attorney general aaron o'connell on behalf of the people were presented with a case where we can be absolutely certain that the defendant is a person who killed fifteen year old jean humble but we would be certain of the defendant's guilt of this crime even if no forensic testing had been conducted at all we know that the defendant was in the area immediately before the victim was abducted he was seen driving a red car carrying a knife on his belt he then drove the victim an hour away from where she was abducted to an isolated trail land where he himself had lived and knew at that time to be an occupied once at this isolated location he then rape the victim and sli she nevertheless survived her attack long enough to make it to the hospital to tell the tech this who did this to her she gave them a physical description that matched the defendant she gave a description of his red car coincidentally the same morning that she was undergoing treatment defendant had gone last minute to the airport in chicago to buy a ticket in cash to coast to rica he knew a costa rica to be a location where he believed he could not be extradited at the same time he is on this plane playing from the scene of the crime his family members are in the front yard burning the inside of the red car that he was driving that night they're ripping out the seats they're ripping out the fabric destroying any forensic evidence that might be present in the car we don't however have to go only on the circumstantial evidence in this case we also know for certain pursuant to three pretrial d n a tests that defendant is the person who raped and killed jean humble one hundred one of these  not be more conclusive rhonda carter when she examined the d n a profiles and compared them testified that defendant match at nine lowside and that the same d n a profile is expected to occur once per one point one trillion caucasian i'm sure the court is aware there proximately seven billion people on the planet this would be over one hundred times the population of the earth and this would be expected to occur once within that group of people defendant is seeking to to avail himself of an important statute a statute that enables individuals who have been convicted on less certain less compelling evidence veil themselves of changes in technology that can potentially help them prove a claim of actual innocence the statute however clearly was not intended to apply here to this defendant under these circumstances that there are two important limitations that the general assembly set forth in the statute that defendant here has failed to meet the first of these under is the one which requires that there be a scientific potential for evidence materially relevant to a claim of actual innocence and the second provision which is set forth separately was in acted independently is subsection eight to which requires that we look at the test that he is requesting and see whether there is a possibility a realistic possibility that it will produce results more probative than a testing that was done before a trial previously language in c one in people versus a very this court held that a defendant may satisfy c one if he shows that there is a possibility for the test of your quest to produce evidence that would significantly advance a claim of actual innocence exists court reasoned that this is terminations must take into account the evidence at trial we know that here any any further testing would be the same result as what we've gotten three times before a test that he's requested where it conducted we already know from the record the result of that test is also going to match defendant's profile sheet a crime scene sample in the differential extraction what occurred it was precisely what was supposed to occur which is that in dividing the sperm cell from the remaining cells this the forensic scientists were able to isolate the sperm cells and create what they call the male fraction which contained one individual's d n a it was the male d n a from the sample and that was matched to the to the defendant was there a possibility that it could have been contaminated with with other types of  something about the i mean typical defendant did phrases for the first time before this court there is no evidence that would support this either that there was some form of contamination but the contamination that he alleges would mean that the crime scene sample was contaminated with his own d n a so the results are female cells what we know that it was contaminated with the female south because there's only one profile in the ma for action and so we don't know and for that as we've explained part of the differential extraction that produces the female fraction typically produces a mixture in which although of the d n a is from the female contributor there is also expected to be a small amount of the male contributors still present in that sample but we know here that there are there is no reason to conclude that there was any impropriety in conducting the test and one thing i would note is that where differential extraction fails the usual result is that there is no there are no results from the testing if the inconclusive scientists are unable to discern from the from the mixture that they get what the single male profile was whereas here we had three separate d n a tests run and they did not have any additional information in the record but somehow found it that it was sufficient to hold that he was entitle to the testing it's we would argue probably best handled in the trial  to deal with these questions in the first instance and to get there the defendant needs to allege that he can make this showing he hasn't done so in this case and that would be similar to this court here i mean the appellate court in parker relied on the bottler it's a fairly well established he said and the established expert with this to treat it and  for this is that the y s t r test looks only at the y chromosome which is passed intact from