears out and that's not help mr klein but there is also a potential that those hairs when tested will show what you know the redundancy theory that all the hairs on the sweater vest on one of the other articles opposing belong to the same person  like that becomes relevant does not have a consistent here but it actually could go one step further if that profile is uploaded into codicil it could hit a man now a match in itself is not necessarily definitive richardson case those are fact patterns where everybody thought they knew what happened were confessions eyewitnesses people are saying what happened that they had called this profound what do you know the killer had nothing to do with any of this he was a serial killer in hard case and a rapist and it a totally different i'm connected to this that what the theory that was presented to track we don't know if that's true because we don't know what the code is match which show but then i go back to the statute the statute  not cumulative new evidence we don't have to show what it's going to show because we don't know what is going to show up as mr kreiner doesn't know who killed this this woman and we can't know until we do it but what i've heard your honour's to conclude is that in light of all this uncertainty that the legislature sa that when the science would potentially fare on the outcome of the test and mr finder stands ready to pay for that test and there is a long history of traditional reluctance to reopen cases that are close and that makes sense look you've had your chance to make these arguments and you've lost science changes the parent because there are things you can know to a scientific certainty if that hair in the coldest database has a match that's relevant we will know that other side of the scale the possibility that you could get scientific proof that there was someone connected to permian other than fire and that's a potential you'd want to exist as one of those you know i witness case true and i may ask you kno question the state points out they argue the forensic evidence in this case showed that the victim came in close contact with her assailant or assailants and that the shooter had contact with the victim's car and possessions and then they point out that in violation of supreme court rule three forty one you make no record citation for your claim what is your response to that i was spotted two parter the part about the oh well then i i would like to reserve my remaining time for a bottle and other requests for both the testing everything i set for the question again michelle grandma the stein assistant state's attorney and i represent the people of the state of illinois your honor as we have more than forty volumes of record in this case and these volumes and the multitude of proceedings that the defendant with the gated in this case demonstrate that he is received more than the process to which he was due i need to correct a few misstatements that were made here at this morning before i beg testify in this case secondly at all at all right and that that is correct so that was a huge misstatement there has never been any testimony that the person west snatched from the victim's hand ever what joyce different all testified was that michael permian told him that the defendant was i mean able to get the purse from the victim now that does not require the presumption as the defendant has made and continues to may that there was a struggle over the purse that only requires the acceptance of the fact that the crime unfolded in such a way that the purse wasn't taken and the theory over the struggle of the purse is actually refuted by evidence introduced at trial as this court correctly recognized the defendant contains contends that there was four when zick evidence introduced at trial of a struggle there was no forensic evidence and son page fifty fifteen of it is proof the forensic evidence in this case in truth the forensic evidence a stablish is that there was no struck there were three minor testimonial statements about a struggle but let's go through the forensic evidence first the victim's position in the car she's in the driver seat she slumped over to the passenger seat she has her purse on her chest she has bullet won't to the side left side and left front of her head the purse has bullet holes through it because there wasn't a struggle for the purse she's holding it up to prevent the defendant from trying to deflect tho look the entry direction of the entry of the wound is down the medical examiner testified that the shooter was standing over the victim the close range firing there was one of the fi bullet moans had a and i quote the medical examiner a scant amount of stippling around the won't so that won't it was fired from a distance not closer than eighteen inches not greater know what the exact weapon but the twenty two caliber long rifle bullets that the defendant used to murder the victim could be fired out of a rifle it could be fired out of the number of weapons the ballistic examiner testif but we do know that during the firing and conceivably it would have to be early on because she could have run away the gun jams so the defendant has to take his hands clear the jam and then continue to fire so with all of these things the shell casings now are at the rear of the car four to six feet from the victim there is simply no evidence that the defendant ever got close enough no forensic evidence to have any kind of struggle now the testimonial nature of the evidence three pieces of testimony joseph and all the testified that heat when he was planning this murder with michael permian and ronald kleiner he them he wanted it to look like a botched robbery attempt that doesn't mean that there was going to be a struggle for the purse because it wasn't a real robbery it was an assassination so reacted that shooting for all of those other people those others he never once showed somebody grabbing her the hair and the medical examiner testified that the victim had no areas of what she called traumatic al a which is caused by pulling hair so there was no forensic evidence of a struggle there is weak evidence testimonial evidence that's refuted by the the known fa so that is why every court that has decided this issue has the term and that this hair evidence is a red herring microscopic comparisons dhani one thousand nine hundred ninety three on almost all of the hairs found anywhere on her and i think that it's important to remember a couple of things this is the dead of winter everybody testified that it was hold that night the victim is wearing a blouse a sweater vest a jacket over the best jeans shoes and socks many of these here's come from the blouse the sweater vest that's all underneath this sweater jacket that then has heard this now the second time this court has heard this request has repeatedly insisted that none of this hair evidence is relevant and none of the d n a tests that the defendant could do could significantly advance his claim of actual innocence and the defendant standing up here today and saying that he needs a hearing in order to establish the relevance no the statute requires that he establish the the brown case demonstrates what we are you in the last appeal and what this court found one sixteen three present i'm sorry i misspoke this court didn't find it because in the last appeal and this goes to the defendant's request for a hearing he withdrew the request for the hearing on oral argument that read the state argued in its brief and what is correct and what the brown case shows among other things is that the grant of a one sixteen fourteen zero one claiming actual innocence and its various procedures that determine whether the defendant gets a hearing for example in this case the defendant had a post conviction petition pending when he