microphones do not amplify but in really recording what's being said for the website please understand we have read the briefs and familiar and often with the facts of the case so devote your time to the strongest arguments before we begin we note that we did receive the such as from the cross examination or other technical matters this is a right that can only be executed or exercised by the defendant himself and there's a series of reasons why this works fine that exception for public policy reasons in certain cases and that exceptions not implicated here because there have been no there's been no indication by the state that it would have been difficult to get terri good to  walked in on the supreme court there the court decided whether an exception the public policy exception to be applied after the fact which would which would be similar to what the state would you argue here and the court in all sorts of cases and if if we apply your rule all right and we rule the way you want us to rule what we end up with is the ability of any defense attorney in a criminal trial to sabotage the guilty verdict in a case like this where we have a missing witness by telling the judge oh yes my kindest way even if the judge isn't johnny on the spot to say oh no i insist that the defendant come in and say to my face all right then we've automatically issue and we have to start over and i think the reason the witness was gone in the first place is because the witness was gravely you know and i think in this case he is now deceased right i'm nuts i'm not certain about that but to your point i think the opposite is true i waiver of any right to come confront the witness that have an entry deposition must be in writing must be done by both the defendant and that's counsel so in conjunction with some gado which appears to have made a bright line rule in a different type of brief it doesn't really make much sense because thompson cited the class for that proposition the cluster doesn't contain that proposition so i don't know what the quote was trying to say there i think what they're trying to say is that this is structural errors like second prong constitutional in denial of the fence explicit rights to face his accuser while he's giving the testimony and that's the type of you know structure in which the trial takes place brain injury or damage because of the hammer to the head so right yes that that appeared to be the case and the question would be under forfeiture by wrongdoing whether that blow to the head was done with the in agree that it was not present that they did the state's attorney brought this issue up and from the court that it should be spread of record that she asked if the defendant was going to be there and that she received a waiver from defense counsel actually he said about holding a knife to someone's throat and i think it's a fair inference to say that you know that the you could argue that this would be the same incident but at the same time it's still here so it's not really it's not reliable it's you know some of it could have been someone t please the court in this case we have a sixty nine year old victim was beaten over the head with a hammer his throat slashed defendants d n a was found in the victims are defendant was overheard scolding the victim during the attack defendant quote confessed i did this i put a knife to this guy's throat i beat him and quote and evidence step position of the victim was taken pursuant to court order illinois supreme court how that claim of error is forfeited when a party takes an inconsistent position in an earlier proceeding in fact at u b a little building here in this case where the victim was found on the be able to testify the trial court judge stated quote now the issue is whether or not your client would have the opportunity to confront the witness and whether you would have be availability he  cross examine the witness by way of the evidence deposition there has been no object should raise to that so my understanding is that you have the app you have the opportunity and felt the state made arrangements with the court ordered the evidence supposition defendant was present when it was made of record that defendant's presence was waved as a matter of fact it was quoted in in the state's brief the assistant state's attorney stated the defendant's presence was not is not an absolute right but sometimes gives way to considerations of public policy or necessities of a case in this case this victim was found to be unavailable for trial i think that's a distinction that is that being made here for instance in the opposing counsel asked to cite additional authority it was people versus  and then in the eleventh hour a motion was filed citing additional of the wording relying on a case that's almost twenty years old and where there is no indication of a feel for chair of bed issue because it's never discuss in their case and in that case the evidence deposition was taken in the absence of both the defendant and defense counsel so there was absolutely no cross examination of the witness i would assert that that case is not a political to the case there was no particular consequence triggered for failure to comply with a rule for fourteen and i would assert that rule for fourteen is directory also there was no clear error here and certainly no pla prior to the incident that he was going to perm the victim and then joe williams heard defendant scolding the victim during the attack and then byron williams who testified at trial testified that defendant confessed to him that cut the victim's throat have monks to structural error in people versus temps and the only supreme court listed structural here is defect affecting the framework within which the defendant's trial proceeded the list in times that there's a presumption against waiver of constitutional rights in that case the defendant represent him a trial for himself a trial if if there's any more equidistance the net i can't think of any and yet the court reversed because there was no waiver of the right counsel case that's been how the court has courts of analyze the situation so if in fact this argument is correct that there does require is required to be an on the record waiver and there has to have there has been no either affirmative recall i believe i believe that if it was present during that discussion about the waiver after the fact this is said and this is after the deposition took place this is after the purported waiver took place there's no evidence that the fight was present when the state's attorney not the test one itself is reliable is no longer the question posed proffered the question is whether the my case until sure the reliability of the testimony was in place at the time and if not th a sense he's available because you're taking seven entry deposition whether he's doing it whether in court or whether he's doing it in the hospital room the right remains the same so for purposes of this particular analysis and availability is a red herring there it doesn't change seems to be essentially codification of the constitutional right to face to face confrontation the fact that requires a written waiver to be filed with the clerk by the fund and is a good indication of what is required in this case and should have for