father to son then through throughout all the male relative there's an identical profile for a y s t r so it gives a it can show that someone is included verses excluded but in terms of showing what's the likelihood that it was this person it has a low probative value in saying we know for sure based on this profile test that it was this individual and almost diminishes the doesn't mean it includes all of the respondents relatives as possible individuals that would widen the group of people who are that's correct and  they would be obviously we know already of all about all the other d n a matches in this case i mean one would hope that they would be discriminated on the basis of those tests but just based on the  to have a relatively large class of individuals who could've left the crime scene sample and i did want to get back to your question about what is the harm i think it's fair this is say in a single case maybe there's not a significant harm the problem here is that the court needs in this case to articulate a standard that will apply to everybody and if the court were to adopt a standard that enabled this defendant to get further testing then is difficult to imagine a case where defending couldn't meet the standard so we would have defendants rather the state of illinois any time a new test is developed all waiting for further post conviction testing and i'm sure the court is aware that there is there has to have been significant problems in terms of the state forensic labs and their workload that there's a current problem of a backlog and that would just further i think the delays and cause harm and it's harm not just to the people who are awaiting trial who would have to wait longer it also turns the people who were supposed to be protected by the statute people who are actually innocent who may have meritorious claims who do meet the standards of the statute and are seeking a more probative test those individuals would also have to wait longer if we had an increased backlog of of tests where we can all say we know what the result is going to be so as discussed this court dealt with c one in savory this court has not yet addressed a two it's a relatively new addition to the statute it was enacted pursuant to an amendment in two thousand and seven there are two principles here that should leave the court to hold that this sets forth an independent and distinct requirement the first being that the court tries to render no part of a statute superfluid the second that this  amendment to a statute as a change in the law now i am unable to determine from the defendant brief what standard he would articulate that gives independent impression here and it does as just this case noted involves some fairly complex scientific issues but the gist of the statute seems to be fairly clear and that is that where there where there has been previous testing and the statute is fairly liberal now with respect to defendants who had no testing who were convicted before there was d n a testing available the statute makes it more difficult for a defendant like this one who's already seen the benefit of testing this defendant as discussed has already had three tests conducted the statute says if you've already had the benefit of those tests conducted before a trial you must show that the new test that you're requesting is going to give us better information more probative information of who the perpetrator of the crime was than the previous testing has done and the defendant as i despise the test is just as a test that looks have an additional locus on the d n a molecule is going to have some theoretical potential to exclude someone who hasn't yet been tested on that locus but where i in order to give some meaning to the statute what does it mean more probative result i think it has to be probative of the ultimate issue of the identity of the perpetrator is this going to give us a more certain result that we can say this profile establishes that this defendant only this defendant left the sample so i i think in order to affect this language the court has to consider pro value as to that issue because otherwise it would it would really have no role because it would be meaningless in in the d n a context but we can also say confidently that it won't produce a result that excludes the defendant we know this based on in particular on the statistical analysis that was conducted by rhonda carter we know that as he's only he's one of one point one trillion of the people who have this particular d n a profile we can extrapolate from what we know about that to gas at whether he will match other lowside and we can gas based on what we know now that the g r profile is going to match as well as all of the other laws that were studied the nine that were studied by rhonda carver the seven that were studied by aaron small all of those tend to predict what the outcome of of the most important piece of evidence and i think the public would overlook this is the victim's physical description of the defendant and his vehicle it's a rare case where a murder victim survive long enough to give us or a description of who did it based on that there is a very small universe of people who could possibly be the perpetrator of the crime who was the description she gave she described him as a caucasian male between twenty and thirty years old who sparrow's taki who is blonde and all of this matches the defendant's physical characteristics and that kind of civic enough to to make it so clear that he was the perpetrator that combined with men it's not just a blight on the burning of the car that combined with the fact that he took the victim to his own previous property where he used to live where he knew it was isolated  range she was she testified that she was attacked on the property where his family didn't she if she did know the area the way they found the property is she was able to walk to a neighbor's so they that there was a limited area where that event when they