had those two thousand and you think of the hairs found on the victim everything but the one heyer on the jacket outside every other one of those hairs was consistent with the victim's so we have no third party here no evidence that there was any except for that one here the defendant requested nuclear d n a testing if it was possible s t r d n a testing on that one hair in or you can  if you'll forgive me i just want to make sure that i've reached so the statute requires that the defendant's evidence significantly advance that's how the supreme court interpreted mature really relevant evidence significantly advance what the defendant has conceded to you today is we don't know what this evidence is going to show well that's not enough to to qualify for testing under  in terms of the defendant's claim that he needs a hearing that he's been deprived of an opportunity or a hearing the people say that this is also an other misstatement of the truth the defendant's brief on page twenty three contends that read judge urso in this case ignored and what the state conveniently forgot is that the circuit court had already ordered the dads hearing at the state's request that actually untrue the circuit court never granted a hearing the defendant wasn't entitled to a hearing that was because of the results of the two thousand and three d n a test which judge ho during the last proceedings that i told you when i granted you this request that unless that it wasn't going to be enough or anything more of this just came back these tests came back and they excluded the defendant that is on page in the supplemental records for all five three one five zero feel number zero five three one five zero at page one thirty four so not only did she not grant it she explicitly explained to the defendant why he didn't get it right the defend it has conveniently ignored is the she had the opportunity for that hearing but he voluntarily knowingly and intelligently relinquished that opportunity twice he with request for a hearing before a judge to open and then he affirmatively withdrew the issue regarding the dives hearing in this court during oral argument and this court was very concerned that what defendant was going to do is exactly what he's done before now which is come back with another post a motion and they asked counsel explicitly i was sure and he said to the court yes i'm sure i've spoken with the defendant for an hour and a half he understands i'm calling the shots now we are withdrawing this issue the defendant is bound by the actions of his competent counsel she relinquished any right to a hearing which he never really had because he's never filed the proper motion for this and because the two thousand and three mt d n a tests were simply consistent with the one nine hundred ninety three microscopic analysis test so he hasn't produced anything materially relevant he hasn't followed the correct procedure to get a hearing and he relinquished any hearing he has received all the process that he was due and for this reason this court should affirm just just judge a determination that he is not  reza not entitled and is not entitled to any dogs hearing in terms of the evidence very briefly your honor the testing i would say that the defendant has is has been unable because of the mountain of evidence to establish and that and the lack of any real evidence of a struggle regardless of whether this testimony came out about a potential struggle in the state's case and real material and material relevance to this case that he is collaterally a stopped by this court's previous decision and that in addition he should be barred by race judicata and waiver and i will admit that the assistant state's attorney and her motion to dismiss below did not mention race judicata or waiver by name and in light of this court's opinion in the two thousand and five and two thousand and seven appeals where this court discussed whether or not waiver on race work would apply in this situation and ultimately determined that it need not reach that issue he says the state's attorney might have believed that she couldn't but she did tell the judge urso all about your prior opinion in new york five in the zero seven cases and she did talk about the tests that defendant requested before and that this court found that nothing he could do would provide materially relevant evidence based on that this court should find the race judicata bars the defendant from asking for the same tests well for asking for tests that he could have asked for before and that is what he is doing and hairs on the clock he could have asked for the victims here standards to be compared to those two years of that time he didn't because he wanted to be able to claim actual innocence after that and if they matched he  asking for now microscopic comparison of all the hairs to see if any of them have roots he's not entitled to it he had that already and the report that he has doesn't indicate that there are any roots on the assistant state's attorney argued that if there had been gloves were done for mitochondrial d n a because there was no root there and he and just so this court knows one of those two hairs was entirely consumed by that testing it doesn't exist anymore so the only way he can compare the victims here i'd like to hit a few points beginning with the suggestion that the forensic evidence establishes that there was no struggle and we strongly disagree all it shows the position of the body downward angle the fact that one shot was fired from eighteen to twenty four inches now that conclusively shows that there was no struggle and we do have testimony suggesting that there was a struggle that's page four of the reply i did find the place where it was i didn't raise so we don't know if there was a struggle there's a new argument that statute requires a potential tiriel relevant from a she's going to get the point about whether mr klein or with through the hearing that that's here and i think that's not a fair characterization what mr klein ors position is and always and then have the dots here he did not say then or ever that he just didn't want a doctor the brown case that they cited proves our culture in the bronx case they did further testing and they got a pet they found of their brief that they that they did not raise it and that that is a procedural bar that's put on for page twenty nine put out speaks for itself but the fact is they're the ones that should be a  made and the very nature of the statute contemplates that there's going to be successive requests in five years i may be in front of your honor's again if there was a new d n a and new technology that could provide insight that this s does not have a requirement that you can't if you passed once you get you have to stop ask the statute contemplates that as technology advances request might change and so the mt d n a the mitochondrial d n a requests that went before and what the court said about those have no bearing on what before today because what's before you today is the possibility that we can know who's here those were the last point then your honour's she is specifically with regard to which pieces of the hairs on the glove if they match the hairs on the sweater jacket if they match the hairs on the inside of the clothing member this is according to some people supposed to look like a botched robbery i don't know the answer to those questions and i think this in this is my last point i think the state got it wrong when he said the fact that we don't know what that testing is going to show means we can't win for this course should be open to requests for d n a testing there is no downside there's no downside if they're correct mr klein or scare would show up on a what show up on the day let's find out who's here it is thank you act peace will be taken