investigated the property that defendant used to live at they were found immediately amana down area in the grass and fresh blood so it was readily and for that this was the scene of the attack and that was later further confirmed it based on d n a that this the victim this was blood and then she also left blood at a nearby house that she ran to for help and then  they were able to retrace her steps in that manner but that's a highly significant piece of evidence because what of what is the universe of people that's going to know about this isolated location and going to know that nobody is living there at the time and defendant knew that because he had recently vacated the property and just distressed i mean this was it is not a simple thing to go from where they were in peoria to this location it was it took an hour of driving to get there this was something that only the defendant would be that likely to take someone from peoria all the way to this location so that in addition to the description which was fairly detailed it was even the best that could be done when she was on the able really to answer a lot of questions that all provide the overwhelming evidence and then i mean really the flight and the burning of the car is really just how much time between the incident and the discovery of graham greene the car was seen before they knew the description of the car there was an officer who was placing posters in front of the defendant's house it was a part time job and he saw them burning the car they didn't know the significance yet but he happened to observe this happening and then later the it it came together that this was the car in which the attack occurred and then that was became explainable being indicative of who committed this crime i would respectfully suggest that that is not what the statute says that could not have been what the by the slates are intended this fear is dangerously close the burden ship the is not to defend this responsibility under th statute to point directly to who might have committed this crime what the statute is designed to do is to help defendants exonerate themselves with post conviction d n a evidence now one of the arguments i'd like to talk about and i'd like to start with this is what i call the floodgates argument councils argument that if this court were to allow defended to obtain postcondition d n a testing that would somehow open the floodgates for numerous defendants to go ahead and ban requested receipt post conviction d n a testing there would not be the case for a number of different reasons the first reason the vast majority of defendants in this state and all states that are convicted under guilty pleas recollection is correct is well over ninety percent perhaps even up to ninety five percent this wound up of course already decided in the o'connell case in two thousand and seven that guilty plea defendants are not entitled to post conviction d n a testing under the statute so this o'connell case knocks out almost all of the defendants who been convicted in the state of those defendants who went to trial there's a number of statutory hurdles that they have to clear in order to obtain false conviction d n a testing they first have to show the prima facia case meaning identity would have to be the issue and the evidence would have to be shown to be subject to a secure chain of custody the next thing they'd have to show under section c two is that this could provide it's a little difficult to tell frankly from a sta counsel doesn't it indicate something that the legislature meant it to at least be probated i mean if you're saying that only see one is is relevant why don't they put an article that i can't tell quite what this article is that with the website the striker trial transcript shows there was male female there is no indication that the why chromosome testing was  in fact have him as its source as its source would be materially relevant to his assertion of innocence and that's the extent of what the motion was before the trial court and the trial court's ruling was no one has given me an  davit or any expert testimony the butler study nothing was given to the trial court in support of those allegations do these allegations meet the pleading standards of a do i think that they do because  standard simply says that the test should the test must have a possibility of producing more probative results and those more probative results when we when we take a look at the potential problems that we see in  ever before the trial court i cannot specifically recall i don't think so but i can't specifically recall my my recollection is that is that these these were not specifically brought before the trial or god i would like to talk about some of accepted as is really the treatise on on forensic d n a analysis pretty clearly indicates that a thirteen loci profile is the gold standard and that was not done in this case it's not clear why it wasn't done but it wasn't done in this case another problem that is is is is another potentially serious problem is a problem of contamination and one of the things that i that i would like to point out to this honorable court and counsel previously has said well there's no indication in the record that there was contamination in this case there's no evidence of them well it is true that there's no specific evidence of contamination in this case however there is a pretty clear indication in the record and is in the common law page twenty two honor suppose that this may have happened in this case although again i must concede there isn't any direct evidence that this happened but it certainly has to be considered possibility is that our standard there's a possibility i mean that again and then that in the of evidence do you have to come forward with to comply with the statute well under under under c one which is which is what the what what we are he worked at that at that the center point of the statutory test we have to show that th analysis he tested only five loci and what he found was that there was a match between the defendant in the victim at these at these five loci i have run a probability analysis in my brief i'm sure your honor to read that and i certainly don't art i also wanted to talk a little bit about the other evidence in this case and counsel spoke to that a little bit and we would we would concede that there is some circumstantial evidence in this case is not the put this in a close to a matter of a dead bang winner for the state and if we take away the d n a evidence and the fact is your honor the state called now one not two but three forensic scientists that testify motion to the supplement are pretty clear bad that nine loci matches are are not yet yes but it was that before the trial court again to get the i think that's the point the state's brief disagrees with you on and says that's not true the except the literature is not it disagrees with what you just said in my question is how do we decide that here i think in a case like this where where where we have such complicated scientific evidence and it's complicated mathematical principles that go into these calculations i think it's appropriate for this court to go outside of what was really presented to the trial court and i think if it if this court doesn't do that not as developed as as as it could have been at this point and the only thing i can say about that is that these these these are pretty complicated principles this this was this was a a difficult case for me to research and a difficult brief for me to write it way that i don't think is appropriate i do think it's appropriate in a case like this where we have these complex principles that go outside the record and to look at these and i do think that that counsel agrees with the counsel cited to this butler treatise and it was appropriate for counsel to do so th that but justice thomas cussing bring into the section eight to again in why that the attempt to the legislature must be that that adds something to our decision making is that section eight two must be part of the the disk that the look at which means that you have to prove that the new testing provides a reasonable likely hood of more probative results and that it has a scientific potential  separate in and attest we would also argue that better that we satisfied that past this this why it has to be our testing is better in case of sexual assault where there are mixed samples of male and female d n a because what y s t r testing can do is go straight to the male sample without having to go through this differential extraction process and it's clear from the literature that there's potential problems with this with this differential extraction even the state  cedes that the differential extraction doesn't always completely separate the male and female grasses in a crime scene sample all the literature indicates that and so what we've got is is a y s t r testing that can go straight to the heart of the matter in this case which would be that up when you go to here you have to prove up your pleading and i think we can then look at it at c two that's where it says this is what the court must find so yes you have to prove up your police but you do that by means of satisfying to test to see to that's the way we've turned without it without any reference without any context as to what's in a way to i don't remember where them difficulty making that connection in your letter decided by the  defendant stresses that this is a pleading standard i don't think that gets him very far he failed in this case to even plead that this is a more probative test than the tests that were conducted before trial he said it's well suited to male female d n a mixtures that's true but the question is is it better suited to those mixtures than the differential extraction that was performed and then the detail that testing the nine why part of error he did contaminate a sample in a completely unrelated case now that there is no evidence here that there was such contamination so there was the he failed to even have argued that this was relevant in some way to the issue before the court is just the fact the aaron small made an error in another case that doesn't meet his burden of showing that he's entitled to testing on the issue of contamination was explored at trial counsel on cross examination at our fourteen ten to eleven cross examine smolen contamination he testified on redirect that he followed clean procedures in his testing protocol that are fourteen nineteen but the most important thing to consider about the contamination is it is not going to be fixed by a why is he saying that the differential extraction failed and therefore we can't trust the results that we got from the other individuals who ran tests but he's going to be testing the same sample if by his reasoning this is a contaminated sample it's going to be his and therefore there is no potential that this will exonerate don't i would just stress it it is true that there are complicated questions about the science but the issues that are before the court are limited and straightforward and there's really no dispute on the key the defendant seems to be contesting what constitutes a match when can we say that she d n a profiles match there isn't a dispute he's correct as to whether it's proper to say that you have a definitive match if you have a nihilist side what's important here though is that the nine will assign words sufficient for the statistical analysis that shows that this was a conclusive match between the defendant and the sample in the majority of cases it would be great to have the thirteen low side but that doesn't mean that we have to for out any d n a evidence that doesn't meet the gold standard and furthermore the defendant's not asking to do this test he's not asking to do the thirteen love side he's he's asking to do something that has even less potential to exonerate him he's asking to do this very nonspecific non discriminating wise here